author: Rost, J.' Preston, J.,

text:
    Catherine Cornelson et al. v. Sun Mutual Insurance Company et al.
    A reward for the conviction of a p erson who may have been concerned in the commission of a crime, refers to a crime already committed, and not to one which may be committed subsequent to the offer.
    A reward for the conviction of a person who may have been concerned in the perpetration of a specific crime, cannot be recovered, by the informant, for a conviction of a person of a crime less in degree and entirely different.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      P. S. Warfield, for plaintiffs.

      H. Gaither, for defendants.
   By the court :

Rost, J.'

delivered the following opinion : On the 5th of April, 1849, the defendants offered a reward of $3000 for the conviction of any free person, of mature age, who may have been concerned, either as principal or accessory, in setting fire to any building or buildings in the State of Louisiana.

On the 18th of November, 1850, Henry McQuaird was convicted, on the testimony of the plaintiffs, of having mn.1jr.iQ.nsly prepared-combustible matters, and placed them under a building in this city, withJntent-to set fire to it. On the 21st February, 1850, by virtue of that conviction, the plaintiffs claim the reward offered by the defendants. There was judgment against them, and they appealed.

I incline to the opinion of the district judge, that the resolution of the defendants offered a reward for the conviction of persons who had committed the crime to which it alludes. The offer of a reward for'the conviction of a crime to be committed, is unusual, and cannot, it seems to me, be inferred from the terms used. Besides, I cannot get over the objection, that the reward was offered for the conviction of a specific crime, and that Me Quaird was prosecuted for,, and convicted of, a crime less in degree and entirely different. I do not think we have the power to enlarge, by implication, the obligation of the defendants, to extend it to cases not named in the resolution.

I think the judgment ought to be affirmed. Judgment affirmed.

Eustis, C. J. concurred.

Preston, J.,

dissenting. The defendants are a number of Insurance Companies, doing business in the city of New Orleans. They appear to have formed a voluntary association called, “The Board of Underwriters of New Orleans.” On the 5th of April, 1849, they offered a reward, in the following terms, in two newspapers of this city :

“ Whereas it is known to members of this board, that frequent cases of ineendiarism have occurred in this city during the past month; and, whereas, if the incendiaries continue undiscovered, the most destructive consequences to property maybeapprehended: Be it, therefore, resolved, that this board authorize its secretary to offer a reward of three thousand dollars for the conviction of any free person, of mature age, and two hundred dollars for the conviction of any slave who may have been concerned, either as principal or accessory, in setting fire to any building or buildings in the State of Louisiana.”

The offer of this reward was not withdrawn until the 6th of June, 1850, in the following terms :

Office of Board of Underwriters : “ One thousand dollars reward will be paid by this board, for the conviction (under proceedings instituted during the publication of this notice) of any free person, of mature age, and three hundred dollars for the conviction of any slave, who may have been concerned, either as principal or accessory, in setting fire to any building or buildings in this city or in Lafayette ; all previous rewards are hereby canceled.”

Between the offer, and its withdrawal, to wit, on the 22d of February, 1850, Catherine Cornelson denounced Henry McQuaird and wife to the Recorder of the Second Municipality of New Orleans, “for having, on the night before, attempted to burn a house, occupied by Captain Hunt, on Prytania street, within the city, by setting fire to shavings, with a view and intent to burn the same down.”

They were indicted on the 11th of April, 1850, for having “ maliciously prepared combustible matters, and put them under the building, on Prytania street, occupied by Captain Hunt, with intent to set fire to and burn the house.”

Mrs. McQuaird was tried on the 31st of May, 1850, and acquitted.

Henry McQuaird was tried on the 18th of November, 1850, convicted and sentenced to imprisonment at hard labor in the penitentiary for ten years. He was convicted on the testimony of Catherine Cornelson, Mary O’Kane, and Sarah Pritchard. They sue for the reward of three thousand dollars.

The defendants contend, that by the terms of the reward offered by them, they intended to give it for the conviction of any person who had set fire to a building before it was offered. We cannot doubt but that the object of the offer of the reward, was to procure the conviction of any person who had or might, during the existence of the offer, commit arson, that others might be deterred from the commission of the crime, by the example. It states, that “ frequent cases of incendiarism had occurred in the city the past month, and that if the incendiaries continued undiscovered, the most destructive consequences to property may be apprehended.” The defendants, by their occupation, were greatly interested in the prevention of fires. On account of these facts, and the consequences apprehended, and the interest of the defendants, they offered the reward. What was the object? To prevent fires. What fires ? So far as their interest was concerned, the moving cause of the offer, future fires. How were they to be prevented ? By the conviction of the incendiaries. What incendiaries ? Those guilty of the acts at any time before the conviction. Is the offer limited to offenders before the date of the offer of the reward ? It does not say so ; and the date of the offer is immaterial to the object of the offer, the conviction, in order to prevent fires.

The terms of the offer of the reward, make it for the conviction of a free person who may have been concerned in the setting fire to a building. These terms refer to the act done at any time before the conviction, and ¡not to the date of offering the reward. If the board had referred exclusively to the past, they would have said, “who have been concernedif exclusively to the future, “who shall hereafter be concerned;” but to embrace both present and future offences, they say, “ who may be concerned;” and, we'think, the grammatical sense, as well as the obvious intention ofthe defendants was, to offer the reward for a conviction without reference to the date of the crime, the date being immaterial to the object.

It is contended, that the reward was withdrawn on the 6th of June, 1850, before Me Quaird was convicted. But he had been denounced by one of me plaintiffs, and indicted, no doubt, on the testimony of all, before the reward was withdrawn. These important steps having been taken, before the offer of a reward was withdrawn, entitles the plaintiffs to it, if the prosecution was successful. The legal measures necessary to a conviction, were well known to the defendants, when they offered the reward. Having been commenced, at the instance of the plaintiffs, they acquired an inchoate right to the reward, which the defendants could not afterwards defeat. All offers become contracts when accepted by such action as will accomplish the object. In this case, the plaintiffs had done all which could be required of them, to accomplish the object of the reward, except to attend passively, as witnesses, on the final trial of the accused. The reward, then, depended on the truth of their denunciation and the success of the prosecution ; not the will of those who offered it.

It is lastly contended, that Me Quaird was convicted ofthe crime of attempting to set fire to a house, and not of the offence, for the conviction of which, the defendants offered the reward, “ being concerned in setting fire to asbuilding.” The preamble to the offer of the reward, shows thafcjineendiarism, to use their expression, was the evil they undertook to „£ipest by the reward. The punishment of the attempt tended tOrJliaWobjhit, in the same manner as the punishment of the act, perhaps, as effectually, and with less evil to the defendants. There could be no motive of interest for offering a reward for the one offence, which does not apply to the other. They do not differ in the degree of danger which they caused to underwriters. .

They are offences ofthe same nature, of the .same tendency, and, so near in degree of guilt and of evil to insurers, that I think the defendants must have intended, in offering a reward to prevent arson, to offer it for each species ofthe crime, and that the plaintiffs and others might reasonably so interpret it.

         jSUdell, J., was absent.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Robert B. Woodworth v. His Creditors.
    Where the insolvent institutes proceedings fora voluntary surrender, and his creditors fail to attend the meeting, it is his duty to apply to the court, at once, to appoint the sheriff syndic. The ten days within which actions of fraud may be brought against him, are to be counted from the day of the appointment of the sheriff.
    from the Third District Court of New Orleans, Kennedy, J.

      Durant and Horner, for plaintiff.

      T. Wharton Collens, for defendants.
   By the court:

Rost, J.

On the 3d of November, 1849, the plaintiff instituted proceedings for a cessio lonoruin. The court ordered a meeting of his creditors, to take place on the 15th of that month, to deliberate on his affairs and appoint a syndic. None of the creditors appeared before the notary, who certified that fact to the court on the 20th of November.

No action was had by the court upon that certificate, and things remained in that situation until the 3d of March, 1852, when Duncan N. Hennen, one of the creditors, appealed to the court, by petition, stating these facts, and praying that the sheriff might be authorized to receive the property surrendered, and appointed to perform the functions of syndic. The appointment was made, and within the ten days which followed, three of the creditors filed their petition, charging the insolvent with having fraudulently concealed his property at the time of the surrender, and praying for his arrest, on the ground that they had strong reasons to believe and fear that he was about to avail himself of the stay of proceedings ordered, to keep his person and property from his creditors. Upon affidavit of these and other facts, and of the grounds of their belief, the order of arrest was issued and executed, and the insolvent gave bonds. His counsel then moved to set aside the order of arrest, on various grounds. The insolvent has appealed from the judgment discharging the rule.

It is urged in behalf of the appellant, that the accusation of fraud came too late, more than ten days having expired after the day appointed for the meeting of the creditors, when the petition was filed; and the case of Caldwell v. Bloomfield, 2 L. R. 503, is relied on in support of that position.

