author: InsiiEY, J.

text:
    E. W. G. Burbank, Curator, v. Payne & Harrison.—James L. Arbuthnot, Appellant.
    "When a person dies, leaving property in two or moro States or countries, his property in each State is considered as a separate succession, for the purposes of administration, the payment of debts and the decision of the claims of parties asserting title thereto.
    It is the deliberate opinion of this court that the powers of administrators, appointed in different States, extend only to the limits of the sovereigns creating them, and that neither allows the other {0 intermeddle with any assets within their respective jurisdictions.
    Fiduciary agents cannot transfer negotiable assets without an order of court.
    from the Second District Court of New Orleans. Morgan, J.

      Whitaker, Felloios <£■ Mills for plaintiff. Benjamin, Bradford <& Fin-ney for defendants. Carlelon Hunt and J. II. Kennard for Arbuthnot.
   InsiiEY, J.

The plaintiff in this case, acting as the curator of the vacant succession of Robert Woodsides, who died in the parish of Assumption, in this State, where his succession was duly opened, instituted suit in the Second District Court of Now Orleans against Payne & Harrison, claiming from them certain funds in their hands belonging to the succession of Woodsides.

The defendants, by their answer, admitted that they had in their hands, standing to the credit of the deceased Robert Woodsides, the sum of $521 17, and that they also hold a further sum of $5,000, which, they say, was deposited with them some time about the 13th March, 1860, by one Seth Kline, and for which they issued a certificate,'payable to the said Robert Woodsides, or to his order. They further represent that they believe that the said certificate is held by one J. L. Arbuthnot, who resides in Mississippi, at Woodville, who has specially notified them not to pay the said deposit nor balance of account to any one but him, in his capacity of administrator of the said Robert Woodsides, duly appointed by the proper court, in the State of Mississippi, where the deceased was domiciliated. They express their willingness to pay the several sums claimed of them, upon return of the certificate of deposit issued by them, and they pray for the appointment of a curator ad hoc to represent the said J. L, Arbiitlmot in the suit pending.

The curator ad hoc answered, claiming the whole amount in controversy, as administrator of the estate of of Robert Woodsides, under appointment of the Probate Court of Wilkinson county, Mississippi, in which capacity the certificate of deposit was received by him, and which certificate is in the following words :

“Received of Seth Kline five thousand dollars, subject to the order of Robert Woodsides, to be at his credit on account.

[Signed] Payne & Habbison,

J. L. Aebtjthnot, Administrator.

New Orleans, March 30th, I860.”

On the trial of the case in the court below, both the plaintiff and J. L. Arbuthnot produced their respective letters of administration, and the defendants, Payne & Harrison, being mere stakeholders, the contest is exclusively between the Louisiana curator and the Mississippi administrator. It is conceded, for the purpose of arriving- at tile real issue in this case, that Robert Woodsides, at the time of his demise in Louisiana, had his domicil in Wilkinson county, in Mississippi, and that his estate there, and his sixccession here, were properly and-legally opened in both States.

That the Louisiana succession was properly opened, does not admit of a doubt. It was a case specially provided for in the'Act of the Legislature passed on the 16th March, 1842, section 1.

And as regards the index>endent action of succession so opened, the opinion of the court in Atkinson v. Rogers, is directly in point. It is there held : “The plea to the jurisdiction of the com-ts of this State, on the ground that the succession of T. W. Griffon had been opened in Amite county, in the State of Mississipiñ, is not good in law. When a person dies, leaving property in two or more States or countries, his property in such State is considered as a separate succession, for the purposes of administration, the payment of debts and the decision of the claims of parties asserting title thereto.”

It is the deliberate opinion of this court that the powers of administrators, appointed in different States, extend only to the limits of the sovereigns creating them, and that neither allows the other to intermeddle with any assets within their respective jurisdictions. And had any exception been taken to the right of the Mississippi administrator to stand in judgment in the case, we should, without hesitation, have maintained it, but as it is, we shall proceed to the examination of the issue presented:

The broad question presented now for solution is, whether .the fund held by Payne & Harrison is assets in the Louisiana succession, or in the Mississippi estate. It is urged by the curator that the money, being on deposit in the State of Louisiana, at Woodsides’ demise, it is, to all intents and purposes, an asset of the succession under his administration; whilst, on the other hand, the administrator contends that the certificate of deposit, as he terms it, being in a negotiable form, and in his possession, belongs to the Mississippi estate. Were this instrument in the hands of a Iona fide endorsee from the administrator, claiming the amount of this fund, the question then might arise, whether it was transferable by endorsement, and whether the endorsement could be legally made by the administrator — whether a payment of it made to an assignee would be a valid one ? But, as it is the administrator himself who is prosecuting the claim, is it not competent for the court to ascertain the nature of the title he sets up, and how and when he acquired it ? Woodsides died on the 14th March, 1860, one day after the money -was deposited with Payne & Harrison, by Kline; so that, at his death, that sum, with the balance previously to his credit on the books of that house, formed a part of his succession in Louisiana. It is not shown when the evidence of the deposit by Kline was taken out of the State, and it is therefore reasonable to presume it was in this State when the succession was opened here. It was in the hands of Kline a receipt to him, showing that ho had paid that sum for Woodsides, and that it was subject to Woodsides’order. He might have retained this receipt for his own protection, without com-promitting himself with Woodsides, who would not, for that cause, have been precluded from claiming any amount due to bim on general account by Payne & Harrison, and his paid drafts on, or receipts to them, would have discharged them from liability. There was no condition on the face of the receipt, which made the payment of the fund dependent on its production, which is usual in certificates of deposit made to order. If Kline was willing to give up the receipt, he should have done so to some person who was authorized to receive it; and, certainly, the only proper person to receive it was the curator here; and the mere adventitious circumstance of its having found its way into the hands of the administrator, does not, we conceive, vest in the estate in Mississippi the fund in Louisiana, payment of which might have been exacted, with or without the production of the receipt. *

It is strenuously contended that it was competent for the administrator, under the law of Mississippi, to negotiate this instrument, and that it was, therefore, practically and legally, an asset of the Mississippi estate.

We see nothing in the law of Mississippi, which is spread on the record, to show that fiduciary agents can assign moneyed instruments.

Beferenee is made on this point to the rulings of the courts of New Hampshire and Massachusetts-; but, in the absence of any lex loei con-tractus, we shall give effect in preference to the ruling of our own courts on that subject. See Nicholson v. Chapman, 1 An. 22. It is here held that fiduciary agents cannot transfer negotiable assets without an order of court; and there is no certainty that any such an order would ever be granted. If the amount of the receipt could be paid to the administrator at all, it would not be solely on account of its being a negotiable instrument, but because he could give a valid discharge for payment of it made to him, which we do not think he could.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be affirmed, costs of appeal to be paid by appellant.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    Bromberg & Son v. Hyde & Goodrich.
    h'ov the deprivation of the use and occupation of a store, on a claim for consequential damages, plain, tiffs must establish the facts, and also the extent of damages suffered thereby.
    from the Fifth District Court of New .Orleans, Eggleslon, J.

      A. Boberl for defendants and appellants. Michel <& Kooulz for plaintiffs .
   Jones, J.

The plaintiffs sue defendants for the use and occupation of a gertain store, of which it is alleged that they were illegally deprived of the nse and possession by the defendants. Consequential damages are also claimed in the petition. The defence is a general denial. Collateral issues have been presented, which we shall wholly disregard.

In order to entitle the plaintiffs to a recovery, they must establish that, under the law and the evidence, they were entitled to the store in controversy; and that defendants, by their illegal acts, deprived the plaintiffs of the enjoyment and possession thereof, and also the extent of .damages suffered thereby. The right of the plaintiffs to the possession is establised beyond controversy, and the enfringment of that right is fully established by the evidence, to the extent of the judgment obtained in'the lower' Court. It is, therefore, ordered that judgment be affirmed.

Labatjve and Howell, J. J., absent.


author: Ilsley, J.

text:
    P. J. Cockburn v. J. R. Groves & Co.

    Where fcne appéllés dee, not claim damages hi/ hif; ansu cr for a frivolous appeal, none can be granted,
    from the Eourth District Court of New Orleans, Price, J.

      A. Q. Semines, for plaintiff. Hays £ Adams and E. W. Moise for defendants.
   Ilsley, J.

The defendant James M. Wilson, endorser of a draft drawn by J. T.. Semmes, on J. R. Groves & Co., and by them accepted, has appealed from the judgment rendered against him in said suit by the Fourth District Court of New Orleans.

The draft was not paid by the acceptors, whereupon it was duly protested for non-payment, and legal notice thereof served on the defendant Wilson, in person.

The appeal is a frivolous one, taken solely for delay; but, as the appel-lee has not claimed damages by his answer, as required by Art. 907 C. P., we cannot condemn the defendant to pay any.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be affirmed, with costs, and that the appellant pay the costs of appeal.

¡Howell, J., absent.


author: Hyman, C. J.

text:
    Arthur Choppin v. New Orleans and Carrollton Railroad Company.
    Employers are answerable for the damage occasioned by their servants, in the exercise of tho functions in which they are employed.
    Damages may be assessed without calculating altogether on the pecuniary loss, or the privatioa of p&* cuniary gain to the party.
    from the Sixth District Court of New Orleans, Sowell, J.

