author: Rost, J.. Rost, JV

text:
    The New Orleans and Carrollton Railroad Company v. The Town of Carrollton.
    IV would boa breach of good- faith to the public and to individuals to resume possession of portions of ground which! Have been deliberately didicated foi streets, or over which the public has notoriously exercised a right of passage fdr more than ten years, which of itself would give the public a-rigbt of way without any dedication.
    No particular form or ceremony is necessary in the dedication of-land to public use; all that ’ is required is, the assent of the owner, and the fact of its being used for the public purposes intended by the appropriation. But'wlieñ the dedication is not express, and is to be inferred from the acts and conduct of the owner, and the use by the public, these ought to be such as to exclude any other hypothesis but’that of dedication. In all such oases, the consent of the owner must1 appear clearly.
    If apeice of ground be left unenclosed for the convenience of the owner, who uses it for a specific purpose in the usual'course of his business, the fact that he does not exclude persons from passing through it, or that, when tlie'ground is within the limits of a town, he has represented it as open and unenclosed, as it really was at the time, upon a plan on which he has sold other town lots not necessarily connected with that open space, cannot under any circumstances be fairly- considered as’proof of a dedication, to public use, of the ground thus left open.
    APPEAL from the District Court of Jefferson, Clarke, J.

      Benjamin and Micou, for the appellants.

      Preston, for the defendants.
   The opinion of the court was pronounced in'this case, on the 22d of November, 1847, by

Rost, J..

The'plaintiffs complain tliat the council of tlie town of Carrollton have caused to be demolished certain fences and enclosures erected by them opposite to, and at the upper end of, First street, on the line of Canal avenue, at the intersection of Levée and Madison streets, and on Hampton street opposite Dublin street, all those'fences and enclosures being, as they allege, on their property, within the incorporated limits of said town. They pray that the corporation be forever enjoined from disturbing the fences and enclosures they may erect around the same ground, and adjudged to pay damages-for their illegal acts.

The defendants admit the acts charged against'them, bat aver their legality, on the ground that the places enclosed'had long previously Been dedicated to puBlic use By the plaintiffs, and tliat tlíe corpórators of the city of' Carrollton, and all other persons, have notoriously used and enjoyed them as sUohfor more than ten years before the institution of this suit. They further- allege that the plaintiffs sold at auction fots on Dubfin street! and represented as public places on the plan adduced at the sale those portions of ground which they have since-attempted to enclose; and that the town of Carrollton, and'many of the corporators, have acquired town lots on Dublin street with reference to that plan. They ask for judgment in their favor; and' setup in reconvention a claim for damages. They obtained judgment with $250 damages, and the plaintiffs-appealed..

We agree with the plaintiffs counsel -that the plaintiffs were not bound by , , . ,, their charter-to continue First street to the Mississippi river, and that they might originally have enclosed-their grounds-, so as to retain the exclusive ownership of them ; but they cannot now, without a breach of good faith to the public and to individuals, resume the possession of that portion of them which they have deliberately dedicated for streets, or over which the public has notoriously exercised a right of passage during more than ten years. City of Cincinnati v. Lessee of White, 6 Peters, 439. Barclay et al. v. Howell’s Lessee, 6 Peters, 498.

enclose the portions of it not occupied 'by the railway. The eastern side of First street, from Madison street to Canal avenue, ha,s 'benn notoriously used as a public road for more than ten years. This -would give the public aright of way without any dedication. The plan on which the plaintiffs sold town lots on Dublin street represented that street as opened from the western line of Second street to the prolongation of the eastern line of First street. It also represented First street as opened in its whole breadth, except so far as occupied by, the railways between the car-house and Canal avenue. From -thatline-to Madison street the eastern side only can be considered as an open lawn, the western side ‘being occupied by the buildings and shops of -the company. The purchasers of'lots on Dublin street purchased with reference to that plan, and the plaintiffs have no right to

The plaintiffs had the right to enclose that portion of their ground forming the western side of the continuation of First street, between Dublin and Madison streets, and on that ground the judgment must be reversed.

The judgment is therefore reversed; and it is ordered that the defendants be forever enjoined from disturbing the fences and enclosures which the plaintiffs may erect on the western side of their car-house and of their railways, as they may at any time exist between Dublin and Madison streets. It is further ordered that the defendants pay the costs jn both courts; and that the remainder of the plaintiffs’ claim b.e dismissed.

