text:
    Heirs of Duverge v. Salter and Marcy.
    Our laws secure the public use of the banks of navigable rivers, and within the incorporated limits of towns the municipal government is authorized to regulate that use; but their regulations must be in furtherance of the public use to which the banks are subjected, and cannot be taken advantage of for the purpose-of forever enjoying the property of the riparian proprietor, which is not necessary for public use.

      CcuiTÓllton Bank v. Winthrop, 5th Ann. 36, affirmed.

    The public have the right to use the banks of navigable rivers, but this right does not authorize the permanent location of a dry-dock in front of the land owned by another person.
    APPEAL from the Fourth District Court of New Orleans, Straiobridge, J.

      Benjamin and Micou, for plaintiffs.

      J. R. Orymes and Q. Schmidt, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs are the owners of a piece of land on the bank of the river opposite New Orleans, having some two hundred and forty feet ou the public road, and extending in depth to the Mississippi. This land, with a lot adjoining it, which the plaintiffs had leased to one Rouse, has been used as a ship-yard for nearly thirty years, and for the most of that time has been occupied for that purpose by one or other of the defendants. It was originally leased to Bailey and Marcy, and subsequently to their successors, the present defendants, Salter and Marcy. They also partially occupied the adjoining lot, called the Rouse lot, under a sub-lease from Rouse. In addition, they occupied an_ adjacent lot belonging to themselves. The lease appears to have been extended under a verbal agreement until the year 1849, when Rouse, having notified the plaintiffs that he intended to give up his lease, the plaintiffs notified the defendants of the fact, and offered a lease of both lots to the defendants for the term of three years, at the rate of $2700 per annum, payable monthly. The defendants declined accepting the proposal, considering the rent too high, and notified the plaintiffs that they had made up their minds to give up the leased premises, which they hoped to be able to do by the 1st of July ensuing. Their letter bears date, March 28th, 1849, and states, that with regard to Rouse’s lot they had nothing to say; that plaintiffs might rent it to whom they pleased. This letter was answered on the 3d of April, as follows, by the agents of the plaintiffs : “Your letter of the 28th of March has been received; and not being able to come to an arrangement with you, I have changed my mind on the subject, and hereby notify you to return the premises which you now occupy, to wit, the ship-yard leased by you from me, at the expiration of your month’s rent, to wit, on the 1st of May, 1849; my intention being to build on said property, and to contract for said buildings to be commenced on the 2d of May next, considerable damage might result from any delay on your part to comply with the present notice.”

On the 17th of May following, the plaintiffs instituted proceedings against the defendants for the purpose of having them ejected from the premises leased, and recovering possession thereof. Judgment was rendered in favor of the plaintiffs on the 7th of June next ensuing. On an appeal, we were under the necessity of reversing that judgment, and dismissing the petition of the plaintiffs, on the ground of the unconstitutionality of the act of the Legislature under which the proceedings were conducted. Heirs of Duvergé v. Salter and Marcy, 5th Ann. 94. This was at the January term of 1850; and on the 1st of February, 1850, the present suit was instituted. The petition, after stating the facts of r the lease, &c., and the refusal of the defendants to deliver up the property to the plaintiffs, asks for judgment against them, by reason of their tortious acts in withholding the same and depriving the plaintiffs of the use thereof, for the sum of $10,000 damages, and also rent at the rate of $2700 per annum, being the price at which the defendants were notified the plaintiffs would only consent to a renewal of the lease of the lots from the 1st of May, 1849. The defendants pleaded the general issue; and the case was, at their instance, tried by a jury. The verdict was in favor of the plaintiffs: 1st, for rent from the 1st of May, 1849, to 1st of May, 1850, $2700; 2d, $500 damages; and 3d, in the eveut of the defendants continuing in retaining possession after the 1st of May, 1850, they were to pay the plaintiffs rent at the rate of $3000 per annum. The judgment of the court was in accordance with the verdict, and the defendants have appealed.

The principal difficulty between the parties is stated, on behalf of the defence, to be a floating dry-dock, belonging to the defendants, which is fastened in front of the plaintiffs’ land. It is also contended, that the amount of the verdict is excessive, and unsupported by law or evidence; and that the only damages which can be recovered must be proportionate to the loss sustained. The defendants, in support of their pretensions to lay their dock in front of the plaintiffs’ property, and to fasten it to the shore, refer to the articles of the code on tho subject of navigable rivers, which are classed among public things.

The use of the banks of navigable rivers is public. Every one has a right to bring his vessels to land there; to make fast the same to the trees which are there planted; to unload his vessels; to deposit his goods; to dry his nets, and the like. Nevertheless, the property of the river banks belongs to those who possess the adjacent lands. Art. 446. On the borders of the Mississippi, where there are levees, the levees shall form the banks. Art. 448.

It appears that the defendants’ dry-dock is moored in front of the property leased by them — that is, the principal part of it is so moored; the rest being in front of the other lot. The dock is some two hundred and thirty feet long, and the width proportionate; it is secured by chains at both ends to the shore, and there is a staging from the shore to the dock. When the witness Gardere testified, he had been on the premises two days before, and there found fire-wood for the use of the dock, and men at work in connection with the work doing on a vessel which was in the dock; there were boys at work boiling pitch and tar, •and materials for ship building: and no change had been made in the location of the dock for ten months previous. It is admitted by the plaintiffs, that the defendants offered the plaintiffs, on the 31st of May, 1849, the possession of the premises leased by them. The plaintiffs refused to receive it, on the ground that the dry-dock of the defendants, which was floating in front of the leased premises, moored to the shore, and connected with it by permanent staging, was not removed; and that defendants had openly avowed their intention never to remove it; and the plaintiffs, that they still persist in their refusal to accept the delivery of the leased premises, until the removal of the dock. The dock is moored about sixty feet from the shore; the staging is like that used for ships on this side of the river, except that it is stronger, on account of the distance of the dock from the shore.

The premises occupied by the defendants we have seen were ship-yards, used for years for that object alone. It is the river front, and their proximity to New Orleans which gives them their value. These establishments, which are matters of necessity in a port like this, have been considered proper subjects of special legislation. By an act of the Legislature, of the 28th of March, 1840, which established a police jury for that portion of the parish opposite the city, in conferring the. ordinary police powers on that body relating to the banks of the river, an express reservation is made in relation to the ship-yards. It enacts, that the police jury shall be invested with full power to order and make such regulations and rules as they may deem proper for the making and repairing of the levees, dykes, &c.; for the pulling down and removal of all buildings and incumbrances that may obstruct the levee or the space between the levee and the river, except the ship-yards that are now existing.

This is nothing else than a formal acknowledgment of these necessary establishments, and of, at least, a forbearance of the exercise of the public use in respect to them, by the withholding of any authority to interfere with them from the ordinary municipal power.

On the first application of the plaintiffs for the delivery of the premises, Marcy, one of the defendants, originally averred, that they had as much right there as any one else — meaning the place occupied by the dock as it then lay — and that he would not give it up. This right is asserted to the last, and is the point on which the case turns.

So far as the right of the plaintiffs to hold and use the property as a ship-yard is concerned, the objection comes with a very ill grace from those who have occupied it under a lease from the plaintiffs for that purpose; and if the right of property and the sanction of law can constitute ownership, the plaintiffs certainly have it. To offer to return the land, and at the same time render the front inaccessible for its ordinary uses, by the location of this floating mass, appears to us to be mere mockery. The pretensions of the plaintiffs to keep their dock permanently in front of the plaintiff’s properly are equally in violation of the public right, under which they are asserted, as to the owner to whom ■ they have paid rent. Every payment they have made during the years of their tenancy has been a virtual recognition of the plaintiffs rights, and a denial of the pretensions now for the first time set up. It would be an unnecessary work to show how totally unfounded the defendant’s claims are, under the general law concerning the navigation of rivers and the uses of their banks. The subject has been examined, and the authorities referred to, in the recent case of the Carrollton Railroad v. Winthrop, 5th Ann. 36.

Under these conclusions, it only remains to examine the subject of damages and rent allowed by the judgment appealed from.

The 1st of May was the day after the termination of the lease of the defendants, and was the day on which the plaintiffs demanded the possession of their property, in 1849, by giving the notice to quit the premises at a seasonable time previous. This fact'the defendants well knew, and regulated their work accordingly. We can make no discrimination in relation to the rent of the two lots, because the dock .lay in front of both, that is, on the dividing line ; and because the right of "the defendant is formally asserted as to both. The price asked by the plaintiffs for the hire of the ship-yards for a three years’ lease, was $1200 for Rouse's, and $1500 a year for thatoccupied by them. It is proved, we think, satisfactorily, that this rent was not exorbitant. The plaintiffs fixed that price, as they had a right to do; and it rested with the defendants to continue to retain the property, or to give it up. The rents of this description of property are high; and more than this sum, it is proved, has been offered for lots in the vicinity not so well situated as these. The facts of this case differ materially from those in the case of Rodriguez v. Combes, 6 M. R. 275, cited by counsel.

In this case, the tenant refuses to attorn, so far as the most valuable right of the estate is concerned; he, without any cause, disputes the title to this right in his own landlord, and succeeds in frustrating all his attempts to obtain possession of his property, and exposes him to the trouble and expense of a vexatious litigation. Considering all the circumstances, we do not think, in condemning the defendants to pay the further sum of five hundred dollars, the jury and the court below exceeded the limits of a sound discretion. The plaintiffs wanted their lots for the purpose of buildiug warehouses and constructing wharves. For the latter they actually contracted; and there is no reason for questioning the sincerity of their project of improving the property. The defendants received written notice of their intention; and had they manifested any other purpose than that of resistance, we think the admission on record shows that they would have been met with a just spirit of accommodation as t.o the time of the removal of the defendants’ new dock, then on the ways, and their materials from the premises. The only ground of refusal to receive possession, in May, 1849, on the part of the plaintiffs, was the non-removal of the dock from the front. The addition of the sum of $300 per annum to the rent of $2700, should the defendants still persist in their wrongful acts after the expiration of the year, we think no more than a just measure of precaution in vindicating the plaintiffs’ right of property and insuring it from future violation.