      G. Roselius, i'or defendant and appellant. Durant <& Horrnr, for plaintiff.

      Roselius for defendant

    Lord Tenterden laid down the rule, in the case of Venderplank, et al. v. Miller, et al., 22 English Common Law Reports, p. 280, as follows :
    “If there was want of care on both sides, the plaintiffs cannot maintain their action ; to enable them to recover, the act must be attributable entirely to the fault of the crew of the defendant’s vessel. ”
    The Supreme Court of this State has recognized and applied this rule to every case of railroad collision or accident that has come before it. Lesseps v. Pontchartrain R. R. Go., 17 L. It. it. 361. Fleylasv. The Same, 18 L. It. P. 339. Hubfjh v. Carrollton R. R. Go., 6 A. It. 496. Damont v. same, 9 A. It., 441. Hill v. Opelousas R. R. Go., 11 A. B. p. 292. Myees v. Percy, el al., 1A. B. p. 374.' Oarlislev. Holton, eial, 3 A. B. p. 48. Murphy v. Deamond, 3 A. B. p. 441 et seq.

   Hyman, C. J.

Plaintiff claimed a judgment of $50,000 against defendant, the New Orleans and Carrollton Bailroad Company, for damages suffered by Mm, from the culpable conduct of its servants.

The case was tried by jury, and verdict given in favor of plaintiff for twenty-five thousand dollars.

The District Judge rendered judgment in conformity with the verdict, A new trial was refused, and defendant appealed.

¥e have carefully examined the evidence, and it discloses the foEowing facts :

On the afternoon of the 19th August, 1860, plaintiff was passenger on a train of cars belonging to defendant. While the train, conveying plaintiff, was at rest, at Jackson street, a regular stopping place, the express train of the company, running on the same road, came down the track towards the aforesaid train, at a rate of speed highly dangerous, displaying, on the part of those in charge, a culpable disregard of human life. Both trains were filled with passengers. Before plaintiff could escape, a terrible collision took place — the express train was hurled with destructive force - against the train at rest, breaking some of the cars, injuring plaintiff in a dreadful manner and killing a child in his arms, whom he was endeavoring to save. Plaintiff’s young life was almost crushed out, his bones were broken, his leg had -to bo amputated, and he is now a miserable cripple. He has endured long months of physical suffering, was deprived of an employment, his only means of subsistence, because of inability, 'after his misfortune, to perform tho work required. . All these evils have come ujlon him, not by his fault or even imprudene'e, but foy the reprehensible acts and. neglectful and careless conduct of the agerits 0f the railroad company in running the train.

The company is responsible for the damage occasioned by their servants in the exercise of the functions in which they are employed. Civil Code, 2299.-

Public carriers should take care of their passengers.

No exact computation can be made for damages due to plaintiff; and, in cases of this kind, much discretion is left to the judge or jury in the assessment of damages. Civil Code, 1928, § 3.

Considering the loss of plaintiff’s employment, the painful nature of his wounds, the permanent character of his injuries, and his inability therefrom to perform such labors as before for his support, we conclude that the jury, in assessing the damages, did give such a reasonable sum as will really compensate plaintiff.

Judgment affirmed.

Jones, J., absent.

Howell, J., recused.


text:
    William Durbridge v. Charles Wentzel, et al.
    Every act whatever of man, that causes damage to another, obliges him by whose fault it happened to repair it.
    from the Sixth District Court of New Orleans, Howell, J.

      G. J. McPheeters for plaintiff. Alfred Philips for defendants and appellants.
   Ilsley, J.

Charles Wentzel, the defendant, as assignee of one Letten, obtained judgment in the Sixth District Court of New Orleans against the plaintiff in this suit, for some $1200, and before the expiration of the delay for appealing, Wentzel’s attorney caused execution to issue on the judgment. In virtue of this execution, the sheriff seized Durbridge’s deposits in bank, and for this alleged illegal proceeding Durbridge claims damages $1,000, and $150 counsels’ fees.

The case was submitted to a jury, who awarded, on the first trial, $400 to the plaintiff, but a new trial having been granted, it was again submitted to a jury, who rendered a verdict in favor of the plaintiff for $100, and from the judgment rendered by the court on this verdict the defendants have appealed.

It is admitted, in the defendant Wentzel’s answer, that the writ of fieri facias was issued before the expiration of the delay for a suspensive appeal; and the counsel of Wentzel, in his testimony, says that “execution was issued under the belief that, if it was not issued before the delay expired, I'would never make the money.”

It is not pretended that Wentzel is not responsible for the illegal and unwarrantable acts of his counsel in pursuing the course they did, and any denial of responsibility, which might be gathered from the answer, is met by the ruling in Duperon v. Vanwinkle, Sheriff, et al., 4 Rob. p. 41. In that case, the sheriff was the agent selected by the law to represent the defendants; whilst, in this, the attorneys who took out execution, wére the agents of the defendant’s own Selection.

The act of seizing the defendant’s property was a tortious one, and the jury were justified in giving the verdict they did, which we deem a reasonable one, and of which the defendant should not complain. Keen v. Lezardi, 8. L. 33. C. C. 2294. C. C. 1928, § 3.

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

Hyman, C. J., absent.

Howell, J., recused.


author: Howell, J.

text:
    Eupheme, f. w. c., et als. v. Juliette Maran, et al.
    A motion to dismiss an appeal for informality must be made within three judicial day«j after the Record is filed in this court: *
    from the Third District Court of New Orleans, Bmigneaud, J.

      P. Soulé, Budd & Lambert for defendants and appellants. 0. Bufour & H. Train for plaintiffs.
   Howell, J.

A motion is made to dismiss this appeal on the grounds following, to wit:

1.No citation of appeal has been served on the appellees.

2.The appeal was not made returnable to the Supreme Court in proper time.

3.The certificate of the clerk is incomplete.

4.The transcript of appeal is incomplete.

We are of opinion that, according to the ruling of this Court in the cases of Murray v. Bacon, 7 N. S. 271; O’Donald v. Lobdell, 2 L. 299; O’Reilly v. McLeod, 2 A. 138; Hall v. Nevill, 3 A. 326; Mitchell v. Lay, 4 A. 514; Temple v. Marshall & James, 11 A. 613, and Creevy v. Breedlove, 12 A. 745, this motion comes too late, not having been made within three days after the record was filed in this Court. The record was filed pn 21st March, 1860, and the motion to dismiss on 26th Eebriiary, 1801.

The motion must therefore be overruled.

On the merits, we see no reason to disturb the judgment of the lower Court.

Judgment affirmed, with costs.

Jones, J., absent.


text:
    Adrinette, f. w. c., et als. v. The Same, et al.
   Howell, J.

Eor the reasons assigned in the case of Eupheme, f. w. c. v. Same Defendants, No. 6740, just decided, the motion to dismiss is overruled, and the judgment of the lower Court affirmed, with costs.


author: Labatjve, J.

text:
    Margaret Haughery v. John M. Lee.
    Where there is no fixed price for a lease, or it he left to the award of a third person, unnamed and determined, the agreement was an essential ingredient to malee it a legal contract.
    A PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Durant & Hornor and Wl B. Lancaster for plaintiff and appellant.

      Fellows <& Mills for defendant.

    In a contract of lease, three things are absolutely necessary, to wit: The thing, the price, and the consent. C. C. 2640. And, by C. C., Art, 2639, the price must bej&ed Art. 2641. The price should be certain and determinate, and, if left to a third person named and determined * * * if he cannot or will not do it, there is no hiring. The contract would be null, if the price were left to be fixed by a.person not designated. C. C. 2642.
    ■In the case at bar, no price was agreed upon, no person was designated; and, as alleged in the petition, and an understanding that defendant should pay a reasonable rent, as the Judge, in the first instance says, ‘ ‘ implies that it should be fixed by á person not designated. ”
    For these reasons, and the fact that the affidavit does not set forth that the sum claimed is for rent, must sustain the rule. See 12 La. 490. 11 Bob.. 280, and cases there cited. 7 An. 654.
   Labatjve, J.

This case involves a pure question of law, which must be examined 'and decided upon the face of the papers.

The plaintiff, after having alleged the indebtedness of the defendant to her, in the sum of $820, states, as the consideration of the debt, “that said Lee, on or about the 20th day of October, 1859, went into possession of a residence, situated on Seventh street, between Náyades and Prytania streets, in the Fourth District of this city, and belonging to petitioner, on 'an understanding with petitioner that he should pay her a reasonable rent forsaid premises. ” ‘

At the same timé, she prayed and obtained upon her affidavit a provisional seizure against the furniture and effects of the defendant, as in a case of lease. ■

The defendant, on motion, obtained a rule upon the plaintiff to show cause, oh.the 10th of January 1861, at 10 o’clock, A. M., why tho writ of provisional seizure herein-issued, should not be set aside, on the grounds :

1. That the affidavit, upon which the saijl writ was issued,'does not show that the amount claimed is for rent of the premises described in the petition.

2. It does not show that^ there was any lease of said premises to defendant.

3. That the claim, as set forth in the petition, is based upon the mere occupancy by defendant, of the premises, which does not give rise to such relations between the parties as to authorize a provisional seizure.

A fourth ground to the insufficiency of the affidavit, which it is unnecessary to notice.

* The District Judge made the rule absoluto, and set aside the provisional seizure, with costs, The plaintiff appealed from that judgment.

This rule is in tlie nature of a motion made on thé facé of the papers, thereby taking for true the allegations, for the purpose of trying the rule.

The question is, then, whether or not the understanding to paya reasonable-' renlis afixeclprice, a-pAae certain wid determínale. C. C: Arts.-2639-2641. We think there was no price fi. vedliy ths parties, as contemplated by law, nor' was the price left to a third person named and determined. C. C. Art. 2642. If anything, it was left to be fixed by a person not designated, to persons called as witnesses in the suit to say what was a reasonable price;. and then there might have been as many different prices as there 'were witnesses ; therefore, there being no price fixed by the parties, or left to' the award of a third person named and determined, the'a¿reeifient wanted", an essential ingredient to constitute a contract of lease.' 0. 'C. Art. 2640.