Same Case — On a Re-hearing-.

THE final judgment of the court was pronounced by

Rost, JV

Both parties having applied for a re-hearing, we -will first examine the grounds upon which the application of the defendants rests. They complain that while the opinion of .the .court is in their favor on every claim set up by them, except the claim for damages, the court reverses the judgment, and decrees in favor of the plaintiffs what was never in any manner, -way, or shape, in thought, word or deed, controverted by the defendants, to wit, that the plaintiffs had the right to enclose that portion of their ground forming the northern side (the court erred in calling it the western side,.) of the continuation of First street.hetween Dublin and Madison streets. We .copy from the original brief of the counsel who makes this application, what follows ;

“ The reasonable interpretation of the fourth section of the act incorporating the Railroad .Company is that, First street should;be extended to the river, and that the passage through .the same should be preserved. The fifth section °f ^1® acl:’ authorizing the company to .expropriate the land of others, forces them to furnish the street on each side of the railroad to the Mississippi river; and the defendants have the right to ¡compelí th.e .company to take up the road in Madison street, unless they open First street to it, .and passable .streets .on both sides.”

Such palpable contradictions require no comment. A street was expressly claimed en both sides of the railway, up to Madison street.

The .defendants’ .counsel now asserts that the five posts cut down at the upper end of First street w,er,e all between the railway and the southern line of said street, and were intended only by the plaintiffs to block up the south side, not the north .side, which he says the town never claimed. This may be so; b.u.t .the counsel did not so represent it in his argument, and the evidence does not make it certain. The line of intersection of First and Levée streets occupies the whole south side of First street, crosses the-railway, and extends .some distance north of it to the point where it intersects the line of Madison .street. Nothing in the record .shows that no posts had been placed north of .the railway; and if there is error in the judgment in this respect, it is the result of the argument of counsel .and .of the loose manner in which the facts of this part of the case have been placed before the court. It is unnecessary, however, to determine the question.

The counsel for the plaintiffs insists that there has b.e.en no dedication of the prolongation of First street on the northern side of the railway, between Canal Avenue and Dublin street. W.e held that the plaintiffs could not, without a .breach of good faith to the public and to individuals, resume the possession of those portions of ground, which they had deliberately dedicated for streets, or .over which the public has notoriously exercised a right of passage during more than .ten years. W.e consider lire plan under which the plaintiffs sold a portion .of their town property, and on which the ground alluded to is represented as .open, .and the use which persous on foot appear to have had of it since the establishment of tile railroad, an sufficient proofs of dedication. It would have .been .so, if the plaintiffs had had no object in leaving the space open, and had not.made a continuous use of the ground in the ordinary business of the company. But the evidence shows that, from the .time the plaintiffs commenced to construct the railroad to th.e present day, this space has been used as a place of .deposit for railroad iron and .all other materials required for it; that it has never bean in a situation to be used as part of the public highway; and that it is-more convenient than any other for the purposes to which it is applied by the company.

We admit that there is no particular form or ceremony necessary in the dedication of land to public use, and that all that is required is the assent of the .owner of the land, and the fac.t of its being used for the public purposes intended by the .appropriation. Jarvis v. Dean, 3 Bingham, 447. But when the dedication is no.t express, and is ,to be inferred from the acts and conduct of the.owner and the user by the public, these ought to be such as exclude any other hypothesis bud that of dedication. In all such cases, the consent of the •owner must clearly appear.

