text:
    Thomas D. Johnson v. Mathew Martin.
    The deposit of a letter in one's box at the post-office is not a delivery of the letter to such person» and where a clerk, who had been discharged by defendant-for dishonesty, obtained a letter contain ing money out of defendant’s box at the post-office, which money hekept, defendant held not liable to the party remitting the money.
    An agent may properly be held responsible for a neglect to provide against the risks or perils to which property entrusted to his care may, in the ordinary course of business, be exposed, but he cannot be held liable for not anticipating a danger altogether out of the ordinary course of business or natural events.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.
    Bonford, for plaintiff and appellant. B. & J. A. Gaither, for defendant.
   Lea, J.

In this case the plaintiff seeks to make the defendant responsible for the loss of certain bank notes sent by mail, and addressed to the defendant, which were taken from the post-office by a third person, (one BrownjoJm,') who had previously been in the employ of the defendant, but who had been discharged, as the petition alleges, for cause of dishonesty.

It is urged that the amounts remitted were delivered to the defendant by their deposit in his box in the post-office; and further, that the defendant was guilty of gross and culpable neglect in not giving notice to the post-master that he had discharged his clerk, and in not instructing him not to deliver his letters to said BrownjoJm.

The arrangement by which letters are deposited in boxes specially set apart for particular individuals, is one which has been adopted for the convenience of their delivery, but the letters so deposited are under the exclusive control of the officers in the post-office, and are not delivered until they are handed to the person for whom they were intended, or his agents. There was, therefore, no delivery of the remittances to the defendant.

The next question to be determined is whether the defendant has been guilty of neglect.

An agent may properly be held responsible for a neglect to provide against the risks or perils to which property entrusted to his care may, in the ordinary course of business, be exposed, but he cannot beheld liable for not anticipating a danger altogether out of the ordinary course of business or of natural events.

The plaintiff undertook to send a certain sum of money to the defendant: until it is received the latter cannot be held accountable for it. At the time the robbery took place, it was no more under the defendant’s control than that of the plaintiff, and though we are not prepared to say, that under the peculiar circumstances of this case, as disclosed by the evidence, the plaintiff himself was guilty of neglect, yet nothing in the record justifies the assumption that the defendant was bound to protect the plaintiff against acts of fraud or violence which might bo perpetrated upon the post-office by one who was not in his employ or under his control. We think the plaintiff is not entitled to claim from the defendant a reimbursement of the money of which he has been robbed by a third person, the act by which the loss was occasioned not being one which, under the circumstances, the defendant could reasonably have anticipated.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Ocean Tow Boat Company v. Ship Ophelia, Captain and Owners.
    Demand of payment of a check made in business hours, on the day succeeding that on which the check is dated, is a sufficient presentment.
    Plaintiffs were directed to apply to the agents of defendants for payment. The agents gave plaintiffs a check which was dishonored. Held : That the defendants were not discharged.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Emmerson & Huntington, for plaintiffs. McKay, for defendants and appellants.
   Lea, J.

This suit is brought to recover the amount of a bill for the towage of the defendants’ vessel from the sea to the city of New Orleans. Por answer, the defendants admit the debt, but aver that when called upon by the plaintiffs for payment, they gave them an order upon their agents, the consignees of the ship, for payment, and that said agents paid to the plaintiffs the amount of their claim for towage, and took their receipt therefor. It is impossible to de fine the position of the defendants in clearer language than is found in the following quotation from their own answer: “ and further answering, your respondents aver and say the truth is that for the payment of the claim of said plaintiffs, they gave an order to-, the collecting agent of the Ocean Tow Boat Company, on the house of Messrs. Jenkins, Williams & Co., and received a receipt in full of all demands ; that the said order was presented and duly paid by the said Jenkins, Williams <& Go., and a receipt for the said payment was taken by them.”

As above stated, therefore, the defence is, that they (the defendants) referred the plaintiffs to their agents for the payment of their claim, and that said agents paid the debt, as shown by the plaintiffs’ receipt.

The only payment made by their agents, (if payment it may be called,) was the giving of their own check for the amount upon Matthews, Finley & Co., bankers, which, when presented in the due course of business transactions, (to wit: on the morning of the ensuing day,) was dishonored; of which due notice was immediately and on the same day given to the agents who drew the chock.

Now, if the taking of a bad check from the agents of the defendants, amounts to a payment of the debt, the defendants are discharged, but not otherwise; for it is not pretended that payment has been made in any other manner. A'reference to authorities will scarcely be deemed requisite to show that a demand of payment made in business hours on the day succeeding that on which a check is drawn, is a sufficient presentment. Tt is urged, however, that by giving a receipt in full at the time of taking such a check, the debt was novated, and that the creditor must be left to his action upon the check against the agent, defendants being discharged. The transaction, it is urged, is analogous to the taking of a bill or note from a third party, in payment of a preexisting bill or note.

We think, however, that a reference to familiar authorities will show that no such analogy exists. A creditor for goods sold, or (as in the case at bar) for services rendered, does not stand in the same relation towards his debtor, as that which exists between the holder of a bill of exchange and the drawer or endorsers thereof. The obligations of the latter are conditional, as is also that of an endorser upon a promissory note ; they are not primarily bound upon the bill, their obligation is to pay only in a contingency. The obligation of the defendants is absolute until it is discharged.

In reference to this point, Mr. Chitty remarks: “ If a creditor, on any other account than a bill of exchange, is offered cash in payment of his debt, or a check upon a banker from an agent of his debtor, and prefer the latter, this does not discharge the debtor if the check is dishonored, although the agent fails with a balance of his principal in his hands to a much greater amount.”' See Chitty on Bills, chap. 9, edition of 1833, p. 433, 434; so also Lord Eldon in oxparte Blackburn, 10th Yesey, 506. “In a sale of goods, the law implies a contract that those goods shall be paid for. It is competent for the parties to agree that the payment shall bo by a particular bill. In this instance, it would bo extremely difficult to persuade a jury under the direction of a Judge, to say an agreement to pay by bills, was satisfied by giving bills, whether good or bad.”

“ Checks,” says Mr. Chitty, “ on account of their being payable on demand, are considered as cash, whether payable to order or to bearer; but if presented in due time, and dishonored, they will not amount to payment.” In this case, the plaintiffs have done precisely what their debtors told them to do: they applied to their debtors’ agents for payment, as a substitute for which they were given a check which, on due presentment, was dishonored. There was no laches on their part. All due and legal diligence was used. To say that under such circumstances the original debt has been paid, would establish a doctrine replete with clangor in a commercial community where, from motives of safety and convenience, nearly all important transactions, involving the receipt and payment of money, are conducted through the instrumentality of bank checks.

It has been urged in argument, that the defendants are charged, with the amount of the check by their own agents, in their account with them; but nothing in the evidence shows that the defendants have settled with their agents upon the assumption of any such payment, and the absence of any evidence in support of any such settlement, renders it extremely improbable that it was ever made.

After the dishonor of the check, the agents of the defendants could not either legally or in good conscience have made such a charge, and it is not to be presumed that, as between persons standing in a confidential relation to each other, such a demand was either made or recognized.

Eor a further illustration of this subject, a reference may be had to the following authorities: Everett v. Collins, 2d Campbell, 515; Wyatt v. The Marquis of Waterford, 3d East’s Reports, 147; Story on Agency, § 433, 434, also 16th L. R., p. 475, and 11th Rob., 511.

It is ordered, that the judgment be affirmed.


text:
    Ezra Hiestand v. D. C. Labatt.
    The five per cent, allowed by statute to the Assistant City Attorney, on the amount of all fines and penalties collected, in full compensation for his services — has reference to his services anterior to the collection, and to the general understanding of the profession, that an attorney has earned his fee when he has prosecuted or defended a case to judgment; so that the Assistant City Attorney who obtains the judgment, is entitled to the commission, although the actual collection of the debt may be made by his successor.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Benjamin, Bradford & Finney, for plaintiff. Boselius, for defendant and appellant
   Lea, J.

The question presented for the consideration of the court in this case is, whether the former Assistant City Attorney of the city of New Orleans, is entitled to recover the five per cent, commissions on tax bills, fines and penalties which remained uncollected at the time he went out of office. This question is not free from difficulty'', but we think the statute which provides that a commission of five per cent, on the amount of all fines and penalties collected, shall be allowed the Assistant City Attorney in full compensation for his services, has reference to his services anterior to the collection, and to the general understanding of the profession, that an attorney has earned his fee when he has prosecuted or defended a case to judgement. This view of the case is presented with the greater force, when it is considered that the judgment itself includes the attorney’s commissions, which the statute says, shall be received by the said Assistant Attorney. It was not, we think, in the contemplation of the legislator, that a judgment should be rendered for a remuneration of services not yet performed by a person not yet in office, when the officer who himself obtains the judgment, is to go unpaid. It is proper, however, that a dividing line should be drawn somewhere in the course of the proceedings, at which the retiring- officer should be considered as entitled to hiS fees, and beyond which his claim should not be recognized ; and wo think the rendition of the judgment when considered in connection with the legislation on this subject, presents an equitable line of demarkation.

