author: Howell, J.

text:
    No. 894.
    John A. Stephenson v. Wm. S. Mount and City Bank of New Orleans.
    Plaintiff received a letter informing him that a draft drawn by the steamboat) Magnolia for S1.2C0, wab placed in tho City Bank of New Orleans for collection; being the agent of the boat, lie immediately went and paid the draft, and took it up on the saipo day tho holder called, and the clerk of the bank paid him tho money, charging no commissions and making no entries of the transaction in the books of the bank. Plaintiff afterwards learned that tho letter and the draft were both forgeries: Held—That the action of the plaintiff relieved the bank from any liability which may have attached for receiving what was not due.
    A PPEAL from, tlie Third District Court of New Orleans, Fellowes, J.

      Iioselius cG Philips, for plaintiff and appellant.

      John Finney, for defendants and appellees.
   Howell, J.

This is an action to recover back the amount of a forged draft, deposited, it is alleged, in the City Bank for collection, and paid by plaintiff, for tlie credit of tho acceptor, on his faith in tho representations of said bank, as holder, of its genuineness. Tho answer, besides a goneral denial, sets forth the circumstances of the transaction, and the averments that defendants were strangers to the bill, that without any notice from them plaintiff voluntarily came forward and paid it, and that they had no intimation, for weeks after they paid over the amount to the holder, that it was a forgery.

Judgment was rendered in favor of defendants, and plaintiff appealed.

It appears, that on the 23d August, 1865, a draft purporting to be drawn by the clerk on, and accepted by the captain of the steamer Magnolia, of which plaintiff was the agent, for $1,200, payable op that day at tlio City Bank of New Orleans, was left by a stranger at said bank, witli tlio instructions that, if no one called to pay it before three o’clock, it should be sent to a notary for protest; in about ton minutes another person called, asked for the draft, describing it, and paid it; in about an hour thereafter the party who had left the bill returned, and tlio money was handed to him; no entry of the transaction was made in the books of defendants; no stamp, according to custom, or endorsement, was put by them on tlio bill, which had been laid on a desk until it was called for and paid, and then the money placed in the same way until called for, and taken by the person, who left the bill. About three weeks after this, plaintiff called with the bill and a letter, addressed to him by the clerk of said steamer, requesting him to protect said bill, and stated that the receipt of this letter had caused him to send and pay tho bill; but ho had discovered both to be forgeries.

Under the circumstances, we think tho action of plaintiff relieved defendants from any liability, which may have attached for receiving what was not due. They were passive in the matter, and his conduct in voluntarily coming forward, asking for, describing and paying the bill, was an assurance to them that every thing was right, and not having any interest in the bill, they were thereby warranted in paying over to tlio real holder.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Idsdey, J.

license: Public Domain

text:
    No. 1155.
    Jean Marie Tupery v. Lafitte and Deffarge.
    Where a judgment is rendered against the members of a commercial firm ¡u solido, and one member of tho firm alone appeals the othor members must be made parties thereto.
    It is immaterial when a motion is made to dismiss an appeal for want of proper paitics, as, for that cause, it will be e.v officio noticed by the Court.
    A PPEAL from the Third District Court of New Orleans, Pello uses, J.

      G. JB. Schmidt, for plaintiff and appellee.

      A. S. Herron, for defendants and appellants.
   Idsdey, J.

The appellee moves to dismiss the appeal in this case, because one of the defendants in the above-entitled suit, who is sued and condemned in solido as a commercial partner, is not made a party to tho appeal by citation or otherwise, nor is any appeal bond executed in his favor. We held in Saux v. Lefevre Co., 12 An. 757, that ail appeal from a judgment against the two members of a commercial firm in solido, taken by one of tho partners only, must be dismissed because the other partner against whom the judgment was rendered should have been made •a party to the appeal, he having an interest in maintaining the judgment to secure his recourse against the appellant for his portion of the debt.

The motion is resisted by the appellant, because it comes too late; but we have decided in Swearingen v. McDaniel, 12 Rob. 205; Succession of Perry, 4 An. 577; Robert v. Ride, 11 An. 410; Simmons v. His Creditors, 12 An. 755, and in 12 An. 771 and 801, that it is immaterial when the motion to dismiss an appeal for want of proper parties is filed, as, for that cause, it will be ex officio noticed by the Court.

It is therefore ordered, that the appeal be dismissed at tho costs of the appellant.


author: Hyman, C. J.

text:
    No. 502.
    H. Geisek v. The Crescent Mutual Insurance Company.
    An Insurauco Company is liable on a firo insurance policy for damages done to goods by water used in saving them from destruction by fire.
    A PPEAL from the Second District Court of New Orleans, Whilalcm•, J.

      Cutler cG Thomas, J. Henderson, Jr., and James Fuller, for plaintiff and appellee.

      J. Ad. Rosier, for defendant and appellant.
   Hyman, C. J.

Plaintiff sued defendant on its policy of insurance against fire for §3,000 damages to plaintiff’s stock of boots, shoos, etc., resulting from a fire.

The District Judge rendered judgment in favor of plaintiff and against defendant for §1,350, with interest.

Tho defendant has appealed from tho judgment.

The defendant, in answer, admitted that it had insured the plaintiff’s stock of boots, shoes, trunks, etc., in his store, for §3,000.

The plaintiff’s store was in the lower story of a house on Poydras street, in New Orleans.

The upper story of the house caught on fire, and tlio goods of plaintiff were damaged by the throwing of water on the house, in the attempt to extinguish the fire.

The upper story of the house was burnt down by the fire, and the goods of plaintiff, which were insured by defendant, would have been destroyed by the fire unless the water had been thrown on the house to extinguish it.

The defendant is bound by tho contract of insurance to indemnify plaintiff for damages done to his goods by water, and in saving them from destruction by fire.

The District Judge placed no reliance in the evidence of the two witnesses, who testified as to the quantity of goods plaintiff had in his store, and as to their value before they were damaged, principally because he was of opinion that they, tho witnesses, differed in their estimate of the value of the goods immediately after the fire, and at the time they gave their testimony in the case.

The Judge was mistaken, as regards the statements of the two witnesses.

They made no estimate of the value of the goods immediately after the fire. They then made a statement, not of what was the value of the goods, but what the goods actually cost tho plaintiff. On the trial they testified as to what was the market value of the goods.

We do not think that the two witnesses are not to be believed,, because they could not state in exact number, the boots, shoes, and ladies slippers that were damaged, or were in plaintiff’s store when the fire occurred.

They were the employes of plaintiff; they worked diily in his store, and knew well the stock of goods that plaintiff had therein.

We see nothing in the record that causes us to doubt the veracity of these witnesses. No attempt has been made to prove that they are no. credible witnesses.

The evidence satisfies us that plaintiff had more than three thousand seven hundred dollars worth of goods in his store, and thatdiis goods therein were damaged to the amount claimed by him.

Plaintiff has, in his answer to the appeal, asked that the judgment of the District Cburt be so amended as to allow him judgment against defendant for $3,000, with legal interest thereon from judicial demand.

It is ordered, adjudged and decreed, that the judgment of the District Court be so amended that the plaintiff recover of the defendant the sum of three thousand dollars, with the legal interest thereon from 23d day of October, 1862, till paid, and the costs of suit, and that the judgment of the District Court thus amended be affirmed.


author: HoweiíIj, J.

text:
    No. 921.
    Thomas Vowell v. The Metairie Association.
    Plaintiff was employed in 1860 as Superintendent of fclio Metairie Race Course, at a fixed salary; in May, 1862, most of the officers of the Association left the city, leaving plaintiff in charge of tne grounds: i/t-ZcZ—That ho is entitled to his salary until the grounds were taken under full and absolute control by the military forces, in November, 186*1.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Geo. L. Bright, for plaintiff and appellant.

      Ogden <& Claiborne, for defendant and appellee.
   HoweiíIj, J.

This is an action on an account for wages and disbursements, as superintendent of the Metairie Race Course, from January 15th, 1862, to November 22d, 1865. Besides the general denial,- the defendants specially deny that • plaintiff was ever superintendent; aver that there was no need of one after April 1862, the premises being occupied by the military ; deny any contract with plaintiff, and claim in reconvention rent of the dwelling occupied by plaintiff from January, 1862, to date of filing the answer, and the price of several' cisterns taken by him.

Judgment was rendered in favor of plaintiff for a part of his demand, and he appealed. Defendants join in the appeal, and ask a judgment in their favor.

It is shown that plaintiff was employed as superintendent in 1860, at a salary ef $2,500 per annum, with the use of the dwelling and garden free of rent; that his duties were to keep the track in order, prepare it for the races, have general care of the premises, receive entrance moneys and make necessary disbursements in the performance of his duties ; that he continued regularly in such employment until the arrival here of the national forces, about the first of May, 1862, when most of the officers of the Association left the city, leaving him on the premises ; that in June or July of that year, one of the officers instructed him to remain and protect the property as long as he could, nothing being said as to compensation ; that in September following, the grounds were taken as a camp by some of the military forces, but not thus occupied constantly ; that plaintiff remained until November, 1865, and did what he could in protecting the property, in which he succeeded only in saving the dwelling and fences around it, and some movables sold by him ; that on 23d November, 1864, by a military order, seventeen-twentieths of the stock of the Association were declared confiscated, and plaintiff put in charge of the whole property, as keeper, by the military authorities,' and ordered to account to them; his services to be paid for by the chief quartermaster; that on 22d November, 1865, two days after his letter to plaintiff, D. F. Kenner was notified by the commanding general, that the Metairie Race Course was still in the possession of the military, and that while such possession continued the Association would not be permitted to exercise any acts'of ownership over it.

From this evidence we conclude that plaintiff was in the employment of the-Association until 23d November, 1864, when the military took con‘trol, the national troops having been occasionally camped on the grounds, as the rebel forces had been previously. There being no evidence as to compensation, except the annual salary proven, we must allow that sum, making $7,108 77 for the whole period ; during which time he received $3,203 28, which must be deducted, leaving a balance due him of $3,905 49.

His charges for disbursements are not sustained by the evidence.

