text:
    The State v. Edward H. Ansley—Patrick Harnan, security, appellant.
    IVhcn a court orders a bond to "be taken for the appearance of a party accused of crime, it is no objection to the bond that it was taken by a person not duly authorized by tho court (in the order) to take the bond—when it appears that it was takon by the Sheriff or his deputies.
    ■When a party enters into the obligation of suretyship for the appearance of a person charged with crime, he incurs a civil obligation which, like all others, is to bo considered in reference to the substance of things.
    It is not an idle form ; it means something. Inasmuch as tho accused was in the custody of the Sheriff or his deputies, it was fairly intended that tho Sheriff and his deputies (no other person being mentioned) were intended as tho proper persons to take the bond ; and neither the accused nor his sureties who had, by their act, put this construction upon the order of tho court for the bond and secured tho discharge of the accused upon this construction, can be permitted to gainsay this conclusion upon which they acted.
    A blank in a bond, remaining unfilled, does not materially change the character of the bond. Tho accused could not fail to know that it was for his appearanco at the next term of tho District Court, and from day to day and term to term until tho prosecution should be ended or he should be discharged.
    The technical objection that the crime alleged in the indictment is not properly described in the bond, will not avail; for tho general condition that the accused should not depart without leave of the court, having been violated, he and bis sureties are equally bound.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      E. tE. Blo’ise, Attorney General, for the State.

      T. W. Collens and Wooldridge, for defendant and appellant.
   Merrick, C. J.

This is an appeal from a judgment against Hainan as one of the sureties on the appearance bond of Ansleij, charged with uttering' and publishing a forged order for money upon the Canal Bank.

Ansleij, being in custody in the parish prison, took a rule upon the District Attorney to show cause why he should not be admitted to bail, and thereupon he obtained tho following order :

State v. E. H. Ansley.—Uttering and publishing a false and forged order for the payment of money. It is ordered by the court that Edward II. Ansleij, accused as above, of uttering and publishing a false and forged order for the payment of money, be admitted to bail in the sum of five thousand dollars, with two good and solvent sureties, conditioned as the law directs.”

The two sureties subscribed a bond, each in the sum of two thousand five hundred dollars, before T. L. Fabre, the deputy sheriff, attested by the clerk of the parish prison.

The condition of the bond was for the appearance of tho accused when notified ........185.., or if the court shall not be held on the day last aforesaid, then on the first day afterwards the said court shall be hold, then and there to answer the complaint brought against him for forgery, and not depart thence without leave of said court, and to keep the peace in the meantime.

Notice issued to the accused, but was returned not served, because the accused had left the city.

It is objected that the bond was not taken by a person duly authorised by the court to take the bond, and was, therefore, void. In support of this position the case of the Slate v. Hobson, 10 An. 551, and State v. Clandennen, 6 An. 744, tiro cited. In those cases it is intimated that the judge, in .making the order for the admission of the accused to bail, ought to fix the amount of the bond and deputize a person to receive and approve it. The point now made did not directly come up for decision in either of those cases ; as in the one case there was no order at all to admit to bail, and in the other there was only a general order as to all cases of a particular grade. In neither of those cases was it the intention of the court to decide the present point, but only to indicate the regular mode of proceeding. We are of the opinion that where a party enters into the obligation of suretyship for the appearance of a person charged with crime, ho inem’s a civil obligation which, like all others, is to be considered in reference to the substance of things. It is not an idle form; it means something. Now what does the district judge intend by his order ? What did the parties intend when they complied or attempted to comply with the same, and what obligation did they thereby incur ?

We think inasmuch as the accused was in the custody of the Sheriff or his deputies, it may fairly be intended that the Sheriff and his deputies (no other person being mentioned) were intended as the proper persons to take the bond, and that neither the accused nor his sureties, who have put this construction upon the order of the court for the bond and have secured his discharge upon this construction, can now be permitted to gainsay this conclusion upon which they have acted.

2d. It is said that the condition of the bond is insufficient, and that it does not embrace what is required by see. 3o, p. 1C5, Rev. Statutes.

We think the condition mentioned in the bond sufficient. 1 Chitty Crim. Law, p. 103. The accused could not fail to know that it was for his appearance at the next term of the District Court, and from day to day and term to term until the prosecution should be ended, or ho should be discharged. 8 An. 79. The blank in the bond remaining unfilled did not materially change the character of the bond.

3d. It is again urged that the accused was indicted for uttering and publishing as true a certain false forged and counterfeit order for the payment of money, and in the bond he binds himself to appear and answer a charge of forgery. Now, as there was no charge of forgery, technically speaking, pending against him, it is contended there could be no forfeiture of the bond.

The uttering of forged paper is prohibited in the same section of the statute as that of forgery, and is treated in writers on criminal law under the generic head of forgery. Now the term used either embraces the offence charged in the indictment or it does not. If it does, there can be no ground for the defendant’s objection. If it does not, still the condition was also that the'accused should not depart without leave of the court, and having violated this condition of the bond he and Ms sureties are equally bound. State v. Ridding, 8 An. 79.

Actual notice to the accused to appear, under a bond in this form, was not necessary, as by his own act it had become impossible. As has already been shown, a sufficient cause for the taking of the bond appears from the bond itself as well as the entry on the minutes.

Judgment affirmed.

Spoffobd, J., took no part in this judgment.


source: Caselaw Access Project

author: Sfofford, J.

license: Public Domain

text:
    The State v. Thomas Crawford, alias Robert Crane.
    Under an indictment for forgery and uttering as true a forged “order for the payment of money,” which was set forth in hose verba in the bill of indictment—the accused cannot except to the admission in evidence of an instrument corresponding exactly with that set forth in the indictment, upon the ground that it was styled in the bill “ an order for the payment of money,” whereas it was in reality a “check.”
    A check is an order for the payment of money.
    Any lack of definiteness or technicality in the name given to the instrument alleged to have been forged, was cured by setting forth the instrument in full in the bill.
    APPEAL from the First District Court of New Orleans, Hunt, J.

      E. W. Moise, Attorney General, for the State.
   Sfofford, J.

This case comes up on á single bill of exceptions.

The accused having been indicted for forging and for uttering as true a forged “ order for the payment of money,” which was set forth in luso verba in the bill of indictment, upon his trial excepted to the admission in evidence of an instrument corresponding exactly with that set out in the indictment, upon the ground that it was styled in the bill an “ order for the payment of money,” whereas it was in reality a “ check.”

The objection was properly overruled.

A check is an order for the payment of money. Burrill’s Law Die. verbo Check. Edwards on Bills and Notes, pp. 57,1.

And if there were any lack of definiteness or technicality in the name given to the instrument alleged to have been forged, it was cured by setting forth the instrument in full in the bill. Regina v. Williams, 2 Eng. Law and Equity Rep. p. 533.

Judgment affirmed.


author: Merrick, O. J.

text:
    Pooley, Nicol & Co. v. J. Moorhouse.
    An interlocutory order transferring a cause to another court does not occasion irreparable injuiy, although it may occasion dolay : and an appeal will not lie from such order.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Mott Fraser, for appellants.

      Durant fy Horner, for Syndic of Moorhouse, appellee.
   Merrick, O. J.

This is a motion to dismiss the appeal which is taken from an interlocutory order made by the Fourth District Court, directing this cause to be transferred to the Sixth District Court and there cumulated with the insolvent proceedings of the defendant.

The order seems to have been made under the 33d section of the Act of 1855, p. 437.

The motion to dismiss the appeal is based on the ground that an interlocutory order transferring a cause to another court does not occasion irreparable injury, although it may occasion delay. The authorities seem to sustain this view of appellee’s counsel, and we think the appeal must be dismissed. C. P., 538, 566; Agnes v. Judice, 3 M. 171,187; Kelly v. Breedlove, 9 M., 492; Todd v. Andrews, 3 N. S., 25; Powell v. Keller, 1 An., 25.

It is, therefore, ordered, that the appeal in this case be dismissed at the costs of the appellant.


author: Cole, J. Buchaxax, J., Sfofford, J.,

text:
    John W. Andrews v. Arthur Saucier.
    The principal object of an election is the casting of votes, and the unconstitutionality of the police provisions of an election law cannot render the votes illegal and thus disfranchise the (doctors; the citizens have the prerogative of voting, and the Legislature cannot, by encompassing with unconstitutional provisions an election law, make the votes of electors null and void.
    If the votes of the citizens are deposited, the intent and design of an election are accomplished. It would be unwise to make an election depend on some unconstitutional provision of the police part of an election law, or on the failure to comply with its directory provisions ; for then almost every election would be contested ; the people would bo virtually deprived of their elective power, and the tenure of office would depend on the will of juries and courts.
    The public good demands that the will of the people, as determined at the ballot box, should not lightly be disturbed.
    If the voters think proper to go forward and voto under a defectivo law, those who were candidates ought to be the last to complain, when the result has been affected by neither the unconstitutionality of the law, fraud, error, nor collusion.
    Justices of the Peace are clothed with certain judicial powers ; but the Constitution makes a difference between Judges and Justices of the Peace. Justices of the Peace are not included in the word “ Judges” in the 82d Article of the Constitution which declares that<c it shall be the duty of the Legislature to fix the time for holding elections for all Judges, at a time which shall bo different from that fixed for all other elections.”
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      W. D. Hennen, for plaintiff and appellant.

      G. L. Bright and R. Hunt, for defendant.
   Cole, J.

Plaintiff and defendant were candidates for the office of Third Justice of the Peace of the parisTh of Orleans, at the election held on the 2d November, 1857.