The judgment of the district court is therefore affirmed, with costs.


source: Caselaw Access Project

author: Preston, J. Rost, J. Slidell, J.

license: Public Domain

text:
    Mary Courtney v. J. H. Davidson.
    APPEAL from the District Court of St. Helena, Penn, J.

      Watierson, for plaintiff.

      E. T. Merrick, for defendant.
   The judges of the court delivered their opinions seriatim.

Preston, J.

This suit is instituted to recover a thousand dollars, upon the following compromise of a suit, entered as the judgment of the court before which it was pending: “ William B. Kinchin v. John Hindes Davidson, and William Kinchin and Wife, in warranty. Eighth Judicial District Court, Parish of St. Helena. It is agreed by the plaintiff and warrantors, that the sale, so far as it regards the slaves Clem and Minerva, be confirmed and decreed the property of the defendant, at the price and sum of one thousand dollars, to be settled by defendant and warrantors, without prejudicing the rights of plaintiff against his tutor William Kinchin. That said sale, so far as it regards the six hundred and forty acres of land, the slave Rachel and her child Jane, be cancelled, reversed and set aside, and said two slaves delivered to the warrantors, William Kinchin and Mrs, Mary Courtney his wife. And that as between plaintiff and warrantors, that said case be' referred to the Probate Court of the parish of Livingston to be settled according to law; and that the costs of this suit be paid out of the community formerly existing between William Kinchin and the mother of plaintiff; and that if warrantors are entitled to the hire of said slaves, that the same be settled by arbitration. (Signed,) Jessee R. Jones, Judge of the Eight District. May 23d, 1845.”

The plaintiff, Mary Courtney, claims one thousand dollars as the price of the sale of the slaves Clem and Minerva, confirmed by the compromise and decreed to be the property of John H. Davidson, the defendant. She claims from him further, five hundred dollars for the hire of the slaves Rachel and Jane, from the 16th of December, 1843, when they were sold, until the 23d of May, 1845, the'date of the compromise.

The plaintiff is the widow of William Kinchin. On the 4th of October, 1841, she obtained a judgment of separation of property from him, and for $2050 as the amount of property brought by her in marriage and acquired by inheritance. She caused the slaves and tract of land, mentioned in the compromise, to be sold under execution, as belonging to her husband, and on the 3d of September, 1842, purchased them for fifteen hundred dollars.

On the 16th of December, 1843, being authorized to that effect by her husband, she sold the land and slaves to John H. Davidson, the defendant, for $1850, purporting, by the act of sale, to have been paid in cash. But it is satisfactorily proved, that the purchaser in reality gave in payment the following obligation of Thomas G. Davidson: “I hereby bind myself to pay Mary Courtney or William Kinchin, or their order, the sum of eighteen hundred and fifty dollars: five hundred in cash, and the balance in the debts of William Kinchin, if he owes that sum, and if not in money. December 16th, 1843. Thomas Green Davidson.”

In January, 1844, the children of William Kinchin, by a former wife, brought suit against him for their maternal inheritance, and the settlement of the community of acquets which had existed between him and their mother, which he had never liquidated. They made Davidson, to whom the land and slaves had been sold, a party to the suit, and claimed the undivided half of the property by inheritance from their mother, and a legal mortgage upon the other half for sums squandered, as they allege, by their father, and denied the claims of his second wife, and the validity of her purchase of the land and slaves. Kinchin denied the claims of his children by the first wife; charged fraud against the Davidsons in obtaining the sale of the land and slaves, and non-compliance with the payments agreed to be made, and prayed that the sale might be annulled. The compromise which gives rise to the present suit, was thereupon made and entered, and signed as a judgment of court.

By this compromise, it is clear that two things were done. The sale of the land and of the slaves Rachel and Jane, was annulled, and they were returned to Kinchin and wife; and the settlement between the father and his children as to the property so returned to him and his wife, was referred to the Probate Court of the parish of Livingston. But the- sale of the slaves Clem and Minerva, which had been attacked by Kinchin and his children, was confirmed to John H. Davidson, the defendant, and their price was fixed at a thousand dollars.

That price was to be settled between Davidson and his warrantors, Kinchin and wife. But how to be settled ? By the payment to her of the thousand dollars? We think not; but by complying with the terms of the original sale which was thus confirmed. In the authentic act of sale, cash had apparently been paid, though not in reality; but an obligation of Thomas G. Davidson had been given to pay less than a third in cash and the balance in debts of William Kinchin. The words of the compromise, “to be settled between Davidson and his warrantors,” fairly bear this construction. And it cannot be supposed for a moment that John H. Davidson, one of the parties, would have agreed to pay, by way of compromise, a thousand dollars, the full value of the slaves confirmed to him, when he had already, through his brother and in pursuance of the obligation given at the time of the purchase, settled and paid in cash and debts of William Kinchin about the same amount, although now evicted of the land and the other two slaves.

On this part of the subject there can be but little doubt; but the counsel of the plaintiff has raised and urged with force, and indeed the case presents a much more difficult point. He contends, that the two slaves, Clem and Minerva, were the property of the plaintiff by their adjudication to her in the suit against her husband; that she sold them to the defendant, and that their price could not legally be appropriated to the payment of her husband’s debts, and that, therefore, she is still entitled to recover it. He states the question thus: “ does the wife bind herself for her husband, or conjointly with him, for his debts, by selling her property for the consideration of having his debts taken up ?” And taking it for granted that she does, he relies upon article 2412 of the Code, which incapacitates a wife from becoming security for her husband’s debts; and 1784, which recognizes that incapacity and forbids contracts between the husband and wife. He relies also on the opinion of the late Supreme Court in the case of Curry v. Brown et als., Gasket v. Dimitry, and other authorities to the same effect.

In the case of Gasket v. Dimitry, the wife renounced her rights upon property of her husband in favor of one to whom he was about to give a special mortgage. It was held, that notwithstanding her renunciation she might claim her rights in preference to the mortgagee. The decision occasioned general surprise, and, before it became final, the Legislature passed a law limiting the time within which a wife might attack her renunciation already made to forty days, and enabling wives in future to make valid renunciations of their rights upon the property of their husbands. But even that decision did not proceed so far, as that the wife might attack the forced sale under the mortgage, or recover the proceeds from the mortgagee, when realized by the sale of the mortgaged premises; though the presiding judge, in rendering the opinion, observed, that “the wife might validly sell or mortgage her property, but such contracts must be made for her own benefit, or for the mutual benefit of herself and husband, by which she calculates on gain. Yet, admitting these contracts to be completely binding on her, it does not follow as a corrollary that she could give her property in payment of the debts of her husband, without, being able to rescind the contract.” And another of the judges, in answer to an argument at the bar, that the wife might sell her paraphernal property, and nothing prevented her from paying a debt of her husband out of the proceeds, observed: “It is not so clear that in such a case she might not recover back from her husband’s creditor, money paid under such circumstances; money which she did not owe, and which she could not validly promise to pay.”

These principles were cited with approbation in the case of Curry v. Brown, 12 R. R. 82; and it was held in that and other cases, that in whatever form the wife might disguise her suretyship for her husband, she was not bound by the contract. The Senatus Consultum Velleianum of the Roman law was also cited, to show that the wife could recover back property sold by her to her husband’s creditors in payment of his debts.

None of these authorities expressly embrace the present case, in which the wife sold property, not to her husband’s creditors in discharge of his debts, but to one who was not his creditor, partly for cash and partly for an obligation to take up her husband’s debts, and now seeks to recover, not the property, but to compel the purchaser to pay the price a second time. And, in deciding the case, we are unwilling to extend the incapacity of the wife to contract, with a view to aid her husband, beyoud that which is declared in the code in the articles cited. She is incapable of binding herself as his surety, and will be relieved from all obligations to that effect.

But our code does not restrain her,' with the authority of her husband, from alienating her paraphernal property; and when disposed of, imposes no restriction upon her use of the proceeds, more than of any other money belonging to her. The courts, therefore, can impose none; and perhaps the freedom of'trade, good faith, and the true interests of society render it desirable that none should be imposed. It seems to me opposed to the real welfare of families, that the husband should be involved in and harrassed with honest debts, contracted perhaps in efforts to improve the condition of his family, with a wife rich in money, but rendered incapable by law of relieving him.

This view of the subject renders it unnecessary to examine the bills of exception with which the record is filled, nor the question whether or not the slaves were the paraphernal property of the plaintiff. She does not seek to annul the sale of the slaves, but to recover the price. The payments stipulated in the sale are proved to have been made, and she cannot recover them a second time.

The claim of the plaintiff for the hire of the other slaves during the time the defendant held them, is entirely untenable. She sold them to him, and he possessed them in good faith under her title until evicted by the suit. Though it terminated by a compromise, that can make no difference, since the legal question as to the right to the hire was expressly reserved. "We know of no law or precedent for compelling an evicted vendee to pay his vendor damages, or, what is the same thing, compensation for the use of the property sold while he possessed it.

The judgment of the district courtis therefore affirmed, with costs.

Rost, J.

The objection of the want of capacity in the wife would present great difficulty, if this was an action to set aside the contract and recover the slaves. I incline to the opinion that she would have been entitled to recover in such an action. Butt he plaintiff, so far from resting her pretensions on the nullity of the contract, sues in affirmance of it, and seeks to recovor under it the price of the slaves. The question therefore does not arise.

