author: Taliaferro, J. IIoatell, J.

text:
    No. 2025.
    Alfred Marchand v. H. T. Coffee and Wallace & Co.
    Jn a. suit against the maker and indorser of a promissory note, the note of evidence of the clerk of the court below must show, in order to bind the indorser, that the certificate of notice to the indorser was offered separately from that of the note and protest. Therefore if the note of the evidence only shows that the note and protest were offered, the indorser can not be held, even though the certificate of notice be attached to the act of protest and the entire document be annexed to the petition. An indorser can only be bound by evidence offered at the trial to show his liability, and he is never in fault for not making objection to the reception of evidence until such testimony is offered as will fix his liability if unrebutted.
    APPEAL from tlie Seventh District Court, parish of Orleans.

      Oollens, J. Hornor <£ Benedict, for plaintiff and appellee.

      H. D. ■Ogden, for defendants and appellants.
   Taliaferro, J.

The defendants are sued, the one as drawer and the ■others as indorsers of a promissory note for the sum of two thousand dollars. The defendants, Wallace & Co., called in warranty, D. G-. Cook, who in his answer excepts to the call on the ground that Wallace & Co. do not pretend that the respondent ever had any dealings with them, or that he ever entered into any contract with them in relation to the note sued on, or ever assumed the payment of their ■obligation thereon as indorsers.

Judgment was rendered as prayed for and tlie defendants have appealed.

We see no force in the defense. The indorsers introduced no evidence of any kind to show liabilityresting on Cook in relation to the note.

It is ordered that the judgment of the district court be affirmed •with costs, and tliat the plaintiff recover one' hundred and fifty dollars from.' the defendants, Wallace & Co., as damages for a frivolous appeal, and that they pay the costs of this appeal.

On Rehearing.

IIoatell, J.

On the rehearing granted in this case to Wallace & “Co., Avlio are sued as indorsers of a promissory note, \ve are called on to decide whether or not, where a note and protest are shown, by the clerk’s minutes of evidence, to have been offered, the certificate of notice, annexed with the other instruments to the petition and found in the transcript of appeal, is to be deemed such part of the protest as to be included in the offering and making proof against the indorsers, and whether as a consequence the note or minute of evidence, made by the clerk on the trial, must shoiv specifically what is •offered and received in evidences

The first proposition must be answered in the negative, and the •second in the affirmative.

The certificate of notice is not a part of the protest, but a mode of proof, established by law, that the indorser is notified of the protest Raving been made, and which the notary is authorized to add to the protest. Revised Statute, § 2508.

It can not be assimilated to the signatures to a note or private writing or considered as forming an essential part thereof and of ■course admitted to be genuine if no objection is made to the admission of such note or writing. The general denial admits the signature, but not the liability as indorser, which must be established by •specific proof^ distinct from the note and protest.

There seem to be manifest propriety and necessity that the minute ■of evidence should show what evidence is offered and received and by whom offered; otherwise it would be in the poiver of the transcribing clerk to make evidence for the parties. Every document filed in a suit is not necessarily evidence, and the appellate court must know what evidence is introduced by the parties respectively. Articles 476, 477, 482, 483, C. P., require that each party shall produce the Avitnesses and the evidence in support of his demand or defense, and shall have the opportunity to object to the introduction of testimony, documents or other written proofs, and until offered, there is no occasion to object. It is the duty of the clerk to keep an accurate minute of the proceedings had, the evidence adduced and, where required by either party, to take down the testimony in writing, in order that a full and correct transcript may be made. All this we think is necessarily implied and even enjoined by the provisions of the above articles of the Code of Practice and articles 585, 589, 896, 898 and 899. See also 21 An. 335. In a case like this, the indorser may be silent until evidence is adduced to fix his liability and he can not fairly be charged with raising a frivolous objection, when he urges that no evidence has been introduced by plaintiff to establish his liability.

We think the case should be remanded.