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

Howell, J., being the Judge who decided the case bélow, took no .part in this decision. ' '

Jones, J., absent.


author: Labauve, J.

text:
    Lewis J. Frigerio v. Mrs. Julia D. Stillman.
    Asrú Jinoiit-í will bo con itraei by the acts of fche*parties making them.
    li-PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Alfred Philips for plaintiff. Field cG Shackleford for defendant andi appellant.
   Labauve, J.

The plaintiff states in substance that, on the 1st June, 1857, he leased"to the defendant a certain brick house, 110,-154, on Canal street, for the term" of three years, commencing on the-1st November, 1857, for the yearly rent of $2,000. payable monthly. That, being 'desirous to take possession of the premises on the 31st October, 1860, he .had given notice to said defendant to remove from the sanie, and .-that;' notwithstanding said notice and the lease being .expired, 'she pprsisted-ini her occupancy. He prays for the possession of the house, etc." - - ;

The defendant admits the lease as statéd in the petition, but she'avers that, on the 1st of August, 1860, or thereabouts, 'she entered into a verbal contract of lease with petitioner, -by which -she was to retain the premises for the space of three years, commencing on the Lst November,-1860, and ending 31st October, 1863, on the same terms and conditions of her previous lease, with the exception that she was to pay $3,000 for the first year; $3,750 for the second year, and $4,000 for the third year. That, after the said verbal contract, she made valuable improvements on the premises, by and with the consent of plaintiff. She prays to be dismissed, with costs, etc.

Plaintiff proved the lease and notice, as alleged by him in his petition.

On the part of defendant, Eliza Stillman, sister of defendant, and Mary Earrell, an employee, testified that, on or about the 1st August, 1860, the parties to this suit entered into a new contract of lease of thq premises; for three years, commencing on the 1st November, 1860, $3,000 for the first year, $3,760 for the second year and $1,000 for the third year; the defendant was to furnish her notes as before; the lease was to continue as before for three years upon the same terms and conditions, with the exception that the rent was to be raised. The plaintiff went before P. Lacoste, notary, to get him to draw the act of lease to Mrs. Stillman for three years, at the rate of $3,600 for the first year, $3,760 for the second year and-$4,000 for the third year, but as it was an average of $3,760 per year, to draw the act at the rate of $3,760 per year. The notary asked plaintiff if Mrs. Stillman had agreed to that; he said no; then the notary said he; Would not draw the act before he had seen her. After that, both plaintiff and defendant came to the notary’s office. The notary asked her if she wanted to pass the lease on the last mentioned conditions ; she said no; she would not pass it in that way, but would on the conditions first 'mentioned. Then the plaintiff said he would pass no lease at all, except a lease for one year, at the rate of $3,600 a year. Mrs. Stillman consented to that. The lease was then drawn up for, one year at the rate of $3,500, she then refused to sign it, because the fixtures, such as shades, counters, etc., were comprised in the same lease, and that all the fixtures in the store belonged to her. Lacoste, the notary, says that the defendant never made any objection to the addition of $500 to the . $3,000 for the first term. Two other witnesses, T. E. Camera and T. Abrahamson, had interview with plaintiff and defendant, while- the passing of the act of lease was in negotiation before the notary, and they say that the defendant did not, during the whole time, raise any objection to the $500' being added to the'$3,000. It must look improbable that; if the price for the first year was $3,000 instead of being for $3,500, she would not have made that objection, while she was raising objections toother small matters. The' defendant pretended that she had alease Under the same conditions as before; except that the price was higher. It is in evidence, by the act of the lease entered into before, that the defendant executed her monthly notes to her own order and endorsed by Keráelf for the whole time of the lease, and there is nothing in the record showing ah' Attempt to execute her part of the alleged contract by offering her notes as before. Upon' the whole, we are satisfied that the judgment appealed from is correct.

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

Sowiom, j., the Judge who tried the case below, did not participate’ in this decision.


text:
    A. D. Grieff & Co. v. R. S. Kirk, et als.
    Suretyship is restrained within the limits expressed and intended by the contract.
    from tlie Sixth District Court of New Orleans, Howell, ;7V

      Durant- d; Hornor for plaintiffs.

      R. d\ H. Mari• for defendants and appellants.

    This is a rule upon the sureties on an appeal bond; and they have taken this appeal from a judgment condemning them to pay the debt, interest and costs demanded.
    In the original action, A. D. Grieff & Go. recovered judgment against George H. Kirk and B. S. Iiirk & Go., in solido. Prom this jirdgment B. S. Kirk & Go. appealed ; and E. W. Adams & Co. became sureties in the appeal bond. This court reversed the judgment, and condemned E. S. Kirk, alone, to pay the debt demanded. See original judgment, E. 19, 20; decree of Supreme Court, 31, 32, 33.
    Plaintiff caused execution to issue upon this judgment; and upon'its .return unsatisfied took a rule in the usual form upon the sureties in tire appeal bond.
    In answer to the rule, defendants plead :
    1.That the execution was returned before the legal return day, and that such return is not sufficient to entitle plaintiffs to, proceed against them.
    2.That plaintiffs are domiciled in New Orleans ; that the return dóés not show that any demand was made upon plaintiffs to point out property of the defendant, E. S. Kirk, and that the return, in this respect, is' not sufficient.
    3.That the judgment appealed from was rendered against E- S. Kirk & Go.; that defendants became sureties for E. S. Kirk & Go.; that the condition of the bond was, that E. S. Kirk & Co. should prosecute said ap_ peal effectually; that the judgment appealed from, against E- S. Kirk & Go., was reversed ; that no judgment has been rendered against E. S. Kirk & Go.; that the judgment rendered by the Supreme Court on the appeal was against E. S. Kirk, alone; and that defendants were not the sureties of E. S. Kirk, and are not liable upon the bond. E. 37, 38.
    In a supplemental answer defendants plead that the firm of E. S. Kirk & Go., the appellants in the original suit, was composed of Eobert S. Kirk, George S. Serrill, and William D. Smith. E. 46,47.
    1. The execution was issued on the 11th June, and made returnable in seventy days. It was actually returned on the 18th August: E.-33, 34, 35. We submit, irpon the authority of Woodruff v. Penny, 12 Mart. 676, and Burr v. Taiman, 10 Eob. 139, that the surety is not bound until the legal delay has expired ; and that a return before the return day of the writ is premature as to him.
    2. The Godo of Practice, Arts. 726, 727, requires that demand shall be made of the parties to point out property. The return in this case shows that no demand was made upon either of the parties ; the only demand mentioned in the return having been made upon plaintiff’s attorney. There is no doubt of the necessity of a demand before the sheriff can return the writ, See 10 Eob. 138, in the case jifst cited ; also, Qayoso v.
      Mickey, 4 La., 301; Conway v. Jones, 17 La. 416. Where the defendant cannot be found, as the court suggests in this last cited case, a carator ad hoe may be appointed to represent him, where he has no attorney of record. It seems strange that no inquiry was made of the counsel who appeared and filed an answer for the defendant R. S. Kirk. We submit, that where one of the parties is domiciled in the place at which the court from which the writ emanates is held, it is not sufficient to call upon his attorney to point out property. A. D. Grieff & Co., the creditors of Kirk, lived in New Orleans; and it was “not using the diligence required bylaw, or a compliance with the textual provision of Art. 727, C. P., for the sheriff to call on their attorney. The return, in this respect, seems to us improper and defective, and not sufficient to authorize proceedings against the sureties.
    3. It was proven by the testimony of Weibling, R. 48, that R. S. Kirk, George S. Serrín, and William D. Smith composed the firm of R. S. Kirk & Co., at the time of the acceptance of the draft sued on ; and the record shows that R. S. Kirk & Co. were condemned in the original suit; that R. S. Kirk & Co. appealed; that the judgment against R. S. Kirk & Co. was avoided and reversed; and that judgment was rendered against R. S. Kirk. Has the conditional obligation of B. W. Adams & Co., as sureties in the apj>eal bond for R. S. Kirk & Co., become absolute ?
    • The law favors the surety, and will not permit his obligation to be extended beyond its precise terms. Ganad Banlc v. Hagan, 1 An. 66. An undertaking to be responsible for R. S. Kirk & Co., is very different from an obligation to be responsible for R. S. Kirk alone. R. W. Adams & Co. expressly bound themselves as sureties for R. S. Kirk & Co.; and their suretyship cannot be extended so as to make them responsible for R. S. Kirk alone, because that would be more hazardous and burdensome to them than the suretyship to which they consented, and which alone they contemplated.
    There are no presumptions against sureties. They can only be held to the contract as made, to the j>recise terms of their obligation. Freeland v. Briscoe, 3 An. 256; Garlwrighi v. McMillen, 3 An. 686. The precise obligation in this case is, “that B. S. Kirie & Co. shall prosecute their appeal, and shall satisfy whatever judgment may he rendered against them, etc., if they he east in the appeal, otherwise that JR. W. Adams <& Go., their surety, shall he liable in their place.” See Bond R. 29, 30. It follows that until R. S. Kirk & Co. are east in their appeal, and a judgment shall have been rendered against R. S. Kirk & Co., which they shall fail to satisfy, there can be no breach of the precise obligation contracted by R. W. Adams & Co., the sureties ; and they cannot be liable.
    Who were the principals in this bond ? Obviously not R. S. Kirk, but R. S. Kirk & Co., the ideal existence, composed of the several partners, who had, under that name, merged their individuality. In the bond no other person is named as principal or appellant; and until indebtedness and breach are established against R. S. Kirk & Co., by a judgment and failure to pay, plaintiffs can have no claim or demand against R. W. Adams & Co. The judgment against R. S. Kirk & Co., the judgment appealed from, the judgment with reference to which R. W. Adams & Co. bound thejnselyes, having be®u reversed, the contingency upon which they obligated themselves has not happened, and cannot happen j and the bond has become inoperative and of no effect.
   Hyman, C. J.