The validity of the contract being thus admitted, our inquiries must be iimitted to the stipulations it contains ; for it is clear, that although the plaintiff might have avoided it and recovered the slaves, she cannot alter it and compel the defendant to pay a consideration he did not promise.

It being satisfactorily shown, that the portion of the price claimed was to be paid in the debts of William, Kinchin, nothing remains for us to do but to affirm the judgment.

Judgment affirmed, with costs.

Slidell, J.

The plaintiff’s action is based upon the judgment, by consent, in 1845; and so far as the evidence enables me to understand the relations and intentions of the parties, the plaintiff does not appear to me to have made out any right under that agreement to the relief claimed in her petition.

I concur, therefore, in the affirmance of the judgment.

Eustis, C. J. For these reasons I also concur.


author: Rost, J.

text:
    New Orleans Gas Light Company v. B. Bennett.
    Where an insolvent corporation is in the hands of a liquidator or receiver, it is proper that suits against the stockholders for contributions on arrearages of stock to pay debts of the corporation, should be conducted by the persoii thus vested with the powers of the corporation} and not by individual creditors of the corporation*

      APPEAL from the District Court of East Feliciana, Stirling, J.

      E. T. Merrick, for plaintiffs.

      Hardee and Bowman, for defendant.

      Z. S. Lyons, for the State.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs are the holders of a large portion of the bonds issued by the Clinton and Port Hudson Railroad Company, and secured by stock mortgages. The company being insolvent, and its charter having been declared forfeited by a decree of court, they claim from the defendant the entire amount of the stock for which he subscribed; and pray that the property mortgaged by him to secure it be subjected to their claim.

The district attorney in behalf of the State, and the liquidator appointed under a law of the State to settle the affairs of the company, have intervened ; both averring the indebtedness of the defendant, and claiming the right to recover the amount of his subscription by preference to the plaintiffs. The judge of the district court dismissed the intervenors, and gave judgment in favor of the plaintiffs, as prayed for. The defendant and the intervenors have appealed.

We will first dispose of the claim in intervention. By the original act of incorporation, the capital of the Port Hudson and Clinton Railroad Company was fixed at $100,000 ; and the board of directors were authorized to increase it to $200,000. By an amendment of the charter, passed in 1834, banking privileges were conferred upon the company, and its capital was increased to $500,000, one-half of which was to be raised by subscription for stock in the usual way, and the other half by loans to be effected on the bonds of the company ; the payment of these bonds, and of the interest which would accrue on them, was to be secured by mortgages given by the stockholders upon immovable property and slaves to the aggregate amount of $300,000. The bonds to be issued by the company were to bear interest at the rate of five per cent per annum, payable half-yearly: $75,000 of said bonds were to fall due in eight years; $75,000 in fifteen years, and $100,000 in twenty years from that date.

In 1836, the bonds of the company being still unsold, they made a conditional contract with the Gas Light and Banking Company, by which the latter agreed to purchase the entire amount of their bonds at par, and to lend them $100,000, at the rate of six per cent per annum, provided the Legislature would pass an act to exempt them from the obligation imposed by their charter to establish a branch at Port Hudson. This act was passed by the Legislature, and the Clinton and Port Hudson Railroad Company issued their bonds, bearing six per cent interest, for $100,000, and also bonds for $250,000, bearing five per cent interest, under their charter. These bonds were all taken at par by the Gas Light and Banking Company. The first series for $75,000 fell due the 1st of February, 1844, and the second series on the 1st February, 1851; the remainder will fall due on the 1st. of February, 1856.

On the 6th of February, 1836, the defendant and his wife executed their mortgage by notarial act to secure the thirty-six shares of stock, for the amount of which he is now sued.

All the bonds sued upon were originally received by the Gas Light and Banking Company under their contract; and no doubt can exist that, when the Legislature sanctioned it, it was in contemplation of all parties that the bonds were pledged to that company to secure the loan, by the dispositions of the act of 1834.

In 1837, the capital of the Glinton and Port Hudson Railroad Company was further increased to one million of dollars ; the additional amount to be obtained by loans on their bonds, which bonds were also to be secured by new stock mort” gages. The new stock was nearly all taken, and mortgages given to secure it. But a loan could not be effected upon those securities ; and finally, in 1839, the Legislature passed, by a constitutional majority, notwithstanding the veto of the governor, an act under which the bonds of the State were issued to the company for $500,000. By this act the company were to pledge to the State their capital stock, and give a subrogation to all the mortgages which had been executed in its favor by all the stockholders, both under the original and amended charter, being, says the act, $750,000 in amount.

The intervenors claim the preference in behalf of the State, under this act. Exceptions have been taken to their capacity to appear in behalf of the State, without express authority. But we deem it unnecessary to pass upon them, being satisfied that the holders of the bonds are entitled to be paid by preference out of the stock mortgages.

The sixth section of the act of 1834, provides, that, to secure the payment of the capital and interest of the bonds, the stockholders shall be bound to give mortgages to the satisfaction of the president and directors of the company. Acts of 1834, p. 117. This section, if it has any meaning, pledges the stock mortgages for the redemption of bonds and the payment of interest by preference to all other debts of the company; being, in a legal point of view, a part of the contract sanctioned by the Legislature under which the Gas Light and Banking Company acquired the bonds, it was unnecessary to refer to it in the act of 1836 ; and the omission to do so cannot impair the rights of the plaintiffs.

It is said that the stock mortgage in this case could not have been one of those given in pledge; because it was executed after the passage of the act of 1836, and after the bonds liad been made by the company and delivered to the Gas Bank. By a reference to the fourth section of the act of 1834, it will be perceived, that the books of subscription for the stock to be secured by mortgage were to be opened immediately after the promulgation of the act, and to be kept open for the two ensuing months ; at the end of which time they were to be closed, and the largest subscriptions reduced, if the aggregate amount exceeded $300,000 ; and if all the stock had not been subscribed at the time of closing the books, they were to be re-opened on the first Monday of June following, and to remain open until the entire amount was subscribed.

Under this provision the books were kept open till 1836, when the defendant and his wife became stockholders, and gave the mortgage required. Under those circumstances, the date of the mortgage is quite immaterial. It is sufficient that the stock subscribed by the defendant and his wife formed part of the subscription under the act of 1834: that act makes no distinction between the stock taken before its promulgation, and that which was subscribed afterwards.

We are of opinion that, under the contract between the Gas Light and Banking Company and the Clinton and Port Hudson Railroad Company, the right of pledge in those mortgages vested in the Gas Light and Banking Company, and that it could not be taken away from them by subsequent legislation. The act of 1839 must therefore be restricted in its operation to the stock subscribed under the actof 1837, and the intervention in behalf of the State was properly dismissed;

The defendant excepted to the petition on the following ground : That if he is at all indebted on his stock mortgage, it is to the Clinton and Port Hudson Railroad Company; that the said company is now in liquidation, and the liquidator appointed to represent it is alone authorized to claim from him.

This exception was overruled by the district court; and the counsel for the plaintiffs places the correctness of the ruling on the ground that it clearly results from the decisions of this court in the cases of Meeker v. The Clinton and Port Hudson Railroad Company, 2d Ann. 973, and Langfitt and Perry v. Brown, 5th Ann. 232, that the bondholders alone have the right to enforce the stock mortgages.

These decisions had exclusive reference to stock pledged to the State, and rested upon peculiar legislation. They are not applicable to a case in which the subscription and the mortgage given to secure it have become the collateral security of an individual creditor. Our observation in the case of Langfitt and Ferry v. Brown, that the holder of the stock mortgage, whoever he be, must take precedence of the mortgage given on the same property to secure a loan, does not imply the want of power in the liquidator to collect the fund out of which the payment is to be made. He is vested by law with all the powers of the syndics of insolvent estates; and we have no doubt that the intention of the Legislature in appointing him was, that he should do all acts necessary to the final liquidation of the company, so that the stockholders should not be harrassed and their substance wasted by separate suits with the creditors.

In cases where joint stock companies have been dissolved and are unrepresented, courts of equity will sustain a bill by one or more of the creditors in behalf of all who choose to come in against all the stockholders. In this action each stockholder is compelled to pay his proportion of the whole debt, provided it does not exceed the amount of his unpaid subscription for stock ; and the money thus paid is divided among the creditors in proportion to thoir respective claims. Vose v. Grant, 15 Mass. R. 505. Angelí and Ames on Corporations, 540.

It has also been held in such cases, that where parties are so numerous that it is either impracticable or inconvenient to bring all before the court, the purposes of justice would or might be defeated by requiring their presence ; and a court of chancery will make such a decree as it can without them. The leading case in which this principle was recognized is that of Wood et al v. Drummer el al. 3 Mason, 388. In that case the available assets of the company had been distributed among the shareholders as dividends of stock, and the company had been dissolved without provision being made for the payment of its debts. Some of the creditors sued part of the shareholders, alleging a fraudulent division of the capital stock to their prejudice. The exception was taken, as it has been in this case, that no action could be maintained against any of the shareholders until they were all in court. That exception was overruled, on the ground that it would be extremely inconvenient, if not impracticable, to make them all parties, and the court proceeded to decide the case on its merits. But even in such a case, Judge Story, who presided, did not feel himself authorized to give judgment against each of the defendants for the entire dividends of stock received by them; and, to save the rights of other creditors, only adjudged them to pay out of those dividends so much of the debts due to the plaintiffs as the number of shares held by them in the capital stock bore to the whole number of shares of said stock.