We were of opinion that this case came within the rule adopted by Lord Ellenborough, in Rex v. Lloyd, 1 Camp. 162, “ that if the owner of the soil throws open a passage, and neither marks by any visible distinction that ho ¿yeans to preserve .all his rights oy.er it, nor .excludes persons from passing through it by positive prohibition, he shall be presumed to have dedicated it to the public.” Upon mature reflection, we think, as our predecessors appear to have thought in the case of, the City of Lafayette v. Holland, et al., 19 La. 286, that the rule itself is laid down too broadly; and that, if a piece of ground is left unenclosed for the convenience of the owner, who uses it for a specific purpose in the usual course of his business, the fact that he does not exclude persons from passing through it, or that, when the ground is situated within the limits of a town, he has represented it as open and unenclosed, as it really was at the time, upon a plan on which he has sold other town lots, not necessarily connected with that open space, cannot, under any circumstances, be fairly considered as proof of the dedication of the ground thus left, open, to public use. Nor do we think that the division, on the plan, of the square fronting upon this open.space into building lots, as entitled to much weight, when it is shown that none of those lots have been sold. The intention of the owner to make-the dedication is far from being manifest, and his acts and conduct may be easily explained otherwise than by a dedication, especially when witnesses testify, as they do here, that the place could not have been dedicated to public use, without manifest injury to the company. The plan in this case did not give a new destination to this portion of ground; it was a mere picture of it, as it stood. We are satisfied that the lots sold by the plaintiffs in the other streetR, were purchased with reference to the pre-existing state of things, and that no one purchased under the belief that the plan would give to the public any rights which it had not before.

The error assigned by the plaintiffs’ counsel has been shown, and the judgment must be amended in that respect.

It is therefore ordered that the judgment rendered by this court on the 22d November last, (supra p. 282) be amended by inserting therein the word northern instead of western, and that the defendants be forever enjoined from disturbing the fences and enclosures which the plaintiffs may erect at the intersection of First street and Canal Avenue,'north of the line of the railway, and also at .the intersection of First street, north of the lino of the railway and Dublin street, leaving the said Canal Avenue and Dublin street .open in their whole breadth across First street. It is further ordered that the judgment as .amended be affirmed.

       Slidell, X, being a stockholder in the Railroad Company, did not sit on the trial of this case.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    McCord et al. v. The West Feliciana Railroad Company.
    Decision in Seaton v. Second Municipality, ante p. 44, affirmed.
    Though there have been repeated violations of a contract by both parties, yet if neither elects to consider it broken, and they proceed under it, neither can be considered as having been in default.
    A contract made by a partnership, as undertakers for the construction of a railroad, will be can-celled by the death of any of the parties, unless the other party consent that the work shall be continued by the heirs of the deceased, or by others employed by them for that purpose. C. C. 2737. A refusal to give such consent will not subject the party refusing to damages. He is only bound to pay to the heirs the value of the work already done, aud that of the materials already prepared, proportionably to ilie price agreed on, in case such work and materials may be useful to him. C. C. 2738,

      A PPEAL from the District Court of West Feliciana, Butler, J., presiding.

      I'- Morgan, for the appellants.

      Z. S. Lyons, Muse and Merrick, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs allege that, on the 13th of January, 1836, they entered into a contract with the defendants for the construction of the West Feliciana Railroad, which contract is annexed to their petition; that the work required, and the materials to be furnished to execute this contract, amounted to the sum of $500,000, including extra charges for changes and alterations; that soon after the date of this contract they entered upon the execution of it, and continued to discharge their obligations under it up to the 1st of August, 1836, when they were under the necessity of suspending operations; but that antecedently they had taken all the steps and measures necessary for the full compliance with the said contract on their part, by engaging laborers and workmen, purchasing the necessary quantity of lumber, providing tools, implements, &c. They further represent that they furnished all the necessary materials to construct, and did actually construct, a large portion of the road, and that the said materials and labor, together with extra allowances for changes of tresslework to embankment, with other extra work and materials and lumber supplied, are worth the sum claimed. The petition further charges that, by another contract with the defendants, they were bound to make a bridge across the bayou Sara, for which they are entitled to recover $30,000. The plaintiffs ask judgment for $530,0015.