The two cases are not identical. Bloomfield was in actual custody. Upon the certificate of the notary, that none of his creditors had attended the meeting, the judge had appointed the sheriff syndic to receive the surrender, and several months had elapsed after that appointment, when the insolvent went out of the prison limits. As no opposition had been made by any creditor, within the ten days which followed the appointment of the sheriff as syndic, the insolvent was protected by the 27th section of the Act of 1817, and it is clear that there had been no breach of the prison limits.

Woodworth was not in actual custody, but had instituted proceedings for a voluntary surrender. When he found that none of his creditors had attended the meeting, it was his duty to have applied to the court, at once, to appoint the sheriff syndic, so that he might surrender to him the property ceded. Instead of this, he retained the property and never moved in the matter. While things were thus kept by him in that incomplete state, there was no legal surrender, and the ten days within which actions of fraud may be brought against insolvents, had not begun to run. Under the express provision of - the 27th section of the Act of 1817, the ten days were to be counted from the day of the appointment of the sheriff as syndic, on the application of Mr. Hennen ; and, as this proceeding was instituted within the ten days which followed that appointment, the ground that the opposition came too late cannot be sustained.

The affidavit for the arrest contains all the requisites necessary, under article 223 of the Code of Practice. The district judge was of opinion that the truth of it had not been successfully impeached, and a careful perusal of the evidence has not brought us to a different conclusion.

Judgment affirmed, with costs.

        Slidell, 3., absent.


author: Rost, .1.

text:
    John Brown v. Charles Schmidt.
    The purchaser of property who, without authority, pays the price into the hands of the notary, incurs the risk of the deposit; and where the notary embezzled the money, it was held to be the purchaser’s loss.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Brewer and Punís, for plaintiff.

      P. A. Lucros and Michael Hahn, for defendant.
   By the court:

Rost, .1.

This case only differs from that of Breen against the same defendant,<6 Ann. 13, in this, that it is not shown, as in that casé, that the defendant had authorized the plaintiff to deposit, with the unfaithful notary, the cash portion of the price. Schmidt had other monies in the hands of the notary at the time, and it is not proved that when he applied to him for part of it, he demanded the identical money deposited by the ^plaintiff. The evidence, as it is written in the record, certainly raised a presumption of assent on his part, but it was not enough for the defendant to render the fact probable, he should have made it certain. The notary having absconded, 'without accounting for the amount deposited, we are of opinion that the plaintiff must bear the loss.

It is proved that the defendant cannot, even now, give the plaintiff a clear title, and of course he had no right to claim the purchase money. His demand, in reconvention, was therefore properly dismissed. The appellant has asked, in liis brief, a resolution of the sale, and we would decree it in his favor, if the prayer of his petition was not inconsistent with that form of relief. As the case is placed before us, the judgment can only be affirmed.

Judgment affirmed, with costs.


text:
    Aimee Brusle, Wife of Edward Gottschalk, v. M. Thomas.
    It is not necessary for the assignee of a claim to affix her signature to the act of assignment and subrogation; the institution of a suit upon the act is a sufficient acceptance of it.
    from the Third District Courtof New Orleans, Kennedy, J.

      Train and Goold, for plaintiff.

      Bermudez, for defendant.
   By the court:

Rost, J.

This is a suit by the assignee of Chatau, a house builder, for the balance due on a house, built by him, for the defendant.

The defence is, that the building was erected by contract, and that the price agreed upon has been more than paid. The district judge was not satisfied with the evidence adduced to prove the contract, and gave judgment in favor of the plantiff on the quantum meruit. The defendant has appealed.

If, as alleged by the counsel for the appellant, there was a contract in writing, which Chatau obtained from the defendant, and afterwards fraudulently refused to return, this should have been alleged and proved, and Chatau might then have been compelled to produce it; but, on the pleadings and evidence, the district judge correctly held, that no building contract had been proved.

It is objected by the appellant, that the plaintiff is not properly subrogated to the rights of Chatau, because the act of subrogation was not signed by her; her signature was not necessary to the validity of the act, and the institution of this' suit is a sufficient acceptance of it.

Much of the evidence adduced to prove the value of the building, consists of the probable estimates of witnesses who had no means of knowledge, and is of no value. Pierre Bonnet, however, an old and experienced builder, states that he has examined the property in all its details, and has made estimates, the result of which is, that the value of the entire building, as it stands, is from $4000 to $4500. He also derives his knowledge from having put up similar buildings. It does not appear that the witness was cross-examined, by the defendant, in relation to his estimates. His testimony stands unimpeached; there is nothing to show that better evidence could have been procured by the plaintiff. Under that state of facts, the district judge assumed the value of the building to be $4010, and gave judgment for the balance due on that valuation. We are unable to say that he erred.

Judgment affirmed, with costs.


author: Rost, J. Preston, J.

text:
    Gillespie v. Freeman et al.
    Police juries have the power to lay out and construct roads and to erect bridges,or establish ferries over all water-courses and lakes, whether navigable or not.
    The act of 12th March, 1818, to provide further and more effectually for the police of public roads, was repealed so far as it applied to the Parish of Concordia, by the act of the 7th Ecbruary, 1829. By that act, plenary and unlimitted powers were given to the Police Jury of the Parish of Concordia, to make such enactments with regard to roads and levees as it deemed necessary and proper. Under the act of 1818, it was necessary to make compensation to the owner for the land taken for a public road. The act of 1829, in this respect, repealed that act, so far as it applied to the Parish of Concordia. And until the late Constitution, it was competent for the Police Jury of that Parish to take land for roads, without making compensation to the owners.
    The laying out of a road, and the establishment of a ferry, are acts of sovereignty which do nobody harm. No warranty or obligation to indemnify ever arises from them, without an express stipulation to that effect.
    from the District Court of the Parish of Concordia, Farrar, J.

      Thomas and Snyder, for plaintiff.
   By the court:

Rost, J.

The plaintiffs purchased from Congress a body of land, through which Cross Lake or Cross Bayou, a stream not navigable, passes. The land was surveyed and sold in square sections, without any exception or reservation as to the portion covered with water.

On the 19th of November, 1845, the Police Jury of the parish of Concordia, where the land is situated, passed an ordinance establishing a public ferry over the stream, on the land so purchased by the plaintiff, and fixing the rates of toll. This ferry was subsequently adjudicated to the defendant, Freeman, at public auction.

The plaintiff obtained an injunction against Freeman, on the ground that police juries have no right to establish ferries over streams not navigable; and that, if they have, they must previously make a compensation to the owner of the land over which the ferry is established.

The defendant called in warranty the Police Jury, who answered, and averred it their right to establish the ferry complained of. There was judgment in their favor, and the plaintiff appealed.

There is no doubt of the power of police juries to lay out and construct roads, and to erect bridges or establish ferries on the them, over all water courses and lakes, whether navigable or not. A road leading to this ferry was laid out and opened by the Police Jury, in 1837. It is contended, that it was not established in conformity with the provisions of the act to provide further and more effectually for the police of public roads in this State, approved March 12th, 1818. But, as the 52d section of the act relative to roads and levees, approved February 7th, 1829, gives to the Police Jury of the parish of Concordia, plenary and unlimited powers to make such enactments, with regard to roads and levees, as they may deem necessary and proper, the manner of proceeding, presented by the act of 1818, was not binding upon them at the time of the laying out of the road.

The second ground of injunction would have been well taken, if the ordinance, establishing the ferry, had been passed after the promulgation of the new Constitution. As it is, the principles settled by the late Supreme Court, in Renthrop et al. v. Bourgans, 4 M. R. 97, appear to us applicable to this case. The court there stated, that, during the existence of the French and Spanish governments, there was no instance of any payment for land taken for public roads; and appear to have inferred, from their uniform practice, that, as those governments granted their lands gratuitously, and, as the opening of a new public road, at that time, greatly benefited the lands through which they passed, the grants were made on the implied condition, that such portions of the land granted might be taken for public use as the public interest might thereafter require. Segin v. St. Maxent’s Syndic, 1 M. R. 231.

The court further recognized, that in the absence of any constitutional provision to the contrary, the Legislature of Louisiana had succeded to the rights and powers of the colonial governments.

It is true, that, in 1818, an act was passed, providing that previous compensation should be made to the owners for land so taken. But, as observed by the Supreme Court, in the case of Renthrop, the acts of our Legislature cannot restrain the powers of their successors; and, the act of 1829, giving plenary and unlimitted power to the Police Jury of the parish of Concordia, in relation to roads and levees, abrogated, as to them, the act of 1818, and restored to them the powers which they held before its passage. Ferries, being necessarily a part of public roads, are subject to the same rules.