It is admitted, defendant has received the majority of the votes cast, but the right of defendant to the office is denied on four grounds which have been argued in the brief of the counsel of plaintiff with great ability and learning.

The arguments of plaintiff will be considered briefly in their order, as we have not the time to extend our remarks as much as the importance of his propositions merits.

“ The election was held in accordance with the provisions of the Act of 19th March, 1857, entitled “ An Act relative to elections in the parish of Orleans,” and this statute is unconstitutional and void.”

It is unnecessary to decide the constitutionality or unconstitutionality of this law; for, if it were admitted to be unconstitutional, this would not render the election null, inasmuch as it is a police law for the maintenance of order on election days. The principal object of an election is the casting of votes, and the unconstitutionality of the police provisions of an election law cannot render the votes illegal and thus disfranchise the electors; the citizens have the prerogative of voting, and the Legislature cannot, by encompassing with unconstitutional police provisions an election law, make the votes of electors null and void. The Act of 19th March provided for the police of elections, and its provisions were enforced at said election; but if the election were hold under the law of 1855, üs alleged by defendant, and the directory portions of this law were not followed, this would not make the election null. Electors do not vote to carry out the rales created by the Legislature for the administration of voters ; on the contrary, they are made for the benefit of the electors; there is an essential difference between the act of voting, and the police or directory provisions of the law intended to protect the deposit of the suffrages of the people. If the votes of the citizens are deposited, the intent and design of an election are accomplished. It would be unwise to make an election depend on some unconstitutional provision of the police part of an election law, or on the failure to comply with its directory provisions, for then almost every election would be contested; the people would be virtually deprived of their elective power, and the tenure of offices would depend on the will of juries and courts. The public good demands that the will of the people, as determined at the ballot box, should not lightly be disturbed. If the voters think proper to go forward and vote under a defective law, those who were candidates ought to be the last to complain, when the result has been affected by neither the unconstitutionality of the law, fraud, error, nor collusion.

“The election of 2d November, 1857, was absolutely null, so far as relates to Justices of the Peace, because held in violation of Art. 82 of the Constitution of the State.”

This Article declares that “ it shall be the duty of the Legislature, to fix the time for holding elections for all Judges, at a time which shall be different from that fixed for all other elections.”

The election for the office of Justice of the Peace was held on a day when several other offices were to be filled, and the question arises, is a. Justice of the Peace a Judge within the meaning of this Article? We admit that a Justice of the Peace has certain judicial powers, but there is a broad line of demarcation between Justices of the Peace and Judges. We are of opinion that an examination of the Constitution shows, that Justices of the Peace are not included in the word “ Judges ” in the 82d Article of the Constitution. The Constitution makes a difference between Judges and Justices of the Peace.

“ That on the 2d November, 1857, there was no warrant of law for any election of Justice of the Peace for the parish of Orleans.”

The Constitution ordains that Justices of the Peace shall be elected every two years, and the Act of 1855, (Session Acts, p. 497,) has been interpreted by the official authorities as authorizing an election for Justices of the Peace on the 2d of November, 1857. We admit that this law is not very lucid ; but we are of opinion that plaintiff is estopped from objecting to the sufficiency of this statute to authorize the holding of an election for the office of Justice of the Peace. He argues, that the election could not be legally held, and yet in his petition he prays that he may be decreed to be entitled to said office under said election. He was a candidate for the office, and he thus recognised the validity of the law under which the election was held. If he did not believe that the election could be validly held, he ought to have abstained from being a candidate or from praying that he may be declared to be elected, and this estoppel applies to all his objections.

“ That plaintiff's term of office has not expired.”

Art. 78 of the Constitution declares that Justices of the Peace shall be elected for the term of two years. Plaintiff was commissioned by the Governor on the 24th July, 1856. He was commissioned vice Richard Richardson, deceased. He was, therefore, commissioned for the unexpired term of Richardson. It is clear, as observed by the Judge a quo, that as that term has expired, he cannot hold the office by virtue of that commission for any longer period of time than Richardson could.

The judgment of the lower court was in favor of defendant; we can see no error therein.

Vide: Augustin v. Eggleston, 12 A., 366; People v. Cook, 14 Bar., N. Y. R., p. 259. Marbury v. Madison, 1 Cranch’s R., 137.

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

Buchaxax, J.,

concurring. The Act of 19th March, 1857, entitled “ An Act relative to elections in the parish of Orleans, ” presents to my mind several unconstitutional features. I will not, however, delay the decision of this cause at this late period of the session, by replying to an argument in support of the constitutionality of that law, which has been only brought to my knowledge within the last two days -because I am firmly persuaded that it does not lie in the mouth of the plaintiff, to contest the validity of this election, on the ground of unconstitutionality of the law under which it was held, or of the time at which it was held.

The plaintiff alleges in his petition, that he himself was a candidate at that election ; that he -was elected, and that lie is entitled to the office in virtue of such election. The relief which he asks is “ that judgment may be rendered in favor of your petitioner and against said Saucier, decreeing that the latter was not elected to the office of the Third Justice of the Peace for the parish of Orleans on the 2d November, 1857, but that your petitioner is entitled to said office, and to its exercise and emoluments.”

It is thus plain, that the plaintiff claims the benefit of an election which, he pleads, was tainted with the radical vice of unconstitutionality.

If his plea was sustained, the only logical consequence that could follow', would be, that plaintiff should go out of court. The plea is suicidal.

I concur in the affirmance of the judgment of the court below.

Sfofford, J.,

concurring. This is not a mere private contest, but a matter of public concern. And as I do not think that the plaintiff’s allegations estop him from contesting the validity of the defendant’s election to the office of Third Justice of the Peace for the parish of Orleans, I am compelled to notice, in some detail, the points which his counsel has presented in support of this appeal.

I. It is urged that the statute of March 19th, 1857, (Sess. Acts, p. 275,) entitled “ An Act relative to elections in the parish of Orleans,” under which, and under winch alone, the defendant was elected, is wholly unconstitutional and void_ If this bo true, I do not perceive how a judgment declaring Mm to have been duly elected can, for a moment, stand.

In entering upon an inquiry into the validity of that law, we must bear in miiid that the city of New Orleans is not an independent sovereignty, which, like one of the States of this Union, has parted with a portion of its power, preserving all that is not expressly delegated, but that it is, like any of the parishes, or other municipal corporations of thq State, subject to the Legislative control, except in so far as the State Constitution has prohibited the Legislature from acting or furnished express rules for its action.

So far is the city from being a coordinate and independent power vested with . attributes of sovereignty, that its very charter is constantly amendable and amended by the legislative will of the State. It is true, that legislative will has its limits in the Constitution, but in the Constitution alone.

Now, the Constitution has not limited the right of the Legislature to regulate elections in the parish of Orleans. On the contrary, that is a vital attribute of sovereignty which the State could not permanently part ivith, without creating an imperium in- imperio. Accordingly, the Legislature of the State has always-prescribed the mode of elections in the city. In some of the details, that mode has always differed from the mode prescribed for the country parishes. The Constitution declares the qualifications of voters; it does not declare, but leaves the General Assembly to declare and to change, if it will, the formalities and the mode of the election. These include the designation of election precincts, the days and hours of election, the appointment of commissioners to receive, count and report the votes, the means of securing to the voters the free exercise of the right of suffrage, &c., &c. The Constitution has not vested power to fix the places of elections, to appoint commissioners of elections, and to prescribe rules for the conduct of elections, in the municipal authorities, or in the people of New Orleans. That power is reserved to the Legislature, and if it may be delegated by the Legislature, it may bo resumed at its will.

The Legislature formerly declared that the commissioners of election for each precinct in the city of New Orleans should be appointed, one by the Board of Aldermen, one by the Board of Assistant Aldermen, and one by the Police Board. Those Boards exercised the right of appointing commissioners solely by virtue of a legislativo grant, which it was competent for the Legislature at any time to withdraw. In the Act before us that power has been withdrawn, and the appointment of commissioners of election is conferred upon a Central Board of Commissioners for the parish of Orleans, composed of the Mayor of the city, the Register of voters of the city, the Attorney General of the State, and two citizens of New Orleans who have resided in the State at least five years, to be appointed by the Governor. It was just as competent for the Legislature to designate this mode of selecting the commissioners of election, as it was formerly to confer the right upon the three Boards.

But, it is said that the Legislature had no right to create a “ Central Board of Commissioners for the Parish of Orleans,” because of Article 124 of the Constitution, which provides that “ the citizens of the city of New Orleans shall have the right of appointing the several public officers necessary for the administration of the police of the said city, pursuant to the mode of elections which shall bo prescribed by the Legislature ; provided, that the Mayor and Recorders shall be ineligible to a seat in the General Assembly; and the Mayor, Recorders, Aider-men and Assistant Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the puuishment of minor crimes and offences, and as the police and good order of said city may require.”

But the Central Board of Commissioners is a Board for the parish of Orleans, not for the city merely.

And its members are not “ public officers necessary for the administration of the police of the said city ” within the meaning of the Article 124 of the Constitution. The class of officers intended by that Article is clearly indicated by the specimens given in the proviso, to wit, the Mayor, Recorders, Aldermen and Assistant Alder. men, permanent, offices, purely municipal, having no concern in the regulation of elections, which is the business of the State. This Article did not inhibit the Legislature from creating new offices to be filled by appointment of the Governor and not infringing upon the administration of the police of New Orleans. So the office of Register of Yoters for the city of New Orleans has been created and is filled by executive appointment, without any question of constitutionality being raised. He is not in the category of the several public officers necessary for the administration of the police of New Orleans. His powers, like those of the Central Board of Commissioners for the parish, do not interfere with the administration of the police of the city; they concern elections only, which are matters to be regulated by the State Legislature, and are not within the province of municipal administration, except in so far as the Legislature may choose to place them there.