Plaintiff sued the commercial partnership of E. S. Kirk & Co., obtained judgment against it, and it appealed.

On appeal the judgment against the partnership was reversed; but a judgment was rendered againstE. S. Kirk, one of the partners.

The securities on the appeal bond, E. W. Adams & Co., in answer to a rule served on them, at the motion of plaintiff, to show cause why they should not pay the judgment rendered on appeal, assigned for cause, that the condition of the bond was, that E. S. Kirk & Co. should prosecute effectually the appeal, that they were only securities of said partnership, that the judgment rendered against it in the lower court had been reversed on appeal, that the partnership of E. S. Kirk & Co. was composed of Bobert S. Kirk, George S. Serrill and William D. Smith.

Judgment was rendered against the securities decreeing them to pay the judgment against E. S. Kirk.

The securities appealed.

Are the securities liable for the judgment against E. S. Kirk ?

No judgment was rendered against him "in the lower court — nor did hé appeal.

The Supreme Court rendered judgment against him because he was a partner of the firm, having reversed the judgment against E. S. Kirk & Co,

E. S. Kirk’s liability as a partner, and so decided, is not a judgment, nor a confirmation of a judgment, against a partnership, of which he was a partner, with others. To conclude otherwise we should have to disregard the judgment rendered on appeal, the words of the bond and the evident intention of the parties to the same expressed therein. The obligation of the sureties was to satisfy whatever judgment might be rendered against E. S. Kirk & Co. on appeal.

No judgment has boon or can be rendered against E. S. Kirk & Co. on the appeal, and there can be no judgment to satisfy.

Suretyship is restrained within the limits expressed and intended by the contract. See C. C. 3008.

The judgment of the lower court is avoided and reversed, and judgment is now rendered in favor of the sureties, E. W. Adams & Co,

Plaintiffs are to pay costs of both courts.

Howblx,, J., recused.

Iusbey and Jones, J. J., absent,


text:
    Succession of Edward Parker.
    A silence of live years in the settlement of partnership accounts will har any 61aini for balances.

      lx PPEAL from the Second. District Court of New Orleans, Morgan, J.
   Howell, J.

This is a suit for the settlement of an alleged partnership in a steamboat, and a question of fact is only presented.

Plaintiff alleges an express agreement that he was to become the owner of one-eighth of said steamer, which the deceased Parker was then having built, and that in payment thereof he was to superintend the fitting out of the boat and to run on her as pilot, at the highest wages, until the value of his services less his necessary expenses should amount to .one-eightli of the cost of the boat, which is stated at $25,000. Tie alleges that said services were duly and faithfully rendered by him, without drawing any wages, until the said Parker, who was the captain, instructed the clerk thereafter to £>ay them; as his interest in the boat was -entirely paid for, and that at the end of the second business season of the boat, he left because of some difficulty with Parker; and he prays for an account and judgment for $12,500 ahis portion of the earnings of the boat for over six years, up to the date of her destruction by fire.

A general denial ivas pleaded and a judgment rendered in the lower court in favor of defendant, from which plaintiff appealed.

A careful examination of the evidence, in the record, does not enable us to disagree with the District Judge.

Three witnesses testify that Parker said Hughes was to have an interest in the boat. One of them, Dowiy, the clerk, and plaintiff’s principal witness, says further, that Captain Parker said to him that plaintiff was to "go as pilot, until the boat was paid for, and draw only his necessary expenses until that time; that about the latter iDart of the second season, Parker told Hughes the boat was paid for, and he had better draw some money and buy a negro to work on the boat for wages. Whatever may be the effect of this evidence, which, in our opinion, does not establish the alleged part ownership, it is rebutted by the acknowledgement of plaintiff to the witness, JDowty, “that he and Captain Parker had fallen out, and that Captain Parker had settled with him and paid him off;” and by his long silence, not urging any claim until January, 1860, some five years after the date of his leaving the boat, as alleged in his petition.

Judgment is affirmed, with costs.

Jones, J., absent.


author: Howemo, J.

text:
    Hyde & Goodrich v. New York & New Orleans Steamship Co.
    Where articles of greater value are packed in the same box with ordinary freight it does not change their character, and will not relieve the common carrier from liability for their loss, if those more valuable goods are not lost.
    from the Second District Court of New Orleans, Morgan, J.
    A. Robert for plaintiff.

      J. Ad. Rozierfor defendant and appellant.

    In considering tlie subject of notice, it becomes proper to consider the effect of misrepresentation, fraud and concealment of the owner of the goods in respect to the nature, and amount, and value of them. It is plainly the duty of every person sending goods by a common carrier, in the absence of notice, not to practice such imposition and deception upon him, as will add to his risk and lessen his requisite care and diligence, and any false statement, or unfair concealment, or material suppression of facts, whereby the carrier is misled, will exempt him from the responsibility of a common carrier. In the absence of- notice, says Mr. J. Nelson, if ahy means are used to conceal the nature of the article, and thereby the owner avoids paying a reasonable compensation for the risk, the unfairness, and its consequence to the carrier, upon the principle of common justice, will exempt him from responsibility, for such a result is alike due to the carrier, who has received no reward for the risk, and to the party who has been the cause of it, by means of disingenuousness and unfair dealing. Angelí on Carriers, p. 266, l 268; Orange County Banle v. Brown, 9 Wend. R. 116.
    It is well established that the owner of the goods, or the person delivering them, must take care not to do or say anything which shall tend to mislead the carrier in respect to the requisite care to be taken of them. If the owner adopts a disguise for his box, -which is calculated to prevent the carrier from taking the particular care of it which the real nature and value of its contents demand, he cannot recover in case of loss, even in the case of gross negligence, beyond the value of the box itself pas, for example, by labeling a box or a trunk as containing articles of a different nature and inferior value from what are its real contents. Angelí on Carriers, p. 269, l 261. Belf v. Rapp, 3 Watts & S. Penn, R. 21.
   Howemo, J.

The facts of this case do not bring it within the application of the rule invoked by defendants and recognized in the ease of Baldwin v. Collins, 9 R. 468.

Their own witness, Sellielc, says pistols are considered ordinary freight; and the fact that articles of greater value were pa&ked in the same box with them does not change their character and will not reheve the common carrier from liability for their loss, if, as in this case, those more valuable goods are not lost.

We think there is no error in the judgment of the lower court, and it is therefore affirmed, with costs.


author: Hxman, O. J.

text:
    Field & Shackleford v. James Campbell.
    ’The verdict of a jury will not be disturbed except for good cause, and damages will be allowed on an appeal from a judgment tliereon.
    from the Second'District Court of New Orleans, Bumgneaud, J.

      Whitaker, Fellows and Mills for defendant and appellant.

      Field & Shacldeford in propria persona.

    The petition alleges that, on the 7th May, 1860, the defendant, being then under arrest for killing-one Peter Boach, employed plaintiffs to defend him on said charge ; that they informed him they would charge him $1,000, to which he made no objection; that they immediately undertook his case, prepared affidavits, and obtained his discharge from the “lock-up” on bail, and continued to act as his counsel until 18th May, 1860, when defendant, without any sufficient cause, discharged them; that they were always ready and willing to defend him in any court; that Ms case was a had one, and that $1,000 was but a reasonable fee in the case.
    The answer contains a general denial, and a prayer for a trial by jury. On the trial, plaintiffs obtained a verdict and judgment for $1,000, the whole amount claimed, and the District Judge before whom the case was tried, refused to disturb the verdict or grant a new trial, and the defendant has taken this ajipeal.
    More than half dozen witnesses prove that defendant employed plaintiffs to defend him; that plaintiffs prepared affidavits and presented them to the Becorder of the First District, and obtained defendant’s release from the lock-up of said District on bail, before the case was examined by the Becorder; that this was done at the urgent request of Campbell and his friends. In his answer to the subpoena duces tecum, the defendant admits that he received a letter from A. P. Field, inclosing a promissory note for $1,000, for him, defendant, to sign, in which Field informed him that said amount was as low a fee as he could properly charge him. It is true, said letter had no date, but the subpoena duces tecum describes it as a note handed to him while in the “lock-up.” And Mushei says he saw the note for $1,000 in Campbell's possession, while in the lock-up, and Richardson says he saw said note in Campbell’s hands, in the lock-up, and that he, Camijbell, was reading it, on the day that he was admitted to bail by the Becorder.
    After he was released by the Becorder, and had been out on bail some days, he was again arrested by the Chief of Police, and Colonel Field again appeared before the Becorder as counsel for defendant, and again obtained his discharge.
    Some time after this, viz : on 18th May, 1860, defendant’s case was laid before the grand jury, and Field was in the First District Coxxrt-room, off and on, all that day, attending to and watching the progress of the investigation ; and, when the jury returned a true bill, late in the afternoon, went, in company with defendant, to the parish prison, and up to the time they parted on that evening, as appears by the testimony of Schaixneyder,
      the deputy sheriff, who took defendant to the prison, Campbell gave no signs of complaint against Field ; thus showing that defendant continued to avail himself of plaintiff’s services as counsel, long after he received the note informing him of the amount of the fee charged, without objecting thereto, and establishing beyond controversy the special agreement laid in the petition.
    But, in addition thereto, Thomas J. Durant, who was associate counsel in the ease, in his testimony (p. 20), says he regarded the fee a reasonable one.