The defendant had, in our opinion, no right to interfere in any manner with the exclusive control which his successor has over the management of the suits in which the city was interested ; but the evidence fails to establish the fact, that he has so interfered, except by giving notice to the Sheriff not to pay over to his successor, the attorney’s commission collected in cases in which he, the defendant, had obtained judgment, which we think he was entitled to receive. In cases not prosecuted to judgment, his successor Would be entitled to the entire compensation.

It is ordered, that the judgment appealed from be reversed; that the injunction herein issued be maintained, so far as to order that said D. 0. Labatt, abstain from acting in any manner as Assistant City Attorney of the city of New Orleans, but that the defendant be recognized as entitled to his commissions as Assistant Attorney of the city of New Orleans, in all cases prosecuted by him to a judgment, and not otherwise, and that his right be reserved to resort, if necessary, to all and any proceedings known to the law for the collection of the same. It is further ordered, that the plaintiff pay costs in both courts.


author: Buchanan, J.

text:
      W. W. Frasier and C. Adams, Jr.—W. W. King, subrogated, v. Thomas Banks—Henry Ferris, Garnishee.
    A debtor of tlie bankrupt, garnisheed by the bankrupt’s creditor, cannot, under the Bankrupt Act, plead the bankrupt’s discharge — nor assert the rights of the assignee — nor dispute the creditor’s right, on the ground that the creditor hag proved his claim under the fifth section.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      W. W. King, in pro. per. Klmore and Borford, for plaintiff. Benjamin, Bradford & Finney, for garnishee, appellant.
   Buchanan, J.

Henry Ferris was cited as garnishee in execution of the judgment in this case. He answered interrogatories, denying indebtedness to defendant. His answers were traversed by plaintiff, who alleged that Ferris had been receiving, for a number of years, rents for certain property which belonged to defendant, and was bound to account for the rents so received.

To this traverse, Ferris filed exceptions, which were in reality exceptions to the garnishment process itself. They were three in number :

1st. That Banles, the defendant, had made a surrender ©f his property in the United States Court under the bankrupt law; by which, his property was vested in his assignee in bankruptcy.

2d. That plaintiff had proved his claim in the United States Court, in the proceeding in bankruptcy, and thereby relinquished this judgment, which thereby became null and of no effect.

3d. That defendant has departed this life, and therefore it is not competent for plaintiff to proceed without making his representatives party hereto.

The cur,ators of Banks, the defendant, wore made party and appeared and joined in the claim of plaintiff. Judgment was rendered overruling the exceptions, and that garnishee pay to the curators of Banks' vacant estate, the sum of $560. The garnishee appealed; and the plaintiff and the curators of Banks, join in the appeal, and pray that the judgment in their favor be increased.

We agree with the District Court, that the exceptions should not be sustained. The bankrupt himself might, under the 4th section of the Bankrupt Law of 1841, have pleaded a certificate of discharge granted by the bankrupt court, in bar of anjr action against him; but there is nothing in tile statute which authorizes a debtor of the bankrupt to plead it; and, in the present case, the debtor has not even pleaded such a- discharge and certificate. So that the plea is technically bad, even if the party were competent to plead it. We view the garnishee as likewise without competency to assert the rights of the assignee in bankruptcy, even if there were such an officer in existence in this case, which it is admitted there is not.

On this head, it may also bo observed, that, by the eighth section of the Bankrupt Law, the assignee could not institute an action against any debtor of the bankrupt, or against any person claiming an adverse interest in property which should have been surrendered by the bankrupt, after two years had elapsed from the institution of the proceedings in bankruptcy; and the cause of action against the garnishee herein did not arise until about five years after the institution of Banks' proceedings in bankruptcy; the date of Ferris’ first receipt of rent for the property in question, being fixed by the evidence, in February, 1847. •

The second exception is to some extent involved in the first. By the fifth section of the Bankrupt Law, it is provided, “ that no person, coming in and proving- his debt or other claim, shall be allowed to maintain any suit at law or in equity therefor, but shall be deemed thereby to have waived ail right of action and suit against such bankrupt; and all proceedings already commenced, and all unsatisfied judgments already obtained thereon, shall bo deemed to be surrendered thereby.” This is one of the incidents of the bankrupt proceedings which would seem, like the discharge or the assignment, to be duly pleadable by the bankrupt or the assignee. It may bo that this exception would also be competent to a creditor of Banks, who had not made himself a party to the proceedings in bankruptcy, although on this point we, do not express an opinion. But no such party is before us; and we are clear, that a debtor of Banks has no right to avail himself of this plea.

Proceeding- to inquire into the merits, the appellees, who have prayed for an amendment of the judgment, seem entitled to a larger sum than that awarded by the District Court.

The answer of the-garnishee to interrogatories, acknowledges the receipt of rent for the premises, which have been seized and sold by the Sheriff in this case, from the 1st October, 1850, only. But the garnishee’s title — a sale from F. B. Conrad, of the 16th of February, 1847 — mentions a lease as existing and unexpired, at the rate of one hundred dollars a month ; and, although the limits of the land convoyed, do not include the property sold by the Sheriff, yet it is in proof that Conrad gave Ferris possession of this property, and that the same was included in the lease of one hundred dollars a month. Neither was it an inconsiderable portion of the leased premises, being a two story brick house with appurtenances. The lessee proves, that she always paid rent on these premises, to the agent of Ferris, from the date of the sale to the latter, in 1847, up to July, 1S50, when the buildings -were injured by a fire, and she moved out until the damages were repaired, three months later, in October, 1850, when, as stated by the garnishee, she took a new lease.

This testimony of Mrs. ZHederich, the lessee, is corroborated by another witness, as well as by Ferris' title, and must be considered as outweighing, so far as it contradicts, the answer of the garnishee. The period for which rent is chargeable to Ferris, as having been received upon property belonging to Thomas Banlcs, according to this evidence, and excluding the three months, from July to October, 1850, is five years and eight months. And the allowance of twenty dollars per month made by the District Judge, as a pro rata estimate, seems reasonable, after deduction made of taxes and insurance. The garnishee is also entitled to a deduction upon the aggregate sum charged to him, for the repairs proved by Biederich, being ninety dollars.

It is therefore adjudged and decreed, that the judgment of the District Oourt be amended; that Henry Jadson, curator of Thomas Banlcs, deceased, recover of Henry Ferris, appellant, twelve hundred and seventy dollars, with cost of the garnishment process, and of the appeal, to be administered in due course of law; and that W. W. King, subrogated to the rights of the plaintiff, be recognized as having the privilege of seizing creditor, on said fund; without prejudice to the right of any other creditor of Thomas Banks, not a party to the proceedings in bankruptcy, to contest plaintiff’s claim upon the account of administration to be rendered to the court in which the succession is opened.

       Merrick, C. J., not being present at the argument of this case* took no part in its decision.


text:
    Jean Lacoste v. F. J. Robert.
    Where the counsel for plaintiff and defendant hare an agreement to take testimony without a commission, and submit the cause, — 'and this with the knowledge of plaintiff, who made no objection — and afterward plaintiff, without discharging his counsel, set his cause for trial, in the absence and without the knowledge of the opposite party, or either counsel, it was Hold, : That a judgment obtained under such circumstances, might be annulled under Article 60T of the C. P.
    Such an agreement is within the discretion of counsel.
    The instances of “ ill practices” memioned in Art. 60T of 0. P., are given ecoempli gratify and are not tobe viewed as excluding other cases,
    APPEAL from the District Court, Third Judicial District, parish of Jefferson, Bu/rthe, J.

      Latour, for plaintiff. Biron, for defendant and appellant.
   Buchanan, J.

This is an action to annul a judgment, obtained under the fallowing circumstances; The suit iu which the judgment was rendered, was instituted in the parish of Jefferson, upon two promissory notes. . The defendant in that suit, plaintiff in this, pleaded various special defences to the action; and pending this issue, it was agreed by the counsel of plaintiff and defendant, that, in order to save costs, they would take the testimony of defendant’s witnesses, who resided in New Orleans, in writing, without a commission, and would thereafter submit the cause to the court for its decision. This agreement was communicated by his counsel, to the plaintiff, (the present defendant,) who made no objection thereto ; but some time afterwards, without having discharged his counsel, went himself to the parish of Jefferson, set the suit for trial, and obtained judgment, in the absence and without the knowledge of the opposite party, or of either counsel.

This action is defended upon the want of authority in the counsel of defendant, to make such an agreement as the one proved; and the case of Robert v. Commercial Bank, 13 L. R. 532, is relied upon to sustain this defence.