The counsel for the plaintiff argued, that, as he kept a ferry at the same place, the value of which would be materially diminished by the new ferry established, he is entitled to an adequate compensation for the alleged injury. This is an error. If he was entitled to compensation, it would be only for the portion of his land taken and occupied by the ferry. The laying out of a road and the establishing of a ferry, are acts of sovereignty which do nobody harm. No warranty or right to indemnify ever arises from them, without an express stipulation to that effect. Merlin Rep. Trait des Souv. We are of opinion that the judgment ought to be affirmed.

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

Same Case — On a Re-Hearing.

By the court:

Preston, J.

After a further and full examination of the case, we are satisfied the judgment heretofore rendered is correct, for the reasons given.

It is therefore ordered, adjudged and decreed, that the judgment heretofore rendered by this court, on the 37th March, 1848, remain undisturbed.


author: Emms, C. J. Preston, J.,

text:
    Massey v. Herman et al.
    Where property was sold under execution, according to a plan made by the defendant, which proved to be defective ; and a number of the purchasers had a new plan made, which they adopted; it was held, that this new plan did not bind tha purchaser, who was not a party to it.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Radius and Goold, for the plaintiff.

      G. B. Duncan, for defendants.
   By the court :

Emms, C. J.

This suit involves the question of the ownership of a square of ground in the rear of the former suburb St. Mary, between Gravier and Common streets. It was adjudged to belong to the plaintiff, and the defendants have taken this appeal.

The defendants are in possession. There is nothing in the character of the possession, as claimed on either side, which affects materially the title. The title to the property, as it is exhibited by the documentary evidence, is alone to bo considered. The defendants being in possession, the plaintiff’s title must first be examined.

The statement of the facts given by the learned judge of the Fifth District Court of New Orleans, is offered as the basis of the argument of the counsel for the plaintiff; its correctness is, therefore, conceded by the plaintiff.

My impression was, from the first moment I cast my eyes upon the map, which is considered as establishing the location of the square in favor of the plaintiff’s right, that it was conclusive against him on tho statement of the facts on which he relies. With the plans before us, scarcely any explanation would be necessary to prevent my view of the subject. I may not be successful, however, in putting it on paper without that assistance.

The square of ground claimed by 1,he plaintiff, and in the possession of the defendants, is between Common street and Gravier street, and bounded by Adeline street on the east, or towards the rivor, and Jeanne street on the west. At the time the rights of these parties originated, it formed part of a large body of land in the rear of the suburb St. Mary, and was an unimproved marshy waste. The titles of both parties originated in a sheriff's sale, made under an execution, against John Gravier, in 1825. At this sale, Howard Henderson, under whom the plaintiff claims, purchased a square of ground under this description: a square of ground, containing fourteen lots, situated in the suburb St. Mary, and designated on a plan, made by Gravier, by number 9. At the same sale, Lewis Herman, the ancestor of the defendants, under whom they claim, purchased a square of ground, containing fourteen lots, situated in the suburb St. Mary, and designated on a plan, made by John Gravier, as number 5.

In this plan, square number 5 is described as bounded by Common, Gravier, Adeline, and Jeanne streets; number 9, as bounded by Common, Gravier, Adeline, and Magdalen streets; and number 9, is marked as situated to the east of number 5, and on the opposite side of Adeline street, which intervenes.

This plan, which is the commencement of title of both parties, it does not appear, ever was located; it existed on paper, merely having the sanction of Gravier, for the purpose of effecting the sale of the land in squai'es. It was handed by Gravier to the sheriff, previous to the sale, and deposited in the sheriff’s office.

By the purchase, at sheriff’s sale, it appears, that Henderson’s square called for a location between Adeline street and Magdalen street, and Herman’s square, for a location between the former and Jeanne street; Adeline street intervening between the two squares, and each having a part on it.

There was no location under the plan of Gravier, and, it is contended by the plaintiff’s counsel, that there could have been none. Be it so ; although I concur with my brother Preston, in thinking that, as far as the location of the part of these squares is concerned, the possibility of the location, under that plan, is a matter of absolute demonstration.

When the purchasers of the squares on Common street attempted to take possession, they discovered that Gravier had made a mistake, and that one of the squares, nearer the river, had been already sold to Mr. Frerel, and, consequently, the purchaser, Bates, had no right whatever to any of the land sold, he having bid for what was the property of Mr. Freret, and not of Gravier, the debtor in execution. Bringier’s plan was then made. A square was added, in the rear, to the lots on Common street, and, for the purpose of letting in Bates, and giving him a square, the purchasers in the rear of it, were each crowded back one square. Under this arrangement and location, the purchaser of the square between Adeline and Magdalen streets, seeks to oust the purchaser of the square between Adeline and Jeanne street.

This plan of Bringier was afterwards ratified by the heirs of Gravier, and has been recognized by the municipal authority, and the defendant is in possession of the square between Adeline street and Jeanne, as designated in that plan.

The numbers of the lots on this plan are changed ; that in the possession of the defendants being numbered 9, and bearing the name of Henderson marked upon it, while the number and name of the defendant’s are transferred to the square on the other side of Jeanne street.

It is very clear, that this change in the number and name amounts to nothing. The plan, so far as the heirs of Gravier were concerned, was one of location exclusively, and not of ownership. It purported nothing else ; indeed, they had no right to determine, in the slightest degree, any matter of right touching the ownership, among the general purchasers, at the sheriff’s sale. When it is considered that the defendant’s ancestor never was a party to this plan of Bringár, or the arrangements in virtue of which it was made, he cannot he held bound by it, as affecting his rights acquired under the sheriff’s sale. Let him be held to it as a location, and it gives to him the square, which he has got under the description of location, which his title called for.

But, to return to the plaintiff’s title. If we give the plaintiff the square in dispute, the location defeats the calls of his title. He is not then bounded by Magdalen street, on the side next the river, but by Adeline street, and is not bounded on the other side by Adeline street, but by Jeanne street. The defendants, too, who hold the square, with the servitudes of way, of light, and of drain, on Adeline and Jeanne streets, according to the calls of their title, are transferred to another square, which they repudiate, and some one else owns.

The parties in this business have undertaken to make room for a purchaser who never had any title, by displacing the several purchasers of the squares on Common street. I have not been able to discover any act of the defendants, or their ancestor, which binds them to this arrangement, and, consequently, I think the plaintiff cannot recover.

The judgment of the district court is therefore reversed, and judgment rendered for defendants, with costs in both courts.

Rost, J. I concur in this opinion.

Preston, J.,

dissenting. In .1825, many executions were issued against Jean Gravier. He had made a plan of that portion of the suburb St. Mary, bounded by St. Paul, Common, Bolivar and Hevia streets. He divided it, by the plans, into thirty-two squares, which the sheriff seized and sold, in January, 1825, according to the plan.

There were eight squares fronting upon Common street, numbers 29, 25, 21, 17, 13, 9, 5 and 1. The numbers 29 and 25 were reserved from the sale, ashaving been previously sold; number 21 was adjudicated to Mr. Bates, but had also been previously sold, to Mr. Freret, so that the purchaser acquired no title. The other five squares on Common street, were respectively adjudicated to Licquet, Caillon, Henderson, Herman, and Goodman. Bates could not obtain possession; and, in consequence of it, and other supposed inaccuracies of Gravier’s plan, which exhibited no scale or measure of the streets and squares, an entirely new plan was made by Louis Bringier, Surveyor General of the State, and adopted by most of the purchasers at the sheriff’s sale, by a notarial act, dated the 14th’ of July, 1831. By it, another square was added to those fronting on Common street, from the vacant ground of Gravier in the rear; and Bates, who had purchased nothing, was allowed the square adjudicated to Licquet; and so successively, Caillon, Henderson, Herman, and Goodman, were assigned the successive squares in the rear of those purchased by them. Most of the purchasers signed this act, and are, therefore, bound by it. Their locations inter se, are not only binding upon them by the agreement, but are probably entirely quieted by prescription.

But Herman never signed this act, and, of course, is not bound by it. His widow and heirs are entitled to their location, according to Gravier’s plan, if it can be found, and there be no just reason to prevent their obtaining it. A plan should be a picture of the ground, and those who purchase by a plan, should have the ground it depicts, if possible.

The district court has made a most clear and exact statement of the material facts which the record presents, and have come to the conclusion, that it was not possible to locate these purchasers according to Gravier’s plan, and, therefore, compels the widow and heirs of Herman to submit to Bringier’s plan and location, although not parties to it. He presents so strong a case of equity, on behalf of the plaintiff, after an elaborate examination of all the circumstances, put of which Bringier's surveys and plan were adopted, not only by the purchasers, from the sheriff, of Gramer's property, but by the city, that I regret the defendants have not yielded to his conclusions, especially as there cannot be much difference between the value of their square and the one assigned them by the plan immediately in the rear. They insist, however, that their square can be located by Gramer's plan, and will submit to no other location.