      T. J. Semvies, Isaac E. Morse, E. W. Moise, all of whom had been Attorneys General for the State, and B. 8. Tappan, who had been District Attorney, all testify as to the general ability and skill with which Field managed criminal cases, and none of thorn had ever known him to mismanage a defence.
    The defendant himself offered in evidence his note, discharging plaintiffs from further attention to his case, but offered no proof of mismanagement or neglect; and, in fact, his only ground of complaint (see testimony of Mullen, p. 16,) was that plaintiffs had failed to do that which they were not bound as counsel to do, and which- neither they nor defendant had any legal right to do or demand, viz: to summon witnesses to appear before the coroner’s jury, and bo notified of the time at which the grand jury would take up his case.
    These are in law ex parte proceedings, and the accused has no right to be heard there, or, indeed, in contemplation of law, even io know that such investigations are being held; and no such complaint was heard until after-defendant and his friends, upon consultation in the parish prison, had concluded that it was to the interest of defendant to employ another legal gentleman, whom they supposed to have more influence than Field with the then Judge of the First District Court, before whom he was to be tried.
   Hxman, O. J.

Plaintiffs sued defendant for $1,000, attorneys’ fees.

The case was tried by jury, and a verdict given in favor of plaintiffs.

The District Court rendered judgment in conformity to the verdict.

Defendant, failing- to obtain a new trial, appealed.

The claim of the plaintiffs is fully proven.

Judgment affirmed, with fifty dollars damages.

Jones, J., absent.


author: ÜSLEY, J.

text:
    Leeds & Co. v. H. Fassman.
    Where the parties to a contract, by mutual consent, enter into a new agreement, as regards some narfc of it. nroof of the latter agreement may be made by parol.
    A party must be put in mora in order to be made liable for a suit in damages on a contracl.% And this applies to reconventional as woll as to direct actions.
    A PPEAL Rom the Sixth District Court of New Orleans, Sowell, J.

      Hdwd. Bawle for plaintiffs. Durant & Ebrnor for defendant and appellant.
   ÜSLEY, J.

A contract was made by Leeds & Co. and Henry Fassman for the construction and putting up of a steam engine at the Orleans Steam Cotton Press.

The plaintiffs sue for a balance due them on said contract, amounting, according to their petition, to $1,050 76.

The defendant pleads : 1. A general denial. 2. He admits the written agreement alleged by plaintiffs, 'and says that the plaintiffs bound themselves therein to deliver and erect the machinery on or before the 15th of August 1858; that in making the contract defendant II. Fassman, as the plaintiffs well knew, acted merely on behalf of his firm, Fassman, Bryant <& Go. Defendant alleges default in plaintiffs in not delivering the machinery at the proper time, and when-delivered, it was so defective and so broke down, and not brought into proper condition for work until 1st January, 1859, which caused them damages to the amount of $1,047 45. They pray judgment in reconvention.

It is conceded that the machinery was not delivered according to the written contract, but it is' proved by the testimony of a witness, that defendant had admitted in conversation that the time expressed in the contract had been exiranged, and plaintiffs allowed to make the delivery at their own will, without regard to any limit. This parol evidence was objected to on ground':

1. That the effect was to vary a written contract.

2. That plaintiffs’ petition declared on a written contract and contained no allegation of any change therein, and that parol proof cannot be admitted to prove the modification or cancellation of a written contract.

On the first objection, we think it covered by the case of Bouligny v. Urquhart, 4 La. 30, where it is held in effect, that where the parties to a written contract, by mutual consent, enter into a new agreement, as regards some part of it, proof of the latter agreement may be made by parol. It was in that case, as in this, a mere modification of the original contract; and the rule therein adopted might be more aptly applied in this case than in that cited, because in this, the change did not in any manner effect the essence of the contract.

There was nothing in the contract that required it to be reduced to writing, and as it might have been established originally by parol, it is not easily perceived, as the Supreme Court say, in Gardner v. Batuille, 5 Al. 597, why it could not be “modified ” or avoided in the same manner.

The second objection is, that there was no allegation of any change in the original contract; and defendant relies on the cases of Bouligny v. Urquhart, 4 La. 29, and Jamison v. Ludlow, 3 A. 493, to sustain him therein.

AVe think the case of Mathias v. LeBret, 10 Rob. 94, by no means militates against these decisions. It is true that in both these cases the new contract was alleged in the petition, and therefore no question on that point could possibly arise, whilst, in the Mathias v. LeBret case, the objection now raised was directly met.

That was, like this, a suit on a contract, and parol evidence was objected to, to prove that the contract had been changed and altered, because there was no such allegation in the petition; and thereupon the Oourt says: “ On referring to the petition, we have found an allegation that “if any alteration was made in the contract, or delay occasioned, it was by the order and consent of the defendant. This allegation, says the Oourt, was undoubtedly sufficient to authorize the admis.sion of the testimony, but if any doubt exists as to its admissibility under such an allegation, it seems to us that it was admissible at least to rebut the defendant’s allegation that the worlc was not complete within fie time specified in the contract. ”

The parol testimony adduced was certainly admissible.

The plaintiffs in this case, from the evidence in the record, are undoubtedly entitled to the amount claimed; nor can we find any evidence to entitle the defendants to their reconventional demand.

As to any damages, if any had been sustained by them, by the delay in the delivering and erecting the machinery, there is nothing in the record to show that the plaintiffs were ever put in mor&, which is an essential pre-requisite to a suit for damages ; whenever the breach of a contract is a passive one, and the non-performance of the contract. La. Code 1927, 1905 et seq.; Kirkman v. Barton, 14 La. Rep. 81; and this applies to recon-ventional as well as to direct actions. Morton v. Rills, 5 L. 414. The defendant has not called our attention to any evidence adduced by him to show that “when the work was delivered it was so defective and so broken down, and that it was not brought into proper condition for work until 1st of January, 1859, and thereby caused them damages; nor can we find any to that effect in the record, but it is proved by plaintiffs that the work was well done, the materials good, and that nothing was defective. It is also shown that $8,000 was paid without a word of objection after the work was completed, and the reason assigned for the non-payment of the balance was solely the want of funds.

There is no error in the judgment rendered in, this case.

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

Hownm, J., recused himself in this case.


text:
    Daniel Marcy, et al. v. J. L. Warner & Co.
    Where freight is received without objection or protest, on the part of defendant, it is too late to dispute the legality of plaintiffs’ claim. >

    it PPFAL from the Fifth District Court of New Orleans, Eggleston, J.

      Buchanan & Gilmoi'e for plaintiffs, Benjamin, BradjO.-cl& F.nney for defendants.
   Jones, J.

The plaintiffs sue the defendants for a freight bill, on the shipment of a cargo of ice, from Boston to New Orleans, by the vessel Orazimbo. The defendants, besides a general denial, plead, by way of re-convention, that they suffered damage on said shipment to the extent of six thousand dollars, on account of the negligence of the captain and crew, on this voyage, from the point of departure to the place of destination, which damage is specially charged to have arisen, on the part of said captain and crew, in carelessly permitting salt water to mingle with said cargo of ice.

The plaintiffs have fully established their right of action, and the amount thereof, by the custom of New Orleans, where said ice was delivered by contract.

We propose to examine the reconventional demand set up by the defendants against the plaintiffs.

The cargo of ice having been shipped in good order, and received without objection or protest on the part of defendants, it is too late to dispute the legality of plaintiffs’ claim. The evidence on behalf of plaintiffs, and the conduct of defendants, cast the onus prohancli on the defendants, as plaintiffs in reconventional demand, to show to a legal certainty, byproof,-that they have sustained the whole or part of the damage, as alleged in their demand.

We think the evidence, in this respect, is too vague and uncertain, to base any judgment in favor of these defendants against the plaintiffs.

Besides, we are satisfied, from the evidence in the record, that if any loss to the cargo of ice was sustained, outside of that incident to its transportation, it occurred in consequence of stress of weather, for which the law would not hold plaintiffs responsible.

We are, therefore, of the opinion that the judgment must be affirmed, with costs. . (

Labatjve, J., absent.


text:
    Elias Hall v. Peter McLauren.
    Persons holding a slave under a precarious title in Alabama can not obtain a remedy in our Courts.
    JJl PPEÁL from the Fifth District Court of New Orleans, Mggleston, J.

      Durant, c§ Hornor for defendants. T. J. $ A. Q. Semines for plaintiff and appellant.
   Labatjve, J.

The plaintiff, a resident of the State of Alabama, states that he is the true and lawful owner of a negro woman slave, named Adeline, aged about fifteen years, and worth $1,200. That he has been in lawful possession of said slave for the past ten years or more, in the States of Alabama and Georgia. That in the month of April, he placed said alave in the possession of his agent, Walton Morton, in the city of New Orleans, and that on the 3d day of July, 1859, one Peter McLauren, a resident of the State of Georgia, then in the city of New Orleans, went to the dwelling house of his said agent and forcibly seized and carried away said slave.

He prays that said Peter McLauren be cited to appear and answer, and that after due proceedings, petitioner be decreed to be the owner of said slave.

The defendant pleaded a general denial, and that the said slave was his property and was purchased by him from Morris & Woods, in the year 1849, together with several others, etc. He prays to be dismissed, with costs.

The court below, after hearing the testimony, evidence and arguments of counsel, thought that the plaintiff had failed to make out his case, and gave judgment for the defendant.

The plaintiff has introduced a mass of testimony to establish his title to the slave, by a peaceable possession of six years under the laws of the State of. Alabama; but we are of the opinion that he has failed to make out his case. It is in evidence that, under the laws of the State of Alabama, ownership in a slave may be acquired by a peaceable possession o six years without notice of adverse claim. The testimony shows that the plaintiff’s possession was precarious and held under and for the defend ant; in the neighborhood, it was acknowledged that the defendant was the owner of the slave.

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

JoNES, J., absent,


text:
    P. W. Hoffman v. L. B. Dunham, et al.
    The judgment of the Court a quo will not be disturbed, unless good reasons are assigned therefor.
    from the Third District Court of New Orleans, Duvigneaud, J.