They further allege that the defendants failed and refused to comply with the contract on their part, for this: First, that they'did not, after the expiration of the first month, pay the sums due petitioners under it, neither did they thereafter pay them monthly the several sums due them. - Secondly, that they did not furnish the iron plate, rails, cut iron, chains, splicing plates, and a requisite quantity of spikes, and neglected to have an engineer on the premises. Thirdly, that the defendants did not permit their engineer to make true and correct estimates of the amount of work done by the plaintiffs at the expiration of each month, according to his own knowledge of the amount and character of said work, and his own measurement of the same, and the true intent and meaning ,of the contract; b.ut, to the injury of the rights of the plaintiffs, insisted upon said engineer’s making his monthly estimates of the work and labor done by the plaintiffs, at the caprice and pleasure of the president and directors or .agents of said company. Fourthly, that the defendants insisted upon paying the estimates incorrectly made as above charged, in the depreciated notes of the West Feliciana Railroad Bank, and other depreciated bank notes of the State of Mississippi, and wholly refused to pay the same in gold or silver-, or in good bank paper. Fifthly, that the defendants wholly refused to pay petitioners the value of the work and labor done, and materials furnished in carrying out the change from tressle-work to embankment, and refused to furnish engineers to make estimates for the same. Sixthly, that the defendants wholly and altogether refused to pay petitioners the value of materials and lumber furnished by them in the construction of said road, and refused to permit their engineers to make estimates of the same. Seventhly, that the defendants neglected to procure the right of way over the land through which the railroad was to pass, although repeatedly requested to procure the same by petitioners.

Eighthly, that the defendants refused to allow estimates to be made for the transportation of the surplus earth called spoil bank, beyond the distance named in the contract, and for other extra work.

The petitioners further allege that they have sustained much loss on a steam saw-mill built by them at the request of the defendants, and also on horses, carts and other necessary implements purchased by them to be used in the construction and completion of said railroad : That they often requested the defendants to comply with their stipulations, and notified them that they would not waive any of their rights: That the defendants still neglecting to perform, they were duly and legally put in default; That the said defendants, intending to take an unwarrantable advantage of petitioners, instructed their engineer, after they had been put in default, to declare and determine the said contract to be abandoned; and that, in consequence of the premises, the petitioners have sustained damage to the amount of $500,000.

The defendants admit the existence of the contract, but deny every other allegation. They further aver that, the plaintiffs are precluded and estopped from contesting or disputing the correctness of the estimates of the engineers of the company, both by the terms of the contract sued on, and by the allegations and admissions in their original petition ; that the plaintiffs were at all times in delay and in default; that they did not commence working at the time stipulated, por deliver the work within the time stipulated ; nor did they complete and finish the grading of any one mile of the road, nor in any manner comply with their contracts; that said contract was properly terminated; and that the defendants, on their part, did comply with the'contract and were ready and willing to continue to do so-. They further aver that they have made advances to the plaintiffs as appears- by an account annexed to their answer, and pray for judgment in reconvention against them for the amount of those advances and interest; that they advanced the p&intiffs the sum of $9,500, on account of the erection of the bridge mentioned in the petition, but that before the said bridge was completed, it fell down and was destroyed, aDd the materials composing it have been since seized and- sold as the property of the plaintiffs by one of their creditors, whereby the said plaintiffs became bound to refund to the respondents the aforesaid sum. The answer further states that TJsal Hopkins, one of the original members ef the firm of Isaac McCord 8f Co., died on the 20th of September, 1837; that by his death the contract was cancelled, and the subset quest abandonment of it could not have subjected them- to damage, even if the plaintiffs had faithfully executed the contract up to that time.- The defendants' also- claimed damages for the alleged breaches of contract by the plaintiffs, but that claim has been discontinued.

Upon these pleadings the ease was submitted to-a jury, who returned a nominal verdict in favor of the plaintiffs. The plaintiffs have appealed from the judgment rendered on this verdict; but their counsel have informed us that, unless this court can amend it in their favor, it is their wish that it be affirmed-, rather than the should case be sent back for a new trial.

Our attention- is first called to several bills of exception taken by the plaintiffs-’’ counsel, some of which require to be noticed.