We do not view the case of Robert v. The Commercial Bank, as a case in point.. That was an agreement of counsel, not to try a cause during the summer months, (or from June to November,) during which the court was in session, and the case might have been tried. On being informed of the agreement of his counsel, it was promptly repudiated by the client, who discharged his counsel; and the trial took place in the presence of both parties; the agreement being made the ground of an application for a continuance, and on its refusal, of a bill of exceptions. Besides, the agreement in that case was avowedly made with a sole view to the convenience of counsel, and no less avowedly for the purpose of delaying the decision of a cause, and thereby of injuring that party whose interest it was that the cause should have been tried. But the present case is an agreement of counsel which had no effect of that sort;,-and in making it, the counsel of Robert did not, in any manner, transcend the limits of that discretionary control over the management of the cause, which has been recognized by the decisions in Paxton v. Cobb, 2 La. 140, and of Calmes v. Stone, 7 An. 133.

It is scarcely necessary that we should notice the objection, that the petition in this case does not disclose the particulars of the defence which the plaintiff had against the original action. The issue in this is, whether the defendant obtained a judgment in the other suit by “ ill practices,” in the sense of Article 007 of the Code of Practice; and the effect of our judgment, if for plaintiff, will be, simply to place the parties in the situation in which they were previous to the first judgment.

The instances of ill practices mentioned in Article 607, are given exempli gratid, and are not to be view as excluding other cases. We consider the evidence as making out a case under that article. The defendant was guilty of duplicity and unfair dealing in disregarding the agreement of his counsel— an agreement apparently made in his interest, after the same had been communicated to him, and lie had not signified his disapprobation of it.

Judgment affirmed, with costs.


author: VooRHies, J.

text:
    Race & Foster v. Owen Bruen.
    An authentic act identifying a note With the mortgage to secure it, which recites that B. mortgages &c. to 0. & M., or any holder of mid'note, and further shows the note to be endorsed in blank by the payee, will entitle the holder) on this proof alone, to an order of seizure and sale.
    The subsequent endorsement of the note in blank by another — which is a matter -m pads — could not affect plaintiffs’ right to executory process, as such endorsement could be stricken out — possession of the note being sufficient to identify them as holders and owners.
    A stipulation in the Act of Mortgage that the mortgagor) in the event the debt has to be made by suit, shall pay five per cent, to the attorney, is not usurious 5 and the circumstance that the holders of the note are attorneys at law is no bar to their recovery of the five per cent.
    O. 0.1952, 2615,3251; C. P. T33,734.
    APPEAL from the Fourth District Court of Orleans, Reynolds, J.

      Race & Foster, in p. p. Duncan <& McGonnel, for defendant and appellant.
   VooRHies, J.

The defendant relies upon the following assignment of errors apparent upon the face of the record for the reversal of an order of seizure and sale, from which he is appellant:

1st. There is no authentic evidence in the record of the plaintiffs’ title to the note sued on.

2d. There is no legal nor authentic evidence that the plaintiffs are the assignees or owners of the mortgage.-

3d. There is a stipulation in the act of mortgage to pajr usurious interest-This appears from the following clause recited therein ¡ “ that in default of punctual payment of said note, all the fees of the attorney employed by the holder thereof, to recover the same by suit or otherwise, &c. j” and further, said attorney’s fees being fixed, however, at five per cent.

. I. The allegation in the plaintiffs’ petition is, “ that they are the holders and owners of a certain mortgage promissory note, executed by Owen Bruen to his own order, and by him endorsed.” The note thus declared upon is shown by authentic evidence to have been endorsed in blank’ by the maker, and is identified with the act of mortgage by the, notary. The act recites, “ that he (Bruen) does hereby mortgage and hypothecate, specially and by privilege, in favor of the said Gooh & Morehouse, (the original creditors,) or any holder of said notes,” &c. It is clear that such a note, accompanied with the act of mortgage, makes full proof of itself. Under the requirements of Articles 733 and 734 of the Code of Practice, the mere production of the note and mortgage in question by the plaintiffs, constituted in our opinion sufficient authentic proof of ownership or title in them to authorize the issuing of the order of seizure and sale. The subsequent endorsement of the note in blank by GooTo & Morehouse — which is a matter in pais — it is evident, could not affect the plaintiffs’ right to resort to the executory process, as such endorsement could have been stricken out — possession of the note being sufficient to identify them as holders and owners thereof. See the case of Louis Mathé v. George McCrystal, ante, lately decided by us.

II. In the language of the Code, Article 3251, “the mortgage is accessory to a principal obligation, which it is designed to strengthen, and of which it is to secure the execution.” “ The sale or transfer of a debt includes everything which is an accessory to the same, as suretyship, privileges and mortgages.” C. C., 2615. Hence the transfer of the note to the plaintiffs in this case ¡occluded the mortgage as its accessory; and this was the contract also, for the mortgage was consented in favor of any holder of the note, and there was a special stipulation that it should entitle all holders to the executory process.

III. The defendant’s objection on the score of usury is, we think, untenable. Interest for money is the compensation which is paid by the borrower to the lender for its use. It is clear, therefore, that the stipulation in this case cannot be considered as the compensation for the use of the lender’s money, but the means only of securing that compensation. Thus, if the lender were obliged to pay at the expiration of the year the attorney’s commission of five per cent., it is evident that the interest for the use of his money would be reduced from eight to three per cent. The equity of such a stipulation is obvious : it secures to the lender nothing more than the legal rate of interest stipulated for the use of his money. It does not enure to his benefit, but is allowed as compensa, tion for professional services required to enforce the payment of the debt by suit. Had the defendant performed punctually his obligations as he had Stipulated in the contract,, it is certain that he would have had no just cause of complaint. Rut it is argued that the plaintiffs, being attorneys- at law,, are not entitled to recover the commission, inasmuch as the services-in this suit have been performed by themselves- If such services were necessary, which is not denied, we are unable to discover any good reason why there should be any difference in regard to the compensation between those performed by the party himself and those by other counsel. The fees stipulated are usual, and there is no ground ta suspect' any device for concealing the charge of unlawful interest.

It is also assigned as error,- that the writ directs the Sheriff to sell the defendant’s property to satisfy the amount of a certain promissory note for the sum of $1000, with interest at the rate of eight per cent., &c.,. and five per cent, attorney’s fees on the aggregate amount, &c. In this we do not think there is any error. The words of the contract, it appears to us, do not fairly warrant the inference contended for, that the intention of the parties was to restrict the five per cent, to the sum of $1000. In the collection of claims, the usual practice of the bar is to charge commission on the aggregate amount of principal and interest. This may. well be invoked in aid of the interpretation of the contract, which is by no means free from doubt. Besides, “ in a doubtful case, the agreement is interpreted against him who has contracted the obligation.” C. C., 1952.

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

       Merrick, C. J., not being present at the argument, took no part in this decision.


author: Merrick, C. J.

text:
    Matthews & Finley v. Their Creditors and The Creditors of Matthews, Finley & Co.—N. B. Keene, Opponent.
    Commissions allowed, to a provisional syndic, and not opposed in the District Court, cannot be assigned as error in the Supreme Court.
    Cases might arise in which a provisional syndic would not only be authorized, but required to institute suits, or defend them. The expense of counsel fees in such would be chargeable to the mass surrendered to the creditors.
    The opposition to a voluntary surrender, under the 18th section of the Act, approved February 20tb, 1817, must be made within ten days. The 10th section of the Act of 1840, which allows one year for proceedings under it, has no application to cases of voluntary surrender.
    No opposition can be filed, under the 18th section of the Act of 1817, after the lapse of ten days, though the creditor did not know of the fraud complained of within that time.
    The maxim contra non valentem agere¡ non ezm'itprescj'ipUo has been admitted in some instances, where a party was acting to recover or protect his property, but never in order to enable him to inflict a penalty on his adversary.
    PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Durant & Honor, for Keene. Walker & Pierce, for appellees.
   Merrick, C. J.

This case is before us on an assignment of errors.

We will notice such of the assignments as we deem important for the correct decision of the cause.

I. The first assignment is “That the commission of one per cent, upon the assets, as stated in the schedule and in said account, is calculated on an entirely erroneous basis, and should be reduced from $2,191 10 to one per cent, on the appraised value of the goods and effects confided to the care of the provisional syndic^ as evidenced by bis bond as such, and five per cent, on the rents and income,- which he has recovered during his administration.

This assignment of error is made upon the account rendered by the provisional syndic. The appellant did not choose to oppose this account in the lower court, but suffered it to be homologated, and now he seeks to revise the same on an assignment of errors. It is clear that everything stated in the account which could have been established by testimony,- if directly opposed in the lower court, must be held here on an assignment of errors as fully proved. Any other rule would enable a party to obtain an advantage by an assignment of errors, which he could not obtain by filing an opposition to the account in the lower court, and thereby giving the opposite party an opportunity of proving' the correctness of the charges made by him.