This is obvious, not only from the very nature of sovereignty, but even from the language of that Article of the Constitution which is mainly, relied on to defeat this law; it declares that “ the citizens of the city of New Orleans shall have the right of appointing the several publie officers necessary for the administration of the police of the said city,” not by an election conducted in any manner they please, but pursuant to the mode of elections which shall be prescribed bit the Legislature.” Art. 124.

A more complete recognition of the legislative power to regulate elections even for the municijoal officers of New Orleans, eannot be conceived. The mode of elections embraces the whole subject of precincts, polls, commissioners, returns, and rules for the protection of the right of suffrage.

To my mind, there is no force in the objection, that the Attorney General cannot lawfully sit as a member of the Board of Commissioners, because he is classed as a judicial officer. His duties in the Board are not incompatible with his station, and if he chooses to accept and perform them, there is no bar in the Constitution to his doing so. His place in the Board is not a civil office of emolument. An Attorney General may be a Commissioner under a special statute.

This Board is required “ to appoint all Commissioners of Elections in the parish of Orleans,” to designate the places of holding the polls in the several precincts in the parish and city,” and “ to make or cause to be made the necessary arrangements at each poll for convenient approach to the ballot box, and easy egress therefrom, and so to provide that the ballot-box, during the election, may be seen by the public, so that the voter may see his ballot deposited therein.”

I think it clear that the Legislature had power to create such a Board and to confer upon it these powers.

But it is said that sections 2, 3 and 4 of the Act, providing for a subdivision of the precincts into different polls, violate Article 13 of the Constitution, which declares that “ no person shall be entitled to vote at any election held in this State, except in the parish of his residence, and, in cities and towns divided into election precincts, in the election precinct in which he resides.”

It is the Constitution which restricts the right of the voter, not the law. He cannot vote out of the election precinct in which he resides. He may vote within it. Counsel argue that he may vote anywhere within it. If so, he would have the right to demand that the ballot-box be brought to his house. But the Constitution has secured him no such right. He may vote in his precinct, if ho chooses to go to the poll which the advertisements published by authority tell him is the place where his ballot will be received. There is no unconstitutionality in having more than one poll in such precinct, and in warning registered voters that names beginning with certain letters will be received at one poll, and those beginning with different letters at another only. It is a provision to facilitate and not to restrict the right of suffrage, and is well calculated to avert the danger of mobs, riots and disorders.

The provision in sections 9 and 32, that the' city of New Orleans and the Police Jury of the Right Bank shall pay proportionally the salary of $500 each to the two members of the Central Board of Commissioners appointed from among the citizens of New Orleans, and the office expenses of the Board not exceeding $1000, can, in no event, vitiate the organization of the Board or taint the Act with nullity.

Nor can the provision in section 14, that the Board is authorized to use as an election poll “ any building belonging to the city of New Orleans or parish of Orleans, or, if necessary, rent proper buildings for the occasion,” have the effect of destroying the law.

The Act is entitled An Act relative to elections in the parish of Orleans,” and all its provisions seem to relate to that general subject. It is not, therefore, null by reason of the 115th Article of the Constitution.

Por the purpose of reaching a conclusion upon the merits of this cause, these are all the constitutional questions which I find it material to notice. There are others urged against other sections of the law which I will consider when a proper case arises. Por I find that the first fifteen and the last two sections of the Act taken together may well stand as the law regulating elections in the parish of Orleans, even if every other section were declared null and void. All the other sections concern only the Superintendent of Elections and his deputies, and the preservation of order on election days, constituting what may well be called the “ police portion of the bill. The portion composed of the first fifteen and last two sections is entire and distinct from the other sections, and may therefore, under a well settled rule of construction, subsist without the police portion. That part of the law which is complete in itself and constitutional, would not be affected even if all the rest were unconstitutional. Campbell v. Union Bank, 6 How. Miss. 625. If an independent provision, not in its nature and connection essential to the other parts of the statute, be unconstitutional, it may be treated as a nullity, leaving the rest of the enactment to stand as valid. Exchange Bank v. Hinds, 3 Ohio (N. S.) 1. See also Ely v. Thompson, 3 A. K. Marshall, 70; Fisher v. McGin, 1 Gray, 1; Bank of Hamilton v. Dudley, 2 Pet. 492, 526; State v. Allen, 2 McCord, 55; Clark v. Ellis, 2 Black, 8; Steel v. State, 5 Black, 110; Yarmouth v. North Yarmouth, 34 Maine, 411.

Holding these views, it is unnecessary for me now to express an opinion upon the police portion of the election law.

The present election was, therefore, in my opinion, held under a law which was valid so far as it provided for the precincts, the polls, and the mode of appointing Commissioners of Election. Those Commissioners receiving their appointment from the Central Board of Commissioners for the parish of Orleans, a legally organized Board, had power to receive and count the votes, and their returns wore by consequence official. If that Board had not a legal existence under the Constitution, it would follow that there were no Commissioners of Election, and the returns of persons acting without any legal authority, would be utterly worthless. It would be as if a voluntary election had been held by private persons, which would amount to nothing before the law.

II. The appellant urges that there could be no valid election for a Justice of the Peace on the same day with other elections, because a Justice of the Peace is a Judge, and by Article 82 of the Constitution it is made the duty of the Legislature to fix the time for holding elections of all Judges at a time which shall be different from that fixed for all other elections.”

But I am of the opinion that Article 18, which declares that Justices of the Peace “ shall be elected by the qualified electors of each parish, district or ward, for the tenn of two years in such manner, and shall have such criminal jurisdiction as shall be provided by law," controls this subject, and leaves it optional with the Legislature to fix the time of election, even on the same day with other elections.

III. But it is contended that no law had been passed fixing the time or manner of an election for Justices of the Peace in New Orleans; so that the election was without warrant of law. The Act of March 15th, 1855, (p. 491,) “ relative to the Justices of the Peace for the parish of Orleans,” provided for the election of seven Justices of the Peace ” at every general election for Clerks of the District Courts in the parish of Orleans.” The elections under this Act began at the time of an election for Clerks of the District Courts. They hold their offices for four years, Justices of the Peace for two. This Act, which is most carelessly worded, should, I think, be interpreted to mean that Justices of the Peace, in this parish, shall be elected at every general election, which occurs once in two years. It is the only way to harmonize the law and the Constitution.

IV. Finally, the plaintiff contends that his term of office had not expired. But he held in the place of Richardson, deceased.” If Richardson had lived, his term would have expired at the period of the election in contest; and so, I think, did the plaintiff’s.

Thus, although by a different route, I have reached the conclusion of my colleagues, that the judgment appealed from should be affirmed.


author: Merriok, C. J.

text:
    N. N. Destrehan v. Gabriel T. M. Fazende.
    Prescription against a demand for the recovery of the value of improvements put on land is suspended while the action for its recovery is pending.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      P. E. Bonford, for plaintiff and appellant.

      H. Train and II. Pugné, for defendant.
   Merriok, C. J.

On the 11th day of October, 1831, Nicholas N. Pestrehan sold to the defendant, by reference to a plan, square No. 11 in Mechanics’ village, on the right bank of the Mississippi, in the parish of Jefierson, for the sum of $600. A notarial act was passed authenticating the sale.

The purchaser desiring to be put in possession, and having called upon the vendor for this purpose, the latter, with his surveyor, made a survey of the supposed square, set the stakes, marking the corners of the same, and put the defendant in possession. The latter enclosed the property thus delivered to him by fence, built a dwelling house, out buildings, and made other improvements, and resided there with his family. He also mortgaged the properly to the Oarrollton Bank. Destrehan was all the while cognizant of defendant’s possession and improvements.

On the 11th of May, 1841, the plaintiff instituted the present suit as a simple petitory action to recover the property in possession of the defendant, it appearing that he had been put in possession of square No. 18 instead of No. 17 called for by his deed.

The defendant answered by a general denial, and also reconvened, setting forth the facts relative to the delivery, and praying that his possession be maintained; that if it be decreed that he should be evicted, then he prays he be paid $5,000, the value of his improvements and damages, and for general relief.

The case was tried in 1842, and judgment rendered in favor of the defendant, quieting him in his possession. On an application for a new trial on behalf of the plaintiff, the judgment was set aside. The case was permitted to remain in this condition (the plaintiff having in the meantime died) until the 31st of March, 1856, when the defendant filed a supplemental answer making the widow and heirs of Destrehan parties to the suit, and alleging that the defendant was willing that plaintiffs should recover the property on paying to him the full value of the same, with the buildings and improvement erected thereon, viz, $2,500, a price which was offered defendant during the time plaintiff was slandering Ms title, and which could not be sold by petitioner for that or any other price, owing to plaintiff’s misrepresentations, &c.

Defendant prayed in his supplemental answer for judgment for said sum of $2,500 on petitioner's delivering to said heirs the property sued for, defendant renouncing all his other claims in reconvention in the premises, and he also prayed for general relief.

The heirs of Destrehan when cited, moved to strike out this last answer, which being refused, they excepted.

Their objections were:

1st. That they had never made themselves parties, and they refuse to consider themselves parties or proceed with the cause.
2d. That the demand contained in the supplemental answer was not the proper subject of a reconventional demand, not being necessarily connected with the principal action.
3d. Because the said defendant cannot legally compel these appearers to intervene in the cause, or proceed with the same, or to answer the matter contained in the supplemental answer aud reconventional demand.