Two of these bills were taken to the opinion of the-court rejecting the d;epo" sitionsof A. JBr Hamilton and Charles A. Snyder, on the ground of interestin' the result of the' suit. These witnesses were absent, and their testimony was taken on-behalf of the plaintiffs, under a- commission. On its being offered, the defendants objected to it, on the ground stated. These two witnesses are shown to have represented themselves as partners of the plaintiffs. In a notarial act executed by the plaiutiffs, and found in the record, it is stated that A. B. Hamilton is one of the firm of Isaac McCord 4' Co. It is shown that, in an action commenced by the Bank of Louisiana against this firm, these two witnesses are named as partners. The answer does not deny that they are partners, and judgment was rendered against them as such. In another document found in the record, in which it became important that each member of the firm should sign in order to show what a majority of the firm had resolved to do, Hamilton and Snyder signed as partners. There are other documents in which these persons have styled themselves partners; and, in the assignment made by the firm of McCord Sf Co. for the benefit of the agents and laborers employed by them on the railroad, the names of Hamilton, and Snyder are not found among the creditors, though they had been engaged on the work from the beginning, and must, if they had been merely employed by the firm, have had the largest claim against it. Whether these witnesses were general partners in the concern, or whether they had only an interest in the share of Charles A. Snyder, oue of the original partners, is immaterial. Under the view taken by the Supreme Court in the former appeal (I. Rob. 519) the original partners represent the entire interest in the contract as between themselves and the defendants, and the share which these witnesses hold is a part of that entire interest. We are of opinion that the interest of these witnesses has been satisfactorily shown, and that the district judge did not err.

The other bills of exception were taken to the charge of the court to the jury, and to the refusal of the court to charge the jury as prayed for by the plantiffs’ counsel. As the ease is before us in a situation that will enable us to pass finally upon the rights of the parties, an examination of those bills of exception becomes unnessary. .

Each of the parties charges the other with many grievous breaches of contract, and the evidence goes far to show that their complaints in that respect are equally well founded, and that both were in default from the beginning. But with a view to simplify the inquiry, we will first consider the case on the¡ hypothesis most favorable to the plaintiffs, that they had faithfully executed the contract until the 25th of September, 1837, and that the notice given them on that day by the engineer of the company that it was abandoned, was an active breach of it. The question will then be what is the rule of damages which should govern, and what evidence is required to establish them. That question was lately before us in a case not unlike the present—that of Seaton v. The Second Municipality, ante p. 44. We then held that where a contract is broken before the time of full performance and the party elects to consider it. in that light, and sues for damages also before the time of full performance, the market value at the time of the breach, when there is a market value, i» the measure of damages. In that case there was no market value, and we considered that the question involved a minute inquiry into the cost of the materials, the expense of their transportation to. the place where they were to be used, the quantity of labor required and the value of that labor, the whole to be assessed at the time of the breach. The .present case differs from this only in the circumstance that it was commenced after the time for full performance, and that as the state of the market in respect to prices was susceptible of explicit and intelligible proof at the time of the trial in the court below, no conjectural estimate was required to ascertain what would have been the expense of a complete execution of tho contract.

Whether we take the prices at the time of the breach, or at the various epochs at which the work should have been performed under the contract, as the rule of damages, the plaintiffs have equally failed to make out their case. It is clear to us that the plantiffs have no claim under the contract for the difference in value between tressle-work and embankment, from the town of St. Francis*ville to the landing. No tressle-work was represented there in the original plan, and if it had been the defendants had the right to substitute an embankment for it. All the plaintiffs’evidence in relation to damage, except that which refers to the difference in value between embankments and tressle-work, consists exclusively of supposed profits attempted to be shown by the probable estimates of witnesses. In the case of Seaton, we considered evidence of this description as totally inadmissible. In opposition-to it, in this case, the defendants have shown that, after the declaratioii of their engineer that the contract was abandoned, they took the work into their own hands, conducted it with energy and economy, and spent in completing it a sum exceeding that which the plaintiffs were to receive by §196,000. This is the only legal evidence in the record, to show the situation in which the plaintiffs would have been placed by the full performance of the contract. No attempt has been made to impeach it, and we consider it conclusive against their claim for damages, even if the defendants had been in default. But we do not think they were in default ; though there had been many violations of the contract on both sides, neither party elected to consider it as broken. Their proceeding under it up to the time of the death of Usal Hopkins kept it in force between them, and by the death of this person it was cancelled and avoided. C. C. 2737. The defendants might, have consented that the contract should go on between them, the heirs of Hopkins, and the other parties; but their refusal to consent cannot subject them to damages. As a general rule they are only bound to pay the plaintiffs the value of the work that had already been done, and that of the materials already prepared, proportionably to the price agreed on, in case such work and materials may be useful to them. C. C. 2738.