Applying this rule to the case before us, we are obliged to assume the value of the' assets in the hands of the provisional syndic was the full sum of $219,710 51. The appraised value cannot, therefore, be considered less than this sum. The statute allows the provisional syndic one per cent, on the appraised value, which is $2,197 10, the amount charged in the account. We discover no error in the judgment of the lower court in this particular.

II. We think cases might arise in which- the provisional syndic would not only be authorized but required to.institute suits or defend them. The expense of counsel fees in such cases would be chargeable to the mass surrendered to the creditors. There is nothing in the record to show that the fee of five hundred dollars allowed Messrs. Walker & Pierce was not such a charge,

III. The third error assigned which we consider it important to notice is that assigned in reference to the plea of prescription of ten days filed by the syndic to the application to remove him from his office, on account of having given fraudulent preferences previous to his surrender, and to have the syndic declared guilty of fraud, and condemned to the penalties in such case provided.

It is proper to remark, that the Act of 1855, pages 435, sec. 21, which has been passed since the institution of this suit, cannot have any influence upon it.

We find no difficulty, therefore, in construing the statutes in force at the time of the acts complained of, and at the institution of the suit.

The tenth section of the Act of March, 1840, applies to another class of persons, namely, those who had not made a surrender, or had not been proceeded against for a surrender under that Act, and the limitation is one year. This is-not in any manner repugnant to the 18th section of the Act, approved February 20th, 1817, which requires, in cases where there has been made a voluntary surrender of property, that any creditor of the insolvent debtor, who should deem it necessary to oppose the surrender on the ground of fraud, or because the appointment has not been legally made, shall, within ten days following the appointment of syndic, lay before the court, which has cognizance of the case, his written opposition, stating the grounds of nullity of said appointment, or the fraud alleged against the insolvent debtor. The statute of 1840 provides for cases where there has been no surrender; the statute of 1817 provides for frauds where there has been a surrender. It would violate every rule of construction to apply a highly penal statute like that of 1840 to a case not embraced in it.

IY. But it is further contended that if the Act of 1817 governs this case, still, as the creditor did not discover the fraud until long after the ten days had expired, therefore he could not be required to do an impossible thing, to allege a fraud of which he was ignorant, and that, therefore, prescription of ten days could not run against him, until he had discovered the fraud, according to the well known maxim “contra, non valcntcm agere non curritprescript™.

In the matter of the surrender, it is important that all opposition to the surrender should be made at once, and determined in order that the administration of the surrendered effects, and the consequent payment of the debts, should not be interrupted or delayed. Hence the prescription of ten days. The surrender itself notifies the creditor that the debtor is unable to pay the debt in the ordinary course of business. The creditor is, therefore, put upon his guard, and it is his duty to search for evidence of fraud, and make his charges within the time allowed by law. We do not think that the maxim cited applies to the case. The suspension of prescription has been admitted in some instances under this maxim, where a party was acting to recover or protect his property, but never,, we believe, in order to inflict a penalty upon his adversary.

The utmost length to which our courts have gone is in the case of Robinson v. His Creditors, 1 Rob., 451, where a creditor was permitted to intervene and prosecute an opposition filed within ten days, which the opponent (who had been bought off,) had discontinued.

We discover, therefore, no error in the judgments of the lower court, from which the appeal has been allowed, and the same are affirmed, with costs.


author: Vooriiibs, J.

text:
    R. F. Nichols v. His Creditors.—Lanata Gandolfo & Co., Opponents.
    Where a debtor applies for a respite, and any of his creditors make Opposition, and he is required to give security under Article 3060 of the Code, the opposing creditors must he made the obligees in the bond, and the bond should he for a sum sufficient to satisfy their claims.

      1\. PPEAL from the Fifth District Court of New Orleans, Avgvstin, J.

      Goold S Stansbury, for Nichols. Bufour, for Opponents.
   Vooriiibs, J.

At a meeting of the creditors of R. F. Nichols, convened on his petition praying for a respite, Michael Pojcro) of Palermo, Sicily, appeared as one of the creditors, through his agent, and voted against the application, declaring that if the same were granted, he would require security of the plaintiff, according to Article 30G0 of the Civil Code.

After the proces verbal of the deliberation of the creditors was returned to the clerk’s office, Pojcro filed his opposition, founded on the reasons already stated, and prayed that the respite should not be granted and approved by the court until the plaintiff furnished good and valid security for the whole amount of his claims, in conformity with Article 8060 of the Code.

The court below rendered the following decree: “It is ordered, that a bond be given by R. F. Nichols for all the amount prayed for, deducting therefrom the sum of $1686 41, the bond to be made in favor of Pojcro, and according to Art. 3060 of C. C., within ten days from this day.”

The second paragraph of the Article referred to is in these words:

“But the creditors who are obliged to abide by the will of the majority, may require that the debtor shall furnish security that the property, of which he is left in possession, shall not be alienated; or, in case it is, that the money arising from'the sale shall be employed in paying the debts existing at the time of the respite.”

There is some obscurity in the meaning of the English text of this article, as to whom the debtor should furnish the security; but, construed with reference to the French text, we feel ourselves relieved from any doubt as to the intention of the law-giver:

“Maisles créances, qui sont forces k passer parle veeu de lamajorité, peuvent exiger que le débiteur leur donne caution, etc.”

This is manifestly intended for the benefit of the creditors who are forced to abide the will of the majority. The law is silent as to the amount of the security which may be thus required. We think it should be adequate to the claims of those who are entitled to it. In the words of the law, the condition of the bond should be “ that the property of which he (the debtor) is left in possession shall not be alienated; or in case it be, that the money arising from the sale shall be employed in paying the debts existing at the time of the respite.” The object of the law is to secure to the obligee of the bond the share to which he may be entitled in the distribution of the property of the debtor, as the common pledge of his creditors.

We are, therefore, of opinion there is no error in the judgment of the court below decreeing the bond to be given in favor of the opponent Pojero, according to to Article 3060 of the Civil Code.

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


author: Merrick, O. J.

text:
    F. Dusuan de la Croix v. Caliste Villere.
    The destruction of forest and other trees is an irreparable injury from which parties may be restrained by injunction, and such injunction cannot be set aside ex parle under Article 807 of the Oode of Practice.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.
    Janin, for plaintiff and appellant. L'mergne, for defendant.
   Merrick, O. J.

The plaintiff claims to be the owner of a plantation on the Mississippi river, adjoining that of the defendant. He alleges that he has had possession of the same since 1801, and that the boundaries between plaintiff and defendant had never been finally established. He prays that the boundary between himself and defendant may be surveyed and determined.

By a supplemental petition filed in June, 1863, the plaintiff alleges that by an agreement between himself and the defendant, they had caused at their joint expense the line to be run and marked between them by a surveyor selected by themselves.

He further alleges, that the defendant, in defiance of plaintiff’s rights, has cut and carried away from the land of the petitioner, as exhibited on said survey, and as owned and possessed by him for many years, a considerable quantity of wood, and that petitioner has just reasons to apprehend that such of the wood cut, as still lies upon the ground, will be carried away, and more will be cut and carried away, unless he be prevented by the court.

Plaintiff prayed for an injunction as well as for damages, which he alleged he had sustained, amounting to $1000.

The injunction having issued, the defendant, on the 11th of June, 1853, obtained an order ex parte to set aside the injunction upon the execution of his bond in favor of plaintiff, in the sum of $1300.

On the 24th day of August following, the plaintiff applied for and obtained another writ of injunction. In his second supplemental petition, he alleges, that the defendant, since his first injunction was set aside, has cut a large quantity of wood on petitioner’s land, and that he employed almost all his slaves, both male and female, in cutting and carrying the wood away, and that he designedly ruins petitioner’s land; and further alleges, that he verily believes the amount of wood cut upon plaintiff’s land, by defendant, amounts to three thousand cords.

A second injunction issued as prayed for, and the wood which had been cut was sequestered.

On the 26th day of August, 1853, the defendant obtained another order ex parte, by which the writs of sequestration and injunction were set aside upon executing his bond in favor of the plaintiff, in the sum of $10,000.

The plaintiff then applied to the court for a rule upon the defendant to show cause why said ex parte orders should not be annulled, as having been issued ex parte and contrary to law, and why, in the meantime, the execution of said two orders should not be suspended.

The court refused to suspend th¿ execution of the orders until the hearing of the motions, and the plaintiff appealed from the orders setting aside the injunction and the refusal of the Judge to suspend said orders.

The case in this court has been argued by brief on the part of the appellee alone.

The ex parte orders of the court setting aside the writs of injunction, were an erroneous application of Article 307 of the Code of Practice to this case. This Article allows the Judge to set aside the injunction whenever the act prohibited by the injunction is not such as may work an irreparable injury to the plaintiff, provided the defendant give bond, &c.