. It is therefore ordered, that the judgment appealed from be amended so that plaintiff recover of the defendant, the Metairie Association, the sum of $3,908 49 (instead of $1,354 10) with legal interest, from 23d November, 1864, affirmed in other respects, with costs.


author: Hyman, O. ¿T.

text:
    No. 933.
    R. H. Collins v. G. Sabatier.
    Default is unnecessary to enable the bolder of an accepted draft to recover interest thereon from the time it becomes due.
    Where a party accepts negotiable paper, payable at no particular place, he puts it out of his powci to make tender of payment-, and thereby deprives himself of the right to stop interest.
    A PPEAL from the Fourth District Oourt of New Orleans, Théard, J.

      W. W. Hcmdlin, for plaintiff and appellee.

      A. Grima, for defendant and appellant.
   Hyman, O. ¿T.

Plaintiff sued defendant as the acceptor of a draft, to recover judgment against him for its amount, with five per cent, interest, from its maturity.

Defendant denied that he owed the interest, because of .his enquiry to find the draft when it became due, for the purpose of paying it'.

The act to regulate the rate of interest, passed in 1855, (p. 352) provides that all debts shall have interest -at the rate of five per cent, from the time they become due, unless otherwise stipulated.

By this law no default is necessary to enable the creditor to receive interest of five per cent, on a claim for money from the time it is payable when there is no stipulation for interest.

Defendant, by accepting negotiable paper payable at no particular place, put it out of his power to make a tender of payment to the owner at its maturity, for by presentation only ooulcl it be known to liim who was the owner.

His own act deprived him of the rights of stopping interest at the time the draft became due.

The District Judge rendered judgment in favor of the plaintiff, and against the defendant for the amount of the draft, with interest at the rate of five per cent, from the maturity of the draft till paid, and cost of suit.

Let the judgment of the District Court be affirmed ; and let the defendant, who is appellant, pay the cost of appeal.


author: Taliaferro, J.

text:
    No. 993.
    Charles D. Miller v. Schneider & Zuberbier.
    factors cannot pledge or give in paymeut of then* own debts, property entrusted to them to be disposed of for their principal.
    Plaintiff deposited brandy with Campbell ¿s Bisland, retail dealers, for sale; Campbell & Bis-land transferred the brandy to defendants on account of their own indebtedness; afterwards, and after being called upon in the interest of plaintiff, by his agent, the factors entered the account on their books as a cash transaction with defendants: Jleld—'That the transaction was a nation m payment, and not a sale, and that defendants are liable to plaintiff.
    A PPEAL from the Third District Court of New Orleans, Fellows, J.

      E. W Huntington, for plaintiff and appellee.

      Durant <& llornor, for defendants and appellants.
   Taliaferro, J.

The plaintiff placed in the hands of Campbell & Bis-land, retail grocers, to be sold by them on his account, five casks of brandy, for which they gave their receipt, which reads as follows :

“Received, New Orleans, April 18th, 1865, from Mr. Chs. D. Miller, five casks brandy, to be sold for three dollars per gallon, or for more, if it can be realized, or subject to his order.

(Signed) • Campbell & Bisland,

pp. Stafford.”

Campbell & Bisland, being indebted to the defendants, transferred the brandy to them.

The plaintiff brings this suit against tho defendants to recover the brandy, or its value, placed by him at $637 50. He also prays judgment besides for legal interest from judicial demand.

The defendants put in a general denial. The plaintiff obtained judgment as prayed for, and the defendants have appealed.

The leading question in the case is, did Campbell & Bisland transfer of the property to Schneider & Zuberbicr constitute a sale ? Campbell & Bisland quoad this transaction were factors; and factors cannot pledge or give in payment of their own debts property entrusted to them to be disposed of for their principals. 1 An. p. 7.

There ' was evidently an effort to mistify the character of the act by which this lot of brandy passed from the custody of Campbell & Bisland into the possession of the defendants. An “ominous conjecture” is cast upon the fairness of the transaction. Campbell & Bisland owed Schneider & Zuberbier a thousand dollars. A clerk of Campbell & Bis-land testified that when the brandy was sent to the defendants they were charged with it, and that afterwards, he was instructed to enter it as a cash transaction. This was some time in June, 1865. In August afterwards, Campbell & Bisland went into insolvency. Another clerk of that house testified that the brandy was sold to defendants, and that he made out the bills ; four casks having been sold at one time, and one cask at another time.

Massey, a witness and agent of the plaintiff, testified that on coming from Matamoras to New Orleans, he called on Campbell & Bisland, and from the tenor of the conversation he speaks of having with, one of the clerks, it seems that the transfer of the brandy to the defendants was not communicated to him. He states that a few days afterwards, he ascertained that the brandy had been sold to Schneider & Zuberbier, the defendants. That upon advice of counsel, he went immediately to one of the partners of that firm, and notified him not to pay Campbell & Bis-land for the brandy, and received for answer that they had entered a credit on their books for it in favor of Campbell & Bisland. The witness states that this occurred between the 18th and 24th of June. Afterwards, on his return to New Orleans, he states that in an interview with the members of the firm (meaning the defendants) the one with whom he had previously communicated, denied having told witness that the firm had credited Campbell & Bisland”with the proceeds of the brandy, and then asserted that he had told witness they had paid Campbell & Bisland for it.

The bills of sale of the brandy are dated the one on the 21st June, and the other on the 23d June.

A witness, on behalf of the defendants, swore that he saw the bills paid in money ; that they were paid by the bookkeeper of Schneider & Zuberbeir. The testimony of this witness, upon the whole, is of that character that it cannot be considered entirely reliable. One of the clerks of Campbell & Bisland, who testified, being recalled, said he believed the call- of Massey, the agent, upon Campbell & Bisland on the subject of the brandy, caused them to give instructions to witness to make the entries on the books; moaning clearly the entry in relation to passing the plaintiff’s property over to defendants “as a cash transaction.’'’

A careful perusal of the evidence leaves no doubt with us, that the transaction was a elation en payment, and not a sale.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


author: Hyman, O. J.

text:
    No. 988.
    S. M. Hart v. S. Adler.
    The CJourfi will not give judgment for the return of the price paid for goods, on account of the non* delivery by defendant, until plaintiff seeks to annul the contract for non-compliance by the defondant with its provisions.
    A PPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      P. 3. Morgan and John 3 New, for plaintiff and appellee,

      Edward Phillips, for defendant and appellant.
   Hyman, O. J.

Plaintiff instituted suit to recover from defendant the price that he paid to defendant for five bales of cotton, sold by defendant to him on the plantation of D. G. Kelbourno.

Judgment was rendered against defendant, and he has appealed.

A bill of exception was taken by defendant to the ruling of the Court, admitting the testimony of J. E. Hayden taken under commission.

The ground of objection to the admissibility of the testimony, was that Hayden was an interested witness.

Hayden’s testimony disclosed that he was the agent of plaintiff in buying the cotton from defendant; that defendant knew that ho was acting for plaintiff ; that ho was interested at the time of the purchase of the cotton, but that when he gave his evidence, he was not interested directly or indirectly in the result of this suit.

What his interest was we are left to conjecture; but it is not material what that interest was, since it had ceased, and without being interested he was a competent witness, and the Court properly ruled in admitting his testimony.

The agent taking a receipt in his own name for money expended, would not disqualify him as a witness for his principal.

And their objection was made to Hayden’s testimony, on the ground that his evidence is inadmissible under the pleadings, because of contradiction to the allegations of plaintiff’s pofcifcion.

The reply to this objection is, that we do not discover that any part of his evidence contradicts plaintiff’s allegations.

There is no evidence that defendant had not the cotton on Kelburne’s plantation, neither is there proof that defendant has been put in default for the delivery of the cotton, and default is a prerequisite to the right of plaintiff to recover the price paid by him.

Until plaintiff seeks to annul the contract for non-compliance of defendant with the contract, on being put in default, we cannot restore to him the price. See 9 Robinson’s Reports 52; 2 An. Rep. 392; Civil Code, 190C.

It is decreed, that the judgment in this case be reversed, and that there be judgment against the plaintiff and in favor of the defendant, as in case of nonsuit, with costs in both courts.


author: Labawe, J.

text:
    No. 960.
    A. M. E. Church v. N. Duru et als.
    Where the building committee of a corporation sell the corporato property to the builder, in liquidation of his claim, without special authority so to do, the sale will bo declared null. The undertaker will, however, be allowed what remained unpaid on his building contract, and for improve. ments by him made; and will be charged the rents by him received.
    A . EEEAL from the Eifth District Court of New Orleans, Leaumonl, J.

      J. J. E. Planchará, for plaintiff.

      G. Redmond, for defendant.
   Labawe, J.

This action is brought by the African Methodist Episcopal Church, incorporated under the act of 1817, to annul a sale (alleged to be fraudulent) of a lot of ground belonging to th$m, claiming also $3,400 received by the defendants from the city, for rents of the lot and house, and $749 for movables disposed of by N. Duru, and $1,216 rent and hire of house for their religious worship, etc.

The answer is in the nature of a general denial.

The District Court, having hoard the evidence, annulled the sale, and gave judgment for plaintiffs for $2,335 against N. Duru.

The Court gave also judgment against plaintiffs in favor of said defendant, Nicholas Duru, for the sum of $2,500, as builder, and for a further sum of $1,500.

Nicholas Duru appealed, but he has made no appearance in this Court to point out any error to his prejudice.

After the organization of said corporation, the lot in dispute was purchased to build the church thereupon ; a building committee was appointed to contract for the erection of a suitable building. The defendant, Nicholas Duru, took the contract for $2,755, payable $1,200 on delivery of the key, and the balance on different times of credit. The building having been completed and received, the said undertaker acknowledged to have received on account $591, and the building committee gave notes for the whole balance.

On the 29th of April, 1857, the said building committee and said undertaker, Nicholas Duru, declared in a public act, that said corporation was duly indebted unto the said Duru in the sum of $2,500 for said work; that said Duru had already commenced judicial proceedings to enforce payment, and the said committee made a sale a rcmcré, to said Nicholas Duru in payment of said sum of said lot and all the buildings and improvements thereon; the said vendors reserving the right of redeeming said property within four years from the date of said act, on paying to said Duru the said amount of $2,500.