The plaintiffs renew their plea of prescription in this court, and plead the proscriptions of one, three, four, five, ten and twenty years, in bar of defendant’s re-conventional demand contained in the supplemental answer filed in March, 1856.

There was judgment rescinding the sale and decreeing defendant $1,100, with legal interest from 31st March, 1856, and plaintiffs appeal.

The motion to strike out the amended answer making parties and the reconventional demand was properly refused. The defendant was not compelled, after issue joined, to await the tardy action of the plaintiff, and thus forever remain in court, subject to a revival of the action against him at the caprice of the heirs of the deceased plaintiff. C. P. 21, 120, 361; 8 An. 54; 15 La. 376.

He had a reconventional demand against plaintiff and we see no objection to his issuing citations, as was done in this case, and citing the heirs to answer such demand, although the answer to the reconventional demand is not required to be in writing. See Donnell v. Parrott, 10 An. 703, and cases cited.

Neither do we see any objection to the reconventional demand, on the ground that it is not connected with the principal demand.

The plaintiff, in violation of his act of sale, delivered the lot in question to the defendant under an erroneous description ; he stood silently by for four years, and saw the defendant put valuable improvements upon the property he had so delivered and then he sought to recover the lot back with its improvements, without so much as offering the slightest recompense for the improvement and damages which he had occasioned. The reconventional demand grows directly out of plaintiff’s conduct in reference to the property sued for, and is covered by the example given in Art. 375 of the Code of Practice.

It remains now to consider the plea of prescription.

So long as the plaintiff in a petitory action prosecutes his action for the recovery of the property, there can be no prescription against the defendant’s reconventional demand to recover the value of the improvements. That is incident to the recovery. The plaintiff’s action for the recovery of this property was still pending when defendant had the case set down for trial, and so far as the value of the improvement is concerned, there was no prescription. But the reconventional demand claims damages for the conduct of the plaintiff in reference to this property. The.first answer was filed immediately after the institution of the suit and the answer filed in 1856 does not materially vary the issue formed by the first answer. Neither answer claims a rescission of the original sale, and the relief granted by the Judge was under the prayer for general relief. If the reconventional demand had been merely an action of rescission, perhaps the prescription of ten years would have applied under Art. 2218 C. C. 2 An. 443. But such is not the demand ; and by the judgment of the District Court, the plaintiffs have recovered more than tendered by the defendant. But he does not appeal.

It may be said that the value of the square really sold, figures in the estimate formed by the District Judge in arriving at the amount of the damages decreed the defendant. In answer to this we have to say, that the conduct of the original plaintiff occasioned the defendant a much larger amount of damages than that allowed by the District Judge, and had the judgment been for $1,100, without rescinding the sale, we should have been inclined to affirm the same.

Judgment affirmed.


author: Merrick, C. J.

text:
    The State v. F. Vigoreux, alias Frank.
    The law vests in the District Judge the discretionary power of continuing a case, if he thinks justice requires it—there is no law to prevent him from granting a brief delay oven during the progress of a cause for the purpose of summoning a new witness, oither for the Stato or the accused. But an abuse of this power which might operate prejudicially to the accused, will notbe sanctioned ; it must be a proper case.
    APPEAL from the Eirst District Court of New Orleans, Hunt, J.

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

      M. M. Reynolds and /. M. Leggett, for the appellant.
   Merrick, C. J.

The case comes up on a single bill of exception.

The accused ivas on his trial for murder. The acts of the court of which lie complains, are stated in the bill of exceptions as follows, viz:

“ Be it remembered that on the trial of this cause, and after the Attorney General had declared himself ready for trial, and the jury empannelled, and all the witnesses for the prosecution having1 been examined, the Attorney General stated, that he was taken by surprise in not being able to establish a fact by the witnesses, a fact stated in their testimony before the Recorder, but which the witness stated was an error; the Attorney General asked for a subpoena for a witness who had never been subpoenaed, and prayed that the case be suspended for the purpose of getting1 said witness. The case was suspended by order of the court, the witness brought in after some time and examined ; to which ruling, and examination of said witness, Jamison, the defendant, by counsel excepted, and now prays this, his bill, be signed, which was done accordingly, and before the defendant declined offering any evidence.
24th November, 1857. (Signed) T. G. Hunt, Judge.”

Waiving the objection that the bill of exception does not state the ground upon which the testimony was excepted to, and considering the objections urged by appellant’s counsel as those urged in the lower court, wo discover no such error as will vitiate the verdict or judgment of the court thereon.

The law vests in the District Judge the discretionary power of continuing the case if he thinks justice requires it. He controls the adjournments of his courts from day to day, and we are not aware of any law which prevents him from granting a brief delay (in a proper case) even during the progress of a cause, for the purpose of summoning a new witness, either for the State or the accused.

But it is urged, that if the court is permitted to delay the case for one witness, it might be delayed for many—if for one hour, it might be for a day or a month, and thus the accused would be prevented from having a fair, speedy and impartial trial, and thus he might be taken by surprise and prevented from showing the character of the witnesses, suddenly confronted with him, and of rebutting1 their evidence.

An abuse of the power vested in the District Judge, might operate prejudicially to the accused, in this as in other cases, but it is not pretended that there was any abuse of power in the present instance. There is nothing to show that the District Judge delayed the case an unreasonable length of time, nor that the accused was taken by surprise by the testimony elicited from the witness, or that he was in any other manner prejudiced by the introduction of the proof considered in a legal point of view.

Judgment affirmed.


author: Spofford, J.

text:
    Emanuel Blessey & Co. v. New Orleans Oil Factory.
    Where the record shows that an answer was .filed on tho samo day that a judgment by default was made final,but no order is shown setting aside'tho default, it will bo presumed that tho answer was filed after the default had been confirmed
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Whitaker Fellows, for plaintiff and appellee.

      F. Perin, for defendants.
   Spofford, J.

The only complaint of the appellant is that a judgment by default was confirmed against him when an answer had been filed.

There appears a general denial in the record, purporting to have been filed upon the same day that the judgment by default was made final.

But it does not appear that the defendant filed it in open court, or procured the usual order to have the judgment by default set aside.

The presumption, therefore, is that the court did its duty, and that the defendant filed his answer after the judgment by default had been confirmed..

The prayer for damages, we think, should be allowed.

It is, therefore, ordered and decreed, that the judgment appealed from be affirmed, with costs, and forty dollars damages as for a frivolous appeal.


text:
    Thomas Farrell v. H. F. Klumpp.
    ■Where the plaintiff in execution procured, the appointment of a curator ad hoc to represent defendant in the appointment of an appraiser, the absence of the defendant or other sufficient cause must be shown to justify the appointment.
    And if the debtor conceals himself, besides servico upon the curator ad hoc appointed to represent him, notice should also be left at tho place ivhoro the defendant last resided.
    APPEAL from the Fifth District Court of New Orleans.

      A. G. Semmes, for plaintiff and appellant.

      A. fy A. Pitot, for defendant.
   Merrick, O. J.

This suit is brought to set aside a Sheriff’s sale of a lot of ground and buildings in the city of New Orleans.

The defendant obtained an order of seizure and sale against the plaintiff, and after a notice of the issuing of the same, and the seizure of tho lot in question, the Sheriff attempted to servo notice upon Farrell to appoint appraisers, but not finding him at the place where lie had served tho previous notices, he returned that he had removed from Ms domicil on Gironde Street, where service had been made on him at No. 27, and that he could not be found after diligent search in the neighborhood, and among his acquaintances.

Thereupon a curator ad hoc was appointed to represent the defendant, upon whom (such curator) the notices were served.

The plaintiff in the execution bought the property at the first offering at twotliirds of the appraisement.

The proof shows that the plaintiff was a resident of the city and that he was not absent during the time that the defendant was proceeding to make the sale under his executory process against him, but he was residing with a brother-in-law on Constance steeet. The information 'which the Deputy Sheriff received was not sufficient to induce the belief that plaintiff had left the city ; for he was informed by Sullivan that the plaintiff lived somewhere near Annunciation square or, as the Deputy Sheriff says, in the upper part of the city.

It is contended, on the part of the plaintiff, that this was not a proper c,ase for the appointment of a curator ad hoc, because the defendant in the executory process was not an absentee. The right of courts to appoint a curator ad hoc to represent a party or an absentee in proceedings in execution, arises from the provisions of law in pari materia, and we are by no means prepared to say that where the defendant in execution secretes himself in order to prevent a service of process or notice upon him, it would not be proper to make such appointment. Thompson v. Barrow, 7 An. 670. But in the case before us there is no proof to show that the plaintiff absented himself in order to defeat the executory proceedings. On the contrary, it appears that he continued to rent the property for two or three months after the sale.

The plaintiff in execution who undertakes to appoint a curator ad hoc to represent the defendant, should be ready to prove his absence, or other sufficient cause, for the appointment.

Under our laws parties cannot be deprived of their property without a strict compliance with the forms of law. 9 L. R. 543. Article 671 of the Code of Practice requires service of notice upon the defendant, either by the delivery of a written notice to him in person, or left at his usual place of residence, to appear on the day, place and hour fixed by the Sheriff, for the purpose of naming his appraiser. If the debtor conceal himself, besides service upon the curator ad hoc appointed to represent him, it would seem that notice should also be left at the place where the defendant last resided. C. C. 253.

We do not think that the facts proven justified the appointment of the curator ad hoc; a further effort should have been made to find the defendant. See 9 Rob. 531: 3 An. 390.