I am forced, by the evidence, to decide, that they can be located by that plan, and, to yield to their demand, except so far as the streets laid out by Bringier, especially St. Jean street, may encroach on their location. These were adopted by the city ; werepublicly opened, without opposition, onbehalfof the defendants; have been used for twenty year's, and cannot now be disturbed. The fact, that Bringier opened the four streets, in front of the defendants, fifty feet wide, while, by Gramer's plan, they were not more than forty, if so much. Also, a different location of St. Adeline .street, and other changes of the plan, will probably deprive the defendants of a front on that street, because their front may be located more than a hundred feet in the rear of its present site. If this should be the result, they must submit; for the city alone had the right to open, make, and keep in repair the streets, and were not bound by Gramer's location of St. Adeline street. Besides, their defence is a hard one ; and they cannot maintain title to ground which their location, according to Gramer’s plan, by which they purchased, does not call for, except by naming a street'which did not exist, and which was afterwards located elsewhere.

The titles, plans, and evidence, fully prove, that St. Paul street was well known and established on the ground, at the early day at which the sheriff’s sales were made, and that this street, also square 29, and Gironde street, as to their front on Common street, corresponds on Bringier’s plan exactly with Gramer's plan, so that the corner of Hospital and Common street corresponds on the two plans and on the ground.

Now, the plan of Gravier shows five squares and five streets fronting on Common street, between that corner and the square adjudicated by the sheriff to Dr. Herman, according to that plan. The squares have each five lots, fronting on Common street. It is well known, and sufficiently proved, by the titles, plans, and evidence, as specially stated in Gramer's sale to Freret, and the exchange of the latter with the Charity Hospital, that the lots were each sixty French feet in width. Gramer's streets averaged forty French feet in width. So, that, using these data, we find, with certainty, that the corner of Herman's square and Common street, on the river side, should be fixed at seventeen hundred French feet, from the corner of the Hospital square and Common street, on the river side.

The city surveyor should, therefore, locate the defendants corner on Common street, on the river side, at the point this calculation gives.

They are entitled, by Gramer's plan, to two hundred and forty French feet on Common street, running to the rear from the point just established, by four hundred and twenty French feet in depth.

This location will probably remove the defendants upwards of one hundred feet in the rear of their present front on St. Adeline street. If so, the plaintiff is entitled to this point, with all the ground between that street and the defendants’ location; no street can be opened immediately in front of the defendants location, without the authority of the city. They will be indemnified however, probably by having two fronts on St. J ean street.

Equity obliges me to declare also, that the plaintiff willbe entitled to the defendants’ rights, under the act of the 14th July, 1831, and plan of Bringier, and, by virtue of those rights, to locate the remainder of his quantity on the ground immediately in the rear of the two hundred and forty French feet fronting on Common street, belonging to the defendants, including in that, two hundred and forty feet on St. Jean street, which has been opened by the city, without opposition from the defendants.

There probably was some difference between the courses of the side lines on Gravier’s and Bringier’s plans. It is so imperfectly proved, that it cannot be considered.

I think the judgment of the district court should be reversed, and the cause remanded, with directions to the district court to cause the defendants to be located and quieted in their possessions, according to the opinions herein expressed, at the distance of fourteen hundred French feet on Common street, in the rear of the corner of that and Gironde street; and that the plaintiff should be condemned to pay the costs of the appeal.

An application for a re-hearing was refused.

        SUMI, J-, declined to sit in this case.


author: Pkeíot/J. Rost, J.

text:
    Lowe and Pattison v. Henry Penny.
    One partner cannot bind bis co-partner by a note, given after tbe dissolution of the partnership, for a partnership debt. But if the dissolution of the partnership was not known at the time, to the person taking the note, the co-partner would be bound.
    To protect one partner from the acts of the other, after a dissolution has taken place, public notice of the dissolution should he given. To those with whom the firm has traded, particular notice is necessary, or notice of the dissolution must be carried home to them.
    A PPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      N>Qgden, for plaintiffs.

      J. Ad. Rozier, for defendant.
   By the court :

Pkeíot/J.

The defendant is sued on a promissory note, purporting to be signed, by .jftenny and Harvey.

He 'denied that he signed the note, and that he was a partner of Harvey’s at the time fit was signed.

In- answer to interrogatories propounded to him, he admits, that he entered into..^mercantile partnership with Harvey, at Miller’s Bluff, in Arkansas, on the ’20th of November, 1844, to continue for the term of three years; but states, that he engaged in mercantile business in Mexico, during the war, and that, in his absence, Harvey moved from Miller’s Bluff, where their partnership was established, and took his stock of goods with him, and that he received nothing from the same.

A witness states, that in the winter of 1847 or 1848, Harvey came to New Orleans for the purpose of purchasing goods, and applied to the plaintiffs to get him a credit for the firm of Penny and Harvey, with the house of Samuel Jones, Jr., a grocer; that the plaintiffs did get them the credit, on the promise of Harvey, that his firm would ship cotton to meet the debt.

tie further proves, that the plaintiffs had to pay the debt, and, in the summer of 1848, sent him to Arkansas to close the account they had against Penny and Haney, which he did at Harvey's residence, by taking the note sued upon for the groceries sold by Jones.

This testimony leads to the conclusion, that the debt was contracted in the winter of 1847, during the existence of the partnership of Penny and Harvey, though only liquidated, by note, in August, 1848.

It is true, as contended, that the execution of the note, after the expiration of the partnership, would not bind the firm. 5 R. R. 174. 5 N. S. 324.

But, as to the corsespondents of the firm, the dissolution must be made known, either by notice, or such acts as raise a reasonable presumption of the fact. Story on Partnership, § 160. The fact that Harvey moved the stock from Miller’s Bluff to Harvey’s Landing, was not sufficient to raise the presumption. The distance is not shown; perhaps it was a more eligible place for the business. So the fact, that Penny went trading in Mexico during the war, did not necessarily induce the belief that he had ceased to be a partner. He may have taken a part of the stock to Mexico, as the most advantageous manner of carrying on the business of the firm.

It is true, as urged, that the act of a partner, after the dissolution, in giving a note for a debt of the partnership, does not bind the other party. 5 R. R. 174. 5 N. S. 324. But this principle is governed by the same rule which governs the contractor of the debt. To apply, the dissolution of the partnership must be known at the time. Penny should have given public notice of its dissolution, and a particular notice to those with whom the firm traded, or knowledge of its dissolution should be brought home to them. Now, the witness, who was the agent of the plaintiffs to take the note sued on, was expressly asked, in the sixth cross-interrogatory: “Were not the plaintiffs aware that Harvey was no longer in the employ of Penny at the time the note was signed 1" and answers distinctly in the negative. The word employ means partnership, as applicable to the case, or nothing, and so the witness must have understood it.

It is true, that the evidence in this case, is not entirely satisfactory to especially as to the nature and origin of the debt, and the relation Harvey to each other; but it satisfied the district judge, and it is cient as to authorize the reversal of his judgment, which is affirme!

Same Case — On a Re-hearing.

By-the court:

Rost, J.

After a further and full examination of the case, we are satisfied the judgment heretofore rendered is correct, for the reasons given.

It is therefore ordered, adjudged, and decreed, that the judgment heretofore rendered by this court, on the 8th of December, 1851, remain undisturbed.

        Eustis, C. J., didnotsitin this case.

        Slidell, J., was absent.


author: Etjstis, C. J.

text:
    Joshua P. Tatum v. Wright, Williams & Co.
    Plaintiff sold his cotton, in Arkansas, to a purchaser, who paid the largest proportion of the price in counterfeit bank notes; the purchaser brought the cotton to New Orleans, and defendants advanced on it. Plaintiff sued defendants for the value of the cotton. It was held, that he could not recover, notwithstanding the statute of Arkansas provides that the owner may recover the property out of which he has been swindled, from any subsequent holder. And, by the court: We cannot enforce a rule, resting for its exercise in comity, to the detriment of the rights of our own citizens, secured under our own laws, and the interests of commerce. The plaintiff, in this case, by putting his cotton in the possession of the purchaser, as owner, reposed confidence in him, gave him credit, and enabled him to commit a fraud on the defendants; and the equity of the original owner is not equal to that of the defendants, who have parted with their money, on the faith of a state of things which the plaintiff, himself, was the cause of being created.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Bonford and Finney, for plaintiff.

      Thos. Allen Clarke, for defendants.
   By the court:

Etjstis, C. J.

The plaintiff, who is a planter, residing in the State of Arkansas, recovered judgment against Wright, Williams 8f Co., cotton factors of this city, for the sum of seven hundred and one dollars, being the value of fourteen bales of cotton. The defendants have taken this appeal.