Under the equity powers vested in this court, the liability of shareholders to creditors on account of unpaid stock was recognized by our predecessors in the case of Cucullu v. Union Insurance Company, 2 R. R. 577; and again, by this court, in the case of Brown against same defendants. 3d Ann. 177. In these cases the company had ceased to exist, and had had for years neither a known place of business, nor directors or other officers; and the action against the shareholders was maintained, as a last resort, and the only means of preventing a denial of justice.

But it is to be observed, that the liability of shareholders results from a contract entered into by them with the company ; and that whenever the company or its assets are under the management of proper officers, acting in a corporate capacity, that contract should, on principle, be enforced through those officers. In all cases of insolvency the interest of the mass should govern ; and it is manifestly for the common advantage of the creditors that their equities should bo worked out through the corporation. If its legal representatives neglect to call in the debts due by the shareholders for stock, so as to enable the company to pay its debts, a creditor can compel them to enforce contribution from the shareholders according to their subscription. Angelí and Ames on Corporations, 540, 544.

In furtherance of this view of the law, in the late case of Theodore O. Slavic, 5th Ann. 740, we sustained the appointment of a receiver appointed by the district court to take charge of assets, under the control of the court at the time, and belonging to an insolvent bank otherwise unrepresented ; and we recognized his power to make calls upon the holders of unpaid stock for the payment of the debts of the bank. Under that decision, the remedy of the creditors is to apply to the court for an order to the receiver to make calls, and to have him dismissed if he fails to obey it.

There is nothing in the case of Purton v. New Orleans and Carrollton Railroad Company, which conflicts with the principle of that decision. In Purton’s case we merely held that shareholders were in all cases bound towards the creditors of the company, up to the full amount of their subscription.

But the questions how and by whom their liability were to be enforced, was left undetermined. It was urged in argument, that the amount of the bonds held by the plaintiffs, and the interest due on them, exceeds the entire amount of the stock mortgages ; and that, as every shareholder is bound to pay his subscription in full, there is no objection to allowing the plaintiffs a direct action against them. The answer to this argument is, that the plaintiffs do not hold all the bonds originally purchased by the Gas Light and Banking Company, and that $100,000 of those bonds are not yet due. The amount of bonds and interest now matured, even if the plea of prescription filed by the defendant in the first series should be overruled, would amount to much less than the aggregate subscription for stock. Under that state of facts, such a proportional amount only of the subscription as will be sufficient to pay the matured debt can be recovered from each shareholder; and in case any of them are insolvent, and the property mortgaged by them has perished or greatly deteriorated in value, the question whether the loss arising from such insolvency is to be borne by the creditors or by tlie shareholders, is one which the latter- have the right to submit to the judiciary, before they are finally adjudged to pay. A recovery against them individually for the full amount of their subscription, would necessarily defeat that right. We are of opinion the exception should have been sustained.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment against the plaintiffs, as in cases of non-suit; with costs in both courts.


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    Francois Grisel v. Steamer Olivia and Owners.
    Where a butcher has supplied the steward of a boat with meat, the vessel is liable for the price, although there may have beeu, without the knowledge of the butcher, a private contract between the owners and the steward, by which the latter had leased the eating department of the vessel.
    A person called in warranty may be a witness for the plaintiff in the suit, where his interest, if he has any, is identical with that of the defendant.
    APPEAL from the First District Court of New Orleans, Larue, J.

      C. Dufour, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, who is a butcher, sues the defendants on a bill of meat furnished to the steamer Olivia, through her steward A. Feuille.

The defendants pleaded a special contract, by which their steward had leased the eating department of the steamer. They denied their liability and called him in warranty; he answered, stating the bill of the plaintiff to be correct, and that the provisions therein detailed had been used on board of the boat.

There was judgment in favor of the plaintiff against the defendants for the amount claimed, with privilege on the steamer Olivia, and a like judgment in favor of the defendants against the warrantor, Feuille, on his contract with them. The defendants have appealed.

On the trial below, the plaintiff offered Feuille to prove that their claim was correct, and that the defendants were responsible therefor. The defendants objected to the competency of this witness, on the ground that he was areal party to the record, and that he had both a 'direct and indirect interest in the issue of this suit adverse to that of the defendants. The court admitted the testimony, and the defendants’ counsel took a bill of exceptions.

We do not think that the citing of Feuille in warranty, makes him a party to the suit in the sense that excludes him as a witness. His interest in the event of the suit, if he had any, would be identical with that of the defendants who have called him in warranty; but we are of opinion that he has no interest in the event of the suit. The evidence was admitted on the ground that no such interest existed, inasmuch as whatever might be the decision as between the plaintiff and defendants, it would not affect the liability of Feuille under his contract with the defendants. In this opinion we concur.

On the merits, Fueille was originally the steward of the steamer Olivia, and in the habit of purchasing daily supplies for its use. During the continuance of Ms employment, he made a contract with the defendants, by which, for the consideration therein stated, he bound himself to keep, for his own account, on board of the boat a restaurat for the convenience of passengers ; and at the same time to feed the officers and crew, about twenty in number; to provide servants for the boat, and to have all the washing of the linen of the boat properly done.

This contract was never made public; and the plaintiff who had been furnishing meat to the boat, continued to do so without being aware of its existence. It is clear that he gave credit to the boat alone, and as he was justified by the course of conduct of the defendants in believing that he was dealing with the boat, the judgment must be affirmed.

The judgment is therefore affirmed, with costs.


author: Prestoh, J.

text:
    William E. Leverich v. Clemence Toby.
    Where the real owner of property suffered one who held a simulated title thereto to mortgage it,'the property is bound for the mortgage ; and a purchaser at a sale of the property under an order of seizure and sale issued on the mortgage, will be protected in his purchase, although the real owner had established, in a suit commenced after the date of the mortgage against the mortgagor, that his title was simulated.
    APPEAL from the District Court of Jefferson, Clark, J.

      Benjamin and Micou, for plaintiff.

      Ogden and Duncan, for defendant.
   The judgment of the court was pronounced by

Prestoh, J.

The plaintiff brings this suit for a square of ground in the city of Lafayette, in the possession of the defendant, with the buildings and improvements.

A deed of sale to the square was made to Henry Locket, by William McCawley, by act passed before F. Grima, Esq., notary, on 2d of November, 1838, for the price of $9000, payable at one, two and three years’ credit.

Locket mortgaged the property to the Merchants’ Insurance Company of New Orleans, by an act passed before the same notary, dated 2d of March, 1842, for a loan of five thousand dollars.

There was a balance of $3500 due by him on the loan, and on the 30th of March, 1847, the company issued an order of seizure and sale against the property. The property, however, was not sold in consequence of William T. Hepp becoming security for the debt, if not paid in six months. The debt was not paid by Locket, and on the 10th of October, 1849, Hepp paid the debt, and took a notarial subrogation of the rights of the company to the mortgage against Locket.

On the 30th of January, 1850, Hepp issued a pluries writ of seizure and sale; and on the 30th of March, 1850, the sheriff, after advertising and appraising the property, adjudicated it at a public sale to the plaintiff, who, finding the property in the possession of the defendant, on the 9th of May, 1850, brought this suit to recover it.

The defendant answered that the sale was a nullity, because Locket never had the ownership or possession of the property. She alleges that one Thomas McKinney, out of strong obligations of gratitude to her late husband, and motives of friendship for herself and family, placed in the hands of Locket a large sum of money to purchase and establish a home for her and her children ; and that Locket purchased the property with those means and that money which was through him donated to her; that she has been notoriously in possession of the property as owner for more than ten years, and had expended twelve thousand dollars in its improvement.

She alleges further, that, on the 12th of January, 1850, Locket brought a petitory action against her for the property, to which she answered, pleading the same matters; and that the sheriff’s sale took place after issue joined in that suit; thatLeverich therefore purchased a litigious right, had paid only a small part of the price, and that she was entitled to the property on paying that sum : further, she claimed, if these pleas failed, the twelve thousand dollars she had expended in improving the property, the improvements being worth that sum.

On the day the suit was about to be tried by the jury, the defendant filed an exception, that the plaintiff, by the sheriff’s sale, had acquired' only the rights of Locket to the property; that at the date of the sale the suit between her and Locket was pending; that the plaintiff's rights could pnly extend to have himself subrogated to Locket’s rights, and substituted for him in the suit between them ; and that his suit should be dismissed on account of the Us pendens. She moreover excepted that the suit between her and Locket had been terminated by a judgment in her favor, which she pleaded as res judicata against the plaintiff’s elaim. The court sustained these exceptions, and dismissed the suit. The plaintiff has appealed.

To sustain the plea of lis pendens, or res judicata, not only the subject but the parties in the pending or adjudged suit must be the same, or privies to the parties in the pending or adjudged case. 1 .

The subject matter of the present suit is the same square of ground which was in controversy between Locket and Mrs. Toby, and which has been adjudged to the latter: and Mrs. Toby, in reality, is defendant in both suits. But is Lenerich a privy to Locket, and has he no rights which Locket could not exercise ? He holds Locket’s title to the laud, which, if it was not a better title than Locket could convey to him after the suit brought for the land, undoubtedly the suit ponding a judgment in favor of Mrs. Toby would avail her.

But he holds that title under a mortgage granted by Locket upon the land in 1842. At that period Locket was, by the consent of Mrs. Toby, or those who acted for her, the owner of the land by the recorded title. Neither purchasers nor mortgagees were obliged to look beyond the recorded title, because no suit was then pending, or judicial claim on behalf of Mrs. Toby for the title; nor was there on record anything to show that Locket held the land for her, ns she has since established by suit and judgment. The mortgage created an absolute right in the mortgagee to sell the land for the satisfaction of his debt, if not paid by Locket or those interested. The right to sell implies the correlative right in another to buy. If the mortgage was fraudulent as to Mrs. Toby, third persons could not be affected by the fraud, as she had brought no suit to make it known; as she permitted the title to remain in Locket, third persons, even if they knew it was her property, had a right to believe that he was making the mortgage for her benefit. Whom she trusted others might well trust, so far as to apprehend no disturbance by her.