Nothing in the record shows that this committee was authorized to pass a sale.

The evidence shows that Duru received for rent of said property $2,335, and that he also made improvements on the same to the value of $1,500. The sale being annulled, and the corporation taking back the property, with all the improvements, it is but just that the said corporation should pay him the $2,500, in payment of which he had taken the said property, and also the value of improvements put up by him while he possessed the property.

Upon the whole, we are of opinion that the judgment of the District Court is correct.

Plaintiffs and appellees’ counsel asks, in his printed brief, that the judgment be amended so as to strike out the $2,500, and the $1,500 granted by the lower Co.urt to the defendant and appellant, but no answer has been filed praying for such amendment; a brief is not an answer; it makes no part of the pleadings. C. P. Art. 890.

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


author: Ilsley, J.

text:
    No. 970.
    Homer Kellogg et als., Owners of Steamboat Una, v. Steamboat T. D. Hine and Owners.
    No damage can be recovered by plaintiff on account of tho collision of steamboats, if, by his fault, negligence or mismanagement, he has contributed to the collision.
    If the collision be the result of accident, the one in fault must bear tho whole loss,
    A PPEAL from tlie Sixth District Court of New Orleans, Duplanüer, J.

      Denticle Egan, for plaintiffs and appellants.

      Harrison Hunion, for defendants and appellees.
   Ilsley, J.

A collision having occurred on the 4th of July, 1865, between the steamboats Una and T. D. Hine, the plaintiffs have sued to recover from the defendants damages, whioh it is alleged in the petition was occasioned by the carelessness, neglect and want of skill, in the direction and management of the steamboat T. D. Hine.

The answer is in effect a general denial, and there is also a demand in reconvention, set up by the defendants.

The Court below attributed the collision to the want of skill, and the non-observance of caution on the part of the officers of the Una, who could, as the Court says, have prevented the collision ; and judgment was rendered in general terms in favor of tho defendants, thus substantially settling all the points in controvery. Anderson v. Dunn, 17 La. 172. And from this judgment the plaintiff has appealed.

The collision took place on Bed Biver, under the following circumstances :

Owing to an intervening point of land, the two boats were invisible to each other until they were three hundred yards only apart.

When the pilot of the Una first perceived the Hine, he discovered there was something wrong with her, and the headway of the Una should then have been stopped ; but, instead of doing this, he continued his course unchecked, until he got within fifty or sixty yards above the Hine, when, for the first and only time, he signalled for the starboard, and, as he says, “ worked slow perhaps for half a minute, and then put on steam to try and pass the Hine as she was swinging across the river.” This was certainly a very hazardous, and, as it turned out, a somewhat disastrous undertaking.

A skilful pilot might, by the use of precautionary means, and observing rules established by law, have avoided the disaster. The engineer of the Hine gives this version of the event : ho says, “the Hine had become unmanageable ; her tiller and bell-rope communicating between the pilot and the engineer were both broken, and the boat was swinging out, about square across the river, so that the engineers could not tell what they were doing. The Hine had run up and stopped under the point, but not being able to work her wheel, to keep her bow on shore, she swung out and the Una attempting to run by, came within a few feet of doing so ; but' the boats came together. ”

The position occupied by the Hine in the river, was accidental and unavoidable; she was helpless, and there being no means of communicating between the pilot and the engineers, accounts for her giving no signal. It has been frequently decided in our courts that no damages can be recovered in cases of collision, if the plaintiff has by his fault, negligence or mismanagement, contributed to the collision. Ho must, himself, be free of fault. This is the settled jurisprudence of this State. Myers v. Perry, 1 An. 372 ; Carlisle v. Hollon, 3 An. 48 ; Murphy v. Diamond, 3 An. 441 ; Reese & Segar v. Steamboat Mary Tobey, 6 An. 71; Edged, Mulford & Co. v. Barataria and Lafourche Co., 6 An. 425; Quarrier v. Richards, 7 An. 277 ; Dunn & Sacket v. McConel, 11 An. 325. And particularly if a collision be the result of accident, the one in fault must bear the whole loss. Brickle v. Frisby, 2 Rob. 205; Virginia Insurance Co. v. McClendon, 11 La. 115.

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


author: Labatjve, J.

text:
    No. 852.
    Bernard Capella v. G. R. Carradine, Sheriff.
    A person may be compellod to pay a license lax in any parish where he is carrying on a profession or calling, whether it bo his domicile or nob, unless he can show payment in the parish of his domicile.
    A person cannot be subjected to pay a license tax under the law of March 15th, J865, on account of acts done before the passage of the law.
    A
    PPEAL from the District Court, Parish of St. Tammany, Jones, J.

      D. N. llennen, for plaintiff and appellant.

      G. H. Penn, for defendant and appellee.
   Labatjve, J.

Bernard Capella, of Now Orleans, states in his petition that G. R. Carradine, sheriff of the parish of St. Tammany, has demanded of petitioner the sum of four hundred dollars, as State and parish taxes, due by petitioner for peddling and hawking goods, wares and groceries, on 1st February, 1865, from the schooners Mary Magdeline and Désirée, to wit: §100 for each schooner for the State, and §100 for each schooner for the parish of St. Tammany, and said Carradine has seized both of said schooners, Mary Magdeline and Désirée, their tackle, apparel and furniture, to pay said sum of §400.

And he alleges, in substance, that the said Carradine is not duly appointed sheriff, and has no authority to collect said taxes; that said pretended taxes have never been listed, nor has any legal assessments thereof been previously made ; that petitioner is not legally subject to pay any license or tax, State or parish; that if petitioner is taxable at all, it is in the parish of Orleans, where he has domicile; that he has never sold any other produce in the parish of St. Tammany, but such as was the grow'th of the United States ; that the laws, under which said Carradine is proceeding, of April 4th, 1865, is prospective and not retroactive.

He prayed, and. obtained an injunction.

The defendant, Carradine, answered by a general denial; that he has acted in the premises in the discharge of his duties as collector of the State and parish taxes or license for the year ending 31st December, 1865, in pursuance of law.and ordinances of the police jury of the parish of St. Tammany, in reference to revenue and manner of collecting the same ; that plaintiff during the year 1865, in the State of Louisiana and parish of St. Tammany, has been carrying on the occupation of a peddler and hawlcer, in carrying goods, wares and merchandise, and groceries for sale, in the schooner Mary Magdeline and Désérée, without obtaining licenses and paying the tax thereon.

He prays that the injunction be dissolved, with damages, its attorney’s fees, general relief and costs.

The Court below, after having heard the evidence, dissolved the injunction with damages and costs, according to the verdict of the jury to whom the case was submitted.

The plaintiff appealed from that judgment.

On the trial of the case below before the jury, plaintiff’s counsel asked the Court to charge the jury: that the only authority for the sheriff to make the seizure, was an assessment roll made in conformity to law, on ■which plaintiff should have been assessed or listed for the tax or license, for the profession of hawker and peddler; that a party could only bo assessed legally on the profession he exercised, in the parish of his domicile, and where he resides ; that by law the sheriff could not make a seizure for any license tax or dues until thirty days after the notice given by the sheriff of said tax being due ; all which charges the Court refused to make, but charged that the provisions of law referred to by plaintiff did not refer to licenses due on professions, but to tax on lands and other property, and that a person might be compelled by seizure to pay license in any parish where he was exercising a profession, whether domiciliated or not, unless he could show payment of a license in his domicile. The plaintiff excepted to the ruling of the Court. We believe the Court decided correctly.

An annual tax is levied and collected:

Erom each peddler or hawker who |>eddles or carries goods, wares, merchandise or groceries for sale, through this State, in a boat or other water craft, one hundred dollars. ' Acts of 1855, p. 504, | 7.

The following admission was made on trial below:

“Plaintiff admits that Carradine is sheriff of the parish of St. Tammany, La., and ex officio collector of State and parish taxes and licenses ■for said parish for the year 1865, and as such duly qualified ; that tho parish tax for said year is the same as that of the State. ”

The law contemplates that any one intending to follow a trade, profession and occupation, shall obtain a license, issued under the signature of the auditor. Same act, p. 513, § 51.

The main question in this case, is whether or not the plaintiff, Bernard Capella, was a peddler or hawker, and liable for the parish and State taxes claimed from him by the sheriff of the parish of St. Tammany.

The only testimony that tends to show that Capella was a peddler or hawker in the parish of St. Tammany, is as follows !

“Mr. Gallatus sworn: Knows Capella was domiciliated in New Orleans ; had coffee-houses; Capella brought provisioas a short time before the surrender of the Confederates ; brought passes from Federal authorities ; shown papers A. B. C., about those dates ; the provisions brought by Capella, the prices were generally regulated by the provost marshal; was present in February; saw Capella selling goods, both by retail and wholesale ; saw him sell to Judge Martin, butter ; saw him sell crockery ; Capella owned three schooners; saw him selling three or four times. Capt. Jones and Capt. Capella were in partnership, as he learned from both ; goods sold were hardware, provisions, coffee, tea, sugar, hams. ”

The law imposing a tax of one hundred dollars on each peddler or hawker, and under which the sheriff proceeded to seize the schooners on the 19th July, 1865, was approved on the 15th March, 1865 ; the law then in force and repealed by this act, imposed on each peddler or hawker a tax of only sixty-seven dollars. Revised Statutes, p. 487, % 7.

The testimony does not show that the plaintiff was a peddler or hawker in the parish of St. Tammany, the witness saw him sell goods in February, but in what year and where, nothing shows ; it might as well have been in New Orleans, or anywhere else, as in the parish of St. Tammany ; nor does the testimony indicate that the goods then sold, had any connection with and came from either of the schooners, so as to show that the plaintiff was a peddler or hawker, carrying goods, wares, merchandise or groceries for sale through this State, in a boat or other water craft. But suppose that the goods were actually sold in St. Tammany, in February, 1865, and on board of the schooners, the ■ law enacted in March 15th, 1865, and under which the sheriff has seized the schooners to pay $400 licenses, did not apply to the case.