      Whitaker, Fellows t& Mills for plaintiff. Hart <& Martin for defendant and appellant.
   Howell, J.

Plaintiff claims $5,000 damages, for being forcibly .ejected from the steamer Fanny Bullitt, and denounced as a thief, cut-throat, etc.

Judgment was rendered in the lower Court in his favor, for $2,000. Defendant Dunham, the captain, has appealed.

We are not favored with a brief or argument by the appellant; and, after examining the record, we do not discover such error as to authorize us to disturb the judgment.

The evidence establishes the material allegations in the petition, the good character of the plaintiff, and his afflicted condition.

The judgment is affirmed, with costs.

Hyman, C. J., absent.


text:
    Wm. H. Kenion v. Peter Hawes.
    An appellant who does not file within ten days after the record is brought up a written paper specifying ah error of law appearing on the face of the record, unless he rely upon a statement of facts, an exception to the judge’s opinion, or special verdict, will have his appeal rejected.
    XI PPEAL from the Fourth District Court of New Orleans, Price, J.

      J. Q. Bradford for plaintiff. John McKee for defendant and appellant.
   Labauve, J.

Plaintiff and appellee have filed a motion to dismiss the appeal on divers grounds; one is, that: — ■

“ The transcript of appeal contains no complete statement of the proceedings. had, and documents offered in evidence on trial, as will appear by the certificate of the clerk, and as apparent on'the face of the papers.”

The clerk says :

“I hereby certify that the above and foregoing fifty-five pages do contain a transcript of all the proceedings had, as well as of all the documents filed and the testimony adduced on the trial of the cause, wherein Wm. H. Kenion is plaintiff and Peter Hawes is defendant, and instituted in this court, and known on the records thereof under No. 12,990, with the exception of record of writ No. 6,807, of the docket of the Sixth District Court, entitled John C. Hammond ®. E. H. Angomar & Co., offered by defendant, also the supplemental contract offered in evidence by de' fendant,”

The appellant ha§ Hot appeared ill this court, nor has he filed herein a Written paper, stating specially any error of law appearing on the face of the record.

The iüotion must prevail. C. f. Arts. 896, 897.

Appeal dismissed at appellant's cost.

Jones, J. absent.


text:
    Henry Kean v. Wm. L. Brandon et al.
    Where evidence was received without objection by way of reconvention, it will be sustained as if a formal plea to that effect had been filed.
    from the Sixth District Court of New Orleans, Howell, J.

      Durant & Hornor for plaintiff and appellant. Benjamin, Bradford & Finney for defendants,
   Jones, J.

This case was originally before this court and remanded. See 12 An. p. 20. After this case was sent back to the lower court for further proceedings under the mandate of this court, auditors were appointed to render an account between the contending parties.

They found a balance of five thousand seven hundred and sixty-nine dollars and seven cents in favor of defendants, as on reconventional demand.

From a judgment rendered against the plaintiff in favor of defendants, predicated on the report of the auditors, the plaintiff has taken this appeal.

We have examined the record of the first appeal, and the record of this appeal, and find that the defendants have plead no reconventional demand, but the present record before us discloses the fact that defendants offered evidence before the auditors, and introduced proof to like effect on the trial of the cause, to support a reconventional demand without objections on behalf of plaintiff, and also moved to homologate the report of the auditors. We therefore feel authorized under our well settled jurisprudence to decide this case on the evidence adduced, without objection, in the same way had the same been received under a formal pleading of a reconventional demand. 4 An. 193, Eastran v. Harris; 5 An. 184, Ames v. The People's Telegraph; 9 An. 255, Gayrre v. Tennard.

The report of the auditors having been received in evidence without objection, and the oral evidence of the auditors on the trial of the case fully supporting their report, we feel justified in confirming the original judgment. ■

Therefore, for these reasons, it is ordered, adjudged and decreed, that the judgment of the lower Court be affirmed, with costs.

HowEnn, J., recused.

InsiiEY, J., absent,


author: InsnEV, J.

text:
    Succession of F. A. Lumsden.—Opposition of Mrs. Mary Ann Thompson.
    Tlie laws establishing the order of successions, and those which treat of their administration are essentially different.
    An inheritance remains without an heir and in abeyance until the rightful heir accepts or rejects it, according to the Article 1026, O. 0., giving him time for deliberation. Such an heir has but a residuary interest. Ü.O. 1066.
    XX PPEAL from tlie Second District Court of New Orleans, Morgan, J.

      G. Roselius and A. Lolvrop for opponent and appellant.

    On the 8th September, 1860, Colonel E. A. Lumsden, his wife, and their only child, Prank Spedden Lumsden, all “perished by the happening of the same event,” to wit: the sinking of the steamer Lady Elgin, on Lake Michigan.
    On the 10th October, 1860, the succession of said Prank Spedden Lums-den was duly opened in the Second District Court of New Orleans, and Robert Spedden appointed administrator. On the same day, A. M. Hol-brook filed his petition in said court, praying for the opening of the succession of Colonel Francis A. Lumsden, and to be appointed administrator of the same. One of the heirs of Prank Spedden Lumsden, to wit: Mary Ann Thompson, his grandmother, filed her opposition to the application of said Holbrook for the opening of another succession for the purpose of administering twice on the same property, and to the appointment of Holbrook as administrator. The court dismissed the said petition of opposition, rendered judgment decreeing the opening of the succession of Colonel P. A. Lumsden, and appointing Holbrook administrator, from which judgment said opponent has appealed.
    We say the judgment decreeing the opening of the succession of P. A. Lumsden was illegal, for the following reasons :
    That the judgment previously rendered, ordering the opening of the succession of Prank S. Lumsden, being a judicial recognition that he was the last survivor, according to the rule laid down in Articles 930, 931, and 933 of the Civil Code (the deceased family all being between the ages of fifteen and sixty), left no succession of the father upon which to administer, the same being merged in that of the son at the instant of the father’s death. C. C. 934; 15 La. 527, and 12 Rob. 258.
    Article 1115 C. C. reads as follows :
    “ The partner or partners of a commercial house, having accounts to render to the heirs of their deceased partner, can in no case be appointed curators to the vacant succession or that of the absent heir of the deceased. It must be given to a third person,” etc.
    Holbrook is therefore bound by his own admissions in the record, and the judgment of the court decreeing the opening of the succession of Prank Spedden Lumsden, and thereby estopped from claiming the administration of the succession of Colonel P. A. Lumsden. Hennen’s Digest, p. 515, Nos. 2, 40 and 42.

      Robert Mott for Ifolbroolc.

    The death of the Lumsdens must be considered as simultaneous; consequently, by legal interpretation, the parties all, being between tbe ages of fifteen and sixty, tbe mother and father died first. O. C. 933.
    There was a point of time in which there was a succession of F. A. Lumsden, and that succession was a vacant one, — 'did the death of young Lumsden fill the vacancy and close the succession, so that it ceased as a succession to exist, and all the rights and attributes of that succession were merged in the succession of young Lumsden ? We think not. ' If the succession was ascertained, then the rights of third parties vested, and can be exercised.
    The elder Lumsden was a partner in the firm of Lumsden, Kendall & Co., printers and publishers of the Picayune newspaper; Holbrook, who applied for administration of the estate of F. A. Lumsden, was one of the members of that firm, a*s such, he was entitled to the euratorship in preference to the heir — for Article 1114, C. C., says that “the surving partner of the deceased in preference to the heir present or represented, unless the partnership be a commercial one,” and commercial partnerships are declared by Article 2796, C. C., to be,
    “.1. For the purchase of any personal property and the sale thereof, either in the same state or changed by manufacture ;
    2. For buying and selling any personal property whatever as factors or brokers;
    3. For conveying personal property for hire, in ships or other vessels.”
    The printing and publishing a newspaper does not come under either classification. Heath v. Howell, 15 La. 138. Brown v. Hughes, 2 An. 623. MuAuley v. Barnes, 15 La. 427. Parlcer v. Brashcter, 16 La.* 69. .
    The partnership being proved, the reaso» exists why the surviving partner should administer, and why ho should have charge of the estate of his deceased partner and settle and hand it over to the heir after the. payment of the debts; and in the eye of the law that heir is the succession of the younger Lumsden, what right that the law guaranteed to Hol-brook, could the death of young Lumsden destroy or set aside.
    And what right has the grandmother of young Lumsden to oppose ? She does not claim a right to administer, nor is she a creditor. The expense of settling the estates may as well be had in the succession of the elder as the younger-Lumsden. C. C. 1051. R. S. p. 339, $ 15. Hen-nens Digest (new edition), p. 1470, Nos. 15, 16 and 20.
   InsnEV, J.

The facts on which the questions in this case arise are these:

On the 8th September, 1860, Colonel F. A. Lumsden, his wife, and their only child, Frank Spedden Lumsden, all perished by the happening of the same event, the sinking of the steamer Lady Elgin oh Lake Michigan.

On tho 15th of the same month, Mrs. Mary Ann Thompson, the grandmother of Frank S. Lumsden, applied to the Second District Court of New Orleans for letters of administration in his succession. Her application was opposed by Bobert Spedden, the child’s grandfather, and by A. M. Holbrook, the present appellee. The grandfather’s opposition was sustained, and letters of administration wore issued to him.

On the same day that Robert Spedden was appointed administrator, as before stated, to wit: on the 10th. October, 1860, the said A. M. Holbrook alleging himself to be a surviving partner of F. A. Lumsden, applied for letters of administration on his suuccession, which, notwithstanding the opposition of Mrs. Mary Ann Thompson, for reasons stated by her (which will be hereafter adverted to), were granted to him on the 20th of' the same month.