But it has always been held both in England and this country, that the destruction of forest and other trees was an irreparable injury from committing which the courts will restrain parties.

The defendant, however, contends that the damages to the land can be estimated in money, and that the bond is ample protection to the plaintiff. He cites the cases of Jure v. First Municipality, 2 An., 321; Cobb et al. v. Parham, 4 An., 147; and Stetson et al. v. First Municipality, 12 Rob., 488, in support of this position. By an examination of the cases referred to, it is apparent that they were cases in which the injury was readily appreciable in money, and where the continuance of the injunction was likely to work a more serious injury to the other party. The injury to real estate is a very different thing from that apprehended in the cases cited. It is often the case that a present estimate in money by witnesses of the damage done by cutting down trees belonging to another, would furnish no adequate compensation to the proprietor.

It may be that the timber trees threatened to be cut, are the only trees remaining upon a man’s estate, and that he expects to obtain from them the timber for many years to come for the annual repairs of his buildings. It may be that the wood threatened to be cut is the only wood belonging to a sugar estate, and that the proprietor by care hopes to make the annual growth of the wood supply his yearly wants. To him his forests and cypress swamps have a greater value than the mere amount in cash which his trees if cut would now bring in market. The future value of his other lands and his money invested in improvements depend in a great measure upon the appendage of forests and the standing timber of his cypress swamps.

It may be that the tree threatened to be cut, is one which he values as an ornament to his dwelling, or one which, in his eyes, is sacred by its associations. There are some things which bonds will not cover and which cannot be estimated in dollars and cents, and if our law cannot fully protect the proprietor in cases like these, it but poorly earns the encomiums which are bestowed upon it.

But we have no doubt that it does furnish that protection, and that the destruction of forest trees is one of the most obvious cases of irreparable injury to which its aid can be invoked.

Tt is therefore ordered, adjudged and decreed by the court, that the orders setting aside the injunctions issued in this case, be annulled, and said injunctions be reinstated, and that this cause be remanded to the lower court, there to be proceeded in according to law, and that the defendant and appellee pay the costs of the appeal.


author: Merrick, C. J. Vooriiies, J.,

text:
    City of New Orleans v. Southern Bank.
    The general banking law, approved .April -SOth, 1858, in regard to the privileges and immunities granted under it, is as much, a contract with the individual corporations formed under the Act, as would be a special Act of incorporation containing the like provisions.
    The 85th section of the general banking law is a guarantee to the capitalist that, if he invests in the stock of the banks created under this law, his stock shall not be taxed in any other manner that other personal property; and thus far is an obligation binding on the State and all municipal or other corporations deriving their authority from the State.
    The provision of the 1st section of the Act of 1S42, which authorizes the city of New Orleans to fix the rate of licenses for “ all other callings, professions or business" not enumerated therein, includes corporations as well as natural persons. Voobhies, J., (with whom concurred Buchanan, J.,) dissenting.
    The 35th section of the Free Banking Law, which provides, “ that bankers and banking companies doing business under this Act, shall be taxed upon their capital stock at the same rate as other personal property under the laws of this State,” is applicable only to the capital stock, and not to the calling or business of those institutions. Voorhils, J., (with whom concurred Buchanan, J.,) dissenting.
    O. 0. 418, 424,429.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Hiestand & Levy, for plaintiff. Bustis, for defendant and appellant.
   Merrick, C. J.

The general banking law, approved April 30th, 1833, in regard to the privileges and immunities granted under it, is as much a contract with the individual corporations formed under the Act, as would be a special Act of incorporation containing the like provisions.

So long as nothing is said in the Act of incorporation on the subject of taxation, that power must be considered as reserved to the Legislature, it being one of the most important rights of sovereignty.

It must follow that the thirty-fifth section of the Act under consideration, was a useless provision if it were intended to secure to the State the right of taxation, for it was not necessary for the State to stipulate for this right with any of her citizens.

'We must therefore conclude, that this section was intended for the security of the capitalist, and an assurance to him that if he invested his money in the banks, under this general banking law, that his stock should be taxed at the same rate as other personal property. It was an assurance that it should not be taxed in an}!- other manner. So far then, this section possesses the force of an obligation, binding alike upon the State and all municipal and other corporations deriving their authority from the State.

A majority of the court, therefore, is of opinion that the banks organized under the above mentioned Free Ranking Law, are not subject to taxation in the form attempted.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and there be judgment against the plaintiff and in favor of the defendant, and that the plaintiff pay the costs of both courts.

Vooriiies, J.,

(Buchanan, J., concurring,) dissenting. This is an action for the recovery of the sum of $500, alleged to be due by the defendant for a tax or license. The ordinance of the Common Council of New Orleans, under which it is claimed, declares:

“From and after the 1st day of January, 1854, the taxes and licenses for professions, callings and other business throughout the city and parish of Orleans, &c., &c., shall be fixed, assessed and collected at the rates and sums specially set forth in the following sections:

“ Art. 2. A tax of five hundred dollars shall be levied annually on the following, viz: Every bank organized and doing business under the Free Banking Law of this State ; approved April 80th, 1858.”

The power of the Common Council to impose this tax or license, is derived from the 1st section of the Act of 1842, which provides:

“ That the powers heretofore conferred on the General Council of New Orleans, shall be so construed as to authorize them to fix the rate that shall be levied, as an annual or other tax, or license, on and to be paid by all brokers, merchants, traders, wholesale or retail dealers, hotels, boarding-houses, theatres, theatrical and other performances, grogshops, bar-rooms, cabarets, and all other callings, professions or business, to be collected under the authority of the Councils of the different municipalities, on such persons vending within their respective limits and exercising said callings, professions or business, and whether said persons be permanent or transient residents in the said city of New Orleans. (Session Acts of 1842, p. 17.) Under the Consolidation Act, all the powers conferred on the First, Second and Third Municipalities a.nd General Council of the city of New Orleans, were vested in the present Common Council of said city. (Session Acts of 1852, p. 48.) The Common Council then was invested with the authority to fix the rate of taxes or licenses as prescribed by the Act of 1842. But it is contended by the defendant’s counsel, that the banks incorporated under the Free Banking Law do not come within the operation of that statute; that the authority thus conferred, is only applicable to natural persons exercising such of the trades or callings as are therein specified. I do not think so. A corporation, for certain purposes, is considered as a natural person. C. C., 418, 424, 420 ; 5 L., 461. Being viewed as such, I think the words “ and all other callings, professions or business,” used in the statute are broad enough to include the-defendant.

It is also contended that the defendant can be taxed in no other manner than as provided for in the 85th section of the Free Banking Law, which is as follows : “ That bankers and banking companies, doing business under this Act, shall be taxed upon their capital stock at the same rate as other personal property under the laws of this State.” I think it is clear that this section is applicable only to the capital stock — “ fonds capital ’’ — and not to the calling or business of those institutions. The distinction existing between the capital stock and calling or business of a bank, appears to me manifest, a distinction too which seems to be generally observed in another statute in relation to the same subject-matter, in which merchants are not only taxed on their calling or business, but upon the capital employed in such calling or business. (Session Acts of 3858, p. 285, sec. 1, 3.) Hence I consider the tax in question not as a tax upon the capital stock of the bank, but as a tax upon its calling or business. The statute authorizing its levy, is clearly not in contravention of the 35th section of the Free Banking Law ; and being in force at the time, it must be presumed that the Southern Bank was incorporated with reference to its provisions. Besides, it is difficult to perceive any good reason why bankers and banking companies should stand upon a more favorable footing than merchants in regard to the contribution to the public burthens. The law authorizing the municipal corporation of the city of New Orleans to levy taxes on capital, was abrogated by the statute of 1852. It follows, therefore, that the defendant’s stock is exempted from municipal taxation. Whether the State would have the right, by subsequent legislation, to tax the calling or business of the banks thus incorporated, is a question which is unnecessary to be decided in the* present case.

As to the constitutionality of the tax, the question may be considered as well settled under the repeated decisions of this court. See 9th An., 305.

I am therefore of opinion, that the judgment of the court below ought to be affirmed with costs.


text:
    John Watts & Co., for the use of, etc., v. Steamboat Saxon, Captain and Owners.—Waterman & Co. v. The Same.
    Action for non-performance of contract to deliver molasses “ at the poi-t of Louisville,” etc. The molasses was landed at Portland, whence it was td be carried to Louisville under a contract made by defendants with steamboat Envoy. The molasses remained at Portland some time, and was there much damaged. Jiy th& Gfjuy'l .* As Portland is shown not to be the port of Louisville, we think the obligation of common carriers rested upon the defendants until the goods were delivered at Louisville, and if the Envsy, or any other boat, neglected to take the molasses on board, it was the neglect of their own agents, for so much of the voyage as remained unaccomplished between New Orleans and Louisville. Neither could the plaintiffs be charged with the transportation of their freight through the locks to Louisville,
    The common carrier is bound to the most exact diligence as much to avoid danger, which may be reasonably apprehended, as to rescue the property from present and imminent peril.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Spring, for Watts & Go. Kunton & Bradford, for J. Waterman & Go. Wolfe & Singleton, for defendants and appellant.
   Merrick, C. J.