Upon the whole, we are of opinion that the sheriff has failed to show that the plaintiff, Capella, was liable to pay the amount claimed of him for licenses.

It is therefore ordered, adjudged and decreed, that tlie judgment appealed from be annulled and reversed, and it is further adjudged and decreed, that the injunction be perpetuated, and that tlie defendant and appellee pay costs in both courts. .


author: Ilslet, J.

text:
    No. 985.
    W. R. Crane, Executor, v. A. Trudeau et als.
    The discharge of an endorser of a note because notice of protest was not properly served, does not re* lease the other endorsers.
    The holder is only hound to notify the endorser whom he intends to hold liable.
    In relation to third parties and bona fide holders, the obligations of accommodation endorsers are co extensive with those of endorsers of business paper. It would be different if the transferrec of a note endorsed, obtained it from the «taker. In such a case the endorser would be a surety.
    Where no privity is shown between the parties to a no'te, every endorsement, whether accommodation or otherwise, is essentially an original contract, equivalent to a note in favor of the hoidei*.
    A PPEAL from the Sixth District Court of New Orleans, Duplantier, J,

      Durant & Hornor, for plaintiff and appellant.

      A. Z. Trudeau, for defendants and appellees.
   Ilslet, J.

Two of the defendants, A. Trudeau and J. Trudeau, being sued in solido, tlie first as payee and endorser, and the last as second endorser, set up separate defences.

The defence is the same to this extent—that each endorser is discharged from liability for the note sued on, for want of legal notice of protest, and because time was given to the maker without the consent of the endorsers.

The supplemental answer of J. Trudeau, further pleads his discharge from liability as endorser, because the plaintiff, the holder of the note, failed to give legal notice of protest to the previous endorser ; that the note is accommodation paper; and that his liability therein is that of a surety, and that he is also discharged, as by the wilful negligence and laches of the holder, he has lost his recourse against the first endorser.

•The Court below rendered judgment in favor of both defendants, because A. Trudeau had not been notified of the non-payment of the note according to law, and because the rights of J. Trudeau against A. Trudeau, the first endorser, bad not been preserved by the plaintiff unimpaired.

The plaintiff has appealed.

Another ground is urged in this Court for the discharge of James Trudeau. It is that the protest shows that the demand was made at the Louisiana Bank, while the note was payable at the Louisiana Stale Bank.

This is a clerical error, which explains itself, for the notary in his protest says that payment of the note was demanded by presentation of it to the proper officer at the Louisiana Bank in this city, where the same is made payable, and the note itself attached to the protest shows that the words Louisiana Bank evidently meant Louisiana State Bank.

The first endorser resided in the parish of Jefferson, and not in Baton Rouge, at which latter place only, notice of protest was sent to him. He was therefore discharged. But his discharge did not release the second endorser, who, on-the same day of the protest, was served personally with a legal notice thereof. If he wished to secure his recourse against the previous endorser, he should have given him notice. The holder was only bound to notify the endorser whom he intended to hold liable. Hennen’s Dig. vol. 6, p. 197, sec. 2. In relation to third persons and bona fide holders, the obligatians of accommodation endorsers, are coextensive with those of endorsers of business paper. 7 N. S., 12, 3G9 ; 7 N. S., 499. It would be different if the transíerree of a note endorsed, gets it from the maker. In such a case the endorser would be a surety.

The plaintiff in this suit is not shown to have discounted the note for the benefit of the maker. The only privity in this case shown, is between the last endorser and the plaintiff, and every endorsement, accommodation or otherwise, is essentially an original contract, equivalent to a new note or bill in favor of the holder : Dupré v. Richards, 11 Rob. 497; Jas. Trabue & Co. v. R. H. Short & Co., 18 An. 258 ; Story on Bills, sections 331, 334, Notes, § 155.

It is therefore ordered, adjudged and decreed, that so far as the judgment of the District Court is in favor of J. Trudeau and against the plaintiff, that it be annulled, avoided and reversed ; and, it is further ordered, adjudged and decreed, that judgment be and it is hereby rendered in favor of the plaintiff, ’William R. Crane, dative testamentary executor of the succession of James Ogilvie and against James Trudeau, one of the defendants, for the sum of sixteen hundred and thirty-one dollars and sixty cents, with interest at the rate of eight per cent, per annum, from the 4th February, 1862, till paid, five dollars sixty-five cents costs of protest, and costs of suit in both courts ; and that the judgment of the said District Court in favor of A. Trudeau and against the said plaintiff, Wm. E. Crane in his said capacity, be and the same is hereby affirmed ; the costs of appeal in the suit against A. Trudeau to be paid by the plaintiff and appellant.


author: Taliaferro, J".

text:
    No. 1317.
    L. S. Austin, Tutor, v. Mary Sandel, Administratrix.
    “Where the consideration of a promissory note is shown to ho the sale of an African slave, payment cannot be judicially enforced.
    Property in slaves being prohibited by the sovereign power, all contracts based on such property are stricken with nullity
    Courts of justice, which aob only upon and under the law, cannot givo vitality to laws which have become, by paramount authority, inoperative and void.
    1 he doctrine in the case of “Wainwriglit v. Bridges, (ante page 231) reaffirmed.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      Me Vea & Hunter, for plaintiff and appellee.

      J. IT. Muse, for defendant and appellant.

      Reporter.— There were several cases on appeal to the Supreme Court involving the same plea in defence, viz : want or failure of consideration, where the contract was either shown or admitted to have grown out of the sale of slaves which aro sought to be enforced after emancipation. The case of Wainwriglit v. Bridges, (ante page 234) was first taken up and decided by the Court. In that ease, there were no briefs or arguments of counsel filed on either side, but the Judges had access to the briefs filed in the other cases, to aid them in making a decision on the points raised by the record. In all the cases subsequently decided involving the same points, no elaborate opinions were prepared by the Judges; they simply reaffirming the doctrines and principles enunciated in the Wainwriglit case. In this case I publish the briefs of counsel on both sides, which were consulted by the Court in the other cases.

      Brief of MeVea <& Hunter, for plaintiff and appellee.
    —The defence to this suit, brought on a note in the ordinary commercial form, and received by the tutor for the minor he represents, before its maturity, is:
    1. Prescription of five years.
    2. Failure of consideration for which the note was given, by act of the sovereign authority, State and Federal, emancipating the slave.
    Upon the first, we will refer the Court to the evidence in regard to the state of affairs in the parish in which both' parties were living. It presents, if anything, a stronger case for the application of the maxim “inter arma silent leges,” than the case we consider as justly deciding this question (W, B. Smith v, G. B. Stewart,) recently decided.

      Mr. Ilarclee says: “During the years 1863 and 1864, there were constant and continuous collisions between the two opposing forces in this parish.”
    “From August, 1862, to the Confederate surrender, this country was under continual military occupation.”
    In more than one instance there were engagements in the immediate vicinity of the plaintiff's house, situated about fourteen miles from Fort Hudson,
    It is true that some sort of occasional Courts wore held, and at one time there were two Judges for the same district.
    Judge Avery, the regularly elected Judge, held his last term of Court in January, 1862; resigned in April, 1863. Judge Smith held a Court in 1864, under a Confederate appointment by Governor Allen. Judge Fosey was Judge of this same district during a portion of this very time, and was not able to hold a Court in the section in which the parties lived.
    We submit that under these circumstances the plaintiff was not called upon to act upon his claim, and he did so as soon as practicable, and the business of the Court was resumed.
    The other ground is equally untenable. While admitting there is no provision of law recognizing this defence, she attempts to place it upon the ground of the equity powers of the Courts.
    She ought, in order to urge this defence with any force, first evince a disposition to do equity. . *
    She makes no proposal to account for the services of this slave from the time of the sale in 1858, until the slaves’s emancipation, at whatever date it may be held to be fixed.
    She does not show that the. slave was ever emancipated in her hands. The succession of Sandel may have among its assets, for aught we can gather from the evidence, the proceeds of the sale of this very slave.

      Brief of B. J. Sage, for defendant and appellant.
    —This case is one of that large and important class, where debt, evidenced by note or otherwise, is due for slaves which have been emancipated by the supreme authority of the State,' in its recent abolition of slavery. I question not the validity of this abolition. It is done ; no one expects or endeavors to restore the institution to life; and the only practical questions concerning it, we have now to deal with, are consequential ones.
    The term “State ” herein used, simply means political society, except where it obviously indicates ono of the United States. I evade several disputed points concerning our sovereignty, and the character of the governmental contrivances, we, as a self-governing people have adopted, and assume some fundamental principles which I think will not be controverted, as they have the sanction of the first publicists, and political philosophers of the world.
    I shall attempt to sustain the following points :
    . 1. That the political sovereignty, which has acted in the premises, is a moral person, a unity, with an understanding, a will, and a conscience.
    . 2. That sovereignty is identical with justice, and is, in its nature, incapable of injustice.

      3. That the contract interfered with, is unsusceptible of division—is res integra; and that, in destroying the “ cause ” of the contract, or a part of the contract, or in discharging a party, the sovereignty ipso facto dissolves the whole thing—the res integra.