The opposition of Mrs. Mary Ann Thompson to the application of A. M. Holbrook, to administer on F. A. Lumsden’s estates, is based on the following grounds :

1. That it being conceded that Frank S. Lumsden survived his parents, and are their sole legal heir, that the property and effects left by said parties legally constitute but one succession, which succession is that of Frank S. Lumsden, already opened and in due course of administration in the Second District Court.

2. That, as heir'of Frank S. Lumsden, she opposes the application of A. M. Holbrook to open the succession and administer on the same property, under the name of Francis A. Lumsden, as it will cause delay, incur additional costs, to the detriment of opponent, and is an illegal proceeding. t

3. That, from the action taken by Holbrook, the allegations contained in his petition of opposition, and admissions in the succession of Frank S. Lumsden, he is precluded and estopped from opening a succession of Francis A. Lumsden upon the property belonging to the succession of Frank S. Lumsden, or administering upon the same.

Mrs. Mary Ann Thompson’s counsel urge in this court, besides the grounds stated in the opposition, another ground, the disability of Hol-brook to administer F. A. Lumsden’s estate, because Holbrook and the deceased, at the time of his demise, were commercial partners; but, as this was not a ground of opposition in the Court below, it will not be noticed here.

In support of the first ground of opposition, the appellant’s counsel urges that the judgment ordering the opening of the succession of Frank S. Lumsden, left no succession of his father, whose sole heir he was, upon which to administer, the same being merged in that of the son at the instant of his father’s death, and that the subsequent opening of the succession of the father presents a legal impossibility, as it is to decree that the same property can belong to two separate and distinct successions, and be administered upon by the administrators of the respective successions at the same time ; and he suggests, in illustration of his position, several reasons, which he deems conclusive, why the second succession was improperly opened. These reasons would be as cogent if applied to the opening of Frank S. Lumsden’s succession, had that event taken place after the opening of his father’s succession, which might have occurred even before the death of Frank S. Lumsden; and it therefore has no practical bearing on the principal question involved, which is, whether the succession of F. A. Lumsden became, by his son’s death, so blended with and merged into the succession of the latter, as to lose its identity for administrative purposes. As this is the theory contended for by the appellant, let us test its accuracy; and we know of no mode we can proceed more readily to do so, than by suggesting cases, which, if the Thesis of the opponent be founded on principle universal in its application, would show its utter impracticability, if not impossibility.

Let us suppose, for the sake of argument, that Colonel Lumsden, instead of only one son and legal heir, had left several children and the issue of other pre-deceased children, ah these descendants would certainly have been his legel heirs, and had they all perished by the same or a similar calamity, which overwhelmed Lumsden’s family, all the different successions of the several heirs might have been, as was that of F. S. Lumsden, opened before that of the father, would the succession of Colonel Lumsden have become so merged in the successions of his numerous heirs? and its affairs so divided and split up, so as to adapt them to the fractional interest that each heir might have in the succession of Colonel Lumsden; and that, too, before it was known what each of these successions might claim, and before the realization of the distributive share of each?

Again, had the succession of Frank S. Lumsden consisted of mingled property derived from various sources, which might be actually the case, as we have nothing in the record to show in what it does consist, say from other successions, 'besides that of his father, could the several successions be so merged for administrative purposes with his own succession, as to draw into the vortex of these mixed administrations all the creditors and legatees of each of these several inherited successions?

As we apprehend this question, the fallacy of the opponent’s theory, consists in the confounding two subjects which are entirely distinct in their nature — i. e. the law establishing the order of successions with that which treats of their administration. Each has its appropriate place in the text of the law.

There is, however, another question which needs solution, and that is, what immediate right the minor, Frank S. Lumsden, acquired by his father’s death. Art. 940 C. C. holds his right in abeyance until he decides whether he accepts or rejects a succession, and that is the doctrine of the Eoman law. Domat, referring to that law, says: “Since it often falls out that the inheritance remains for some time without a master, because he who ought to succeed is absent, or that he deliberates whether he shall accept or renounce the inheritance, (the faculty accorded to beneficiary heirs by Act. 1026, C. C.,) and that during this interval it may happen that some right may accrue to the succession, or that it may be engaged in new charges or other affairs. The said inheritance is therefore considered as holding the place of the master, and as representing the deceased to whom it belongs. Droit Civil Lib. 1. T. N. 1, || 1, 11, 14-

The interest of Frank S. Lumsden was merely a residuary one, and this coidd be only determined after his father’s succession had been duly administered. See Art. 1066 C. C.; Arthur P. Cochran, tutor, 12 Rob. 41; Audat, Curatrix v. Gilly, 12 Rob., 323.

Tn what does the position of Mrs. Thompson differ from that of Frank S. Lumsden, so far as the necessity of a separate administration of F. A. Lumsden’s succession is involved ?

As to the judicial admission of Holbrook, relied on by the opponent to estop him from claiming the administration of Col. Lumsden’s succession, we cannot see how it can possibly effect the exercise of that right,

There is no error in the judgment oyerruling Mrs. Thompson’s opposition, and it is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, and that the appellant pay the costs of appeal.

Jones, J., absent.


text:
    J. B. Featherston v. Graham & Buckingham.
    The acquiescence of the principal in the conduct oi the agent, is a clear ratification of his action.
    from the Fifth District Court of New Orleans, Eggleston, J.

      A. G. Semmes for plaintiff. Bonford, Singleton c® Glaelc for defendants and appellants.
   Howell, J.

This is an action to recover a balance alleged to be due on advances made for account of defendants.

Plaintiff, in St. Louis, procured shipments of produce to defendants in New Orleans, to be sold on commission by the latter, for account of the shippers. As the various shipments were made during several months, plaintiff made advances thereon, and informed defendants of the amounts so advanced. No objections were made by the latter, until plaintiff demanded the sum sued for, when defendants contended that plaintiff had exceeded his instructions in not allowing a sufficient margin to protect against loss.

This defense is not maintained, and even if plaintiff had exceeded his authority in this respect, the conduct of defendants was a clear ratification of the action of their agent. They should have objected when informed that the advances were severally made.

Judgment affirmed, with costs.


text:
    S. Friedlander v. John M. Bell et al.
    if ;l SlMl'ilr sell itriylhing, without previously dtiiiig what the law requires from him, for the validity of the sale, and his vendee bo obliged to abaiidon the thing bought, in consequence of bis vendor’s neglect, the latter must indemnify the former.
    Prescription does not begin to run until the time of eviction.
    from the Second District Court of New Orleans, Morgan, J,

      Boselms & Philips for plaintiff and appellant. G. A. Taylor and Benjamin, Bradford & Finney for defendants.
   Howell, J.

This is an action against a sheriff and his sureties for damages, which plaintiff alleges he has sustained in consequence Of being evicted from certain property bought by him at sheriff’s sale. The plaintiff was evicted on the ground that the sheriff’s sale was a nullity, because the property had not been seized at all. Judgment was rendered in the lower Court in favor of plaintiff for a part only of his claim, and he has appealed.

The District Judge held the defendants responsible for the money actually paid into the hands of the sheriff, but sustained the prescription of two years, under the 10th section of the Act of 1855, p. 366, to that portion of the sum which was for costs and charges, and released them from liability for all sums paid to the creditors of the defendant in execution, attorneys’ fees, taxes and insurance premiums, &c., paid by iffaintiff after the sale.

The only question to be decided is, what is the extent of the liability of the sheriff?

In the case of Fleming v. Lockart, 10 M. 308, it was said: “If a sheriff sell anything, without previously doing what the law requires from him, for the validity of the sale, and his vendee be obliged to abandon the thing bought, in consequence of his vendor’s neglect, the latter ought to indemnify the former.” In 9 L. 559, Morris v. Abat, the same principle is thus enunciated: “ The marshal certainly warrants the correctness and legality of his own acts, and if by his illegal acts he has caused damage, he is bound to make reparation.”

In the case of Lambeth v. The Mayor et als., 6 L. 731, this liability was limited to the direct and immediate injury resulting from such negligence or illegal acts, and the question arises, what is the direct and real injury which the plaintiff in this case has sustained by the negligence and omission of the sheriff, in consequence of which the sale was avoided to the prejudice of the former? According to the standard recognized in the case last quoted, it does not extend beyond the amount paid on a contract of sale, which the officer or his legal representative was bound to defend.

The property, in this instance, was adjudicated to plaintiff on the 26th of July, 1856, for the price of $375, payable at 12 months’ credit. In settlement of which, as shown by the sheriff’s deed of sale, the plaintiff assumed, 1. The payment of the mortgage in favor of the Citizens’s Bank of Louisiana, with contribution note, for $1,455. 2. He retained the amount of the mortgage in favor of the minor children of the defendant in execution, for $910 62. 3. He retained the amount of the judgment and interest in favor of the plaintiffs in execution, amounting to $618 56. 4. He paid to the sheriff the costs and charges of both sales, amounting to $342 55; and, 5. Furnished his bond in the sum of $348 27; at twelve months, for the balance of the said price of adjudication.

The sums which appear, from the proof in the record, to have been paid by plaintiff on account of this void contract of sale, are the following, to wit:

The costs and charges of the case of Hemmingway, Friedlander & Co. v. Rika Hernsheim, No. 10,067 in 4th District Court. '$ 342 55

The 12 months bond in said case. 336 68

Bill of costs credited on said bond. 28 70

April 29th, 1857. Contribution to Citizens’ Bant, due 1st May 1857... 75 00

June 3d, 1857. Instalment on stock, note due 1st June, 1857, to Citizens’ Bank. ' $ 46 00

Interest at 6X per cent, for 1 year.... 86 70 - 132 70

June 1st, 1858. Instalment on stock, note due 1st June, 1858, to-Citizens’ Bank. $ 46 00

Interest at %% per cent. for 1 year- 83 72 - 129 72

Total. $1,045 35

The taxes and insurance premiums paid by plaintiff after his purchase are not chargeable to the sheriff, not having been contemplated in the contract of sale. The law made it the duty of the sheriff to pay all the taxes due on the property at the date of sale, and the presumption is, that he did so, and that they (if any) were included in the ‘ charges ’ paid by plaintiff.