The bills of lading on which these consolidated cases are brought are precisely similar to the one executed in favor of James Dalzel, which was recently before this court in the case of Dalzel against the same defendants. In that case the judgment of the court was in favor of the defendants. If we are led to a different conclusion in this, it is because the facts proven are different, and we are obliged to decide cases upon the pleadings and facts of each case as the parties present them to us.

The bills of lading in this case contain an agreement on the part of the steamboat and owners to deliver the molasses (two hundred and fifty barrels in the one case, and two hundred and sixty in the other) at the port of Louisville, and “ to reship (to the consignees) at Pittsburg, on the best terms she (the boat) can, without extra charge for re-shipping.”

The Saxon proceeded with the freight to Portland, and being too large to pass the locks, the boat deposited the freight on the landing at Portland. It is probable that the captain of the Saxon engaged the Envoy or Convoy, a boat in the Pittsburg trade, to proceed to Portland and take the molasses aboard for Pittsburg, but the Envoy did not keep its engagement. The captain of the Saxon, without waiting to see whether the Envoy actually took the freight or not, departed for New Orleans, leaving the molasses on the bank of the river. The Ohio, sometime after the departure of the Saxon, (how long is not shown,) rose somewhat suddenly, from a storm, eight or ten feet, and notwithstanding the strenuous exertions of the agent of the Saxon, after, as he says in his examination, “the danger was discovered, and as soon as it was thought necessary,” a large portion of the molasses was lost.

It has been shown by evidence that the Ohio river, below Louisville, is subject to sudden rises, but according to defendants’ witness, the one by which the molasses was lost was unprecedented.

It has been further shown, that although Portland is within the corporate limits of Louisville, that it is two and a half or three miles distant from Louisville proper; that freight is five cents per 100 pounds more to Louisville than Portland; that the larger amount of merchandize from New Orleans, intended for Louisville, is shipped by the Louisville boats to Portland, on account of the difficulty in passing the locks; that where freight is shipped to Louisville, it is incumbent upon the boat landing at Portland, to transport it, either by a smaller boat, which can pass the locks, or by drays, to Louisville, at its own cost.

The defendants, in their answer, after admitting the execution of the bill of lading, aver that “they earned the molasses to Louisville, and delivered the same in good order, pursuant to the bill of lading; that they have faithfully performed all the obligations of their contract, and are in no wise indebted to the plaintiffs.”

In one of the answers, the defendants further allege that the obligation to reship to Pittsburg was entirely gratuitous, and that they did all they could to re-ship.

It is clear, under the answer, that the burden of proof rests upon the defendants to show that they have complied with their contract to deliver the molasses at the port of Louisville, and that they have re-shipped it to Pittsburg.

As Portland is shown not to be the port of Louisville, we think the obligation of common carriers rested upon the defendants until the goods were delivered at Louisville, and if the Envoy, or any other boat, neglected to take the molasses on board, it was the neglect of their own agent, for so much of the voyage as remained unaccomplished between New Orleans and Louisville. Neither could the plaintiffs be charged with the cost of the transportation of their freight through the locks to Louisville. They were entitled to have it delivered at Louisville, where, it is evident from the testimony, it would have cost them five cents less per hundred for freight to Pittsburg.

As the molasses was not delivered at Louisville, and as the obligation of defendants, as common carriers, never ceased in relation to- the goods, ft is unnecessary to determine whether their obligation to re-ship was that of a gratuitous bailee.

The remaining question, therefore, to be considered is, have the defendants shown that ms mayor, uncoupled with any act on their part by which the property was exposed to increased danger, which relieves the common carrier from the obligation to deliver?

The defendants have entirely failed to make this proof. The failure of the Envoy to take the molasses is defendants' fault, for the boat would have been their boat for the transportation of the freight to Louisville. The defendants were bound to know that the Ohio was subject to sudden rises, and yet the molasses was suffered to lie upon the bank of the river for days, and without a watch, so far as the testimony discloses in this case, and to be rescued, in case of danger, by an agent living in Louisville, two miles and a half from where the molasses was deposited.

This unnecessary exposure, for the length of time, upon the bank of the river, was a risk for which defendants were bound, and the most extraordinary diligence of their agent, after he had discovered the danger, or had concluded it was necessary to act, will not relieve the defendants. The common carrier is bound to the most exact diligence as much to avoid danger, which may be reasonably apprehended in the future, as to rescue the property from present and imminent peril.

On this point, we cannot do better than to quote the forcible language- of our learned brother of the lower court. He says;

“ The spot on which they (the goods) were landed was a proper one if it had been intended to remove them thence in a short time, but the evidence does not show that it was a proper place of deposit for any indefinite period of time. There would have been no rise in the river without the storm, and the sum and substance of the defence is, that the defendants did not expect a storm. In trusting to the weather, they trusted to a notorious uncertainty, which they had not a right to do at the risk of anybody but themselves. I am therefore of the opinion that if the defendants had a right to re-ship at Portland, and to> detain the molasses there for that purpose for an indefinite period, the bank of the river was not a proper place of deposit.”

The judgments, therefore, in these consolidated cases, are affirmed.

      Srofforf, J., not having been present at the argument, took no part in the decision of this case.


author: Voorhies, J.

text:
    Alfred Bodin v. H. McCloskey.
    An adjudication made by an auctioneer not in accordance with the instructions of the owner is null and void, both as to the owner and purchaser, the latter, however, being entitled to his recourse against the auctioneer.
    0. C., 2*15, 2966, 296*, 2979, 29S2.
    APPEAL from the Fourth District Court'of New Orleans, Reynolds, J.

      Price <& Denegre, for plaintiff. 3. 3. Strawbridge, for defendant and appellant.
   Voorhies, J.

This is a suit to set aside an adjudication, on the ground that it was not made by the auctioneer in accordance with the written instructions of the plaintiff, as follows, to wit:

“A certain property situated on St. John street, between Perdido and Poy-dras, having (French measure) 30 feet front on St. John street, by 120 in depth, with all the improvements thereon, consisting in a wooden house, kitchen, etc. This property is rented at $14 per month. The only incumbrance existing thereon is the enjoyment and occupation for life of a room in said house in favor of an old woman 78 years of age. Terms: the purchaser to assume payment of a note of $700, due 15th-18th May, 1852, bearing mortgage on said property; balance cash. (Signed,) Alfred Bodin.”

The advertisement for the sale of the property by the auctioneer is silent as to the existence of this right of use and habitation in favor of the old woman. The certificate of the auctioneer shows that the omission to make mention of it in the advertisement was in consequence of the inadvertance of his clerk.

The defendant, it would seem, rests his defence chiefly on the ground that the plaintiff was bound, under the advertisement and adjudication to convev the property to him. We are unable to give our assent to this proposition We do not consider the adjudication as binding on the plaintiff in the absence of the reservation contained in his instructions to the auctioneer.

It was evidently the duty of the auctioneer to have given notice of the incum-brance, and make the adjudication of the property with reference to it. Every transfer of immovable property or slaves must bo in writing. In cases of mandate, as in the present case, the power must be express to alienate immovable property, and must besides be in wilting. Therefore it is clear that the only power conferred on the auctioneer to sell the property in this case, must be sought in the plaintiff’s written instructions to him; and it is equally clear that the adjudication, unless made in accordance with those instructions, must be considered as null and void, not only as to the plaintiff, but as to the defendant, the latter being entitled to his recourse against the auctioneer. O. 0., 2415, 2966, 2964, 2979, 2982.

It is, therefore; decreed, that the judgment of the court below he affirmed, with costs.


text:
    John S. David et al. v. Municipality No. Two.
    A reservation in a judgment in a petitory action, by which the right of defendant, or others, to demand that the property recovered should be used as a market, etc., will not restrain the plaintiffs from executing their writ of possession. The effect of the reservation is to allow to the parties in interest a right of action to compel the plaintiffs to use the property in a particular way, should the plaintiffs’ title contain any such limitation.
    XJL PPEAL from the Second District Court of New Orleans, Lea, J.

      Fustis, Jr., and Pitot, for plaintiff. Livingston, City Attorney, for defendant and appellant.
   Buchanan, J.

This was a petitory action, and judgment having been rendered for plaintiffs, a writ of possession was the regular mode of execution.

The judgment recognizes the plaintiffs as owners of the property claimed in the petition, without prejudice of the rights of the defendants, or of any parties interested, if any they have, to demand (after their rights thereto shall have been judicially ascertained) that the said property shall be occupied as a market, in such manner and subject to such restrictions as may be thereafter determined.