    4 That the judiciary cannot enforce what the sovereignty has nullified; and that hence, the defendant is discharged ; and it is immaterial whether the plaintiff is bound in warranty or not.
    Besides supporting the above points, I shall endeavor to strengthen my conclusions by criticising, and attempting to refute the chief arguments I have seen adduced by attorneys or judges in support the plaintiff’s pretensions.
    We aro a republic ; that is, wo, as an organized people, govern ourselves. The political sovereignty is ours ; and hence the responsibility of doing justice between subjects falls upon us as a commonwealth. And the State is a moral being, possessing understanding, will and conscience; in other words, the capacity and the obligation to do justice ; and it must be guided by the principles of morality and equity, in making and enforcing its laws, and in examining and weighing conflicting claims of right, and establishing justice between them.
    Justice in our country is justice to one another, for we govern ourselves under the obligations of the social compact which makes us a commonwealth ; and all the manifestations of our sovereignty, in making and executing laws, and rendering justice under the laws are our acts. And our golden rule must of necessity be, to do to individuals as we would be individually done by.
    Not a soul of us would wish to be forced to pay for what had been taken from him against his will.
    And it cannot be our intention, as a sovereign, to wrest a negro or any other property from a citizen, and then compel him to pay for the same, Such conduct would do for robbers, but not for men who, as a body, have the faculty and the right to do justice, and who, as individuals, always crave it.
    We may state the question nakedly, thus : Shall the defendant be deprived of his property against his will, and prohibited from calling on his warrantor for indemnity, and yet be simultaneously compelled by the same power that has done this, to pay for it ? It will be attempted to show that such an idea is abhorrent to law, equity and common sense.
    I. My first proposition is, that the sovereignty—that is the soul of the State—which dwells and acts in the organized people, is in its nature a unity, and indivisible'—is, in other words, a moral being. As to the authority for this, I need only say that Yattel and all the other great publicists agree on it. This sovereignty manifests itself in legislative, executive and judicial acts, through created or incorporated agencies called governments. Let us personify it as a wise and good man enthroned, and possessing investigative faculties, understanding, will and conscience, attributes, I have affirmed, of the State. See Yattel, p. 14 et seq. Would such monarch legislate or decree the destruction of the thing bought, and at the same time, and with the same mind, proceed judicially to compel payment for it ? This is so utterly absurd that if the .law apparently lead to it, the Courts, according to all rules, must inter” pret to avoid it, and must let in equity, if indeed Courts can act upon the matter at all, which I aim to disprove.
    II. Sovereignty, from its nature, cannot do a wrong, but must act with justice and equity ; must-be impartial, and treat all citizens as equals. Says Lieber’s 1 ‘Political Ethics,” ed. 1839, p. 151: “Tho fundamental idea of the State is justice—tho right which exists between man and man. That which renders tho State so groat and important is, that it maintains right, protects, and is a continual guard over tho individual right of every one ; that it demands of no member an obligation on his side alono, but knows of mutual obligations only. ” Elsewhere, he says : “Justice, in its broadest sense, is the foundation of the State.” Says Milton in his “ Tenure of Kings and Magistrates : “Justice is tho only true sovereign and supreme majesty upon earth.” Says Bracton (do Legg. et consuet. Ang-]., lib. 1. cap. 3.) “Item author justicias est Deus, secundum quod justicia est in Greatore.” Sec also Blackstone, Book 1, p. 40.
    We must reflect that tho sovereignty in our country, being the political power of all united, must act for all, and alike to all. The community, in acting upon the rights of its members, can make no distinction. It cannot say to one party to a contract: “You shall give up the thing and pay the price, ” and simultaneously to the other: “Go free.” This is the only truthful way to state the matter, for any little (or great) lapse of time between the making and the consummation of the contract by complete performance does not change tho principle. It may bo stated that the sovereign at the same moment binds one party and discharges the other. The capability of such action cannot be predicated of sovereignty.
    Tho absurdity and mockery of tho reply, that the government simply takes private property for public use, or “for works of public utility,” and must compensate, will be duly shown.
    I take it for granted now, that I have established the absolute unity and indivisibility of sovereignty; and that in the turn cases of interference with the contract in question, i. o., in setting the negro free, and in enforcing payment for him, it acts with the same mind and heart; and secondly, that from the nature of sovereignty it can only be just and consistent, treating its subjects with equity, which is equality, and is incapable of discharging one party and coercing the other.
    III. The contract in question, with all its stipulations and incidents on both sides is a unity, and must be dealt with by the sovereignty as a whole. It is a commutative and synallagmatic contract, that is to say, “a contract containing mutual covenants,” or in which “what is done, given or promised by one party, is considered as eqivalent to, or a consideration for what is done, given or promised by the other.” C. C. 1761, 1763. See also 1893, showing the unity of the contract, though many obligations spring from it. See also 39 C. P., which-declares that it is “of the essence of a synallagmatic contract,” “ to give rise to two species of direct actions” to enforce the “mutual covenants.” Hence not merely the sovereignty, but the Courts must keep in view the whole contract as a unity, res íntegra. Inst. 3. 30. 4. If any essential part, any part deemed a sine qua non, had been wanting, the parties would not have agreed to it; so, if any part bo changed, the thing i§ not their contract. Just what they have agreed upon is the law inter sese. CfC. 1895, 1940, 1960. One party gave a negro, whose elements of value, forming the motive and cause of the contract, were that he was sound, sensible, and a slave for life ; and the other gave an equivalent or consideration, viz : cash, and notes bearing interest and secured by mortgage. If the supremo legislative power como and repeal a part of that law, the whole becomes ipso facto null; and the remaining part of it cannot be enforced, for the sole foundation of that law was the agreement of two wills; and that law'itself was what they agreed on as a whole, res integra. In other words, if the sovereign interfere, and discharge one of the parties, or destroy the cause or consideration before the mutual obligations of the parties are ended, and before their reciprocal rights of action are extinguished the contract is at an end ; for the rule of law, as well as common sense, is, that where the sovereignty intervenes for State reasons, and discharges one party, the contract is dissolved.
    I repeat, that where the State annuls any integral part of a contract, or prevents its effectuation, it dissolves the whole thing.
    Let us now see how far the English Courts have recognized the principle stated, in reference to the action of their government, which, unlike our governmental contrivances, is the sovereignty. There is no case directly in point, for England recognized slaves as property, and paid for them ; but there are many cases involving the-principle contended for.
    In the case of Touting cl ais. v. Ilubbctrd, 3 B. & P., 296, Lord C. J. Alvanloy stated the principle of the various cases to be this: “If a party contract to do a thing ho shall be bound, to performance, if it legally may be, and is capable of being performed ; but when the policy of the State intervenes, and prevents the performance of the contract, the party will be excused. And so if a party who has covenanted not to do something, is directed by act of parliament to do that very thing, he is released from his covenant.
    All these English and American cases show tlie principle to be, that if any unexecuted part of the integral contract become prohibited, all unexecuted parts become null, as do all rights of action springing therefrom. In other words, the contract, as a whole, is dissolved by the State, except as to what has been legally accomplished.
    Here is really the principle relieving the defendant, though it seems to have been ignored, and its strength not understood. Principles that belong to different strata, so to speak, of political science, are confused. Legislative acts and jurisprudential and moral.maxims that prevail under the law, are carried up to regulate the acts of the sovereign who made the law, and is above the law. So that all we hear said about privato property being taken for public purposes ; about compensation ; about the risk falling- on the vendee after delivery ; and about the warranty of “ slave for life,” etc., etc., is inapplicable ; and we may, without discussing these civil codities, claim the absolute- discharge of the defendant, as the result of the sovereign act of dissolving the contract which bound him.
    The abolition of slavery is not only the destruction of a great institution, but it is the annulment of a tenure of property, and neither of these things', can be done by ordinary legislative power. Fundamental institutions and tenures, can only be destroyed by the sovereign authority that established them, that of the people ; for not only has no power been delegated to any governmental (i. e. vicarious) authority to do so, but such vicarious authority is provided by the sovereignty solely to preserve, protect and defend ; not to destroy or impair rights. Hence this matter is above the cognizance of the delegated legislative power, and a fortiori above the cognizance of the judicial authority, which can only act upon law ; so that neither the warranty (if there bo one) nor payment can be enforced.
    Every vestage of law which recognized slave tenures has been swept away, and all contracts based upon such tenures, or involving a slavo consideration, were swept away, too. A new fundamental law, the law of freedom to all, has been established by the sovereignty, and the creatures of sovereignty can only act upon, and according to the fundamental law the sovereignty has made; that only the paramount authority of the State can interfere with, and change or annul the obligations of the parties legally entered into, and that the ordinary legislative authority of the republic is not capacitated to do so, are ideas fully recognized by the Civil Code itself (1940, 1958.) The sovereignty has acted; and by its subsequent and higher law, abolishing slavery and destroying slave tenures, all laws pertaining to and supporting slavery and slave contracts, are repealed. In other words, it has annulled, as to slavery, “the law of the land, and that which the parties have made for themselves by their contract.” (C. C. 1960; see also 1895, 1940, 1958.) These parties cannot make, on any slave basis, any new law for themselves ; and they cannot execute such portions of an old one on such basis as remain executory, for if the ordinary legislative authority cannot pass or permit a law upon this subject, surely the ordinary judicial authority cannot execute or enforce one. And this brings up directly the following point, which the above authorities suggest and sustain.
    IY. The judiciary, which is a creature and agent of sovereignty, cannot enforce what the sovereignty has nullified ; and hence, it is immaterial whether the plaintiff is bound in warranty or not. The Court could not, in any one of the above-cited cases enforce the contract, because a Court can only hold jurisdiction on and conterminate with law; and not only the contract, which is the law between the parties, has perished, but the law which authorized the Courts to take cognizance of, and enforce such contract has been repealed. And as to the rights of action springing out of the contract, they must have perished too ; for, says C. P. 39, “it is of the essence of a synallagmatic contract,” “to give rise to two species of direct actions.” In this case, these actions were—first, that of the ,. plaintiff v. the defendant, for the price, etc.; and, second, that of tho defendant v. the plaintiff, for title, etc. The mother was stricken to death by the sovereign, and the twins died en ventre sa mere / Beyond question, the plaintiff’s guaranty of slave for life, if it ever existed ; his guaranty of title; his guaranty of the vendee’s peaceable possession ; his guaranty against redhibitory vices ; as well as the defendant’s obligation to pay the price, all perished with the contract.