The defendants have received and kept labor and materials of the plaintiffs, and have made to them various payments, and the only question left open for our decision involves the settlement of their accounts, to be made in conformity with the foregoing dispositions of law. Two separate surveys and estimates of the work done, and of the materials furnished, by the plaintiffs, have been made by two competent engineers, proportionably to the prices agreed on in the contract. The difference between them is not material, and the defendants are willing that the highest should be taken as true. It amounts to §44,423 63. The plaintiffs’ counsel alleges that this estimate is too low; that it only allows them the price of common excavation for the excavation of many thousand yards of hard pan; that it makes no allowance for the transport of a large quantity of spoil bank beyond the distance of 120 feet, for other extra work, and for losses sustained on implements and machinery. The survey made, ex parte, for the plaintiffs by Baggerly, and the testimony of their clerk, Joseph A. Brown, cannot be taken for true, in opposition to the surveys and estimates of the engineers Banks and Petrie, and the testimony of the witnesses who attended them. The surveys and estimates of Banks, which the defendants admit to be true, were made monthly under the contract; the plaintiffs in whose presence they were made, received partial payments under them. We have no doubt of their correctness, as far as they go. The witnesses swear that there is no hard pan, properly so called, on the line of the railroad, but that

much of the excavation required the use of the pick, and was not common excavation. The contract allows 16 cents for every cubic yard of common excavation, and 35 cents for every cubic yard of hard pan. The letter of it does not embrace the hard substanoe found on the line of the railroad, but the engineers of the company classed it as hard pan; and, if the excavation through it was as difficult as through hard pan, their 'classification was equitable. They were selected by b'pth-parties as judges of the fact, and the estimates which they originally made in- relation to this, item- should have been accepted and paid by the defendants;

The transportation of- the spoil bank-beyond the distance of 120 feet, is shown to have been made with the approbation of the engineer of the company, and the plaintiffs were entitled to compensation for it under the contract.

The engineers of the company testify that other extra work was done by the plaintiffs, which inured to the benefit of the defendants; and it is a serious question, whether, after- the termination of the contract by the net of God, the plaintiffs are not in good- conscience entitled to some indemnity for the loss they are shown to have sustained on- their machinery, and particularly on the steam saw mill erected-by them for the sole purpose of preparing the timber necessary for the road.- The defendants have paid the plaintiffs on account of the railroad $34,078 92; and on account of the bridge, which was destroyed, as alleged in the answer, $9,500. They have discounted for them a note of hand, on which there is a balance-due of 21,581 33 ; and finally they have advanced to them in money $3,100.

The evidence in the record is not sufficient to enable us to ascertain the real amount duo the plaintiffs over and above the estimate of' Banks ; but we are satisfied that the whole- amount of their claim would not exceed that of the defendants; and as the defendants have asked that the judgment be affirmed rather than the case should be sent back for a new trial, in order to ascertain the amount due them, the decree of the court will conform to that request.

Judgment affirmed.


author: Slidell, J.

text:
    Somerville v. Young.
    Evidence received in the lower court without exception, cannot be objected to, on appeal as inadmissible.
    Where a person endorsed negotiable paper of a short date in the county of his late domicil, which the holder had reason to believe was still his domicil, and on being sued as endorser resists the aption on the ground that his domicil was in another State and that notice of protest should have been sent to him there, he will be required to establish not only that he had abandoned his former, and acquired a new domicil, but must also show affirmatively that he had given reasonable publicity to the fact, and had left behind him reasonable means of ascertaining his new domicil.
    APPEAL from the District Court of Madison, Curry, J.

      T. N. Peirce, for the plaintiff,
    cited 1 Mart. N. S. 323. 7 Mart. N. S. 585. 7 La. 13. Bayley on Bills, 180. 3 Kent 107. 4 Howard’s Rep. 347. 2 Caines, 121. 13 Wendell, 367. 5 Binney, 543. 1 Johns. 294.

      Thomas and Snyder, for the appellant,
    cited 11 Rob. 459. Story on Notes, ss. 316, 344. Story on Bills, s. 299. Stat. 13 March, 1837, s, 3.
   Th6 judgment of the court Was pronounced by

Slidell, J.