The reservation contained in this decree by no means restrained the plaintiffs from executing their judgment. Its plain and obvious import was to allow the defendants, or any other party interested, a right of action to compel the plaintiffs to make use of the property in a particular mode, in case it should be determined that plaintiffs’ title contained a destination of the property to the particular use specified, which included a renunciation to the enjoyment of it in any other mode. The question of destination seems, indeed, to have been made by defendant in this very suit as a defence to the action. But the judgment rendered is a final one, and leaves nothing to be adjudged in this suit. If the defendants have any rights in the subject matter, their only remedy is by a separate action.

The judgment of the District Court upon the rule of defendants is, therefore, affirmed, with costs.


text:
    R. H. Fraser & Co. v. James Thorpe.—A. W. Poree, Administrator.
    A judgment had been obtained by plaintiff against J. T., with privilege on the interest of J. T. in. certain goods belonging to the firm of J. T. & Co., which had been attached, and were bonded by J. T. & Co., who had intervened and claimed the goods. J. T. & Co. obtained a judgment recognizing their right to the goods, “ subject to the payment of such sum of money as may be shown to be the value of the interest of defendant (J. T.) therein.” In an action against the surety, on the bond of J. T. & Co., Held: that no judgment could be rendered until the amount of the interest of defendant, J. T., in the property attached was shown.
    1'.L PPEAL from the First District Court of New Orleans, Robertson, J.

      Mott & Frazer, for plaintiffs. Hammer & Hays, for administrator and appellant
   Lea, J.

(Merrick, C. J., absent.) The plaintiffs obtained a judgment against James Thorpe, with privilege for the payment of the same, upon the interest of the defendant in certain goods belonging to the commercial firm of James Thorpe & Co., which goods had been seized under attachment, and were released upon a bond furnished by James Thorpe & Co., who claimed the goods as intervenors, and to whom they were delivered. Judgment was rendered in favor of the intervenors, recognizing their right to the property claimed, and decreeing that they recover the same, subject to the payment to the plaintiffs “of such sum of money as may be shown to be the value of the interest of the defendant therein.” The effect of this decree, as it is interpreted in the opinion of Slidell, C. J., affirming the judgment of the District Court, was to make the firm a trustee of the plaintiffs for any residuary interest in the goods the defendant might have after the liquidation of the partnership affairs. As the intervenors to whom the property was delivered are domiciled in Mississippi, the plaintiffs resorted to their remedy upon the bond given for the release of the property by a rule taken upon the representatives of the surety upon the bond.

It does not appear what was the interest of the defendant, Thorpe, in the property attached, and we think that, under such a judgment as that above described, in the absence of any affirmative showing of the extent of Thorpe's residuary interest in the property attached, or of any steps taken to liquidate or ascertain the same, no judgment can be rendered against the surety upon the bond given by the intervenors upon a mere return of “nulla bona" on a writ of execution against the original defendant. It would in effect convert a contingent into an absolute liability.

The case of Alley v. Hawthorn is not applicable to that under consideration. In that case the liability of the principal debtor was fixed and liquidated by a judgment; in this case by the very terms of the judgment the liability of the principal upon the bond is dependent upon the liquidation of the affairs of J. Thorpe & Oo.

Whether, under the circumstances of the case, the intervenors could not, upon proceedings had against them, be compelled either to pay the debt or to establish, contradictorily with the plaintiffs, in the courts of this State, the nonexistence of a residuary interest in Thorpe, is a question we do not feel called upon to determine; but until some fixed liability in a determinate sum can be shown to be due by the principal in the bond, no judgment can be rendered against the surety.

It is ordered, that the judgment appealed from be reversed, and that the rule taken herein upon the administrator of the succession of P. A. Owen be dismissed, without prejudice to the plaintiffs’ right to proceed hereafter against said succession for the recovery of any amount for which the said Owen, or his legal representatives, would have been, or may be, liable, on his contract of suretyship on the bond referred to in the rule, when such liability shall have been established according to law.

It is further ordered, that the costs of this appeal be paid by the appellee.


author: VooftHiES, J.

text:
    The State v. H. Wedemeyer.
    All that a prisoner says on the subject matter at the time of making a confession is admissable; but the jury is at liberty to believe one part of the confession and disbelieve another.
    In a prosecution for selling or giving spirituous liquor to a slave, the onus is upon the accused to show that such liquor was sold or given with the consent of the owner or person having charge of such slave.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      Twppan, District Attorney, for the- State. Collins, for defendant and appellant.
   VooftHiES, J.

(Mekhick, C. X, absent.) The defendant is appellant from a sentence pronounced against him on a conviction for the offence of selling spirituous and intoxicating liquor to a slave, without the consent or authorization of the owner, or other person having lawful charge of said slave.

The grounds of defence relied upon for the reversal of the sentence are set forth in the following bill of exceptions:

“ Be it remembered, that on the trial of this case, the accused, by his counsel, moved the court to charge the jury:

“ That in a case where the only evidence against the accused is his confession, the confession cannot be divided against him by the jury, as in cases where other proof of other facts has been heard.

“ That, if in this ease the only proof be that the accused, in a first interview, stated to the witness, Recorder Vaught, out of his office, that the accused had a right to give liquor to the slave, because he had the permission of the master, and that in a second interview, the accused having produced the written consent of the master, was asked by the same witness whether the consent was written before giving the liquor, he did not answer, and evaded the question, these admissions could not be divided by the jury.

“ Which charge the court refused to give, but instructed the jury that though the whole admission could not be divided in the hearing of the testimony, yet the jury might, in considering their verdict, believe a part and disbelieve the rest, or disbelieve the whole.

“And the court also charged the jury, that in conformity with the act of 1852, the onus was on the accused, to show that the consent of the master was given previous to the act confessed, or previous to the act of giving or selling liquor to the slave.

By the court :

“The Court explained that the confessions of the accused could not be divided so as to allow one portion of it to go to the jury, and the other part to be excluded; but that the jury had absolute control over the admissions after they were allowed to go to the jury.”

The judge, in our opinion, did not err. The consideration of the effect or sufficiency of the confession of the defendant belonged exclusively to the jury. In the proof of confessions the rule, as we understand it, and as it is also in civil cases in regard to admissions, is, that the whole of what the prisoner said on the subject, at the time of making the confession, should be taken together as, where one part of a conversation is relied on as proof of a confession of the crimp, the prisoner has a right to lay before the court the whole of what was said in that, conversation. In the present case it appears that the whole of what the defendant said on the suhjeet, at the time he made his confession, was laid before the jury. Under the rale, this was ail that he could require. “But if, after the whole statement of the- prisoner is given in evidence,- the prosecutor, (says Greenleaf,) can contradict {any part of it, he is at liberty to d'o so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases, where one part of the .evidence is contradictory to another. For it is not to be supposed that all the parts of a confession are entitled to equal credit. The jury may believe that part which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing. If what he said in his favor is not contradicied By evidence offered by the prosecutor, nor improbable in itself, it will naturally be believed by the jury ; but they are not bound to give weight to it on that account, but are at liberty to judge of it like other evidence, by all the circumstances of the ease.” 1 Greenleaf on Evidence, 5 218. Such appears to be the well-settled doctrine. Applied to the case at bar, it is evident that the jury believed that part of the defendant’s confession which charged him with having sold, given and delivered intoxicating liquor to a slave, and rejected that which was in his favor — i. e., that it was with the consent of the master. For it is clear, in a prosecution for this offence, where the proof of the selling or the giving of the intoxicating liquor to a slave is complete, the onus is upon the accused' to show that such liquor was sold or given with the consent of the owner or person having charge of said slave.

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


author: Spoffoed, J.

text:
    The State, on the Relation of P. S. Wiltz, v. Alexander Derbes.
    The clerks of the several courts do not continue to hold their offices after a general election until 'the new Governor enters upon the discharge of Ilia duties. Article 149 of the Constitution only provides the day of their election, and does not •fix the period when “they shall eease to perform, their duties.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Dufour, for plaintiff. Preaux, for defendant and appellant.
   Spoffoed, J.

(Meekick, C. J., absent.) The relator was elected Clerk of the Second District Court of New Orleans on the first Monday in November, 1855, and, having been duly commissioned and qualified, demanded a delivery of the hooks, papers, &c., belonging to the office. The incumbent, Alexander Derbes, conceiving that he was entitled under the law to retain possession of the office until the fourth Monday in January, l-85'6, declined to surrender the archives to his successor, whereupon the latter sued out a mandamus from the Judge of the Second District Court, which, upon a hearing, was made peremptory.

By an amicable understanding between the parties, all delays have been waived, and the case has been submitted to us on appeal, for the purpose of settling the construction of the Constitution and laws upon the point in controversy.

The general rule prescribed by law is, that the old incumbent shall continue to discharge the duties of his office until his successor is elected, commissioned and qualified, and no longer.