The substance of the plaintiff’s case, as stated in his petition, is this: The plaintiff’s cotton was in a warehouse in Wilmington, Union county, Arkansas, where the plaintiff lives. A man by the name of Williams, representing himself as a member of the defendants’ house, purchased the cotton from the plaintiff, on or about the 12th of February, 1851. The plaintiff delivered the cotton, and received in payment of the price, seventeen bills, purporting to be of the Union Bank of this city, of fifty dollars each, and some forty dollars in money. On the day of the sale, the cotton was shipped on board a steamer, and consigned to to the defendants, in New Orleans, who received it on its arrival. The man, calling himself Williams, was a swindler, and the notes were counterfeit, and the plaintiff was thus defrauded and cheated out of his cotton. The plaintiff contends, under these facts, that he was never divested of the ownership of the cotton, and so held the district judge, who gave judgment accordingly.

It appears the cotton was shipped, under a bill of lading, to the defendants. On the arrival of the steamer, Williams called at the defendants’ counting-house, stating that he had come down with the cotton, and on the receipt of the bill of lading, with other bills of lading from the clerk of the boat, the defendants advanced him 1500 on the shipment.

The argument in favor of the plaintiff's case is, that the title or right of ownership of Williams, must be determined by the laws of Arkansas, the place where the purchase was made; and if, by those laws, the property was not vested in him, by his purchase, no transmission of the thing elsewhere, or any transfer by sale or otherwise, could remedy this want of title, and consequently the tille remained unchanged in the plaintiff. It is said, and it seems to be conceded, that a statute of Arkansas makes the crime of swindling larceny, and provides that the original owner may recover his property, out of which he has been swindled, against any subsequent holder. The effect of this statute would be to make the title acquired by Williams absolutely void.

Authorities have been adduced in support of this argument which, it is contended, are uncontradicted, and that the rule is well established, that a title void in the place where it is created and acquired, is void every where, and can obtain no validity by the transmission of the subject of it to another jurisdiction. We have, on several occasions, been very much embarrassed in the application of what are assumed to be established rules in the conflict of laws, and we have been admonished of the danger of recognizing any rule as of universal application, under all contingencies and circumstances, without any exception whatever. The facts of this case, we think, prevent it from falling under the rules urged by counsel as exclusively regulating it.

From the evidence, and indeed from the plaintiff’s own statement of his case, it is manifest, that atthe time of the sale of the cotton,.New Orleans was to be its destination, and that it was to be sent therefor purposes of traffic and resale. The swindler personated a member of the mercantile house in this city; the cotton was in a warehouse on the bank of the river, and, the plaintiff himself alleges, was, on the day of the sale, shipped on board the steamer bound to New Orleans, and consigned to the defendants’ house.

There is no question as to the agreement to sell, and the delivery, under the agreement, of the cotton to the purchaser, nor as to the receipt of some forty dollars in money and the bank notes in payment of the price. Under the common law, which prevails throughout the United States, these facts would vest the property in the vendee, and a sale by him to a bona fide purchaser, for a valuable consideration, would be valid. It is the same under our system of jurisprudence.

The plaintiff transferred the possession of the cotton, with the intention of divesting himself of it. Knowing the purpose for which the possession of it was sought, and for which it was to be made available, he surrendered the dominion over it, and enabled the purchaser to transmit it to its destination, as cotton is usually sent to market, for sale. He was cheated by false tokens and false representations. But the delivery to the purchaser animo demini enabled the purchaser to appear as the owner, and obtain a bond fide advance on the cotton, in the ordinary course of trade in this market. This is not a delivery to an agent or a trader, but to a person whose avowed object was to use it in commerce in New Orleans.

Supposing the effect of the statute of Arkansas to be as contended for by the counsel for the plaintiff, we cannot enforce a rule, resting for its exercise in comity, to the detriment of the rights of our own citizens, secured under our laws, and the interests of commerce.

. The plaintiff, in this case, by putting his cotton in the possession of the purchaser, as owner, reposed confidence in him, gave him creditand enabled him to commit a fraud on the defendants ; and the equity of the original owner is not equal to that of the defendants, who have pai'ted with their money, on the faith of a state of things which the plaintiff himself was the cause of being created.

The judgment of the district coui’t is therefore reversed, and judgment rendered for the defendants, with costs in both courts.


author:
Preston, J.
      Eustis, C. J. Rost, J.,

text:
    Julius and Andrew Simon v. M. M. Miller.
    Innkeepers are responsible only for what is usually and ordinarily in the tranks of travelers— their clothes and the money necessary for their journey. But the landlord is not responsible for the unknown treasure of the traveler, unless placed in his hands.
    The room assigned to a traveler, by an innkeeper, is the proper place for the deposit of his trunk.
    from the Fifth District Court of New Orleans, Buchanan, J.

      J. Livingston, for plaintiffs.
    C. Roselius, for defendant.
   By the .court :

(Preston, J., dissenting.)

Preston, J.

The plaintiffs arrived in this city, from California, on the 10th of January, 1851, with a large amount of gold dust. They allege, that, on their arrival, they, being strangers, were recommended by persons unknown to them and taken to an inn, known as the “Indian Queen,” at the corner of Girod and Levee streets, kept by the defendant; that their gold dust was deposited with a friend, until the day of its sale, on the 14th of January; that they engaged their passage on a steamboat up the river, to start that day ; that about 12 o’clock, they took their gold to the inn kept by the defendant, and deposited the same in their trunk in a room in the inn; that at dinner time, about one o’clock, they went to dinner, first locking the trunk containing their gold, and the door of their room; that one of them, Julius, being quite unwell, remained but a few minutes in the dining room, and returned immediately to his room, the door of which be found open, and, on entering, found the trunk, that had contained the gold, forced open, and that the gold had all been taken therefrom, amounting to five thousand and two hundred and twenty-five dollars, for which they bring suit against the defendant.

They substantially proved the facts as alleged, obtained judgment, and the defendant has appealed.

On the facts proved, as alleged, the plaintiffs rely, in support of their judgment, on articles 2936, 2937 and 2938 of our code. They are as follows: “ An inpkeeper is responsible, as depositary, for the effects brought by travelers who lodge at his house. He is responsible for such effects, even though they were not delivered into his personal care, provided they were delived to a servant or person in his employment. He is responsible if any of the effects be stolen or damaged by his servants or agents, or by strangers going and coming in the inn.”

The defendant contends, that the facts do not render him liable, under these articles; and, even if they did, that he is exonerated by the next article of the code, which provides, that the innkeeper is not responsible for what is stolen by force and arms, and with exterior breaking open of doors, or by any other extraordinary violence.

The facts do not show, that the plaintiffs deposited this large amount of gold with the defendant, or with his agents or servants. They deposited it' in their own trunk, in their room, without the knowledge of the defendant or of those in his employment. There was a circumstance, in all probability known to the defendant, calculated to induce him to believe no such sum was even in his house, and to lull his vigilance. For, four days before, they had deposited their gold, not in his house, but with a large commercial firm. Indeed, after they sold their gold dust, they intended again to deposit the proceeds with a commercial house, but missed their way and got to the hotel. They thus manifested their own opinion, that the hotel was not a safe and suitable place to deposit so large an amount of gold. Indeed, it is proved, that they were warned of this on their first arrival, and deposited their treasure in a banking house.

Yet, if they had actually deposited the gold with the defendant, he would have been liable. The deposit of their trunk and clothes in the room assigned them, was such a deposit as would have rendered the innkeeper responsible for the loss of those things; for that was the proper place for keeping them, and he was bound to use the diligence necessary to preserve from loss, articles of such magnitude and comparatively of little value. It was not the proper place to deposit five thousand dollars in gold. The landlord would not have allowed the deposit there if he had been informed of it; or, if he had permitted it, during the brief time the plaintiffs were dining, he would have placed a watch, to have avoided a responsibility for perhaps more than he had accumulated by the toil of his life.

To render the defendant responsible, the plaintiffs should have given the gold into the possession of the landlord. It may be conceded, that the five thousand dollars in gold were the effects of these travelers; but they were effects of such immense value, compared with their magnitude, that they are always deposited in the personal care of landlords, or those employed by them. Even then, the responsibility of insurers is enormous, compared with the profits of a night’s lodging. It is impossible to extend this responsibility to the landlord, when the whole loss has occurred from the want of the usual care and notice of the , travelers. They are responsible only for what is usually and ordinarily in the trunks of travelers: their clothes, and the money necessary for their journey. But,'the landlord has nothing to do with what is carried as the fortune of the traveler, unless placed in his hands. Californians, who have earned their money by mining, usually carry it in belts around their persons; merchants, in bills of exchange, in their pocketbooks. More Californians return without gold than with it, and their appearance by no means warns landlords that they are loaded with gold. The landlord had no idea that such valuables were exposed in any part of his crowded house; if he had, he would have insisted upon its being in his own special charge and under his own private lock and key. He should, at least, have notice of the contents of trunks and packages, if they contain more money than the ordinary traveling expenses. We examined this subject with great care, in the case of The Merchants and Traders' Bank v. The Steamboat Anna and Owners, and were forced to the conclusion, that carriers, whose responsibilities, by an express article of the code, are the same as those of inkeepers,' were not liable for hidden treasure, placed on their boat; nor can the innkeeper be liable for unknown treasure happening in his house. It is the lot of man to meet with misfortunes as to his property. He must suffer the loss, unless there be special reasons for imposing the burden on other innocent persons. ' They do not exist in the present case, and the plaintiffs must submit to the providence that, in giving them gold, no doubt for wise purposes, permitted them to be plundered of the proceeds of all their toil and suffering.