The defendant is sued as endorser upon a note made at Columbia, Maury county, Tennessee, in July 1839, and protested for nonpayment, in November, 1839. The defence'is want of notice. The material facts are as follows: It appears that, in December, 1838, the defendant who had been a resident of Maury county left Tennessee, and went to the south with the intention of settling somewhere in the southern country; that, in January, 1839, he selected Young’s Point, in the parish of Madison, La., and established himself there, but was in the habit of leaving that place in the summer. For the first summer or two he returned to Tennessee.

The notary who protested the note sent a messenger with a notice for the defendant, which was delivered on the same day to the defendant’s father, at his dwelling in Maury county. He also mailed a notice addressed to the defendant, in Mississippi; but whether any place in Mississippi was designated, does not appear. The notary states that he received the note from the cashier of the bank of Columbia, the then holder, and sent the notice to the defendant’s father, as directed by the cashier; that he believed, at that time, that his father’s house was Young’s permanent home. He also states: “I did immediately make diligent enquiry,as to the residence of each of said endorsers, and sent notices to them as stated above, agreeably to the best information that I could get; but upon whose information or what information I proceeded thus to act, aside from the cashier and my own information and memory generally, I cannot now recollect, but feel certain that I made diligent search as to A, M. Young, the defendant, and addressed notice to him agreeably to the information that I had, believing it reliable.”

It is very properly said by the counsel for defendant, that the question of diligence is a mixed question of law and fact; and the objection that the notary, instead of detailing all his acts in the matter, has undertaken to say that he exercised due diligence, would have had much force if ,a bill of exceptions had been taken to his testimony. It would then have been our duty to consider whether the circumstance, that an interval of five years had occured between the protest of the note and the examination of this notary as a witness, would authorise a relaxation of the strict rules of evidence and let in the testimony for what it might be worth, or whether it should have been excluded. But no exceptionwas taken to the introduction of the evidence, and the objection cannot now be raised. The case stands before us, therefore, as one in which diligent enquiry is sworn to have been made by a witness, a public officer, whose testimony is unimpeached ; in which the notice was given according to information obtained upon such diligent enquiry, and which the public officer believed to be reliable. There is nothing before us from which it can be inferred that more accurate information could have been obtained in the town of Columbia. And it must also be observed that, there is no evidence to show that the fact of Young’s new residence was generally known. "When he left his home, in December, 1838, it was, as proved, with the intention of looking out for p settlement somewhere in the south ; but we find him at home again in six months after this, and the very fact of his endorsing his name in Tennessee, in the summer of 1839, and of the bank being willing to take him as endorser, goes very far to dispel the idea that his new domicil could then have been generally known in Columbia. It is impossible, under the evidence and circumstances, to suppose that it could have been known to the bank. It is out of the usual course of business of banks to discount notes upon foreign endorsements.

When a man puts his name on negotiable paper, at short date, in the county of his anciont domicil, which the holder has, under the circumstances, reason to believe is still his domicil, and then defends a suit upon such paper upon the ground that his domicil was in another country, and notice should have been sent to him there, it is just to say that he ought not merely to show that, he had abandoned his .ancient and acquired a new domicil, but he should also be held t.o show affirmatively that he had given a reasonable publicity to the fact, and had left behind him reasonable means of ascertaining his new abode.

Upon the whole, we think the district judge was authorized to conclude that reasonable diligence had been shown, an.d that the notice was sufficient.

Judgment affirmed, with costs, in the name and for the benefit of Allen Peirsc, in his quality of administrator of the plaintiff. John Somerville, deceased.


author: King, J.

text:
    Succession of Flower.
    Where a tutor has taken a suspensive appeal from a judgment which he deemed erroneous, he is without authority subsequently to acquiesce in tlie judgment, by voluntarily executing it, to the prejudice ol the minor. A voluntary execution, under such circumstances, will not authorize the dismissal of the appeal.
    Where an attorney presents a' claim for professional services, and payment is refused, he cannot recover a larger amount for the same services, unless the first claim be shown to have been made in error. He will be concluded by his first .claim.
    APPEAL from the Court of Probates of West Feliciana, Weems, J.

      Ratliff and Cowgill, for the appellant.

      Joor, pro sc.

   The judgment of the court was pronounced by

King, J.