The defendant in this suit reconvenes for the amount of repairs which he has put upon the property, the taxes he has paid and the cost of a policy of insurance taken out by him, and costs of the executory process, amounting to the sum of $179 92, and withdraws from the consideration of the court the claim upon his promissory note for $750 and interest. It is clear that the defendant cannot recover in this suit the^cost of his policy of insurance, which is personal to himself, nor the costs in the executory process, which are incidents of that proceeding, and stand or fall with it.

As we shall decree to the plaintiff the revenues of the property, we think we have jurisdiction to make a deduction on account of the payment of taxes, the repairs, etc., and that $96 43 should be allowed for the same. As the plaintiff continued to hold the property some time after the Sheriff’s sale, the defendant ought not to be charged with the revenues of the property until after the first of January, 1856.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed, that said Sheriff’s sale bo held null and void, and that the plaintiff do recover of the defendant the said lot of ground and buildings thereon situated in the city of New Orleans, in the square bounded by St. Paul, Gravier, Perdido and Gironde streets, designated as Lot No. 24, and more particularly described in plaintiff’s petition, and the sum of fifteen dollars per month revenue for the rents of said property from the first day of January, 1856, until the same shall bo delivered to the plaintiff under'this decree, subject to a deduction of $96 43, for repairs made upon the property and taxes paid by the defendant, and reserving to the defendant any rights he may have under his order of seizure and sale and the said note and mortgage annexed to the same. And it is further ordered that the defendant pay the costs of both courts.

Buoiianan, J., took no part in this decision.


author: Buchanan, J. Cole, J. Spofford, J., Core, J.

text:
    E. Conery v. R. A. Clark, Owner of Steamer R. L. Cobb—Dyas & Co. v. Same—John Yeatman v. Same.
    A seizure made under a judgment against a simulated, puroliasor of a steamboat, the creditor being aware of the simulation, will not have a preference over attaching creditors who proceed against tho real owner of the boat.
    A party who suffers a boat te be registered in his name, and thus holds himself out to tho world as a real owner, cannot claim as regards tho debts of the boat to be in any bettor position, than if ho was the real owner.

      APPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    XA Hunton §* Miller, for appellants.

      Collins Wooldridge, for appellees.
   Buchanan, J.

An appeal is taken, on motion, by Dyas, another by Yeatman, from a judgment of distribution of tho proceeds of a steamboat. There were a great many claimants for wages, materials, supplies, &c., but the appellants only named in their appeal bond, as obligees, the following parties, E. Conery, Cobb, Wood & Co., Bryan & Robinson, R. Yeatman Co. and R. G. ICyle S Co.

A motion is now made for the dismissal of the appeals on the ground, that a number of other parties to this concurso hare not been made parties to the appeal. On examination of the record, we find that those parties are not interested in maintaining the judgment which is appealed from. That judgment allots the whole fund arising from the sale of the steamboat, to the obligors above named, in preference to the other claimants. Under that judgment, therefore, the parties named in this motion to dismiss, are entitled to nothing, and, consequently, will lose nothing by its reversal.

Buie dismissed.

Cole, J.

This is an appeal from a judgment of distribution of the proceeds of sale of the steamboat B. L. Cobb.

The correctness of the different claims is not contested; the only question is to the privilege and rank of the creditors, in the distribution of the funds in the hands of the Sheriff.

Dyas & Co. and John Yeatman have appealed; they contest only the precedence of rank allowed over them to E. Conery, Cobb, Wood & Co. (assignees of Shaw & Zunts), R. Yeatman tj* Co., R. G. Kyle & Co. and Bryan & Robinson.

It appears that Lewis Northern built the steamboat for account of himself and Kelly §• Co., and at the time of the seizure was master and owner of three-fourths thereof.

She was registered by Northern in the names of R. L. Cobb and J. B. Evans of Kentucky, as owners, to protect her, as is alleged, from certain old debts then existing against Northern, of which Dyas § Co., a part of the present appellants, hold one.

Afterwards, the boat becoming embarrassed with debts, and R. L. Cobb and Evans, desiring to relieve themselves from the liabilities which they had incurred, and were incurring as registered owners, sent their agent, G. L. Cobb, to New Orleans, with plenary power to change the registry and to take care of their interests.

Accordingly, on the 14th of March, 1856, G. L. Cobb passed the title to tho boat to R. A. Clark, a young man without moans, an out-door clerk of R. Yeatman fy Co., who paid nothing for the boat and took no control over her.

The testimony establishes that this sale to Clark was a mere simulation, and that the object of the transfer, as is admitted by G. L. Cobb, “ was merely to get the title out of Cobb and Evans.’’

On the day succeeding this transfer, Conery, the plaintiff, instituted suit against Clark for $3,500, on a note or due-bill given by Northern on account of the boat.

Judgment was immediately confessed by Clark, and to this judgment G. L. Cobb was subrogated.

In each of the other cases of the appellees, before this court, R. A. Clark confessed judgment, and in each case G. L. Cobb was subrogated by order of court, except in the case of Cobb, Wood Co.

It also appears from the testimony, that G. L. Cobb, in taking a subrogation of the several judgments in favor of the appellees, was acting for his brother, R. L. Cobb, and that in reality R. L. Cobb, and not G. L. Cobb, was the party subrogated.

As R. L. Cobb was registered as an owner of this boat, his payment of these debts through his agent, G. L. Cobb, prior to the judgment of distribution, must bo considered as having been made for the benefit of the boat; and his payment thereof extinguished these debts, and as the subrogations were entered of record prior to the distribution, the judgment of the District Court was in favor of parties whose debts had already been paid, who had no further interest and was, therefore, erroneous.

The claim of Cobb, Wood fy Co., who sue as assignees of Shaw & Zunts, was not privileged, for it accrued more than sixty days before the seizure.

The claims of the other appellees do not appear to have been privileged as against this boat, not having accrued within sixty days before the seizure, or not being of privileged character.

These debts not being a privilege, could only be legally enforced by suit against the owners of the boat; and when G. L. Cobb for R. L. Cobb paid these claims, lie became the creditor of the owners of the boat for so much money paid. Neither lie nor the appellees had a right to proceed against the boat itself, for debts not privileged.

It appears, also, that the appellees must have known they were proceeding against a simulated purchaser, when they sued Clark, for Giles Cobb admits, that these suits wore instituted and the judgments confessed by Clark at his “ instigation.”

The evidence thus shows, that R. L. Cobb, by his agent G, L. Cobb, made a simulated transfer of title to R. A. Clark, procured suits to be brought against Clark on debts he did not owe (for Clark, even as a bona fide purchaser would not be liable for debts not privileged, and which were created before his purchase,) caused Clark to confess judgments with privilege on property he did not own, and for debts which he did not owe, and now by virtue of such judgments demands the proceeds of a steamboat which belonged to L. Northern and Kelly Co.

We are of opinion that R. L. Cobb, by paying the unprivileged debts held by the appellees against the owners of this boat, became the ordinary creditor of said owners, Northern and Kelly Co., for the. amounts so paid, and that the attachments sued out by the appellants gave them a privilege upon three-fourths of the fund in court: that being Northern’s interest.

We would here remark, that none of the appellees attached the boat; but that they seized it under executions issued by virtue of their said judgments, and we are of opinion that judgments against a simulated purchaser, when the judgment creditors were aware of the simulation, ought not to have a preference over attaching creditors who proceed against the real owner of the boat.

We are also of opinion, as R. L. Cobb was one of the registered owners of the boat and liable in solido for its debts, that when he paid the judgments of Conery and others, then the debts of the firm that owned the boat to that amount were extinguished, and as no debts of the partnership having a superior claim to the attaching creditors, who are appellants, remain, the individual creditors of one of the real owners, Northern, are entitled to be paid.

We would also observe, that Northern S Co. were the real owners of the boat, and R. L. Cobb fy Co. the registered owners, and it was by their consent and to their knowledge that they were so registered.

They being registered as owners were responsible for the debts, and when one of the registered owners pays the debts of a boat, he must be considered to have paid them for the firm of which he is a member, as the owners of a steamboat are bound in solido. And so far as creditors are concerned, the real owner, and the one registered as owner, by his knowledge and consent must be considered as equally liable and as constituting one firm.

It may be unfortunate for R. L. Cobb to be rendered liable, but he put himself in this position by being registered as owner, and he ought to suffer rather than innocent creditors.

R. L. Cobb, being a registered owner, cannot claim to be in any better position than if he was the real owner. If he had been the real owner and had paid the debts, then the partnership debts for that amount would have been satisfied; the same result must follow on the ground that he is a registered owner and holds himself thus out to the world as a real owner. The adverse doctrine would induce collusion between the registered and the real owner, and the registered owner w ould conceal or disclose his real position, as it might enable the real owner to defraud his creditors.

If the controversy as to the subrogation was between Northern, one of the real owners, and R. L. Cobb, one of the registered owners, then the subrogation might entitle R. L. Cobb to be paid, for, as we before observed, he became by the subrogation the ordinary creditor of the real owners, but he cannot claim to be paid in preference, when the controversy is between the individual creditors of Northern and R. L. Cobb, who 'has been subrogated to the rights of judgment creditors of the boat; for these judgments must be considered as extinguished the moment they are paid by R. L. Cobb, and he cannot be allowed a preference on account of the payment, for he was responsible as registered owner.

It is objected that the individual creditors of Northern cannot be paid out of the assets of the partnership until the partnership debts are satisfied.