The judgment of the district court is reversed, and judgment is rendered for the defendant, with costs in both courts.

Eustis, C. J.

My impression is, that the defendant, as an innkeeper, would he liable to the plaintiffs, in the event of loss, under articles 2936, 2937, and 2938 of the code, for the value of his baggage and appliances for traveling, and also for such sum as might be deemed necessary for his expenses, according to his condition in life and the journey undertaken. The large amount of gold in his trunk, which was stolen, it is not pretended, comes within either of these descriptions.

I see no evidence in the character of the innkeeper, of his inn, or of those who frequent it, which would make this case an exception to the general rule.

There being no such proof, I concur in the conclusion of Mr. Justice Preston, that the judgment ought to be reversed, and judgment rendered for the defendant.

Rost, J.,

dissenting. The only exceptions which the code makes to the responsibility of the inkeeper, are, when the effects, brought to his house by travelers, are stolen by force of arms, or by exterior breaking open of doors, or by any other extraordinary violence. This case comes within none of them.

The contents of the plaintiff’s trunk were stolen from his room, in the defendant’s house, at mid-day, during dinner, and, as it would seem, by persons who were seen by the clerk, who had charge of the house at that time, and suffered by him to go up stairs, against the rule of the house, although he says that he suspected them. Such a want of ordinary care cannot be justified; and I have no hesitation in saying, that this is a case for the application of the article 2936 of the code. The fact, that the trunk was brought into the house first, and the gold put into it afterwards, does not diminish the responsibility of the defendant. It is as if new suits of clothes, purchased after the arrival of the plaintiffs, had been put into the trunk, and stolen.

The only question which presents any difficulty to my mind is, whether the article of the code should be applied in all its rigor, or whether that rigor should be tempered by the equitable considerations pressed upon us in behalf of the defendant.

It has been held in France, and such seems to be the law there at this time, that the extent of the responsibility of innkeepers depends upon the circumstances of each particular case; and that, when money has been stolen from a traveler, in their houses, this responsibility should be restricted to the sum, which, from the circumstances and wants of the journey, may be presumed to have formed part of his effects. D. C. Blandwood et al., Dalloz, 1837, part 2, p. 4. Troplong says, he does not disapprove of that decision, in particular cases, because it is equitable, and maintains the just authority of the article of the code, while it gives due weight to a class of circumstances which should sometimes be taken into consideration. But he further says, that the principle must not be abused by too general an application of it to all cases; that care must be taken not to rate too low the share of money and valuables necessary to travelers, and that, in making the estimate, all circumstances worthy of consideration should be consulted. See Troplong Depot, No. 226.

I feel disposed to adopt the principle, with those limitations, and to apply it to the facts of this case.

The plaintiffs, at the time of their arrival from California, having asked a hack driver for a good tavern, were taken to the defendant’s house, which, I infer from the evidence, was mainly frequented by persons returning from the gold regions. The anxiety of the defendant to obtain their custom, arose from his knowledge, that they brought gold with them; and his house should have been administered so as to give them perfect security for it. This I take to be a material circumstance in the journey of the plaintiffs, and one which, in my opinion, makes the defendant responsible, for as much as they might reasonably be presumed to have brought with them. I cannot consider that amount, between the two, as being less than two thousand dollars. And I think the plaintiffs should have judgment for that sum. See the case of He Magnoncourl Troplong Depot, No. 225.

Application for a re-hearing refused.

         Slidell, J., was absent.


author: Rost, J. Eustis, C. J. Slidell, J.,

text:
    H. W. Palfrey, Receiver of the Exchange and Banking Company, v. Cornelius Paulding.
    Although a bank charter contains no provision for its forfeiture in the event of a failure to pay specie; yet, where there was in force, at the date of the charter, a general law to, the same efiect, the forfeiture can, under that law, be enforced
    The Exchange and Banking Company was one of the banks that had incurred the forfeiture of their charter, by the suspension of specie payments, and the act of 1839 was intended to apply to it.
    The acts of the corporate officers of a corporation, are admissible evidence from which the fact of acceptance of a particular charter may be inferred. It is not indispensable to show a written instrument, or vote of acceptance, on the corporation books. It may be inferred from other facts, which demonstrate that it must have been accepted. Rost, J.
    The stockholders of the Exchange and Banking Company are not personally bound for debts contracted by the bank, after the promulgation of the act of 1839. Eustis, C. J.
    I am not satisfied that the act of 1839 was accepted by the bank in such a manner, as to bind creditors of the corporation. Slidell, J.
    The power granted by the 1st section of 438th article of the Civil Code, is a power to be exercised under conditions. Slidell, J.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Bradford and Goold, for plaintiff.

      Hoffman and Ogden, for defendant.
   By the court: (Preston, J., declined to sit in this case.)

Rost, J.

The defendant held thirty shares of the stock of the Exchange and Banking Company. The shares were of one hundred dollars, upon which fifty dollars have been paid. The corporation is insolvent, and its charter has been adjudged to be forfeited, at the suit of the State.

The plaintiff, who now administers the affairs of the corporation, as receiver, claims from the defendant twenty dollars per share, on the fifty dollars unpaid, alleging that such a contribution is necessary, on the part of all the solvent stockholders, to extinguish the outstanding liabilities of the company.

That portion of the answer which I deem material to the issue, is as follows: “Your respondent alleges, that the second section of the .act of the 14th March, 1839, mentioned in the plaintiffs petition, was not unconstitutional and void, but was a constitutional and valid law, and entirely-exonerated him from all liability on account of stock in the said company, if any such liability existed at the time, which he denies.

“He further alleges, that the assets of the bank, then, far exceeded its liabilities, and it was solvent, enjoyed, for years after the law of 1839, good credit, and its liabilities, at the time the forfeiture of the charter was declared, and especially those which it is pretended now exist, were contracted subsequently to the passage of said law of 1839, and upon its faith, and not upon the faith of the subscription for stock, annulled by that law; and the pretended creditors of the company, at this time, have no claim whatsoever, upon the stockholders whose subscriptions were so far annulled by law.”

The act of 1839, referred to in the answer, is entitled, an act to relieve such of the banks of this State, whose charter may have been forfeited by a suspension of specie payments, from such forfeiture.

The first section reinstates all such banks, in all the powers, rights, and privileges, conferred on them by their respective charters, notwithstanding any forfeiture thereof.

The second section provides, that such of said banks as have not their stock paid in, may suspend the payment of said stock until the 1st day of February, 1841; and that the amount actually paid in at that period, shall be deemed the capital stock of said banks; and they are, in that case, restrained from doing business on any larger amount of capital, under the rules prescribed by their charters.

The third, and last, section, makes it the duty of all the banks to settle, and pay the balances due by them to each other, every Monday morning, in gold or silver; and to publish, on the first Monday of each month, in at least one of the newspapers of the city of New Orleans, a statement showing the gross amount of their circulation and deposits, and the amount of specie in their vaults.

The plaintiff’s counsel concede, that if the defendant can avail himself of the dispositions of the law, the action will be defeated. But they insist that he can not, on two grounds : 1. Because the law was not intended by the Legislature to apply, and did not apply, to the Exchange and Banking Company. 2. That the defendant can not, under any circumstances, avail himself of its provisions, because it never was accepted by that corporation.

In support of the first ground, it is said that, by the22d section of the charter of the Exchange and Banking Company, the penalty which it incurred, by the suspension of specie payments, was the liability to pay twelve per cent per annum interest to its creditors, on the amount of its obligations; that, as it is not provided, as is the case with some other bank charters, that the suspension shall work a forfeiture of its franchises, the Exchange and Banking Company was not one of the banks whose charter had been forfeited by the suspension of 1837, and to which, alone, the act of 1839 is applicable.

This argument rests upon the authority of the case of the State v. The Tombigbee Bank, 2 Stewart’s Ala. Rep. That case, in the brief, is stated as follows : The Tombigbee Bank was chartered in the year 1817. After the passage of the act of incorporation, a general law was enacted by the Legislature, declaring that all bank charters should be held forfeited, by a suspension of specie payments. The-bank in question suspended payment in specie, for the term of one year'. On a quo warranto issued against the bank, it was held that the charter, containing no provision authorizing its forfeiture in case of a suspension of specie payments, such a suspension did not, under the charter, destroy its franchises ; that the charter was a contract, and that the subsequent law, creating a new ground of forfeiture, was unconstitutional in its application to that bank.