Now, under these circumstances, Locket mortgaged the land, and even with the pact de ñon alienando. He bound himself not to alienate it to the prejudice of the mortgage. He, of course, bound himself to warrant the title to the property, lie cannot be permitted to violate these obligations to the prejudice of innocent third persons, and defeat their rights by not defending'a suit for the land ; and they cannot be defeated by Mrs. Toby, because she permitted the land to remain in Locket’s name, and by so doing enabled him to injure innocent third persons, if she can repudiate his mortgages.

Mortgages would be truly unprotected, if secret but real owners of the mortgaged premises might defeat their rights by showing that the title of the mortgagor was held by simulation for them. The simulation, if thus used, would become a fraud which our laws could never tolerate.

If any matter is better settled in our jurisprudence' than another, it is that the simulation of acts cannot affect the rights of third persons acquired against the apparent owner of the property.

Bondfide titles and mortgages, if not recorded in the proper conveyance or mortgage offices, have always been postponed to subsequent titles or mortgages duly recorded, How little reason, therefore, is there for pretending a different principle as to secret'and unknown titles.

The defendant is entitled to the trial by jury on the merits of the case, which she asks, and possibly may establish such knowledge of herrights on behalf of the plaintiff, and combination with Locket to injure her, as may defeat his claim.

The sheriff, as alleged, did not, under the order of seizure and sale, take actual possession of the property, so as on its adjudication to deliver actual possession to the purchaser, unless prevented by legal opposition or injunction. It was a great irregularity. The executory process does not issue against a mere right, but against property. The necessity of a suit for the property indicates that this irregularity existed. Still it is doubtful whether the defendant can take advantage of the irregularity, having caused it by her own opposition. It is for the parties and the court to settle all these matters legally and equitably on the trial of the case on its merits ; for which it must be remanded.

The judgment of the district court is therefore reversed, the exceptions of lites pendentes and rei judicata overruled, and the case remanded for a new trial on its merits; the appellee to pay costs of the appeal.


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    Euphrasie D’Apremont v. Jeremiah Berry.
    The principle, that the payment of the sum for which a litigious right is sold, discharges it, is not applicable to a forced sale, but merely applicable to conventional assignments.
    The act of March 17th, 1823, disqualifying an insolvent from being a witness in any suit brought by his creditors against his estate, was repealed by the subsequent enactments of the Civil Code. The law only applied, during its existence, to surrenders of property under the State laws.
    In a suit, the object of which is to establish the extent of the community, a receipt given by the husband to the wife is admissible in evidence; the objection being as to its effect and not as to its admissibility.
    APPEAL from the Parish Court of the Parish of Orleans, Maurian, J.

      P. Soulé and Seth Barton, for plaintiff.
    Duncan, for defendant.

      Hennen, for intervenor.
   The judgment of the court (Preston, J., not sitting in the case, having been of counsel) was pronounced by

Rost, J.

The plaintiff claims some town property bequeathed to her by her sister, the late wife of the defendant. The defendant claims one-half of the value of the improvements made on the property during the existence of the marriage, and as he alleges with the funds of the community.

After issue joined, Jesse Cowand, a judgment creditor of Berry, caused the rights and claims of the said Berry in the suit to be sold under execution, and purchased them for the sum of $105. He then intervened and caused himself to be recognized as the real defendant in interest. At this stage of the proceedings, the plaintiff tendered one hundred and five dollars to Cowand, and claimed to be released by the payment of that sum.

It has been settled by repeated decisions, that the principle that the payment of the sum for which a litigious right is sold discharges it, is not applicable to a forced sale, but merely to conventional assignments between individuals capable of contracting. 7 N. S. 228. 4 L. R. 395. Early v. Black, 12 L. R. 206. Code of Practice, 690. C. C. 2624, No. 2.

The case not being in a situation to be tried on its merits, we can only pass upon the bills of exception.

The first was taken to the refusal of the court to admit the testimony of Jeremiah Berry, who had been discharged as a bankrupt by the District Court of the United States, after the sale of his rights in this suit to Cowan. The court refused to hear him, and based its refusal on a law passed in 1823, declaring the insolvent incapable of appearing as a witness in any civil suit brought either by the mass of the creditors or by any of his debtors or creditors.

This act of 1823 was passed with exclusive reference to insolvents who had made a surrender, either voluntary or forced, of their property under the State laws, and still remained liable for their debts, if they came to better fortune. It would not, if it was still in force, be applicable to insolvents discharged from their obligations under the bankrupt law. But that act is no longer in force. The section relied on contains also a provision that the drawer of a note shall never, in any case whatever, be admitted as a witness in suits brought by the holder against the endorsers.

In the case of Waters v. Petrovich and Blanchard, 19 L. R. 584, it was held, “that all acts of the Legislature, in every case for which it had been provided by the code, were repealed by the repealing clause forming the subject matter of art. 3521; that the code only lays down general rules, and that the expression every case used in the article, means every category or class of cases or subject matter upon which the code contains express-provisions; that the part of the code which treats of the proof of obligations and of that of payments, establishes general rules relating to the cases in which testimonial proof may be admitted, and under what restrictions and in what cases it is inadmissible; that it declares who shall be a competent witness and enumerates certain exceptions to the rule it establishes; that, but for the last article of the code, the provision in the act of 1823 might be considered as another exception to that rule; bnt that it clearly comes within the letter and spirit of the repealing clause and is no longer in force.”

This view of the law, in which we concur, is equally applicable to the case under consideration, and in conformity with it we held, in the case of West v. His Creditors, that the discharged bankrupt was a competent witness, when called to testify against his own interest. In this case, the title of the insolvent to the claim in controversy had passed from him before his failure, and he could have no interest in the event of the suit. 1st Ann. 365.

The second bill of exceptions was to the opinion of the court admitting in evidence a due bill or receipt given by Berry to his wife during marriage. The objection raised goes to the effect, not to the admissibility of the evidence. It is admissible as a declaration of Berry tending to charge him. But under the rule of law c’esi dormer á sa femme que de reconnaitre en avoir repu quoique ce soit, it may not be sufficient, per se, even against the husband. As a general rule the origin of paraphernal funds should be shown. Succession of Guillemain, 2d Ann. 634.

One of the main issues in the cause is, whether the improvements of which the defendant claims the value were paid for' out of community funds. Under that issue, the evidence offered by the plaintiff tó show private funds of the deceased in the hands of her husband, to any amount not exceeding the value of the improvements, was admissible without a plea, in reconvention.

It is ordered, that the judgment in this case be reversed, and the case remanded for further proceedings according to law; with directions to the district judge to admit the insolvent as a witness. It is further ordered, that the plaintiff and appellee pay the costs of this appeal.


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    A. F. Dunbar & Co. v. John S. Hushes.
    Where A. entrusts funds to B. to pay over to C. the latter has not the right, in case B. misapplies the funds, of proceeding against him under the 10th section of the act of March, 24th 1840, abolishing imprisonment for debt. That right exists in A. alone.
    Where an agent receives money with instructions to pay it over to a third person, upon his neglecting to do so the third person may maintain an action against him for money had and received for his use.
    It is a settled rule of the law of mandate, that if the instrument confirming the mandate be not expressed in plain and unequivocal terms, free from ambiguity, but is susceptible of different interpretations, and the agent is thereby misled, the principal will be bound and the agent exonerated.
    APPEAL from the Fourth District Court of New Orleans, Strawbñdge, J.

      C. W. Hornor, for plaintiff.

      E. L. Goold, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs allege that the defendant has collected, and fradulently withholds from them, funds placed in his hands for their benefit by their debtor, Asa E. Gove. They pray that he be arrested and held to bail, under a section of the act of 1840, abolishing imprisonment for debt, and that he be adjudged to pay them the amount of their claim against Gove.

The defendant pleaded the general issue; and further averred that he never was instructed by Gove to pay over to the plaintiffs the funds in his hands, but simply directed to use his discretion in the disposal of those funds, and that he was justified by his instructions in paying them over to R. F. Nichols Co., which he alleges he did. He also claimed damages in reconvention.

The district judge being of opinion that Gove alone could proceed against the defendant under the act of 1840, gave judgment in his favor, and dismissed the claim in reconvention. The plaintiffs have appealed.

"We concur in the opinion of the district judge, that the provision in the act of 1840, under which the defendant was arrested and held to bail, cannot be invoked by the plaintiffs in the present action ; but as the allegations and prayer of the petition are sufficient to maintain an action for money had and received to the plaintiffs’ use, it is necessary to pass upon the evidence adduced in support of them.

The record shows that R. F. Nichols Sf Co., Asa E. Gove and John S. Hughes, each for one third, had formed a company to trade in fruits in the Mediterranean, and that Hughes kept the books of that company. At the date of the transaction which has given rise to this controversy, the company had suffered losses, and Gove was indebted to it and to the other partners individually.

Gove was then under acceptance to the plaintiffs of, what is called in the record, the '■'■Baker draft” for $1500, which was about to mature. Having no means at hand to meet that draft, he left for Cincinnati, where it appeal’s he had friends, after having appointed the defendant his general and special attorney in fact by a notarial act. Soon after, he sent to the defendant, from Cincinnati, three acceptances for $500 each, with instructions, upon which the plaintiff relies in support of his claim. The letter of instruction is as follows: “ Enclosed, you have Amos Gove’s draft on Sturges and Wright, for $500, say five hundred dollars, 30 days dale, to pay a part (due 3d September,) of Baker’s draft for $1500. My brother is making arrangements, and probably will to-morrow send you two other bills of $500 each, having some little time to run, that I must leave with you to act, as in your judgment may be for the interest of all concerned, to negotiate and pay or not pay the draft. I have not the face to ask you or Hewson to advance the cash, unless you have satisfactory security; of this you must judge and act accordingly.”