But no debts of this character having priority over the appellants, who are attaching creditors, are shown to exist; and ^besides, this objection comes with a bad grace from appellees, for appellants are, it is true, suing one of the partners only, but the appellees are suing neither of them but R. A. Ciarle only.

It is also objected, that the testimony of Northern ought not to have been received, but it was taken without objection, and besides, it could not legally have been excluded.

With relation to the two appellants, we would observe that John Yeatman is entitled to have his claim first satisfied out of the fund in court, as his attachment was prior to that of Byas § Co.

It is, therefore, ordered, adjudged and decreed, that the judgment be amended as follows, to wit: That John Yeatman, one of the appellants, shall recover from Lewis Northern two thousand dollars, with five per centum interest thereon from the 15th of October, 1855, and that Byas Co., appellants, recover of Lewis Northern sixteen hundred and two dollars and thirty-seven cents, and the said Yeatman is declared to have the priority over said Byas fy Co., and shall have his said claim first satisfied out of two-thirds of the fund in court, and the said John Yeatman and Byas Sf Co. are decreed to have a privilege on two-thirds oí the proceeds of the sale of the steamboat R. L. Oobb ; and it is further ordered, adjudged and decreed, that said John Yeatman first, and said Byas If Co. second, shall be paid their said claims out of said two-thirds of said fund, proceeds of said steamboat, in preference to the judgments of the appellees, E. Conery, Cobb, Wood & Co., (assignees of Shaw & Zunts,) R. Yeatman Co., Bryan §• Robinson, and R. O. ICyle & Co. And it is ordered and decreed, that the judgment in all other respects remain undisturbed and be affirmed, and that the costs of this appeal be paid by said appellees.

Mr. Justice Yookoies took no part in this decision on account of indisposition.

Spofford, J.,

dissenting. The enrolment of ships and other vessels is made necessary for revenue purposes and with a view to what may bo called the police of the seas and rivers. There is no important analogy between these regulations and State registry laws, intended to give notice of titles to lands and slaves. A steamboat is personal property ; the boat herself responds for her debts, and all her real owners, engaged in the business of carrying freights and passengers for hire, are bound in solido, under the Louisiana Code, for her debts. I say her real owners are so bound, whether the enrolment is in their name or not; and one who is not a real owner or part owner, is not necessarily and in all cases bound, in his personal capacity for her debts, although he permit the vessel to be registered in his name.

This is settled by authority. “ The registry of a ship is not of itself evidence of property, except so far as it is confirmed by some auxiliary circumstance showing that it was made by the authority or assent of the person named in it, and who is sought to be charged as owner. Without such connecting proof, the register has not been held to be even prima facie evidence to charge a person as owner; and even with such proof, it is not conclusive evidence of ownership ; for an equitable title may well consist with the documentary title at the customhouse in another.” 1 Green. Ev. § 494.

Now, the appellants’ whole case rests upon this very principle : that the enrolment is not proof of ownership; they allege and contend they have proved, that R. L. Cobb (formerly registered as part-owner) was no part-owner, and that he had no interest whatever in the boat, which belonged entirely to Lewis Northern and Kelly & Co., in whose names she was never registered. Be it so. Then it follows, by their own allegations, that R. L. Cobb was not bound for the debts in his individual capacity; not being bound for the debts, he could buy them and take a valid conventional subrogation to the rights of the creditors ; he did so ; the appellants frankly admit that the claims of the seizing creditors to which R. L. Cobb has been subrogated of record, were just debts of the real owners of the boat; under these claims, the boat has been seized and sold; the seizure invested these creditors with a right of priority upon the proceeds ; by claiming a portion of the proceeds themselves, the appellants affirm the Sheriff’s sale; so that the only question is, could R. L. Cobb lawfully buy up the just claims of E. Conenj, Bryant cG Robinson, and others, then pending in court, and take a subrogation to the rights which they had acquired by their seizure.

I am of opinion that ho could; that there was no fraudulent simulation ; that the whole purpose of the nominal changes of title in the boat was to secure just debts incurred in running her by her real owners, Northern, and Kelly §• Co., in solido, and for which the boat was primarily liable; that no creditor of Northern has been deceived or defrauded thereby; and that to allow Northern, who seems to have occasioned all the difficulty, to pay off his personal creditors out of the proceeds of the boat, to the detriment of those who have paid the solidary debts of the owners, would be to allow him to perpetrate a fraud successfully ; while, at the same time, it would be punishing an innocent man for a simulation which the law does not reprobate, because it was liarmless and had only for its effect the protection of creditors to whom equity and even the law itself would have given the prior rights.

The appellants should not be permitted to take the double position that R. L. Cobb was owner and was not owner. They must elect and abide by their election. Whichever theory they embrace will be fatal to their claim.

But, even upon the reasoning that his letting the registry stand partly in his name, must, by a sort of primitive construction, be held to bind him with or for the owners for their debts, then, upon paying those debts, R. L. Cobb was subrogated ipso jure to their rights as seizing creditors, and he still has the first claim, for their seizure was first. C. C. 2157.

And again, if he is to be assimilated to a partner for participating in a simulation which was not fraudulent, even then the case of Purdy v. Hood, 5 N. S., would by analogy protect him.

In the language of Mathews, J., in that case, “ a partner who pays the partnership debts must be considered in the same situation with any other creditors of the partnership, and have a claim on its funds in preference to creditors of the partners individually."

I think the decree of the lower court does justice, without infringing the law.

Same Case—On Re-hearing.

Core, J.

We can perceive no error in the judgment heretofore rendered by us, except a clerical mistake in decreeing that appellants shall have a privilege on two-thirds of the fund in court instead of three-fourths.

It is, therefore, ordered, adjudged and decreed, that our former judgment be sot aside and annulled ; it is further ordered, adjudged and decreed, that the judgment of the lower court bo amended as follows, to wit: that John Yeatman, one of the appellants, shall recover from Lewis Northern two thousand dollars with five per centum interest thereon from the 15th of October, 1855 ; and that Byas & Co., appellants, recover of Tjewis Northern sixteen hundred and two dollars and thirty-seven cents; and the said Yeatman is declared to have the priority over said Byas tj' Co., and shall have his said claim first satisfied out of three-fourths of the fund in court; and the said John Yeatman and Byas & Co. are decreed to have a privilege on three-fourths of the proceeds of sale of the steamboat R. L. Cobb ; and said John Yeatman, first, and said Byas & Co., second, shall be paid their said claims out of said three-fourths of said fund, proceeds of said steamboat, in preference to the judgments of the appellees, E. Conery; Cobb, Wood & Co., (assignees of Shaw If Zunts); R. Yeatman & Co.; Bryan (f Robinson, and R. G. Kyle If Co.; and it is ordered and decreed, that the judgment of the lower court in all other respects remain undisturbed and bo affirmed, and that the costs of this appeal be paid by said appellees.


text:
    T. M. Doyle’s Executors v. J. B. Estornet et al.
    Parol proof is admissible to explain latent ambiguities.
    Parties cannot bo controlled in tlie ordor in which they introduce tlieir evidence.
    When the plaintiff fails to make out his case, the judgment should be one only of nonsuit.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
   Merrick, C. J.

This is a petitory action. The principal question is one of identity.

The defendants claim title through one William H. Martin, deceased, who it appears was never the owner of the lot in controversy.

The plaintiffs claim through one William. H. Martin, the former owner, who is still living and whose testimony was offered on the trial, but they failed in producing an act of sale from Martin to Levy, one of their vendors.

There was judgment in favor of defendants and warrantors, and the plaintiffs appealed.

The first question arises under a bill of exception taken to the ruling of the district judge, who refused to receive the deposition of William II. Martin, who was offered to show that he was the identical Martin who had once owned tlie lot, as stated in the act of sale from Levy’s syndic to Thomas M. Boyle. The testimony was objected to, because it went to prove a title to real estate by parol. The court refused to receive the testimony until a written act of conveyance from Martin to Levy should be produced.

The objection was insufficient to exclude the testimony. Parol proof is admissible to explain latent ambiguities, and parties cannot be controlled in the order in which they introduce their evidence. 1 Greenleaf, sec. 288; 16 L. R. 296; 11 L. R. 253; 3 Rob. 106.

It has not been contended in this court that the testimony of the witness was admissible to prove title, although it appears uncertain by the bill of exceptions whether it was not offered for that purpose also. If a deposition (whore a sale is acknowledged by a former owner) be a written evidence of title, that question does not arise, for it is not pretended here that the deposition was offered for such purpose. '

Giving the plaintiff the benefit of the evidence for the purpose for which it was offered, and they still fail in their proof. Por they do not show a transfer of title from Martin to Levy, and they can recover only on the strength of their own title.

As the bill of exception shows that plaintiffs had introduced their other evidence previous to offering Martin’s deposition, and as the ruling of the judge did not, therefore, prevent them from offering the residue of their proof, wo think the case should not be remanded for a new trial.

The district judge fell into an error in rendering a final judgment in favor of defendants. It should be one of nonsuit. The plaintiffs may be able to produce or account for the original deed to Levy, or William H. JSfartin may, by subsequent act, ratify the sale if his deposition be insufficient written evidence of such ratification.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants and warrantors as in case of nonsuit, they paying the costs of appeal and the plaintiffs the costs of the lower court.


author: Cole, J. SrovNOBD, -J.

text:
    Francisco Marquez v. The City of New Orleans.
    The city is bound to pay her proportion of the expenses necessary for the pavement of streets bordering on ground belonging to the city and laid out for a public promenade.
    ÁPPEAL from the Third District Court of New Orleans, Dwignaud, J.