This authority, considered with reference to our laws on the subject of corporations, is conclusive against the plaintiff, on this part of the case. It is manifest that, if the general law creating the forfeiture had been in force at the time the charter was granted, the court would have veiwed it, as a part of the contract which they say the charter created, and the forfeiture would have been enforced. A general law, of the same description, was enacted by the Legislature of Louisiana, ten years before the date of the charter of the Exchange and Banking Company, and has been in force ever since. The second paragraph of art. 438, C. C., provides that corporations legally established, may be dissolved by the forfeiture of their charter, when they abuse their privileges, or refuse to accomplish the conditions on which such privileges were granted; in which case the corporation becomes extinct, by the effect of the violation of the conditions of the act of incorporation. Now, one of the express conditions of the act of incorporation of the Exchange and Banking Company was, that it should never suspend the payment of its obligations in specie, and a violation of that vital condition, in 1837, was, unquestionably, a ground of forfeiture.

In the case of the Atchafalaya Bank v. Dawson, it was held, that under this disposition of the Civil Code, the effect of the suspension of specie payments was the same on all bank charters, whether or not they contained a clause of forfeiture. The question was then thoroughly examined, and I deem a reference to the opinions delivered in that case sufficient. 13 L. R. 497.

The Exchange and Banking Company was one of the banks that had incurred the forfeiture of their charters, by the suspension of specie payments, and the act of 1839 was intended to apply to it. It is well known, that the exception it. made, had exclusive reference to such of the banks as had not suspended specie payments in 1837.

It is next contended, that the act of 1839 never was accepted by the Exchange and Banking Company.

Having shown that the charter of this corporation had been forfeited in 1837, the ground that it did not accept the law, relieving it from the penalty of the forfeiture, can hardly be considered serious, and is evidently taken under a misapprehension of what constituted an acceptance in that case. The law of 1839, is an ordinary act of legislation, making no provision whatever for its express acceptance by the banks, before it could bind them. If it were conceded, therefore, which I am not prepared to do, that the charter is purely a contract between the State and the bank, and that any modification of that contract, by the Legislature, must be accepted by the bank, before it is binding, in this, as in other contracts where no express acceptance is required, it may be implied from the acts of the bank, or from its silence or inaction, if these can, from circumstances, be thus interpreted, or if they raise a legal presumption of assent. C. C. 1805.'

In relation to the question of acceptance of a particular charter, by an existing corporation, the acts of the corporate officers are admissible evidence, from which the fact of acceptance may be inferred. It is not indispensable to show a written instrument, or vote of acceptance, on the corporation books. It may be inferred from other facts, which demonstrate that it must have been accepted. Bank of U. S. v. Dandridge, 12 Wheaton, 71, and cases there cited.

Under the act of 1839, the Exchange and Banking Company continued its operations, as if no forfeiture had taken place.

As long as it continued to pay specie, it made weekly settlements with the other banks, and paid on demand, in specie, the balances due them. It also furnished, and caused to be published, monthly statements of its situation. This was a compliance with all the requisitions of the act of 1839. But the silence and inaction of this corporation, are still more significant than its acts. By a law amending the original charter, and duly accepted by the bank, the whole amount of the stock was ordered to be called in, within twenty months from its passage, and the result has shown that this provision was absolutely necessary, to sustain the credit of the bank. But, in violation of its duty to the public, it availed itself, to the utmost, of the second section of the act of 1839. The board made no further calls upon the stockholders; and, while under the charter, the whole stock should have been paid up in 1840, fifty dollars per share have remained unpaid to the present day. No clearer case of implied acceptance has ever been made out in a court of justice, and I feel bound to conclude, as we did in the case of Hepburn and Turpin v. The Commissioners of the New Orleans Exchange and Banking Company et als., 4 Ann. 87. in which it was admitted that the Exchange and Banking Company had accepted the act of 1839, that the capital of the bank must be limited to the amount paid in on the 1st of February, 1841 ; and, that the stockholders are not personally bound for debts contracted by the bank, after the promulgation of the act of 1839. The defendant has expressly denied that the present creditors were creditors of the Bank at that time, and as the right of the receiver to recover rested upon proof of that fact, it was incumbent upon him to make that proof. So far from having done so, his witnesses prove the reverse, with respect to all the claims of which they know the origin.

I have examined the case, on the hypothesis that an acceptance of the act of 1839, on the part of the banks, was necessary. But I do not wish to be understood as deciding that point. If charters are contracts, they are contracts which the Legislature may, in certain cases, dissolve. The powers it possesses over charters subsequently granted, by the first paragraph of art. 438, C. C., are not the less real for having been dormant heretofore, and it is a serious question, whether any acceptance of the conditions appended to the remission of the forfeiture, was necessary.

I am of opinion, that the judgment against the defendant must be reversed, and a judgment rendered in his favor.

It is therefore ordered, that the judgment in this case be reversed, and that there be judgment in favor of the defendant, with costs in both courts.

Eustis, C. J.

My impression is, that the authorities, referred to by Judge Rost, support his opinion, concerning the inference to be drawn from facts showing an acceptance of an amendment, or change of a charter of incorporation; but, as the point was not urged at law, and as I concur with him in his conclusion, that the judgment of the court below ought to be reversed, I prefer placing my assent on the other ground given in support of his opinion, to wit, that the stockholders are not personally bound for debts contracted by the liank, after the promulgation of the act of 1839, and it is not proved that any of the debts represented by the plaintiff, were contracted previous to that time.

Slidell, J.,

dissenting. 1 am not satisfied that the act of 1839 was accepted by the bank, in such a manner as to bind creditors of the corporation. The report of the committee of the Legislature, which is for the first time brought to our attention, seems to me to show, satisfactorily, that down to the date of that report, there was no acceptance.

Suspension of specie payments may have been a cause of forfeiture, under the charter of this corporation; but the State did not sue for it, until a long time subsequent to the act of 1839. See 13 L. R. 497.

The power granted by the 1st section of the 438th article of the Civil Code, is a power to be exercised under conditions.

      The act of 1839 referred to, is entitled, An Act to relieve such of the banks of this State whose Charter may have been forfeited by a suspension of specie payments, from such forfeiture. Acts 1839, p. 66.


author: Preston, J. Eustis, C. J.

text:
    D. R. Coulter v. Elihu Cresswell et al.
    Until the universal legatee makes himself a party to the suit, the act of the executor in defending it, is binding upon the former.
    Where the suit was brought against C. in the Second District Court, and his succession was afterwards opened in the Eourth. It was held that the Second District Court had jurisdiction to try the suit which had been brought.
    No one can be bound by testimony not taken contradictorily with him. Therefore, testimony taken between the parties to the suit, before the warrantor is made a party, cannot be used against the latter.
    The plaintiff, in a redhibitory action, cannot recover the expense for the transportation of the slave from the place where bought, to where he died.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Elmore and King, for plaintiff.

      J. Ad. Rozier, for defendants.

      C. Eufour, for warrantor.
   By the court:

Preston, J.

This is a redhibitory action, commenced against the estate of Cresswell, for the price of a slave sold by the deceased to the plaintiff, and damages.

The slave, with two children, was sold by Cresswell to the plaintiff, on the 17th of March, 1851, for six hundred dollars. She was fully guaranteed against the maladies prescribed against by law. Immediately after the sale, she was taken on board a steamboat, and conveyed to Union county, in the State of Arkansas, where the plaintiff resided. She died eleven days after the sale, of a disease, as the plaintiff alleges, called augina pictores, dependant on a diseased heart.

It was evident, on a post mortem examination, from the preternatural growth of the heart, and pr. stvher anees, and obstructions about it, that the disease was of long standing, and must, at the time of the sale, have been incurable.

The slave became so unwell as to require medical aid within three days after the sale. This raises a presumption, that she was affected with the disease at the time of the sale. The presumption is rendered conclusive, by the facts stated by the witnesses. ,We have no doubt, the woman was affected with a redhibitory malady at the time of the sale, and died of the disease.

There is no foundation for the suggestion, that the plaintiff did not exercise all proper care of the slave during her sickness. He engaged medical aid while it was yet supposed the disease might be but a cold, gave up his own state-room in the steamboat to her, and took the same care of her as if she had been a white person of his family. He took her, to be sure, from the landing in Arkansas, to his plantation, in his wagon; but he made her as comfortable, with mattresses, and otherwise, as possible. This was no doubt the easiest mode of conveyance that could be procured, and there is no proof that she was jolted, as suggested, over the rough roads of Arkansas.