According to the plaintiffs, the meaning of these instructions is, that the acceptances sent or their proceeds, if discounted, were to be applied to the payment of the Baker draft, and that the only discretion left the defendant, was to discount those acceptances and take up the draft at maturity, or wait till the acceptances matured and then pay the plaintiffs.

The defendant insists, that the discretion left to him was to determine whether, in the interest of all concerned, the remittance was to be applied to the payment of the Baker draft, or of other debts of Asa D. Gove; and that in the honest exercise of that discretion, he applied it to the payment of other acknowledged debts of Gove.

It is shown by the testimony of Gove, that-the remittance was intended to pay the Baker draft; and it may be conceded, that the instructions given fairly conveyed that meaning. But it cannot be denied that they are couched in ambiguous language, and susceptible of the interpretation which the defendant put upon them. Under those circumstances, it is not necessary for us to determine which of the two interpretations should have' controlled the other, it being a settled rule of the law of mandate, that if the instrument is not expressed in plain and unequivocal terms, free from ambiguity, but the language is fairly susceptible of different interpretations, and tha agent, in fact, is misled and adopts and follows one when the principal intended the other, there, the principal will be bound, and the agent will be exonerated. Story on Agency, par. 74. There being nothing in the record to show bad faith on the part of the defendant, Gove is bound under that rule by the application which his agent made of the fund to the payment of other debts; and no stipulation pour autrui ever existed of which the plaintiffs can take advantage.

It may further be stated, that there is evidence in the record showing that Gove on his return appeared satisfied, and made no-objeotion to the application made of the bond by Hughes.

The judgment is therefore affirmed, with costs.


author: Etjstis, C. J.

text:
    George Patterson v. J. B. D’Auterive.
    An action will lie against a commissioner of an election who refuses to receive a vote from malice, and with intent to deprive a citizen of his'right of franchise.
    from the District Court of Jefferson, Clarke, J.

      A. W. Jourdan, for plaintiff.

      F. H. Thompson, for defendant.
   The judgment of the court (Preston, J., declining to sit in the case) was pronounced by

Etjstis, C. J.

This is an action against the commissioners of an election held in the parish of Jefferson, for damages for maliciously refusing to allow the plaintiff, a duly qualified voter, to give his vote at a general election in November, 1849. The district judge dismissed the petition, on the ground that the action could not be maintained, The plaintiff has appealed,

The plaintiff alleges, that his vote was refused by the defendants maliciously, in order to injure him and deprive him of his legal rights.

The judge erred in dismissing the plaintiff’s petition. An action of this kind will lie against the commissioners of an election, when their decision is not the result of error, but of malice, and intent to deprive the citizen of his right, or to overawe and control him in its exorcise. Bridge v. Oakey, 1st Ann. 969. Ib. 12 R. R. 638. Dwight v. Rice, 5th Ann. 580. Jenkins et al. v. Waldron, 11 Johnson’s Rep. 114.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings ; the appellees paying the costs of this appeal.


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    Wilson and Gleason v. Samuel Churchman.
    Where a judgment of the Supreme Court, after recognizing the plaintiff’s right to recover, remands the cause for the purpose of fixing definitely the amount, it is not such a final judgment as renders the security on the appeal hond liable.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Elmore and King, for plaintiffs.

      E. A. Bradford and E. L. Goold, for defendants.
   The judgment of the court was pronounced by

Etjstis, C. J.

This is an appeal taken by the sureties from a judgment on an appeal bond given by George Gilchrist, as principal, and the appellants as his sureties, in the Court of the Fourth District of New Orleans, on the 9th day of May, 1848. It recites, that Gilchrist had on that day taken an appeal from a certain final judgment rendered against him in the suit of Wilson and Gleason v. Churchman. The condition of the bond is, that if Gilchrist shall prosecute his appeal, and satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise, that the sureties shall be liable in his place.

In January, 1848, a quantity of flour was seized under a writ of sequestration against Churchman, at the suit of the plaintiffs, on board of a ship commanded by Gilchrist, bound for Philadelphia, for which port it had been shipped by Churchman. Gilchrist bonded the flour and retained it on board. He made himself a party to the suit by way of third opposition, alleging his obligations as a common candor to deliver the flour to its consignee at Philadelphia, the bill of lading having been forwarded to the consignee before the service of the sequestration. On the 28th of April, 1848, the opposition of Gilchrist was dismissed; and from the judgment dismissing the opposition he took an appeal and gave the bond sued upon. On the appeal, this judgment was affirmed, but the sequestration was set aside at the plaintiffs’ costs, and the case was remanded for the sole purpose of ascertaining the value of the flour sequestered, and of rendering judgment for such value in favor of plaintiffs against Gilchrist, &c. Wilson v. Churchman, 4th Ann. 456. The cause being remanded, judgment was rendered against Gilchrist for the sum of $3300 with interest, on the 13th of March, 1850. On a return of nulla bond to an execution issued on this judgment, the sureties on the appeal bond were condemned to pay the amount of the judgment ; sad from this judgment against them have taken this appeal.

The only question before the court is, whether the decree of this court is such a judgment against Gilchrist as authorized the judgment rendered by the. district court against the appellants on the appeal bond. The case is so presented by the counsel for the appellees, and all matters touching the responsibility of Gilchrist are foreign to it. The case presents a question of law, and nothing else.

The judgment of this court affirmed that of the district court dismissing the opposition of Gilchrist; it set aside the sequestration, and remanded the cause for the purpose of the plaintiffs having judgment in the court of the first instance for the value of the flour, to be ascertained^by evidence to be administered, subject to credit for such portion of the price of the flour as the said plaintiffs may have received from Churchman.

Had there been any precedent of sureties on an appeal bond being held liable except on a final judgment of the appellate court, either under our system o* that of the English or American courts, the diligence of counsel would have furnished it to us. We have been able to find none. Atthe same time, decrees of our appellate court, final as to some things, and referred for determination of others to the court of the first instance, aro of frequent occurrence in courts of chancery and in our courts. In the recovery of successions in suits for land, the title is often established by a decree, and the case remanded to ascertain and liquidate the amount due, or allowed for improvements, rents, &c. Cases are often remanded for the more correct ascertainment of damages. We know of no instance in which sureties on an appeal bond have been held liable except on the judgment of the court of the appeal. ,

. The article 575 of the Code of Practice, providing for an appeal bond sfaying execution, evidently looks to the responsibility attaching in a definitive judgment on the appeal, and seems to us to exclude the idea of the surety binding himself to abide by the action of any court other than that of the court to which the appeal is taken. The same sense, we think, prevails in the article 579.

The article 595, in establishing the mode of recourse against the surety on the appeal bond, pre-supposes that, on the execution of the judgment of the appellate court, sufficient property of the appellant is not to be had.

But there is another' objection to the plaintiffs’ recovery. The decree of the Supreme Court, on the appeal of Gilchrist, is not final, but of that class of decrees known as interlocutory, in contradistinction to final decrees. It directs the allowance of whatever sum Churchman may have paid the plaintiffs on account of the flour. There may be nothing due the plaintiffs after the allowance of this credit, or the sum may be so small as to be classed among those things of which the law takes no heed.

This judgment wants the essential requisite of a final judgment. It wants certainty. Senteniia debet esse certa. If what is due and to be recovered is not explained in the judgment, or in some act referred to, the judgment is in no sense final. Pothier on Obligations, de re judicata, § 866.

The judgment of the district court is therefore reversed, and judgment rendered for the appellants, with costs in' both courts-; reserving to the plaintiffs the right to collect from the said sureties on the appeal bond the costs of the opposition of Gilchrist incurred in the district court. ’


author: Eustis, C. J.

text:
    John Bird v. Villeneuve LeBlanc et al.
    An agreement by an endorser to waive protest of a note does not dispense with notice of non-payment.
    APPEAL from the District Court of West Baton Rouge, Burk, J.

      J. M. Brunot, for plaintiff.

      George S. Lacey, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal taken by the defendant from a judgment of the Court of the Sixth Judicial District rendered against him ns the endorser of a ^promissory note of Samuel M. D. Clark. On the back of the note is written, “I hereby waive protest on the, within note.” Signed by the defendant. The defence is, want of notice of non-payment of the note.

We do not consider that by this consent to waive a formal protest of the note the party bound himself to pay the note at all events. We understand the rule of law to be, that agreements of this kind are to be construed strictly. In considering the1 effect of an agreement on the part of an endorser to dispense with the protest, less restricted in its terms than this, we held, that the necessity of notice was not thereby waived. This decision was made on the authority of the case of the Union Bank v. Hyde. 6 Wheaton’s R. 574. 1 Ann. 314. Walt v. Bry. A decision to the contrary may be found in the case of Coddington v. Davis, 3 Den. 17. But, on a full consideration of the subject, we adhere to the rule laid down by the Supreme Court of the United States.

It is not desirable in a mercantile community, that the defaults to pay bills or notes, when due, should be kept secret. It enables insolvents to maintain a false crodit. We have had cases before us in which the waivers of protest have been the means of misleading the public as to the real situation of parties, and producing great injury thereby ; and this is a strong reason for holding to the old rule, and not encouraging waivers of protest by giving them a large construction.