      It is no reply to say tliat there is no'warraniy, ancl hence no action of warranty ; for if we admit this, the action for Ihe price remains, because, as the Code of Practice, p. 39, declares, “it is.of the essence of a synallagmatic contract,” “ to give rise to itso, the contract being dissolved, the plaintiff's right of action is gone, it being only correlative to, and coexistent and commensurate with the obligation he seeks to enforce. The right of action has a necessary relation to the .thing purchased, for it is for the price of said thing, and it springs out of the obligation to pay for it. The Court is bound to know, that in this case the obligation is a slave one, for it is of the kernel, and not merely of the husk, that jurisdiction is held, and it is the obligation and not merely the note, which the Court must closely inspect, in order to ascertain whether to hold or decline that jurisdiction.
    I conclude, therefore, that the defendant'is discharged; not because the plaintiff does not stand to his warranty, but because the Court has nothing on which it can act to execute or enforce. ■
    The reason and philosophy of the principle contended for, is well sot forth by Lord Ellenborough, in the case of Atkinson v. liüchie, (10 East. 530.) His lordship, remarking on the proposition, that “in every private contract, however express in its terms, there is-always a reservation to be implied for the performance of a public duty, in which the interest of the State is materially involved, said as follows : ‘ ‘ That no contract can properly be carried into effect, which was originally made contrary to the provisions of the law, or which being made consistently with the rules of law at the time, has become illegal, in virtue of some subsequent law, are propositions which admit of no doubt. • Neither can it be questioned, that if from a change in the political relations and circumstances of this country, with reference to any other; contracts which were fairly and lawfully made at the time, have become incapable of being any longer carried into effect, without derogating from the clear public duty which a British subject owes to his sovereign, and the State of which he is a member; the non-performancc of a contract in á State so circumstanced, is not only excusable, but a matter of peremptory duty—an obligation on the part of the subject.”
    So when, in our country, the State, exercising its sovereign will, with motives satisfactory to itself, abolishes slavery and all its incidents, the laws supporting it, and all contracts based upon, it, (that is, “ the law of the land, and that which- the parties have made for themselves by their contract,” C. C. 1960) “become incapable of being any longer carried into effect, without derogating from the clear public duty which ” the citizen “ owes to his sovereign, and the State of which he is a member;” and the “non-performance of such contract, in a State so circumstanced, is not only excusable, but a matter of peremptory duty—an obligation on the part of the subject. * * * * *
    1. It is said that the discharge of the defendant would impair the obligation of a contract; and that hence, the Court must hold him to his obligation. For the reasons heretofore stated, this is not an objection which any Court can notice. The sovereign can, not only impair the obligation of contracts, but, as we have seen, can absolutely annul them, and destroy vested rights. Of course the government cannot do so, for it i ¡ the creation of, and is subordinate to, the supreme authority of the State which made the fundamental law, giving the government its existence and powers, and imposing restrictions on it; such restriction for instance, as these : No ex post facto law, and no law impairing contracts shall be passed ; no man shall be deprived of property without due process of law, etc., etc.—restrictions first placed in the State constitutions, and afterwards in the Federal one, and now binding on the government as the “supreme law” of the supreme law-giver of the land.
    To make this more clear, as well as to show that this line of thought is not merely for the exigency, I beg leave to quote from a letter of mine published in the New York Journal of Commerce, and other papers, in 1856 : “Slavery is one of those essential facts which belong to the very constitution or frame-work of society, and fall not within the scope of legislative power, but can be created or destroyed only by act of sovereignty. The sovereign is the people ; and if they have not delegated the power, it remains with or in them.
    Moreover, legislation means only law-making, or rule-of-action making, and includes not in its scope or meaning the power to create, impair or destroy an institution or part 0f the frame-work of society, a citizen’s property and vested .rights, or the obligation of contracts between individuals ; and I have long thought that this is the true reason why Congress, although it has the power of exclusive legislation for the District of Columbia, cannot, under said grant of exclusive legislative power, abolish slavery there. Neither can the State or Territorial legislatures, in their respective jurisdictions. But State conventions, representing the sovereignty of the people, can.”
    We can now appreciate what I have already stated, that the abolition of slavery and the destruction of the slave tenure, are matters of sovereign jurisdiction exclusively, and are completely above ordinary legislative authority. Statutes and codal provisions could have no effect on proper contracts, except through the judiciary, in enforcement of said contracts, for legal agreements between citizens are law ! While the legislature can repeal its own laws, it has no power to repeal the laws which citizens establish inter sese by their valid contracts ! Lawful agreements of citizens cannot be touched by law-makers, though citizens can, in making them, derogate from the laws.
    Article 1910, C. C., provides that ‘ ‘ legal agreements having the effects of law upon the parties, none but the parties can abrogate or modify them;” and “that no general or specific legislative act can be so construed as to avoid or modify a legal contract previously made. ” And Article 1958 provides, that “ when the intent of the parties is evident and lawful, neither equity nor usage can be resorted to, in order to enlarge or restrain that intent, nor can any law operate to that effect, unless it be some prohibition or provision, which the parties had no right to modify or renounce.” See also 1895, 1960, 1962.' These provisions of the Civil Code are a repetition and amplification of the constitutional declaration, that no law shall be passed impairing the obligation of contracts. It is obvious, from the above, that neither the legislature nor any other department-of the government, has any power whatever to act in the premises, and dissolve or nullify contracts or parts thereof ; or discharge parties— much less to destroy property, or the cause and motive of contracts, while the power above the government (that created the government as its agent) can do all these things. It is also obvious that legislators and judges cannot recognize and enforce as valid, any part of .those lifeless remains, blasted and scattered by the fatal stroke ! but that all their proceedings, laws, orders and decrees, must colisist with and be ancillary to their sovereign’s act. And it is also obvious that it were absurd to ask the creature, i. e., the government, or any department thereof, to compensate for what the creator has destroyed, 'especially as no power has been given to do so. The sovereign has not only impaired, but it has destroyed the obligation of these contracts, and there can be no remedy !
    2. It is contended that the defendant is still'bound by the unexecuted part bf the contract, while the plaintiff is bound to no obligation at all. In the attempt to limit the warranty to the matter of title and redhibitory defects, it is forgotton that these warranties exist without words—(O. C. 2450,2451, 2477; and that this construction makes the phrase “ warranted slave for life ” of no effect, although the law (C. C. 2479) expressly provides that “ the parties may by particular agreement add to the obligation of warranty, which results of right from the sale or diminish its effect;’’ and, moreover, it violates that well-known principle of interpretation, that we must not construe that which is unambiguous, unless the language leads to a positive absurdity or inconsistency,- O. C. 1940. So far from this being the case, it would be a positive absurdity to say that the phrase “ warranted slave for life,” only means what by law is “implied in every sale.” C. C. 1757. It also violates the rule,'that interpreting a deed, every part of it must be made if possible to take effect, and every word must be made to operate in some way or other. Broom’s Legal Maxims, 414—Shep. Touch. 84. But, says the opponent,' it refers only to status at the time of sale. “Warranted slave ” would'be enough for that, and no words could add force to the phrase. “ Eor life ” means nothing, if not; a continuance of that status, i. e., a continuance in the status of a slave during natural life. The language is too plaid for construction ; but if the seller should succeed in making it doubtful, “ any obscure or ambiguous clause is construed against him.” C. C. 2449. As in common law, the deed is construed most strongly against the grantor. It will be shown hereafter that the articles on eviction and warranty have no application to this case.
    3. I have read, in some judicial ojiinion, that “no one can guaranty against the acts of .the government, because no one can oppose the will of the sovereign. ”
    This is an admirable specimen of the pelitio prinoipii. In the first place, the Judge forgets that the sovereignty is one thing, and is in the people, and the government is another thing, and is out of the people, but exists and acts by virtue of their delegated power ; in other words, the people, as a republic, govern themselves ; and the government is their contrivance for doing so. No “guaranty against the acts of the government,” indeed! Why the sovereignty itself has guarantied us all against the very act in question, as well as all other illegal and unjust acts, by establishing equality ; by commissioning said government only to do justice ; by not delegating the power'to do this thing, and prohibiting the use of all power not delegated; and by declaring that no man shall “ be deprived of his life, liberty or property, without due process of law,” as all tho States of the Union severally declared in their preexisting constitutions, and afterwards jointly declared in their Federal one. At all events, this contention is baseless, because there is no “ act of the government” in the premises, to give rise to any question of “ guaranty against the acts of the government.”
    Again, if the Judge mean by this phrase, that no one shall by his warranty help to resist, violate or nullify the acts of tho government, I quite agree with him ; but I feel confident that there is no illegality or impropriety in a party wrrranting or insuring one, whom he contracts with, against a loss caused by governmental action. And if the plaintiff in in this case, has not from the general stipulation of warranty, or from the warranty of title and possession implied by law, provided an exception, he must suffer, for he might have guarded himself. In Paradina v. Jane, 27 Alleyn, it is held that when a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract; and, therefore, if the lessee covenant to repair a house, though it be burnt by lightning, or thrown down by enemies, yet he ought to repair it. See also Harrison v. Lord North, 1 Ch. ca. 84 Under the law, tho plaintiff in this case has undertaken the warranty in question, and has not provided against the loss by the act of the sovereignty. But for this exercise of sovereign authority, the vendee would have the right of action against him. In the somewhat similar case of Miltelholzer v. Fullarlon, (6 Adolphus & Ellis, Q. B. Reports, N. S.) arising in the West Indies, the appellate Court in England, while deciding that there was no guaranty in point of fact, conceded that “ if there had been a guaranty (of the services, for the term of six years, of 153 apiorenticed laborers), and it had been broken, there would have been a right to a cross action.”
    It is the plaintiff who, if any body, must apply to the sovereignty for compensation. But in truth, he and the defendant are both discharged by the State from the dissolved contract.
    4 For the loss of' the slave by emancipation, the purchaser must look to tho government. If the government takes your property for works of public utility, you have no recourse against your vendors, but against the government alone.”
    Which government; tho State or the Federal ? Both are alike, creations of and subordinate to the sovereignty. It cannot be the Federal, for it did not do the damage. It had no right to destroy (as it had not to establish) any tenure of property ; so it would be absurd to ask it to compensate. Moreover, it utterly lacks power, not having been commissioned by the State or “ the people,” to do so. The same reasons apply to the home government of Louisiana. * * * * *
    These are not only sufficient replies to the above obiter dictum of the Judge, but to the common remark, that “ the arguments of the defence are proper in a claim to the legislature for compensation.”
    But further, the legislature, especially the Federal, has no right to take property for a purpose “ of public utility,” unless such purpose and the power be in the constitution. No power to take a slave, much less all slaves, for any purpose, is given, more especially as the pretended use, was not use at all, but simple destruction of the very right to use ! And moreover, there is no “ purpose ” or “ work of public- utility,” that the “taking” of the right of property in a slav'e, would be necessary to accomplish. “ The government takes your property for works of public utility !” Who could imagine that this judicial phraseology meant the abolition of slavery by sovereign power ?
    It is quite obvious, that neither the -sovereignty (nor the government) has taken any property at all, and of course has not used it. But it has declared that such property is no longer property; it has abolished the tenure. “ Private property for works’of public utility,” indeed !
    5. The Code throws the loss on the vendee.. “ lies peril suo domino.” This is the main point in the able brief for the plaintiff, in the case of Knox v. Dwplanlier.