W. Flower was appointed the tutor of his minor brother. After the death of his ward he presented a final account of his tutorship, which was opposed by Joor, who alleged that he was a creditor of the deceased for professional services rendered as an attorney, and prayed that the account be amended, and that the tutor be decreed to pay his demand. The opposition was sustained in the court below, and a judgment rendered in favor of the opponent for the amount claimed, from which the tutor has appealed.

The appellee moves for the dismissal of the appeal, on the ground that the appellant has acquiesced in the judgment, by paying its amount; and supports the motion by his affidavit of the fact of payment. The tutor having taken a suspensive appeal from a judgment which he deemed to be erroneous, was without authority subsequently lo acquiesce in the judgment, by voluntarily executing it, to the prejudice of the heirs of the deceased. The motion to dismiss is, therefore,, refused.

On the merits, it appears that the appellee was employed by the tutor as counsel; and that he rendered services as such, on account of which he received $100. When the tutor was about to render his final account, the "opponent presented a claim of $300 for his professional services, subject to a credit of $100 previously received, which the tutor declined paying. Joor thereupon filed his opposition, and claimed $500 for the same services for which he had previously charged but $300. We think that he was concluded by his first claim presented, which is not shown to have been made in error. From an examine ation of the proceedings instituted and conducted by him in the Probate Court, due allowance being made for professional advice given in the administration of an estate involved in no litigation as far as appears by the evidence, and the adjustment of which presented no difficulties, we think that the sum originally claimed was an adequate compensation.

The judgment of the District Court is therefore reversed, as far as relates to the opposition of Joor. It is further ordered that said Joor be placed on the account as a creditor for $200, exclusive of the sum already paid him; and, in other respects, that said judgment be affirmed, the appellee paying the costs of this appeal.


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    Hayden v. Hertzinger.
    Wliero, in consequence of tile debtor’s not having been put in default for the non-performance of his contract, damages cannot he recovered, evidence to prove the amount of damage should be rejected.
    Where a defendant objects to the admission of any evidence on the part of plaintiff until he has elected between two inconsistent canses of action, and the objection is sustained, and plaintiff excepts but insists that the case shall go to the jury, and the judge sanctions this irregular proceeding, evidence in support of the contract sued on must ho admitted.
    APPEAL from the District Court of Jefferson, Clarke, J.
    Michel, for the plaintiff.

      Elliott and Brewer, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff claims the specific performance of the unexpired portion of a contract of lease alleged to have been made to him for six years, and damages for the non-delivery of the property at the time stipulated in the contract. The defendant filed a general denial, and, in an amended answer, admitted that he had leased the premises claimed by the plaintiff for one year; but he further averred that the plaintiff refused to pay the rent, to take possession of the property or in any manner to execute the lease, by reason whereof, he considered the contract at an end, and leased the premises to other persons. On the trial of the cause, the defendant objected to the introduction of evidence offered by the plaintiff to prove the damages alleged, on the ground that the claim for damages was inconsistent with that for a specific performance of the contract of lease. The court sustained the objection, and the plaintiff took a bill of exceptions. The plaintiff then offered other evidence to which the defendant objected, on the ground that no evidence should be admitted until the plaintiff had elected between the two inconsistent causes of action. The court also sustained this objection, and the plaintiff excepted, insisting at the same time that the case should go to the jury. The judge sanctioned this irregular proceeding; and the jury having returned a verdict in favor of the defendant, which was made the judgment of the.court, the plaintiff has appealed, and now contends that the court below could render no judgment, and was obliged by law to have dismissed the action.

This may be true, but the objection comes with bad grace from the party at whose instance the case was tried. There is no allegation in the petition that the plaintiff had put the defendant in default, and it is not pretended that he bad. Without this prerequisite no damages coull be recovered from the defe-ndant; and, and without going into the inquiry whether the pleas of the Plaintiff are inconsistent, the judge did not err in rejecting the evidence offered to prove the damages, because the plaintiff was not in a situation to recover them. 13 La. 499, 229.

The plaintiff having insisted upon going on with the trial, and the judge having assented to it, the evidence adduced by him in support of the contract of lease should have been received, and the case must be remanded to correct that error.

It is therefore ordered that the judgment be reversed, and the case remanded for further proceedings, with directions to the district judge to disregard the claim for damages. It is further ordered that the defendant and appellee pay the costs of this appeal.