The judgment of the district court is reversed, and judgment rendered for the defendant, as in case of non suit; with costs in both courts.


author: Peeston, J.

text:
    Mrs. Micael Cox v. Ellen McIntyre.
    Usurious interest which has been paid cannot be recovered back after the lapse of twelve months, nor can it be imputed to the original debt.
    An order of seizure and sale cannot be enjoined on account of an unliquidated claim for
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      C. Roselius, for plaintiff.

      C. Redmond, for the defendant.
   The judgment of the court was pronounced by

Peeston, J.

An order of seizure and sale was issued by the executrix of James McIntyre, upon a note and mortgage of Micael Cox for one thousand dollars, dated the 2d of July 1847, and payable one year after date. This suit is an injunction against the order of seizure and sale. The plaintiff alleges that the note and mortgage was given for a loan, ■ and that at the execution thereof she received but eight hundred and fifty dollars from the mortgagee, one hundred and fifty dollars having been deducted for usurious interest on the loan for one year; that when the note became due, being unable to pay it, two hundred dollars was extorted from her for its renewal for one year more; and being unable still to pay the note, the mortgagee agreed to suspend the payment six months longer, on extorting from her one hundred dollars. She alleges further, that shortly after the execution of the mortgage, she was compelled, by the threats and false representations of the mortgagee, to pay him seventy-two dollars and fifty cents on his demand of additional interest, and for notarial and lawyers fees for examining the titles and executing the act of mortgage : all of which sums, amounting to five hundred and twenty two dollars fifty cents, she alleges should be credited on the note, and that she should not be compelled to pay any interest at all on the same.

An injunction was issued to that amount against the order of seizure and sale; but, on motion to dissolve, it was maintained for only two hundred and fifty dollars, and dissolved for the balance; and the plaintiff has appealed.

The two hundred and fifty dollars for which the injunction was maintained until a trial on the merits, consisted of the $150, which the plaintiff alleged was deducted from the face of the note when the loan was made, and the $100 alleged to have been paid for the last renewal of the note.

For the trial of the rule to dissolve the injunction, the allegations in the petition are to be taken for granted; and on this supposition the injunction was clearly to be maintained for the first sum of one hundred and fifty dollars never received, but charged for usurious interest. As the defendant has not appealed, nor asked an amendment of the judgment, it be'eomes unnecessary to examine whether the injunction could be maintained for the last sum of $100 of usurious interest paid, especially since the act of 1844, which authorizes the recovery of usurious interest only for twelve months after it is paid.

The other sums paid on account of interest and expenses on the loan, were paid more than twelve months before the order of seizure and sale on the mortgage ; and therefore could not be recovered back on account of usury alone. Acts 1844, p. 15.

It was formerly held, that usurious interest paid might be imputed by the borrower to the capital. Dunford v. Bariteau, 5 M. R. 504. But that doctrine is abandoned, and sums distinctly paid as interest cannot now be recovered back or imputed to the capital. Cox v. Rowles, 12 R. R. 278. Millaudon v. Arnaud, 4 L. R. 543. Perrillat v. Puech, 2 L. R. 431.

If, by the extortion alleged, any violence or fraud was intended, it gave rise to an action for damages, which could not be compensated against a liquidated demand by loan ; and therefore the seizure and sale off such demand is not subject to an injunction on account of it. Code of Practice, 739, No. 7. Copley v. Edwards, 5th Ann. 647. Smith v. Foster, Ib. 551.

The district court rendered full justice to the plaintiff; perhaps enjoined more of the claim against her than should have been enjoined without security.

The judgment is therefore affirmed, with costs.


text:
    Herman P. Benjamin v. Samuel D. Davis et al.
    An error of the judge in fixing the return day of the appeal, will not be allowed to prejudice the appellant. If the appeal be filed on the return day fixed by law, it is sufficient.
    Whore armed men have pursued and shot, with ball or buck-shot, a slave, they must show the necessity which existed for thus shooting him, or they will be held liable for his value-
    APPEAL from the District Court of West Feliciana, Stirling, J.

      C. Ralliff, for plaintiff, contended:
    This is an action brought by plaintiff against the defendants for the value of a slave by the name of Ned, alleged to have been killed by the defendants. The petition sets forth the time and manner of the killing of the slave, aud alleges that the killing was the act of the defendants, and avers the slave to be worth the sum of $-, and prays judgment against the defendants in solido, for the amount, interest and costs. The defendants answered separately, but merely put in a general denial.
    Upon the merits, the killing of the slave Ned by defendants is fully made out. See testimony of Ackley Perkins, of George Williams, and of John Wederstrandl. The facts, as proven by the witness Ackley Perkins, are substantially as follows : the defendants came to the house of witness early in the morning with their negro dogs, and said they were going to hunt runaway negroes ; they went down into the plantation of witness, and were not long gone before witness saw them returning, one of them walking, and the negro boy Ned lying across one of the horses, shot. They brought him to the house of witness; and after some ineffectual attempts to staunch the blood, the negro was sent home to Benjamin’s, his master, and next day he died of his wounds. The testimony of John B. Wederstrandt, who was one of the coroner’s inquest, fully describes the nature of the wounds, and the cause of the negro Ned’s death.
    The defendants attempted to justify, by trying to prove Ned was run away; this they endeavored to establish by several witnesses. This testimony was objected to by plaintiff’s counsel, upon the grounds that the character of the boy Ned was not put at issue by the pleadings, and there was no allegation in the answer that Ned was run away. The court received the evidence, and plaintiff took his bill. They also proved by Perkins, that they brought in with Ned a large carving knife that had been stolen or taken from his quarter, that was used there for cutting up meat, when they issued out allowances to the negroes. They also proved, by George Williams, that some of the dogs were cut with a knife, &c. All this was objected to by plaintiff’s counsel, but admitted by the court, and bill reserved. This is, in substance, their justification. They also endeavored to prove that Francis Matt was a freeholder. This was also objected to, on the ground that a title to freehold could not be proved by parol.
    Then, the first question that presents itself to the mind is, was the boy Nedthe property of Mr. Benjamin, the plaintiff, killed ? If so, by whom was it done ? That he was killed will scarcely be denied. If it is, then the testimony of Ackley Perkins, George Williams, John B. Wederstrandt, and Robert Chatham, before referred to, fully establishes the fact. Then, did the defendants doit? No one saw them do it. But they were seen bringing the boy Ned home across one of the horses, badly shot, and fresh bleeding; and that the boy died next day, and an inquest was held over him. Have they attempted to account for the boy Ned’s being in that condition ? Certainly not; but they have attempted to justify, by endeavoring to prove Ned was a negro of bad character; that he was runaway at the time, and that some of their negro dogs were cut with a knife, and that the knife brought home with them was stolen from Perkin’s quarter. They have attempted further to prove by Robert Chatham, that when he related to Benjamin what Davis had told witness about the killing of the negro, that he, Benjamin, said he wished they had killed the rascal. Now is not the conclusion irresistible, that Davis and Matt killed Benjamin’s boy Ned;
      they were seen going out in that direction in the morning, hunting runaway negroes, and soon returned with Ned badly shot, of which he died next day. Benjamin all the while was absent from home.

      Davis was the overseer of Benjamin. This boy the day before had given some offence; Davis attempted to flog the boy, and Ned run; this is the head and front of Ned’s offending. And Davis goes and gets Francis Matt and the negro dogs, and because Ned had not power of human endurance enough to stand and let the dogs worry him to their entire satisfaction, they shoot him down like a beef. Just imagine what excuse can two powerful, athletic men, with horses, guns, pistols, and dogs, in an open field, have for shooting an old negro down of forty-five years of age, unarmed, or at least having nothing but a carving knife, if that. If this is to be tolerated, the shedding of that species of human blood is much more commendable than I had ever dreamer/ of. It is true there has been one mistrial, and the last time the case was submitted, without argument of counsel, the jury gave a verdict for the defendants. But now we rely on this court for a reversal of that verdict, and one in favor of plaintiff for the value of the boy Ned, as prayed for, with interests and costs in both courts. See the case of Bell v. Hebert, 3 Ann. 132 ; Crawford v. Chaney, 3 N. S. 143; 16 L. R. 117 ; 1 R. R. 140; C. C. 2294, 2309, 1928; Allen v. Young, 9 M. R. 221; Delery v. Monett; 11 M.R. 10 ; Morgan, Syndic, v. Feverish, 8 N. S 590; McMasters v. Beckwith, 2 L. R. 331; Gotdenburgh v. Wright 13 L. R. 373; Taylor v. Andrews, 16 L. R. 438.