    Article 2442, provides (under certain modifications as to delivery in 2443-4) that as soon as the contract of sale is complete, the thing is at the risk of the buyer. And Article 2511, glossed by 3522, $ 7, provides that if the thing perish by a fortuitous event, (that is, an event which “ happens by a cause we cannot resist, ”) the- loss is the buyer’s. Article 1892 is also quoted, but as it cannot bo said that “ all that was intended by the parties was carried into effect at the time,” for the intent to pay the price is not yet effectuated ; the article does not; apply. Moreover, for the same reason, the loss in the case at bar has not occurred depuis que la venle a recu sa perfection. The article can only have reference to an executed contract.
    But let us pass all doubts and queries, and concede that the loss in this case is the buyer’s, if the thing perish by a fortuitous event, aEter delivery. Then comes the important question : Do these three ideas concur in our case, as they must, in order to bring it, within the above articles : 1st. The idea of the thing ; 2d. That of perishing ; 3d. That of a fortuitous event. 1st. We may admit the negro to be the thing; 2d. This thing perishes only by death. But let us reason : If the sovereign say, as'it can rightfully do, that my books shall be property no longer ; or if it declare that a watch, a horse, dogs, or certain animals ferae nahirce, that have been regarded as property shall be property no longer, would that be the perishing or destruction referred to ? No ; because the identical thing still exists unimpaired; and, besides, fortuitous events do not merely destroy tenures, and leave uninjured the things held. In this case, the thing exists just as a dog, .book, watch, or horse may, after the owner is dispossessed by loss or theft. The thing has not perished. 3d. Is the abolition of the slave tenure a fortuitous event ? Such event is something accidental, e. g., a thunderbolt, freshet, crevasse, tornado, fire, collision, striking a snag, violence, a mob, etc., etc.; but the act of the sovereign is no fortuitous event, (any more than an a'ct of the legislature, or a judgment of the Court would be) for it is a most deliberate exercise of sovereign will by virtue of its conceded right, and upon a professed principle of morality and natural law, “ Fortuitous events,” indeed !

      We may tlien decisively, say, that these articles can have no application. Let us proceed to examine some others which are cited against us as to eviction and warranty in the aforesaid brief.
    Eviction is the loss the buyer suffers from the claim or right of a third person to the thing. C. C. 2470. “ Third persons” are all who are not parties. 3522. The plaintiff cites 2470, Domat, p. 230, Nos. 371, 374 ; also p. 174, No. 190 ; also Pothier, p. 54, No. 93, repeats his paier-nosler, res peril suo domino, and seems- to think he has clinched the nail. Let us see.
    Eviction (from evincere to overcome—to prevail in law), must mean loss in pursuance of a judgment in favor of a paramount title (see Burrill’s, Bouvier’s, and Webster’s Dictionaries), especially as under the law, no person can be deprived of property without duo process of law ; so saitli the sovereign ! Now thoro has been no judgment of eviction; no right of a third person has prevailed in law. Ilenoo these articles do not apply. * * * * *
    6. Finally, let us notice a quostionput from the bench during the argument, involving a very common fallacy : “ Shall we throw all the loss on the plaintiff ?” I trust the Court will as officio note the defendant’s cost of keeping the slave—say for four years ; the interest for that time of the unproductive capital represented by the slave and the correlative land ; the loss of the slave by emancipation ; the consequent abatement of the value of the land, improvements, and other property, directly caused by the loss, to say nothing of other direct or indirect losses, and of moral and mental injuries ! The truth is, the debtor has lost more than the creditor, even if the latter do not recover ; and I now submit that the real question is : Shall the debtor lose as much more, in order that the creditor shall lose nothing ? for the Court must give judgment for principal and interest, if for anything - at all; and this, while ruining the defendant, would enable the plaintiff to escape absolutely unharmed by the war or the emancipation ! Would we thus be doing equity or equality, as a sovereign ? .
    No ! this is all error ! The sovereignty intended that the tree should lie as it fell; and that those should suffer who were in the way. For this conclusion, there are two unanswerable reasons : 1st. The abolition of slavery was a deliberate act of war, consummated by conquered and abject States under dictation ; and it is not bolligerent-like to make or cause reparation except by or under treaty. 2d. The precedent which England had set of compensating for slaves as property, was avoided ; and no cure, compensation, remedy or recourse was provided for, and no reclamation is legally possible. No wound is to be healed, except by the ins medicalrix nalurce; and no ruin is to be repaired except by labor, reproductive energy and time,
   Taliaferro, J".

This suit is brought on a promissory note for the sum of $452, with interest, from the 2Gth February, 1861, the time of the maturity of the note.

The defence is:

1st. The prescription of five years.

2d. Failure of consideration, arising from the emancipation of slaves by the sovereign authority.

Judgment was rendered for the sum specified in the note, but without interest.

The defendant has appealed.

The plaintiff prays an amendment of the judgment, allowing him the interest claimed.

It is. admitted that the consideration of the note was the price of an African slave sold at a succession sale.

The first ground of defence we deem it unnecessary to consider.

Eor the reasons assigned in the case of Wainwright v. Bridges, lately decided by this Court, the second ground of defence must prevail.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that judgment be and is hereby rendered in favor of the defendant, releasing her from the obligation of paying the note sued on, the plaintiff and appellee paying costs in both courts.

Justices Labauve and Ibsbey dissenting.

For the reasons given in our dissenting opinion, in the case of Wainwright v. Bridges, lately decided, we dissent to the judgment in this case,

John H. Ibsley, Associate Justice of the Supreme Court.

Zenon Labauve, Associate Justice.


author: Labauve, J.

text:
    No. 936.
    Robert H. Bayly, Curator, etc., v. Thomas McKnight.
    Whore property lias been sold at succession sale, and notes executed for the price, with a stipulation in the act of sale and mortgage, that the property sold remains specially mortgaged and hypothe cated, with privilege of a vendor in favor of whoever may be the future holder of the notes, any future holder of the notes may obtain an order of seizure and sale of the property mortgaged, in his own name, by exhibiting the notes and act of mortgage, or, in any legal capacity, such aa curator, without exhibiting letters of cnratorship.
    Obligations, executed prior to the first of October, 1862, need no internal revenue stamp to give them validity.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Boselius <6 Philips, for plaintiff and appellee.

      Field <& Shackleford, for defendant and appellant.
   Labauve, J.

This is an appeal taken from an order of seizure and sale, granted on four mortgage promissory notes, dated 22d March, 1862, signed by the defendant, and by him endorsed injbla:ik.

The defendant and appellant urges that the case should be dismissed, because the evidence upon which the said order is founded, is insufficient and illegal, inasmnch as plaintiff saes as curator of a succession, and he has filed no letter of cnratorship, and because the notes sued upon were not stamped when used, with the proper revenue stamps according to the acts of Congress on that subject.

.Three notes were executed as part of the price of certain property sold to defendant, at the sale of the succession of Thomas B. Poindexter, and a mortgage was retained on the property to secure the payment of said notes, which are declared in the act to have been subscribed by the purchaser to his own order, and also to have been endorsed by him. It is stated in the act of sale and mortgage, that in order to secure the payment of said notes, with all intetests thereon as aforesaid, the herein above described and conveyed property is and hereby remains bound, mortgaged and specially hypothecated with privilege of vendor, in favor of the succession of the said late Thomas B. Poindexter, or of whomsoever may be the future holder or holders of said notes. Any holder of said notes, by exhibiting the same, together with a copy of the act, was entitled to an order of seizure and sale in his own name, or in any legal capacity, such as curator, etc., without producing letters of his alleged capacity, Louis Marthe v. George McCrystal, 11 An. 4. Race & Foster v. Owen Bruen, 11 An. 34. Montgomery, Executor, v. Myers, 2 An. 276. Rice, Curator, v. David Davis, 14 An. 435.

The other objection, that the notes were not stamped when used, with the proper internal revenue stamps, according to the acts of Congress on that subject, cannot be maintained. ' ■

No stamp is necessary upon an instrument executed prior to the 1st of October, 1862, to make it admissible in evidence. In this case the notes were executed on the 22d March, 1862, we have lately so decided in the case of Frederic Baur v. Richard, Shackelford, not yet reported.

We are of opinion that the District Court did not err in granting an order of seizure and sale.

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


text:
    No. 940.
    Manuel Bonnin v. Dr. Joseph Elliott.
    Malicious slauler will be punished by tbe infliction of damages commensurate with the aggraved character of the language used. The doctrine "iri the case of Mohrinan vs. Oshe, 17 A. 64= reaffirmed.
    A PPEAL from the Third District Court of New Orleahs, Fellowes, J.

      A. Sambóla c6 Ducros, for plaintiff and appellee.

      Geo. L. Bright, for defendant and appellant.
   Howell, J.

The motion to dismissthe appeal in this case is unfounded, ■ and must be overruled.

The defendant has appealed from a judgment, in the sum of one thous- and dollars damages, for Slander.

The words charged are clearly proven, s/aá are of a very defamatory nature ; but defendant’s counsel contends that they were uttered in an ebullition of passion, without malicious motive; and carry with them no pecuniary, responsibility. The circumstances detailed in the record, do not, in our opinion, bring this ease.within the application of -this doctrine. It is true, defendant gave .ven.t to a sudden, burst of passion ; but there was nothing in the language or conduct of the plaintiff on the occasion, to diet or excuse it; while the opprobrious epithets were repeated, by him in plaintiff’s shop, and on the banquette, and one of them again used in an interview sometime afterwards with one of the witnesses. The ruling in the-case of Mohrman v. Oshe, 17 A. 64, supports the decision in this.