A bill of exceptions was taken to the introduction, in evidence, of the testimony of witnesses residing in Arkansas, obtained under a commission, on the ground that Mrs. Cresswell, the universal legatee of Elihu Cresswell, had had no opportunity to cross-examine the witnesses. The suit was brought against the executor of Cresswell. He filed very searching cross-interrogatories to tho witnesses before Mrs. Cresswell made herself a party to the suit, or was recogn>ze<b 80 far as appears, the universal legatee of the deceased. The acts of the executor, in defending the suit until she made herself a party, was binding upon her, unless, as pretended, the court was without jurisdiction. The succession was opened in the Fourth District Court; the suit was instituted in the Second District Court. It is said, the Second District Court had no jurisdiction. On the contrary, the Constitution gives it the same general jurisdiction with the Fourth District Court; and this court has never done more than recommend, for convenience, that suits against successions should be brought in the courts where the successions are opened, or be removed there on the application of the defendant.

• The court excluded the testimony of the witnesses, taken in Arkansas, as evidence against the warrantor, because taken before she was made a party to the suit, and charged the jury, that it could have no effect against her. The court was clearly light. No one can be bound by testimony which is not taken contradictorily with him.

Without the testimony detailed in the fourth bill of exceptions, as to the negotiation between Cresswell and his vendor and warrantor, with regard to the slaves, the verdict and judgment is correct; and therefore, it becomes unnecessary to examine this bill of exceptions. The evidence seems to be of a very unimportant character.

Forty dollars of the damages allowed, were claimed for the expenses of transporting the slave to Arkansas, taking care of her, medical attendance, &c. The expense of transportation could not be allowed. And it appears that the physicians, under the circumstances, did not charge for their services. We think the plaintiff should be allowed something for his care and trouble. And upon the whole testimony, we do not think the jury has allowed more damages than the plaintiff has suffered.

The judgment of the district courtis affirmed, with cost, without prejudice to the defendant’s right of action against the warrantor.

Same Case — On a Re-hearing.

By the court: (Slidell, J., absent.)

Eustis, C. J.

I think the court had jurisdiction ralioné materia, and that its exercise was a matter of discretion, which presents no case for interference.

The other grounds presented for a re-hearing, we have considered, without changing our original convictions on the merits.

The judgment formerly rendered, therefore, stands affirmed.


author: Preston, J.

text:
    J. B. Kirkland v. Joseph F. A. Boyle.
    A person who voluntarily makes himself a party to a suit already pending, claims a privilege upon the property attached, sequesters and bonds it, neglects to defend the suit, and suffers judgment to go against him on the bond, cannot defeat that judgment on account of the irregularities of the plaintiff’s proceedings. These irregularities should have been urged, as matters of defence, before judgment.
    APPEAL from the Fourth District Court of New Orleans, Strawbrid'ge, J.

      Elmore and King, for plaintiff.

      R. II. Marr, for defendant.
   By the court: (Eustis, C. J. dissenting.)

Preston, J.

A suit was commenced, by attachment, on a protested draft of the clerk in favor of, and endorsed by, the captain of the steamboat Mohawk. The boat was attached, and Butler, the clerk, and Shields, the master, were cited, the last for the owners of the boat as well as for himself. Pennington and others, claiming to be the owners of the boat, gave bond to the sheriff and released the attachment.

The next day the plaintiff applied for and obtained a sequestration of the boat, alleging in his affidavit, that the bill of exchange upon which the suit was brought, was given for money advanced by the plaintiff for the use and benefit of the boat on her last voyage, and that he had a lien and privilege upon her for the amount of his claim. A supplemental petition was filed alleging these facts, and claiming the privilege.

The supplemental petition does not appear to have been served upon any one. But the present defendant, Joseph F. A. Boyle, appeared, made affidavit that he and George R. Price were then the owners of the stoamboat Mohawk, and were in possession of her. The affidavit was filed in the suit, and, by consent of parties, the boat was released from the sequestration on Boyle and Price giving bond for that price.

The bond recites that, “Whereas, by virtue of a writ of sequestration issued out of the Fourth District Court of New Orleans, at the suit of J. B. Kirkland v. The Captain and Owners of the Steamboat Mohawk, and which suit is now pending therein, the steamboat Mohawk had been seized and was detained according to law, and was released and delivered to Boyle and Price by consent, upon the appearance of said Boyle and Price in the said suit, and delivering to the sheriff the present obligation; the condition of which is, that if the said Boyle and Price shall not send the above described property out of the jurisdiction of the court, and will faithfully present the same in case they should be decreed to restore the same to the sheriff, or shall satisfy such judgment as may be rendered in the suit pending as above mentioned, then the obligation to be void, or else to remain in full force.” It was duly executed, delivered to the sheriff, and assigned to the plaintiff.

The plaintiff proceeded with his suit, took a judgment by default, against the captain and clerk, whom he had made parties, and, upon testimony offered by him, had it confirmed against them, with privilege on the property attached, that is, the steamboat Mohawk; for the attachment had not been set aside, except by bond. An unsuccessful attempt to set it aside had been made by persons alleging themselves to be owners at the time it was levied.

The plaintiff next issued execution on the judgment, wiich has been returned unsatisfied. He has now sued Boyle and Price on their bond, alleging that they made themselves parties to the suit, bonded the boat sequestered, and have violated the condition of their bond by not subjecting her to his execution, or satisfying his judgment as they bound themselves to do. Judgment by default, was taken against them, and was confirmed. Boyle moved to annul the judgment, which was refused as to him, and he has appealed.

The leading grounds of argument in support of1 his appeal are: X. That the plaintiff having elected his remedy of attachment against the steamboat Mohawk, could not afterwards proceed by sequestration. 2. That there was no cause set forth for a sequestration in either the affidavit or petition for a sequestration, the funds having been supplied for the use and benefit only of the boat, not for her necessities as required by the code. 3. That the record shows that there has been no judgment rendered in the suit by sequestration, and that the condition upon which the sequestration bond, given by the defendants, was to become absolute, has never happened. 4. That the petition and exhibits filed in the present suit, show that no such judgment, as has been rendered, could legally have been rendered against the defendants, and it is contrary to law and to the evidence.

The proceedings of the plaintiff have certainly been irregular and inaccurate. He should have caused his supplemental petition to have been served upon the owners of the boat; should have taken judgment by default, and had it confirmed against them, and not against the captain and clerk alone. And he should have had his privilege upon the boat sequestered, decreed contradictorily with the owners.

But can the judgment, appealed from, be set aside and annulled for these irregularities, or any of the reasons urged by the defendant ? He is chargable with equal errors and defaults. He, with his partner, purchased the steamboat Mohawk, while a suit was pending against her for a debt of the owners. He voluntarily made himself a party to that suit by filing in it his affidavit, that he and Price were the owners of the boat. They bonded the boat when sequestered, on a claim of privilege, for money supplied for her use and benefit during the last voyage. Being thus parties to the suit and to the sequestration, they should, by answer, intervention or otherwise, have defended it, if there was a defence. Had they done so, the irregularities complained of would not have occurred. If the plaintiff had no privilege it would have been so decreed, and the sequestion have been dismissed.

Had the defendant presented the irregularities in the plaintiff’s proceedings and his other grounds of d efence, by exception, answer or otherwise, to the suit on his bond, he might have obtained relief, if they were well founded. But he suffered judgment by default, to be made final, and now rules the defendant to annul it for reasons, which should have been formally presented before issue joined by a judgment by default.

Both parties being equally in default as to the irregularities in these suits, we . will yield to that substantial justice between them which, as far as we can judge from the record, we believe has been rendered.

"We think substantial justice has been done, because the bill of exchange purports to have been given on account of the boat, and it has never been attacked by the owners as not having been given for her use. The defendant purchased the boat while a suit was pending for the claim, and she was attached to secure it. We have no doubt he knew of the claim. An affidavit was then made for a sequestration, showing that the bill of exchange was given for the use and benefit of the boat, on her last voyage, and claiming a privilege upon her for its payment. Perhaps the sequestration might have been set aside, because the plaintiff had resorted to the process of attachment; perhaps, because he had not shown that the money was furnished for the necessities of the boat, and that there may be an essential distinction, as contended, between what is furnished for the use and benefit and what is furnished for the necessities of the boat. Still it was never set aside until the court decreed, in a suit to which the defendant voluntarily made himself a party, that the plaintiff had a privilege upon the boat for his claim. From this decree an appeal was never taken. The debt now claimed is therefore due from the boat, as decreed by judgment. The defendant and Price purchased her, while a suit was pending to enforce it by attachment. Sequestration having then been resorted to in the same suit, they did not apply to set it aside as unlawfully issued, but gave bond in solido to produce the boat and subject her to execution, or to satisfy the judgment that has been rendered, and which is no longer appealable.

They have not produced the boat, and the execution is returned unsatisfied. The bond sued upon, by its terms, obliges the defendant to satisfy the judgment. To that effect he has been condemned by the district court, and we cannot say that substantial justice has not been done.

The judgment is affirmed, with costs in both courts.