      Brewer and Collins, for defendant, contended':
    In this case a motion has been filed to dismiss the appeal, on the ground that no legal return day for the same has ever been fixed by the judge of the.district court, and on the ground that the record was filed too late. On these points the-record shows, that, on motion of counsel for the appellant, an appeal was granted, and made returnable on the second Monday in February, A. D. 1851. The legal return day forappeals from the Seventh Judicial District Court is the fourth Monday in February. Act of 1850, p. 45. The late Supreme Court held, that an order allowing an appeal returnable on a day on which the court does not sit, is as an order allowing one returnable on any day, or not returnable at all. Rains v. Kemp, 4 L. R., 318. The order, then, making the appeal returnable on the second Monday, a day on which the Supreme Court does not sit for the trial of appeals from the seventh district, is the same as if no return day had been fixed. The provisions of law are positive, requiring a return day to be fixed. C. P. 574.
    Should the court be of opinion, that the second Monday was so far a judicial day, that the appeal was not vitiated by being made returnable on that day, then, by the same reasoning, the days following the 'second Monday would be judicial days, and the appeal should be dismissed on the ground that it was filed too late. The appellant, certainly, should not be permitted to treat the second Monday and the three days thereafter as judicial days,'on which his appeal could properly be made returnable, and treat them not as judicial days when it is sought to enforce against him the legal penalties, for not seasonably filing his appeal.
    This suit is brought to recover the sum of eight hundred dollars damages, alleged to have been occasioned by the act of the defendants, in shooting a slave belonging to plaintiff. The defendants severed in their answers, each pleading the general issue. One of the defendants, Joseph Matt, subsequently filed an amended answer, in which he alleged that he was a freeholder. A motion was filed for a separate trial, which was overruled.
    This case turns mostly on questions of fact, upon which a jury has found in favor of the defendants.
    The only evidence, to prove the killing of the negro, is the testimony of Achley Perkins and George Williams, who testify, that they saw the negro on the horse of one of the defendants, who brought him to the quarter of Dr. Perkins, there borrowed a cart and sent him to the residence of plaintiff, and that during the time the negro was thus in the custody of the defendants, he was suffering from a gun-shot wound. There is no'act of the defendants thus testified to, but what tended to protect and preserve, rather than destroy the property of plaintiff.
    The evidence for the defendants shows that the negro was a runaway. It also shows that the negro was armed, and resisted. Achley Perkins testifies that, when he saw the defendants with the negro, one of them had a knife about eighteen inches long, which belonged to witness ; that the negro had a wife on the plantation of Dr. Perkins, and that the lcnife had been stolen from the house in which the negro was in the habit of staying when in the quarter of witness; that the dogs of defendants were bleeding and appeared to have been cut with a knife. The evidence shows that the negro was a runaway, and justifies the inference that he was armed, and resisted attempts made to capture him.
    It is lawful to fire upon runaway negroes who may be armed, and upon those who, when pursued, shall refuse to surrender. Greiner’s Digest, § 3396.
    Aside from the evidence, which brings the case clearly within the provisions of the law last cited, the presumption of law in favor of the defendants would be sufficient to exonerate them from all responsibility. The negro, by being a runaway, had placed himself in a state of resistance to the authority of tho_ defendant, who was the overseer and agent of the plaintiff, and also in a state oí resistance to the laws, and this resistance must be presumed to continue until some act on the part of the slave be proved, showing his submission.
    It was the duty of Davis, as overseer for plaintiff, to attempt to capture the negro. He had a right to use the dogs in his attempt to make such capture, such means being customary among the planters of the parish, and the same means having been previously used by plaintiff to capture the same negro. The evidence shows that the defendants were acting in good faith towards the plaintiff, and that when Davis was asked to join in the hunt, he replied that he would, as one of Benjamin's negroes had runaway; and asked permission to take him home, in case he should be caught, without having him committed to jail.
    It is also in evidence that the plaintiff, when informed that the negro had been shot, replied, that he wished he had been killed.
   The judgment of the court was pronounced by

Rost, J.

The motion to dismiss in this case, is not, in our opinion, tenable. The error of the judge in fixing the return day cannot, under the act of 1839, prejudice the plaintiff, and it was sufficient to file the record on the return day fixed by the act of 1850.

The act charged against the defendants is satisfactorily proved, and they have failed to show the necessity which could alone have justified it. Armed, and prepared as they were, the shooting with ball or buck-shot was totally unjustifiable. The verdict of the jury is clearly erroneous, and the judgment must be reversed'. Bell v. Hebert, 3d Ann. 132. Carmouche v. Bouis, ante, p. 95.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the defendants, in solido, $350, with legal interest, from the 27th October, 1847, till paid, and costs in both courts.


text:
    Widow Vinot v. Celeste Bertrand, f. w. c.
    Where the appellant has used due diligence to cite the appellee, hut has been unable to do so within twelve months, in consequence of the acts of the appellee, the time within which appeals are to be taken does not run.
    The acts of April 14th, 1807, and March 20th, 1809, concerning the harboring or concealing of runaway slaves, do not authorize the recovery of the penalties therein imposed, unless there has been a criminal concealment or hiring of the slave.
    Where the defendant has leased aroom to a runaway slave having a forged pass or permit, such defendant is responsible for the expenses of the recovery of the slave and for the value of the services of the slave during the time.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      J. Bermudez, for plaintiff.
    Fi H. Ivy, for defendant.
   The judgment of the court (Preston, J., not sitting in the case, having been of counsel) was pronounced by

Rost, J.

The motion to dismiss in this case, on the ground that more than one year elapsed from the rendition of the judgment to the day of the service of the citation of appeal, must be overruled. The plaintiff used due diligence in trying to ascertain the residence of the appellee, but the various attempts she made to discover it were frustrated by the acts of the appellee herself. Under those circumstances the limitation of one year cannot be invoked by her.

On the merits, this case does not differ from that of Roquet v. Richardson, 3 L. R. 452. In this case, as in that, the record does not establish such criminal concealment or illegal hiring of the slave of the plaintiff by the defendant, as will subject the said defendant to the penalties-.of the acts of 1807 and 1809. Moreau’s Digest, p. 119, 120.

The petition contains a claim for the sums expended in the recovery of the slave, and also a prayer for general relief.

We are of opinion that the forged pass which the slave showed the defendant, when she hired a room from her, is not sufficient to protect her against this portion of the claim. She should have made inquiry and ascertained whether the pass was genuine.

There is no satisfactory proof of the value of the services of the slave. But it is shown she cost $500, and we cannot err in allowing as damages legal interest on that sum during the time she occupied a room in the defendant’s house.

The plaintiff is also entitled to recover three dollars for the taking up of the slave, under the act of 1848. Sess. Acts, p. 166.

It is therefore ordered, that the judgment in' this case be reversed, and that there be judgment in favor of the plaintiff for seventeen dollars; with costs in both courts.


text:
    L. U. Gaiennie v. Arthur Thompson.
    Where an attorney at law had rendered services for an administratrix, who was dismissed at the suit of an heir that obtained the succession before she had filed an account, the attorney is entitled to recover the value of his services from the heir.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      T. W. Collens, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an appeal from a judgment rendered against the defendant, as heir of Andrew Thompson, for professional services rendered by the plaintiff to the administratrix of his succession.

There is in the record evidence of the value of the services alleged, which was admitted without opposition, and also the proceeding in which the plaintiff acted; no doubt some compensation would have been allowed to the plaintiff in the account of the administratrix, if she had rendered one; but she failed to do so. The defendant had her dismissed from office, and was put in possession of the succession as heir. He is, therefore, properly chargeable with the plaintiff’s claim. His counsel alleges that he is not the only heir and that he should only be made responsible in proportion to his share .in the succession. He has not made this plea in his answer, and has offered no evidence to show what his share is. It is conceded that he is in possession of the entire estate. He is therefore prima facie liable for the whole amount of the claim. In his settlement with his co-heirs, if he has any, he will have the right to retain their share of the amount as money paid by him on account of the succession.

We would, perhaps, have allowed something less than the district judge did, but the difference is not sufficiently large to render a reversal of the judgment necessary.

Judgment affirmed, with costs.


author: Pkeston, J.

text:
    Sarah A. Leigh f. w. c. v. D. J. Meurice.
    The owner is not liable for penalties imposed by law for the acts of his slave, but he is liable for damages caused by the offence of the slave.
    The owner of a slave convicted of having concealed and harbored a runaway slave, is not liable for the pecuniary penalty assessed for that crime, but he is liable to the owner of the runaway forthe damages caused by the harboring and concealing of his slave.
    APPEAL from the Third District Court of New Orleans, Kennedy, J,

      War-field and Rand, for plaintiff.

      R. Preaux and C. Janin, for defendant.
   The judgment of the court was pronounced by

Pkeston, J.

The plaintiff is the owner of a slave named Ellen; the defendant owns her mother, named Phcebe. Ellen ran away in January, 1848, and was arrested in a room occupied by Phcebe, in the house of Mr, Davis, to whom she had been hired. She was concealed in the room, and circumstances were proved which induced the district court to conclude she had been there a month. From those circumstances, we think he might have reasonably come to that conclusion ; but from the fact that Mr, Davis searched twice for the runaway; that the place was watched from the suspicion that the daughter had been enticed away, and was concealed by her mother ; and from the fact that the house was situated at the corner of Conti street and Exchange Alley, the centre of the city, and a place of great resort, we are unable to presume, without proof, that she was concealed there for a longer time. Being also a girl of fifteen or sixteen years of age, she was as likely to run away from the service of her mistress as to be enticed away by her mother.

Phcebe was tried and convicted of harboring and concealing her; and the law inflicts a penalty of two dollars a day, upon conviction, in favor of the owner of the concealed slave ; which is claimed in the petition. That penalty was not inflicted on Phcebe because she was a slave; and it cannot be recovered from the master, who is not answerable for penalties that might be imposed for the acts of his slave. He is answerable, however, for the damages caused by the offences of his slave. C. C. art. 180, 2300.

What damage, then, did the offence of Phcebe cause to the plaintiff? The district court allowed fifty dollars, paid on account of the reward for arresting her; the law allows but three. Acts of 1848, p. 166. A case perhaps might alise, in which this court would sanction the recovery of the reward actually paid for arresting a runaway slave as damages: the present is not a case in which the defendant should be rendered liable for more than the legal fee. The court allowed a months’ wages, and five dollars for advertisements, and rendered judgment for sixty-three dollars and costs. The plaintiff claims that the judgment should be increased; the defendant that it should be diminished.

The fact that the mother harbored and concealed the slave of the plaintiff, even for a month, no doubt injured her character and qualites as a servant; and the depreciation is sufficiently proved by witnesses to require us to allow something on that account. And, although we may differ, with the district court as to the means of arriving at the same result, yet.wejhink that his judgment has done justice to the parties.

It is therefore affirmed, with costs.