      Paul E. Theard, for plaintiff.
    /, & Michel, for defendant and appellant.
   Cole, J.

Plaintiff contracted with the city of New Orleans to level, grade and shell a tract twenty feet wide, on Claiborne street, on the north side of the middle ground or promenade of said street, from St. Bernard Avenue to the Elysian Fields street, in the third district of the city, at the rate of $2 46 per running foot.

The contract was performed by plaintiff, and his work was accepted by the city authorities.

In payment of the work, the city delivered to plaintiff several bills made by the street commissioner and attested by the comptroller, against the property owners on the north side of said shcllroad, in Claiborne street, including the entire costs of the aforesaid shelling.

The property owners refused to pay more than one-half of the amount of the bills, on the ground that the city of New Orleans is the owner of the middle ground, or promenade, located in the centre of Claiborne street, and fronting said shcllroad, and also of all the intersecting corner streets, fronting on each side of the said shellroad.

Plaintiff then instituted suits on these bills against the projjerty holders before the Third District Court of New Orleans; the court decided that the city of New Orleans, as owner of the strip of land in the centre of Claiborne street, should pay one-half of the shelling made in front of the same, and as owner of the intersecting streets, at each corner, should pay the whole of the shelling made there,

Under these decisions plaintiff has instituted the present suit, claiming from the city of New Orleans $2,863 07 ; that is to say, requiring- the city to pay the sum of one dollar and twenty-three cents per running foot, for all work done in front of said middle ground or promenade, it being the one-half of the price at which the contract was performed, and the other half being paid by the property holders opposite; and also the full sum of two dollars and forty six cents for the shelling at the intersecting streets, there being no property holders there to pay the same.

Plaintiff obtained judgment in the court below, and defendant appealed.

There is no error in the judgment.

Under section 119 of the city charter, the owners of real property can only bo made to pay the whole cost of the pavement of streets when they own property fronting on both sides of said pavement.

In the case at bar, as the city owns on one front, if she were not liable, then only one-half of Claiborne street and of streets similarity situated could be paved.

The city is obliged to make and pay for one-half of the paving in the case at bar, not only from the effect of section 119 of the city charter, but also because the middle ground in Claiborne street is the property of the city and intended or dedicated as a public promenade and for the public good and enjoyment. It is then just when the city has property of this character, that she should pay her proportion of expenses necessary for the construction of a public highway along the borders of her property, and not coerce opposite proprietors to pay the whole, and thus tax them in particular to enable the community to enjoy a pleasant promenade and free circulation of air.

It is objected by the city, that the additional expense would be fully compensated by the advantages of a broad avenue; this argument is not so conclusive; for it might much augment the value of the property on the north side of the shell road if the promenade was lined with houses, for then there would be openings for more stores, and a consequent attraction for a larger number of customers.

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

Buchanan, J., having an interest in the question took no part in this decision.

SrovNOBD, -J.

I concur in the decree, although I dissent entirety from the views expressed by Mr. Justice Cole, and concurred in by the Chief Justice.

I think it quite clear that section 119 of the amended charter of New Orleans (Acts 1856, p. 164,) contemplated no assessment for paving and banquetting, against the city as owner of public places. The language of the section covers only such property as is susceptible of private ownership. In one sense, the city owns the streets. Is it possible thus that the Act of 1856, in declaring that the cost of a banquette shall be borne proportionally by the owner or owners of real property fronting on said banquette, meant that the city, as owner of the street fronting on the banquette, should pay half the cost. I do not suppose such an interpretation was ever thought of. But it seems to me to be the necessary sequence of the doctrine that the city is bound to pay for half the shellroad in Claiborne street, because it owns the whole street, and the middle portion of the street is now used as a green, or promenade for foot passengers only, and not for carriages.

The green or middle portion of Claiborne street, in my opinion, is just as much a “ public thing ” and just as exempt from assessment under the city charter, as the two road-ways along the same street. O. C. 445.

But I can concur in the decree, because that question is not necessarily before us. The city gave the plaintiff certain bills against proprietors for his work; it therefore warranted their existence as valid claims; the contractor sued upon them and to the extent of one-half they were declared, by judgments which are unappealable, to be invalid. However erroneous I might-find those judgments, if they were before me for revision, I think, under the decisions, the city is liable upon its implied warranty. Tournier v. Municipality No. 1, 5 An. 298. Cronan v. Municipality No. 1, 5 An. 537.


author: Buchanan, J.

text:
    Church Wardens of St. Louis Church of New Orleans v. J. A. Bonneval et al.—F. Daubert and Thomas Hawthorn, appellants.
    Under the Act of 1848, relative to Auctioneers (Session Acts, p. 96), the citizen who is desirous of doing an auction business, must execute and deliver to the Recorder of the Parish (to the Recorder of Mortgages in New Orleans) his bond, with security, precious to entering upon the transaction of such 'business.

    But the application by the auctioneer for a license, to the Auditor, although it be commanded, yet it is not made a condition precedent to the exercise of the business of auctioneer.
    The obligation of the sureties upon, the bond commences from the recording of the bond in the mortgage office.
    Parties who put their property into the hands of auctioneers for sale, havo only to address themselves to the office of the Recorder of Mortgages of the Parish, for the purpose of ascertaining whether an auctioneer’s bond is recorded.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Robert Preaux, for plaintiffs and appellees.

      Puf our and Rudd § Lambert, for appellants.
   Buchanan, J.

This is a suit brought, under the 4th section of tlie Act of 1848, relative to auctioneers, (Session Acts, page 96,) against an auctioneer and the sureties on his official bond, for the proceeds of an auction sale made for account of plaintiffs, which were not paid over to them by the auctioneer.

The proof of the sale by auction, and of the failure of the auctioneer to pay over the proceeds, is complete. It is also proved that the defendants signed the bond, as described in the petition.

The defence, in this court, has turned altogether upon the fact that no license was issued to Jár. Ronneval, by the Auditor of Public Accounts, to perform the duties of an auctioneer, as contemplated by the fifth section of the Act of 1848. It is contended by the sureties who have appealed, that until such license was issued, the sureties on the bond were not bound for the faithful performance of any business done by /. A. Ronneval, the principal in the bond, as an auctioneer.

This construction does not seem warranted by the terms of the statute.

■ Section 1st enacts, that any citizen of the State may become an auctioneer for the parish of which he is a qualified voter, and be authorized to sell any real or personal estate at public auction or vendue, on giving bond and security for the faithful performance of his duties according to laws regulating auction sales and the provisions of this Act.

Section 2nd. That before entering upon his duties he shall execute his bond, payable to the Auditor of Public Accounts, and his successor in office, with good and solvent securities, conditioned for the faithful performance of all duties required by law, towards all persons who may employ him as an auctioneer, and for the prompt payment of the taxes or commissions payable to the State, and of all sums which he shall receive in his official capacity belonging to other persons, &c.

Section 4th. The Recorders of the several parishes, and the Recorder of Mortgages of the city of New Orleans, shall require of all persons who may wish to become auctioneers to execute and deliver to them said bond in duplicate, one of which bonds they shall transmit to the Auditor of Public Accounts, the other they shall keep in their offices; an authentic copy of which they shall deliver to any person who may wish to sue thereon for his own benefit for a violation of the conditions thereof, &e.

Section 5tli. That in order that full faith and credit may be given to his acts, every auctioneer who shall have complied with the foregoing provisions of this Act, shall demand and take out annually, from the office of the Auditor of Public Accounts a license with authority to do and peoform all the business properly belonging to an auctioneer. In the French text: Pautorisant k faire toutes Ies affaires qui sont du ressort d’un encanteur.”

Analysing these different sections, we find that the citizen who is desirous of doing an auction business must execute and deliver to the Recorder of Mortgages, his bond with security, previous to entering upon the transaction of such buisiness. But the application for a license to the Auditor, although it be commanded, yet it is not made a condition precedent to the exercise of the business of an auctioneer.

Parties who put their property into the hands of auctioneers for sale, have only to address themselves to the office of the Recorder of Mortgages of the parish, for the purpose of ascertaining whether an auctioneer’s bond is recorded. That is the reference which this statute points out, and in case of a violation of trust thus reposed, it is there that the party injured must obtain the authentic evidence of the liability of other persons, as sureties, for the acts of the party trusted.

The bond in this case was made on the 7th December, 1854. It was recorded in the office of the Recorder of Mortgages in New Orleans on the same day. The condition of the bond is, “ to secure the faithful performance of all the duties incumbent upon him, the said T. A. Bonneval, the duly appointed auctioneer for the parish and city of New Orleans, to serve from and after the 1th day of December, 1854.”

The praintiffs employed Bonneval to make sales at auction for them, on the 21st and 22d days of December, 1854.

By their own act, the appellants have given the standing and credit of a legally qualified auctioneer to Mr. Bonneval, at the time when he sold the plaintiff’s property, and collected the proceeds ; and their obligation as sureties commenced from the recording of the bond in the mortgage office..

There is proof in the record that it was to the knowledge of the Auditor of Public Accounts, that Bonneval was making sales by auction, on which there were duties accruing to the State, and that account was rendered by Bonneval to the Auditor of such sales. A book of auction sales commencing December 9th, 1854, and containing one hundred and sixty folios, signed at the beginning and end by the Auditor of Public Accounts, and certified in several places as having been examined by the Auditor, on the 9th January, 1855, and on the 7th July, 1855, is in evidence. Defendants excepted to the admission of this evidence, on various grounds, principally because the said auction sales book was not the best evidence of Bonneval being an auctioneer; that a license should have been produced. The Auditor has certified expressly, that Bonneval had no license from him during the period embraced in that book. The book is therefore the best evidence of the exercise of the business of auctioneer by Bonneval in the years 1854 and 1855 to the knowledge of the Auditor. To that officer is given by law the supervision of the interests of the State in auction sales. It is his duty to require a sworn statement from the several auctioneers of the State duties on auction sales, and to compare such statements with the entries in the auctioneers’ books.