' The plea of prescription of two years, sustained by the lower Court, does not, we think, apply to this case, as plaintiff had no right of action until he was evicted, and the item of costs was, as to tjine, as much a part of the price paid under the contract of sale as any other portion of the whole. This suit was commenced within a year after the eviction. The plea must be dismissed.

The defendant, John M. Bell, deceased, is represented by liis widow and executrix.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that the plaintiff and appellant do recover from Mrs. Frances B. Bell, in her capacity as widow and tutrix, and James Bobb, Alfred Penn, Emile LaSero, Logan McKnight, Bernard Avegno, Samuel Smith, William A. Gasquet, Samuel Jamison, W. G. Mullen, P. Deverges, W. S. Pickett, Peter Marcy, R. J. 'Ward, S. W.’Oakey, G. S. Hawkins, Patrick Irwin, John Armstrong, J. L. Ur-bray, John L. Macaulay, and John Pemberton, sureties of the late John M. Bell, sheriff of the parish of Orleans, in solido, the sum of one thous- and and forty-live dollars and thirty-five cents, with legal interest from judicial demand, and costs .of both courts.

¿Tones, J., absent,


author: InsnEY, J.

text:
    Graham & Boyle v. G. Ledda.
    Where an. abandonment for a total loss is notified, by the master, to the underwriters, and accepted by their agent, it is binding, and passes the property to the insurers; if otherwise valid.
    The necessity for a sale of a vessel cannot be denied, when the peril, in the opinion of those capable of forming a judgment, make a loss probable, though the vessel may, a short time afterwards, get afloat.

      A bill of lading can have no effect until its delivery to the consignee.
    The ratification of an abandonment to the agent of the underwriters dates back to the time of the' act or contract ratified.
    from the Sixth District Court of New Orleans, Howell, J.

      J. Ad. Bozier for plaintiffs. Cyprien Dufour for defendant and appellant.
   InsnEY, J.

The object of this suit, instituted in the Sixth District Court of New Orleans, is to recover from the defendant, two flatboats of staves, which the plaintiffs claim as their property.

The defense is, that the property in controversy belongs to the defendant, having received it in due course of trade, from certain parties, at Memphis, who bought it at a sale made by the agent of the assurers.

The plaintiffs were the consignees of the staves, etc., which had been shipped to them from Cairo, by N. W, Graham & Co., on the 8th June, 1859, but, owing to the stranding of the boats on a sand-bar, near Memphis, they, with their cargoes, were abandoned by the master, to the underwriters, the Peoria Marine and Fire Insurance Co., whose agent subsequently sold them, at private sale, to Stephenson, or Stephenson & Park, from whom the defendant derived his title.

The abandonment took place under the following circumstances : Before the departure of the flatboats from Cairo, the insurance company which had insured the boats and cargoes, placed in the hands of the pilot, or master, instructions addressed to him and signed by the proper officers of the company, to the effect that, should any disaster insured against, happen to the property, “you will use all due diligence to save the boats and cargoes, and ship, if practicable, to any of the undersigned agents of this company (among which figures the name of Wm. E. Milton), and should you want assistance or advice, apply to the nearest agent, as soon as the accident happens.

The master- made a solemn protest, before a notary public at Memphis, in which, among other things, it was stated, that every exertion had been made to get the boats afloat, even with the aid of a towboat, but in vain. He then proceeded, according to the instructions of the underwriters, to call upon their agent, W K Milton, and, having stated all the facts of the case, expressed the intention to abandon the insured property, as in the case of a total loss. In his testimony, this agent says: “I immediately sent W. A. Radford, surveyor for the underwriters, at Memphis, to examine the condition of said flatboats, who reported their condition to be bad; that the river was rapidly falling, and would leave them on dry land, and advised the sale of said staves at once; and witness accordinly sold the same to J. H. Stephenson; for $17 50 per thousand, which was the best price be could get for tliem, and he considered it a good price, under the circumstances. ”

The abandonment was therefore notified to, and accepted by, the agent of the underwriters, as he took the control- of the insured property into his hands. It was competent for the master to act as he did. Abbot on Shipping-; 167, et seq. And if it was otherwise a valid abandonment, it passed the property to the underwriters. See 2 Phillips on Insurance, No. 1490 ; and the master then became the agent of the underwriters, if they were not already represented by their general agent, W. E. Milton. See the case of Hooker v. Whitney, 19 La. 267; Phillips v. St. Louis Insurance Company, 11 Al. 459; 3 Kent’s Commentaries, p. 331 — 2.

As there is nothing in the record to show the extent of the powers of the agent of the insurance company, beyond the broad statement in his testimony, that he acted in the x>remises only upon the general authority as their agent, and, as such, did therein what he considered to the best interest of the said insurance company, it is difficult to determine whether he exceeded his powers in accepting the abandonment, and disposing of the assured property ; but we may very reasonably presume that these acts were within his competency, because, in a letter addressed by the secretary of the company, he does not intimate an objection to the want of power in the agent to act, but gives other reasons which he deems sufficient to invalidate the abandonment and the sale.

In any contingency, a notice of the abandonment to the agent, completed and made their operation final; and if it was otherwise legally made, the plaintiffs would have, in this instance, no cause of action against the defendant, whether the sale made by the agent was a valid one or not.

That the master acted in good faith, exercised his best discretion for the benefit of all concerned, there can no be question; and whether the abandonment was made upon the compulsion of a necessity, must be now ascertained. We have seen what was the report of the surveyor, and that is entitled to great weight (see Parsons on Maritime Law, 64-6 — 6); the more especially, as this report was made at the special instance of the agent of the insurance company, and by their own surveyor. He considered the boats and cargoes in a perilous condition, and advised an immediate sale of them. Another witness more than corroborates the testimony of the surveyor, and, so far, the conduct of the master in abandoning must be presumed to have been a wise and prudent step, and fully justified by the circumstances. See Thompson v. Mississippi Insurance, 2 La. R. 239, and numerous authorities therein cited.

But, to take from this testimony and show that the impending peril was not so imminent as to justify an abandonment and sale of the property, it is contended that the flatboats were eventually floated off, and found their way to the terminus aguo. This is true; but the testimony of a witness proves that extraordinary means were used to discharge the boats and put them afloat.

In the case of the New England Company v. The Sarah Ann, p. 217, 13 Curtis, the Supreme Court of the United States says (speaking of the sale by the captain of the insured vessel) : “Nor can the necessity for a sale be denied, when the peril, in the opinions of thbse capable of forming a judgment, makes a loss probable, tlimigli the vessel may a short time afterwards get afloat.” •

There is no evidence in the record to show when the bills of lading for the staves were actually delivered to the consignees ; and it is competent for the shipper and owner, even after a shipment has been made, and a bill of lading, making the goods deliverable to a consignee, has been signed, to attach conditions to the assignment, or to revoke it at any time before the bill of lading or the goods are actually delivered to the consignees. See Abbott on Shipping, id. 328 ; Mitchell v. Ede, Perry & Davidson, 513, 11 Act. & Ell. 888. And in Hepburn v. Lee & Hardy et al. 14 La. Rep., it was held “ that the bill of lading could have no effect until its delivery to the consignee. ”

"We must assume, then, that the shippers, N. W. Graham & Co., on the 25th June, 1859, the date of the letter, written and signed by them, as it is shown, and duly transmitted to the agent of the Peoria Insurance Office, at Memphis, controlled the flatboats Hayden and Ulen, so far as to enable them to make any arrangement with that company, in relation to the abandonment of the assured property ; and it is clear that, by that letter, with a knowledge of all the facts, which they therein state they acquired from C. Boren, the master and pilot of the boats, they approve of the abandonment which the master had made, and ratify it in the most unqualified terms.

This letter, addressed to “Mr. Milton, insurance agent, Memphis,” is in the following words:

“ June 25th, 1859. We are informed by Captain Boren that you took possession of flatboats Hayden and Ulen, and sold their cargoes for account of Peoria E. and M. Insurance Company.

We learned this some days ago, since when we have been expecting to hear from you or this insurance company on the subject, with a statement of account and a remittance, either to us direct or the consignees, Graham & Boyle, New Orleans, but are, thus far, without that pleasure. *Do us the favor to oblige us fully at once.”

It would be difficult to conceive how a ratification of the abandonment, and, indeed, of all the concomitant circumstances, could be more distinctly made, and the legal effect of this ratification is too plain to be questioned. See the cases of Perotiu v. Cucullu, 6 La. Rep. 587; 1 vol. Hen. (new) Dig. 838, 111.

And the ratification dates back to the time of the act or contract ratified. 8 vol. Toullier, 514‘. Story on Agency, \ 239. Bloodworth v. Jacobs, 2 Al. 224. Dunbar v. Bullard, 2 A. 816.

Whether the sale to the persons, who transferred the property in dispute to the defendant, by the agent of the insurance company, was regular, customary and legal, is exclusively a matter between these purchasers, or the defendant and the ixnderwriters. All that is necessary now, is to determine whether the rights of the shippers, or even of the consignees, if they had acquired any, which we cannot discover that they had, were divested by the abandonment made by the master.

We think the plaintiffs have failed to show title at any time to the property in dispute, and that, in any contingency, the right of the owner, whoever he was, when the abandonment was made, passed absolutely to the underwriters, who claim nothing in this suit. The judgment must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the Court below be reversed and annulled, and that judgment be rendered in favor of defendant, with costs of both courts.

Howekd, J., recused.