It is therefore ordered that our former decree as to defendants, Wallace & Co., be set aside, that the judgment against them be reversed and the cause remanded as to them to be proceeded in according to law. Plaintiff to pay costs of appeal.


source: Caselaw Access Project

author: Ludelin©, C. J.

license: Public Domain

text:
    No. 2289.
    Albert Baldwin v. Teresa I. Sewell.
    If the consideration of a promissory note he shown to he Confederate treasury notes, it can not he recovered from the maker, even though the holder he a third person, who acquired it in good faith, for a valuable consideration, before maturity. Constitution, article 127; 21 An. 569.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. J$. IF. Huntington, for plaintiff and appellee.

      Felloios & Mills, for defendant and appellant.
   Ludelin©, C. J.

This is an action on several promissory notes. The demand is resisted on the ground, among others, that the notes were given for Confederate money loaned to the maker.

The testimony of Poole, the notary who prepared the act of mortgage given to secure the payment of the notes, proves that the lender or his agent left with him $15,000 in Confederate money to be delivered to the borrower, Sewell, when the mortgage was executed; that he deposited those Confederate treasury notes in the Canal Bank, and on the next day, after the mortgage Was executed, he gave Sewell his check on the bank for the $15,000 which he had deposited.

It appears further, from the evidence in the record, that Baldwin, the plaintiff, was fully cognizant of the nature of the transaction between the lender 'and the borrower, and he can not now pretend to be a bona fide purchaser for value, before maturity. But even if he had been a bona fi.de purchaser for value, and before maturity, he could not recover in the courts of this State. Constitution, article 127; Groves v. Clark & Carnal, 21 An. 569.

It is therefore ordered that the judgment of the district court be avoided, and that there be judgment rejecting the plaintiff’s demand, with costs.

Rehearing refused. 1


author: Wyly, J.

text:
    No. 1725.
    Eugene Tourne v. Jules A. Mathieu.
    Parol evidence is inadmissible to contradict or vary a mitten agreement of the parties.
    APPEAL from the Sixth District Court, parish of Orleans.

      Duplcmtier, J. A. Ij. lissot, for plaintiff and appellee.

      Lacey' & Butler, for defendant appellant.
   Wyly, J.

The defendant has appealed from a judgment against him on a promissory note. The defense is “that said note was given with the understanding that valid and legal letters patent would be furnished by plaintiff, covering certain inventions and improvements for manipulating in fine qualities of cotton, animal and vegetable bodies in general, viz: the desiccation and drying of these substances; that legal and valid letters patent have not been obtained and furnished by plaintiff, and that by reason thereof the consideration of said note (if any ever existed, which is denied), has failed. .

The evidence does not support the defense. The letters patent were obtained by the plaintiff according to the written agreement previously entered into between him and the defendant, and the patent had already been issued when the defendant gave the note. The judge did not err in refusing the introduction of parol testimony to contradict the written agreement of the parties, and the defendant’s bill of exceptions was not well taken.

The evidence shows that the plaintiff complied with his agreement with the defendant in reference to obtaining the patent, and that there is no valid defense to the note.

Let the judgment be affirmed with costs.

Rehearing refused


text:
    No. 3086.
    State of Louisiana v. G. W. Campbell
    Tb© burden of the taxes and charges on real estate falls on the lessor, and not on the lessee. If, therefore, the property is exempt from taxation in the hands of the lessor, no taxes can be imposed thereon against the lessee.
    APPEAL from the Third District Court, parish of Orleans.

      Emerson, J. 8. Belden, Attorney General, and JZornor & Benedict, for plaintiff and appellant.

      Marr & Eoute, for defendant and appellee.
   Wyly, J.