“ All State and parish officers shall, after the expiration of their term of service, continue to perform the duties of their offices until their successors or themselves, in case of appointment or election, shall he inducted into office hy performing the formalities required hy existing laws; so that no interruption may occur in the discharge of any public duty required by said offices, under the same penalties, bonds, obligations and securities as were given and entered into hy them at the time they were elected to said office.” Act March 15th, 1855, 5.2. (Session Acts, p. 850.)

Rut the appellant maintains that the Constitution of 1852, by a special provision, extended his term to the fourth Monday of January, 1855, and that the Legislature, in the Act of April 28th, 1853, (Session Acts, p. 158,).adopted that construction.

A comparison of the articles of the Constitution of 1852 has brought us to the conclusion that this interpretation is erroneous. The article mainly relied upon by the appellant is as follows :

“ Art. 149. The first term of service of the District Attorneys and the clerks of the inferior courts to be ordered and established under this Constitution, shall he regulated hy the term of service of the first Governor, so that a new election for these officers shall be held on the first Monday of November, 1855.”

As the Governor cannot enter upon the discharge of his duties until the fourth Monday of January next, (Art. 37,) the inference is drawn that the newly-elected clerk cannot.

But the framers of the Constitution only had in contemplation the fixing of the day for the election of elerks in Article 149, and not the period when they should cease to perform their duties. It is only as to the day of their election that the term is to be regulated by that of the Governor; “the first term of service of these elerks shall he regulated hy the terra of service of the first Governor, so that a new election for these officers shall be held on the- first Monday of November, 1855.” If the intention had been such as the appellant contends for, the article should have gone on to add: “and they shall be inducted into office on the fourth Monday of the following January.”

We eannot add such a clause to the article, as we do not conceive that it is fairly to be implied from all the provisions of the Constitution taken together.

Article 79 declares that “ elerks of the inferior courts in this State shall he elected for the term of four years; and should a vacancy occur subsequent to an election, it shall be filled by the Judge of the court in which such vacancy exists, and the person so appointed shall hold his office until the next general election.'”

By Article 125, “ the Legislature may provide by law in what case officers shall continue to perform the duties of their offices until their successors shall have been inducfed into office.”

It is in pursuance of this constitutional provision that the Act of March 16th, 1855, already cited, has been passed.

There existed a reason f >r postponing the installation of the Governor, which has no application to clerks of courts.

The votes for Governor have to be counted by the General Assembly, and the General Assembly does not meet until the third Monday in January. Constitution, Articles 35, 6, 152, 153.

No such delay is necessary as was contemplated in counting the votes and officially declaring the result of the election for clerks of courts; on the contrary, special provision has been made for clothing them with their commissions at an earlier period.

The Act of April 28th, 1853, (Session Acts, p. 158,) upon which the appellant also relies, follows the language of the Article 149 of the Constitution, which we have already construed.

It is therefore unnecessary to comment upon this statute, as it adds nothing to the strength of the appellant’s case.

If a legislative interpretation of Article 149 is to be regarded, it would seem to be in favor of the appellee. See Act April 28th, 1853,§ 19, (Session Acts, p. 192,) and an Act approved same date, !jlj 2 and 3, (Session Acts, p. 152.)

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


author: Spofford, J.

text:
    R. A. Van Horn v. W. C. Templeton and C. Vanderbilt—McCrosky v. The Same—Neal v. The Same.
    Action of damages for non-performance of contract. Defendants agreed to convey plaintiffs from San Francisco to New Orleans, in about twenty-four days, connecting at San Juan, whence they were to be taken by the steamer Daniel Webster to New Orleans. The D. W. did not appear at San Juan for ten days after the arrival of plaintiffs. A violent storm at sea prevented the defendants from having a steamship at San Juan in time. Held: This was an inevitable accident and overpowering force, which exempted defendants from responsibility.
    Any other steamship, equally fitted to transport passengers with comfort and safety as the D. W., would have been a compliance with the contract;
    Defendants contracted that the only extra expense of passengers would be for their board in crossing the Isthmus ; and that on their arrival at San Juan they should immediately go on board the steamer. After their arrival at San Juan they were not permitted to go on board the D. W. for about ten days. Held: That plaintiffs were entitled to recover their expenses for that length of time.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Rand & Bartlett, for plaintiffs. Clack, for defendants and appellants.
   Spofford, J.

These consolidated suits were brought against the owners of the Vanderbilt line of steamers by three passengers, who bought tickets of the defendants in San Francisco, for the purpose of being conveyed thence by the Nicaragua route to New Orleans.

They allege that they have suffered damages to the extent of $1000 each, through the fraud and negligence of the defendants, who failed and refused to comply with their contract in the following particulars — viz.: that they promised to transport the plaintiffs without delay to New Orleans, in the space of about twenty-four days, by means of a connection with their steamship the Daniel Webster, to be formed i; > an Juan del Norte, on the Atlantic side of the Isthmus of Nicaragua; whereas, on arriving at San Juan del Norte no steamer was there to make the connection, nor did any appear at that point until some ten days after the arrival of the plaintiffs, when the Daniel Webster made her appearance; but that her officers, the defendants’ agents, refused to let the plaintiffs go on board un til some thirteen days more had expired, when they were suffered to go on board, and were brought to New Orleans; that they were thus delayed about three weeks upon the Isthmus of Nicaragua, at their own expense, in an unwholesome climate and at a sickly season, whereby they have suffered loss and damage, through the fault of the defendants, to the amounts claimed in their respective petitions.

The plaintiffs obtained a verdict from a jury for $350 each, and the defendants have appealed from judgments rendered in pursuance of the verdict.

Upon the pleadings and evidence, the case naturally gives rise to two distinct inquiries:

1. Are the defendants liable in damages for the failure to connect punctually at San Juan del Norte?

2. Are they liable for refusing to allow the plaintiffs to go on board the Daniel Webster when she did arrive, and to remain on board until she sailed ?

The first question we are compelled to answer in the negative.

The tickets purchased by the plaintiffs, as well as the law of the contract, exempted the defendants from responsibility for inevitable accident and overpowering force. A violent storm at sea prevented the defendants from having a steamship at the port of San Juan del Norte in season to take those passengers for New Orleans, who, like the plaintiffs, had left San Francisco upon the steamer Brother Jonathan, with through tickets by the Nicaragua route. But the plaintiffs contend that although this is true, yet the defendants had first violated their contract by dispatching the steamship Pampero from New Orleans, instead of the Daniel Webster, to make the connection at the time referred to. In proof of this position, they cite the advertisements published by the defendants in San Francisco just before the sailing of the Brother Jonathan for San Juan del Sud, by which it appears that the Daniel Webster was named as the connecting ship for that voyage.

We do not think this constituted an essential or material part of the contract. Any other steamship equally fitted to transport passengers with comfort and safety would answer as well. The Pampero belonged to the same company, and was a staunch A No. 1 ship. Non conslal but that, had the Daniel Webster encountered the same gale she too would have been obliged to put back and have equally disappointed the plaintiffs. The tickets bought by plaintiffs did not specify any particular ship as the promised conveyance from San Juan del Norte to New Orleans, but merely promised them a passage upon the steamer to connect with the one on which they left San Francisco. Nor does it appear that there was any bad faith on the part of the defendants’ agents in San Francisco in advertising the Daniel Webster as the connecting steamer. They believed the representation to be true, and it was a mistake of a character not to affect the contract materially. The Pampero is shown to have been equally seaworthy, if her reputation was not quite so high as that of the Daniel Webster. And it does not appear that the defendants could have sent a steamship sooner to replace the Pampero, after the accident.

But upon the other branch of the case, we are of opinion that the strong representations made by the defendants that the only extra expense of the plaintiffs would be for their board whilst crossing the Isthmus of Nicaragua in the conveyances of the Accessory Transit Company, which connected the defendants’ lines of steamers, and that they should immediately go on board the steamer at San Juan del Norte, make out a case of liability on the part of the defendants for refusing to take the plaintiffs on board the Daniel Webster after her arrival at the last-named port. There is no such evidence of a well-understood usage, or of notice to the plaintiffs of what would be done in such a eon-tingency as will counteract the presumption that arises from the actual representations made to the plaintiffs when they bought their tickets.

The evidence shows that after the arrival of the Daniel Webster the plaintiffs were kept on shore at San Juan del Norte for about ten days, at an expense of $1 50 per day. 4

They are accordingly entitled to recover each the sum of $15 and costs.

It is therefore ordered that the judgment of the District Court be reversed, and proceeding to render such judgment as should have been rendered, it is ordered, adjudged and decreed, that each of the plaintiffs in these consolidated suits recover of the defendants, in solido, the sum of $15 and the costs of suit in the District Court; the costs of appeal to be paid by the plaintiffs and appellees respectively.