Acts of 1850. King’s Revised Statutes, verbo Auction.

A doubt has been raised in argument, whether the book in question be indeed the book of Bonneval, as the name of the auctioneer who made the sales is not mentioned in the book. But wo view the proof on this subject as satisfactory. The entries in the book are in Bonneval’s handwriting; and the entry under date of the 22d December, 1854, of the sales of pews in the Ohurch of St. Louis, by order of the churchwardens, which is the subject of the present controversy, shows conclusively that the auctioneer, of whose business this book is the record, could have been none other than Bonneval.

Judgment affirmed, with costs.


text:
    J. U. Lavillebeuvre v. James Cosgrove.
    Where Iho owner of tho lots on hoth sides of a division wall makes an opening or window in the wall, it is an act constituting the “ destination cko pere defamille,” and is equivalent to a title creating a servitude, as soon as a division of the ownership of tho property takes place.
    Tho erection of works contrary to tho servitude would not have the effect of extinguishing it, unless the owner of the estate to which the servitude was due had given an express permission or consent to the erection of suGh works either verbally or in writing.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      G. Legardeur, for plaintiff.

      E. S. Oliver, for defendant and appellant.
   Buchanan, J.

An important distinction between the present case and that of Jeannin v. DeBlanc, 11 An., 465, quoted by defendant, is, that the wall between the properties of plaintiff and defendant, is a wall in common. Through such a wall, one of the co-proprietors cannot make an opening without the consent of the other co-proprietor. C. C. 692.

But the defendant urges his right to the opening in question, upon the ground that the wall now held in common between himself and the plaintiff, was built by a person who was at the time the owner of lots on both sides of the wall; that the opening or window was made in the wall by the said owner at the time of building ; and that this act of the original proprietor of both properties, is equivalent to a title creating a servitude upon the property now belonging to plaintiff, for the benefit of that belonging to defendant. Tho evidence on this subject is, that the two adjoining lots of ground of plaintiff and defendant originally belonged to Daniel T. Walden, and were built upon by him. The same buildings now standing upon the lots were those put up by Walden about the year 1838 ; and the wall now held in common by plaintiff and defendant, was erected with a window in it— the same window of which plaintiff complains. Both the adjoining properties, now owned by plaintiff and defendant respectively, were sold by the Sheriff in execution of a judgment against Daniel T. Walden, and adjudicated to the City Bank of New Orleans on the 27th June, 1842. The City Bank sold to Henry Parish the property now held by defendant on the 19th March, 1849. On the 13th April, 1853, Henry Parish sold to defendant.

The property now held by plaintiff was acquired by Mm from the TJnion Bank of Louisiana, on the'11th November, 1845; and by the Dnion Bank from the Commissioners of the Atchafalaya Railroad & Banking Company, on the 21st of July, 1842.

"While tho property now held by defendant belonged to his vendor Parish, and about six months before tho sale from Parish to defendant, plaintiff, of his own authority, closed the window which had thus existed in the partition wall between himself and Parish from the time of its first erection, by nailing heavy planlcs across the Venetian blinds of the window on the outside. Things were in this state when defendant purchased the property from Parish. Defendant having re-opened the window, plaintiff brings this action to have the same closed, and sounding in damages for a trespass.

There is no doubt that the building of this division wall with the window, by Walden, who was the owner of the land on both sides of the wall, constituted, what is called in the French text of Articles 645 and 763 of the Code, (the latter Article copied from Article 692 of the Code Napoleon), a “ destination du pire de famille ”; which, by the Articles 763, 764, and 765, was equivalent to a title creating a servitude, as soon as a division of the ownership of the properties took place, by the sale from the City Bank to Parish.

This appears, indeed, to be conceded by the learned counsel of the plaintiff. But he argues, that defendant has acquired the property in the condition in which it was at the time of his purchase; and because the window was closed up with boards at the time of the sale from Parish to defendant, it must therefore remain boarded up in perpetuity; and the removal of the boards by defendant, is a trespass.

This argument cannot meet with our Sanction. Cosgrove acquired from Parish, by his title, a lot of ground, together with all the buildings and improvements thereon, rights, privileges and appurtenances thereunto belonging, or in any wise appertaining." Parish had acquired from the City Bank, by identically the same description. The servitude of sight existed, as we have said, in favor of Parish. It was transmitted to Cosgrove, unless it had been lost in Parish’s hands. It is pretended that it was so lost by the act of plaintiff, barring up the window. But we do not find such a proceeding to be one of the modes indicated for extinguishing servitudes, by Article 779 of the Code. The erection of works contrary to the servitude, may, it is true, have the effect of extinguishing the servitude. But this effect follows, according to Article 816, only when the owner of the estate to which the servitude is due, has given an express permission or consent to the erection of such works, either verbally or in writing, which is not pretended in the present case.

The judgment of the District Court is, therefore, reversed, and judgment rendered against plaintiff and in favor of the defendant and appellant, with costs in both courts.


text:
    Widow Michel Blondin v. C. Christophe—W. B. Koontz, Intervenor.
    It is sufficient proof of notice of the transfer of a judgment to show that it was left at the place of residence of the judgment debtor with his wife, as in case of a citation in civil process.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      L. Costera, for plaintiff

      J. Magne, for defendant and appellant.
   Buchanan, J.

We have not found in this record either direct proof or circumstances creating a presumption of simulation, in the transfer of defendant’s judgment against Marc Curel to William B. Koontz, by notarial act of the 9th of December, 1854.

That transfer was made more than two years before the present plaintiff levied, her execution upon the judgment transfer. The act of transfer was given in evidence without objection or qualification; and the answer of plaintiff to the third opposition of Koontz, did not raise the issue of simulation. The third opponent, was, therefore, dispensed with the production of proof of the verity of the enunciations in that authentic act, concerning the consideration of the transfer. The consideration stated, was one hundred dollars cash in hand paid, and the assumption, by transferree, of all costs accrued, or to accrue, in the District or Supreme Courts, in relation to the claim transferred ; and also of the fees of Christophe’s counsel, in proceedings already had and to be had in relation thereto, not exceeding one hundred dollars.

The judgment thus transferred was rendered in June, 1854, and was for a sum of $541 08, with five per cent, interest from August, 1851, and amounted, in capital and interest, to $617 72, at the date of the transfer. The costs accrued before and since the transfer, which the transferree assumed, were unusually heavy. For not only was the suit of Christophe v. Curel litigated in two courts, but it became necessary, in order to execute that judgment, to institute a revocatory action against the judgment debtor’s wife, which was also carried by appeal to the Supreme Court, and finally decided against Curel and wife in April, 1857. A few days after that final judgment, an execution was issued in the present suit, under which the judgment of Christophe v. Curel was seized.

The costs in the two suits of Christophe v. Curel, and Christophe v. Curel and wife, are shown to have amounted, upon final settlement, to...........$419 35 Which added to cash paid by transferree........................... 100 00 And his obligation to pay counsel fees............................. 100 00

Makes a total of...................................$619 35

Evidently a most ample, if not superabundant consideration, for the purchase of a claim, only to be realised by the purchaser, through litigation upon litigation, extending through several years, and of which the present judgment is the closing scene.

The third opponent has made a sum of seventy dollars, upon an execution issued in 1856, in the suit of Christophe v. Curel, which sum was applied in part payment of costs in that suit. The counsel of plaintiff urges that the issuance of that execution in the name of Christophe, after the transfer of the judgment to Koontz, is a badge of simulation. It does not strike us in that light. Our practice does not require that a debt assigned before judgment, shall be prosecuted in the name of the assignee. 8 Rob. 261. And it is equally unnecessary, even supposing it to be practicable, to substitute the name of the assignee to that of the assignor, of a claim transferred after judgment.

The question of notice of the assignment, to Curel, the judgment debtor, remains to be considered.

The transferree of a debt is only possessed, as regards third persons, after notice to the debtor. Civil Code, 2613. The proof of notice in this case is as follows : The notary who made the act of transfer, testifies that he delivered a written notice of the transfer on the 11th December, 1854, at Marc Curd’s residence, to the wife of Marc Curel, he not being at home. The notice was in the form of a letter directed to Marc Curel. In cross-examination, it appears that the witness was not previously acquainted with Mrs. Curel. A female presented herself, who, in answer to the witness’s inquiry for Marc Curel, informed him that she was Curd’s wife, and that her husband was not at home. Witness read to her the act of transfer, and gave her the letter or notice for her husband. It is much insisted in argument that this proof of notice is insufficient. But much consideration has brought us to the conclusion that notice has been (to use the words of the authorities, Hennon’s Digest, verbo Sale, viii. No. 10,) brought home to Curel. The service of the notice is the same, which is sufficient by law, in the case of a citation in civil process. C. P., Art. 189. The place of residence of Curel is designated with precision by the witness (corner of Esplanade and Conde streets), and no effort has been made to contradict any portion of his testimony.

Judgment of the District Court reversed; and it is adjudged and decreed, that the third opposition of W. B. Eoontz, appellant, be maintained; that the garnishees he held to account to said Eoontz for the funds in their hands, as disclosed by their answers to the interrogatories ; and that Widow Blondín, appellee, pay costs of the third opposition, and of the appeal.