This is a suit against the defendant to recover the State taxes for 1869 on a lot of ground forming the corner of St. Charles and Julia streets, measuring 108 by 160 feet, in square No. 217, bounded by St. Charles, Julia, Carondelet and St. Joseph streets. ’ ,

The answer is that the defendant is not the owner of the lot of ground described in the petition; that said lot belongs, and for forty years has belonged to the “Poydras Female Orphan Asylum,” and is by law exempt from taxation; that on or about the thirty-first day of March, 1859, the said Poydras Female Orphan Asylum, by notarial act, leased the said lot of ground to the defendant for the term of fifty years, and that there was no stipulation that the defendant shall pay the taxes or other real charges on said lot, and by the express terms of article 2672 of the Civil Code, the lessor, and not the lessee, must bear all the real charges and taxes upon the thing leased. The court gave judgment lor the defendant, and the plaintiff lias appealed.

We do not find a note of evidence in the record, or that any evidence whatever was introduced to support the demand of the plaintiff. We find, however, in the record the contract of lease from the Poydras Female Asylum” to the defendant. Whether it was received in evidence or not, we are not informed by the record.

We see no reason to disturb the judgment appealed from-

Judgment affirmed.

Rehearing refused.


author: I-Iowe, J.

text:
    No. 3222.
    J. A. S. Beckham v. John Henderson—Heirs of A. D. Palmer, Warrantors.
    The heir becomes seized of tlio succession by operation oi law from tbe moment that it is opened by the death of the ancestors, and before taking any steps to put himself in possession, or expressing a willingness to accept, and even though ignorant that the succession has been opened in liis favor. Prescription is therefore suspended by the fact of minority from the date that the succession falls to the heir until his majority.
    If the court has jurisdiction, the informalities prior to a decree of sale of succession property are cured, and the purchaser is protected against such irregularities. But if property be sold under such decree that belongs to another, and does not belong to the succession, then and in that case the owner of such property cannot be precluded from showing the facts and recovering his own.
    APPEAL from the Fifth Judicial District Court, parish of East Feliciana.

      Posey, J. Gross & Hardee, for plaintiff and appellee.

      MoVea ¿6 Hilbourne, for defendants and appellants.
    This case was tried by a jury in the court below.
   I-Iowe, J.

In the year 1831 or 1832, John A. Beckham, the father of plaintiff, married Jane Coleman, who died iu 1836, leaving an infant child, Rosana Jane Beckham. On the first of November, 1838, he married Lucy L. Smith, who died on the second of March, 1841, leaving no other descendant hut plaintiff; and iu September of the same year plaintiff’s father also died, leaving but the two children, to wit: Rosana by his first wife, Jane Coleman and plaintiff by his last wife, Lucy Smith. In the year 1852 Rosana died, being at the time of her death about fifteen or sixteen years old. Tbe plaintiff claims that his father purchased this land during the lifetime of his first wife, Jane Coleman, and at her death, Rosana, her only surviving child, became the owner of an undivided half of the same, and at Rosana’s death plaintiff inherited all of lior rights. It is not claimed that plaintiff or his half sister, Rosana, was ever divested'of the title to this land by any proceeding contradictorily with either of them; but the answer alleges that the defendant purchased the land from A. D. Palmer on the twentieth of March, 1853; that A. D. Palmer purchased from Adam Palmer on the seventh May, 1849, and that Adam Palmer purchased it at the probate sale of John A. Beckham, deceased, and that the same was sold under a regular decree of the court to pay debts. This probate sale was made on the first of July, 1848, and the land was sold as the property of John A. Beckham, deceased.

The case was submitted to a jury, whose verdict is embodied in the decree of the court, recognizing the plaintiff as the owner of one undivided half of the land, and fixing the value of the improvements at $1000, one-half of which was to be paid by plaintiff.

There was judgment in favor of the defendants against the warrantors for $2530, and both defendants and the warrantors have appealed. In argument, they rely upon the following grounds of defense for a reversal of the judgment:

First — The prescription of ten years.

Second — That their title to the entire tract of land is perfect, they having in good faith purchased the same at judicial sale made under and in conformity with the decree of a court having jurisdiction.