Judgment affirmed.


text:
    No. 918.
    N. C. Folger & Son v. W. S. Slaughter et als.
    Defendants had their domicile and residence in one parish, where they had resided for a number of years, from which they removed temporarily to an other parish, to avoid the dangers resulting from the late war, where they engaged in business, and participated in one or two elections by voting, without doing any other act, or signifying their intention of a change of domicile: Held— That these acts, oi themselves, are not sufficient to cause axliange of domicile, and the parties must be considered as still residing at their former domicile, where they must be sued.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      W. F. Kernan, for plaintiffs and appellants.

      Burgess <& Chaney, Bunn <& IIn ron, for defendants and appellees.
   Taliaferro, J.

The defendants are sued as. acceptors of certain drafts drawn in plaintiffs’ favor by Young & Holmes. W. S. Slaughter and Alexander Smith, the parties sued, except to the jurisdiction of the Court, On the ground that the parish of East Feliciana is not in the parish of their domicile. The exception was sustained, and the suit dismissed. Plaintiffs have appealed.

But the one question is here presented: Were the defendants domiciliated in the parish of East Feliciana at the time this suit was instituted ?

It is shown that both Smith & Slaughter resided in Jackson, in East Feliciana, before and at the time of the institution of this suit; that the latter had resided there about a year before that time,' and the former since 1862, a short time after New Orleans was taken by the Federal forces.

It is also shown that Slaughter rented a house in Jackson, and has been living theré, and that Smith’s family resided in the parish of East Feliciana.

It is further shown that both have, during their residence in Jackson, attended elections there, and also that on one or two occasions they voted there.

Smith, it is proved, was trading in cotton in that parish.

This evidence, we think, overbalanced by the weight and general drift of the testimony on the other side. It is, we think, quite clearly shown that Slaughter has a domicile in the parish of East Baton Rouge ; that he lived on his plantation in that parish, near the Mississippi river, from whence he was within range of the cannon on board the Federal gunboats, and that he removed' to Jackson to get out of the danger. It is proved that he always expressed his intention to return to his plantation, in East Baton Rouge. The same thing is established, in regard to Smith, whose constant declarations have shown an intention to go back to New Orleans. The ill health of his wife detained him in Feliciana. The fact of these defendants having voted in Jackson, at elections, once or twice, is not conclusive against the opposite evidence. Irregular voting of this kind is of frequent occurrence, and it should not be allowed too much weight in determining questions of this kind. Persons who, like the defendants, during the late commotions, had to leave their domiciles and undergo a temporary exile, during which they have constantly evinced the will and intention to return to their long established homes, should not be deemed to have changed their domiciles, from having engaged in trade during their sojourn, and from having voted occasionally at loosely conducted elections.

We think the exception was properly sustained.

Ibis therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Howelxi, J.

text:
    No. 1132.
    Richard Taylor v. P. G. Mohan, Comptroller, and M. F. Pratt, Deputy Comptroller.
    Where property leased is encumbered with a servitude, or privilege of a date anterior to the lease, the lessee takes the property subject to the encumbrances; and he cannot maintain an action to prohibit the use of the former privileges granted on the property.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Hays, Adams & Morse, for plaintiff and appellant.

      H. JD. Ogden, for defendants and appellees.

      Brief of H. J). Ogden, for defendants and appellees.
    —On 24th March, 1863, the legislature passed an act in these words : “That the city corporation of New Orleans be and are hereby authorized to build a good and substantial foot bridge on the New Basin Canal, at the intersection of Liberty street. ” “That said bridge be so constructed as not to prevent the free egress and ingress of vessels. ”
    The Common Council of New Orleans, in conformity with the above permission, passed resolution No. 148, N. S., (annexed to plaintiff’s petition) authorized the comptroller to sell “ the building of a foot bridge across the New Canal Basin, at the foot of Liberty street,” according to the plans and specifications on file in the Surveyor’s office.
    The comptroller advertised for sale a bridge “ across the New Canal, at the foot of Liberty street.”
    Voluminous testimony has been offered to show the extraordinary damage which would accrue to the lessee from the building of a bridge, constructed in any manner or way. By the evidence, no plan could be adopted to prevent the loss. It is even estimated, that the damage would amount to at least one hundred thousand dollars for each bridge. The whole testimony, however, is irrelevant; the only question is, had the lessee vested rights, which -would be impaired by the construction of the bridge. It is not alleged, that the bridge to be constructed would prevent such free egress and ingress of vessels as was intended to be understood by the words of tlie act. * * * * *
    We respectfully submit, that when the plaintiff obtained the lease of his canal and tlie lands adjoining, it was with all the encumbrances and servitudes attached, as well as the rights and privileges appertaining thereto. The act of 24th March, 1865, imposed a servitude in favor of the city. It was a public act, and the plaintiff was bound to know it. It was a right given and vested in the city at the time that plaintiff acquired liis rights. The State being the owner of the adjacent lands, and giving the right so to construct a bridge, necessarily gave with it all such grants and permissions as may be necessary for the exercise and enjoyment of the right. This must be implied. The act of 1865 bestowed a servitude on both—the canal and land.
   Howelxi, J.

On the 24th April, 1865, the Legislature of the State passed an act authorizing the city of New Orleans to construct a foot bridge across the New Basin Canal, at the intersection of Liberty street. On 10th July, 1866, the Common Council authorized the comptroller to sell the building of a bridge at said point, and, said officer advertised the sale thereof; whereupon the plaintiff, who had on 6th March, 1866, leased the said canal, with its property, rights and privileges from the State, enjoined the said comptroller from proceeding with said sale, on the ground that the construction of said bridge would injure his rights under Ms said lease.

Judgment was rendered in favor of defendants, dissolving the injunction, from which plaintiff appealed.

The right to construct the bridge in question, had been accorded to the city corporation by the State, prior to the lease of said canal to plaintiff, which passed to Mm with the encumbrances and servitudes established, and not excepted by the State, his lessor. The lessee cannot contest the title of Ms lessor; but it is not pretended that the State had not the right to grant the privilege of building tbe bridge.

Judgment affirmed.


author: Iesley, J.

text:
    No. 998.
    Edward Conery v. C. F. Hayes et al.
    After the termination of the partnership, no admissson or acknowledgment, by one of the partners, of the correctness of an account made before tlie dissolution of the partnership, is legal evidence against the other members of the firm.
    The admission of a partner, aftor the dissolution of tho partnership to a third party, that an account made before the dissolution is correct, where the amount is over five hundred dollars, is not conclusive against him. O. C. 2357.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Randolph, Singleton é Bardie, for plaintiff and appellee.

      B. Egan, for defendants and appellants.
   Iesley, J.

The defendants, O. F. Hayes, Barry Hayes and O. D. Hayes, are sued by the plaintiff to recover from them, as commercial partners, owning the steamboat Starlight, engaged in the carrying trade, the sum of sixteen hundred and thirty-one dollars, with interest, for boat stores and necessary supplies, furnished the said boat, between the 25th February, 1862, and the 12th February, 1863.

The defendants separated in their answers; each pleaded the general issue, and the prescription of one and three years.

Afterwards, each of them filed an amended answer. Barry Hayes claimed to have been always the sole owner of the boat, and O. F. and O. D. Hayes denied ever having had any interest in her.

Judgment was rendered in the lower Court in favor of the plaintiff and against all the defendants, in solido, for the amount claimed, interest and costs.

The testimony in the record establishes that, during the whole period which the amount embraces, the defendants were the joint owners of the Starlight. There was no special contract of partnership, but the nature of the business done during that period by the boat on account of the said owners, constituted them quoad hoc, commercial partners, and they became liable in solido for the current debts of the boat.

The property, or ownership of the boat, was not brought into the partnership; it was the mere nse of it. See Owens v. Davis, 15 An. 23. 2 Rob. 229. 6 An. 293. 14 An. 437. And when the use of the boat ceased to be available for any purpose, as it did by the seizure and detention of it by the United States military authorities, the partnership terminated, and the individual members merely retained their title to and interest in the boat, as joint owners.

After the termination of the partnership, no admission or acknowledgment by a partner of the correctness of the plaintiff’s account could be deemed legal evidence against the others. 5 Rob. 172. 6 R. 127, 256. 11 Rob. 458. 12 Rob. 252. 2 An. 272.

The acknowledgment, in writing, made by O. F. Hayes, that the plaintiff’s acco unt was correct, is conclusive against him, and thence no prescription but that mentioned in the C. C. 3508, applied to it.

As against C. D. Hayes and Barry Hayes, the claim is not established by legal evidence.

Neither the plaintiff’s books nor the testimony of the clerk, whose information was derived exclusively from the books, and from no other source objected to, was valid testimony. This doctrine is well settled in our jurisprudence. Byrne v. Grayson, 15 An. 457. 2 N. S. 509. 4 N. S. 383. 12 Rob. 407. 12 An. 770.

This evidence, and the admission of C. F. Hayes being excluded as against O. D. and Barry Hayes, there is not sufficient evidence to charge either of them.

Barry Hayes did, according to the testimony of one witness, admit the account to be correct; but the claim exceeding five hundred dollars, and there being no corroborative testimony, it fails to make the demand against him certain. Art. 2257, Dartes v. Decuir, 5 Rob. 480. Succession of Segond, 7 Rob. 111. McRae v. Marshall, 1 An. 29.

It is therefore ordered, adjudged and decreed, that as far as the judgment of the District Court is against C. D. Hayes and Barry Hayes, and in favor of the plaintiff, it be annulled, avoided and reversed. It is fur-tiler ordered that the judgment be and it is hereby rendered in favor of these two defendants, and against the plaintiff, with costs in both courts. It is further ordered, that so far as the said judgment of the District Courtis in favor of the plaintiff and against the defendant, O. F. Hayes, that it be affirmed, the costs of appeal to be paid by that defendant.