I. Upon the point of prescription, they urge that the plaintiff was twenty-seven years old when suit was filed, and that six years of prescription had unquestionably accrued in favor of appellants; that from the death of Jane Coleman, in 1836, until 1855, when the statute was passed which by operation of law accepted the succession for plaintiff with benefit of inventory [acts of 1855, 144], her succession was vacant; that prescription runs against a vacant succession; that Adam Palmer bought and entered into possession iu July, 1848, and that six years and eight months elapsed before the legal acceptance of the succession for the plaintiff, by act of March, 1855; that this acceptance did not interrupt but suspended prescription, and that, therefore, adding the two periods together, we have twelve years and eight months of time during which prescription ran between the possession of Adam Palmer and the beginning of the suit.

The answer to this ingenious but unsound argument is that the succession of Jane Coleman was not vacant, as contended for. The authority cited to prove that it was, Poultney v. Cecil, 8 La. 321, was decided under the Code of 1808. If that code were still in force, the appellants’ syllogism would be less defective. But under the Code of 1825 the heir becomes seized of the succession by operation of law from the moment it is opened by the death of the ancestor, before taking any steps to put himself in possession, or expressing any willingness to accept, and even though ignorant that the succession, has been opened in his favor. C. C. 934, 939. And, therefore, in the case of Calvit v. Mulhollan, the facts of which were practically identical with those in the case at bar, it was held that prescription was suspended by the fact of minority after June 20,1825, the date of promulgation of the latter code. The plea of prescription must therefore fail.

II. Upon the second point the appellants urge that the property in dispute was inventoried as the property of John A. Beckham; that his administrator applied for and obtained a decree to sell the same to pay debts; that the decree came from a competent court; that the sale was made and Adam Palmer became the purchaser; that he sold to A. D. Palmer, and A. D. Palmer to the present possessor, John I-Ienderson, and that this decree, under which the probate sale was made, protects the purchaser in such a way as to give him title, not only to the portion of the land which belonged to John A. Beckham’s succession at the moment of sale, but to the portion which at that moment belonged to some one else; and in support of this position wo are referred to the case of Lalamie’s Heirs v. Moreau, 13 L. 431, and to other cases which follow the principle there settled. We do not understand the decision cited, and the numerous decisions which have been based upon it, to settlo any other principles than these — ¡that informalities prior to a decree would not cause it to be a nullity, the court having jurisdiction, and that such a decree cures preceding irregularities, and as to them protects the purchaser. But we have not been referred to any authority, nor do we think any ought to exist, declaring a decree of sale in the succession of A, and a sale thereunder of property which belongs, not to A’s succession, but to B, can preclude B from showing the facts and recovering his own.

Judgment affirmed.


author: Howe, J.

text:
    No. 2217.
    H. C. Cady v. Myra Clark Gaines
    TIi© defendant having admitted in the answer, that th© indorser was the owner of the note, can not in a suit by tbo holder, urge the defense that the signature oí the indorser is not proved, and that the holder can not therefore recover.
    APPEAL from the Seventh District Court, parish of Orleans.

      'Oollens, J. 6r. Schmiclt, for plaintiff and appellee.

      Fellows & Mills, for defendant and appellant.
   Howe, J.

Suit on a promissory note for $5000, drawn by defendant to the order of James Emott, and by him indorsed. Defense, exception of lis penclens, general denial, and a special denial of the legal ownership and possession of the note by plaintiff.

First — The exception of lis pendens is abandoned.

Second — The averment of the defendant that the note belongs to James Emott, and not to plaintiff, if it could constitute any defense, is not established, but on the contrary is disproved.

Third — -The point made that the iilaintiff has not proYed the indorsement of Emott, and therefore has not proved the transfer of the note to himself, is untenable. In her answer the defendant admits her signature to the note, and proceeds to declare, “that since its maturity, James Emott, the indorser of said note, as owner thereof obtained possession of the same,” etc. The attorney of plaintiff, called as a witness by defendant, proved also that the note was sent to him for suit by James Emott, on behalf of the plaintiff.

The appeal is clearly for delay. Let the judgment be affirmed with five per cent, damages for frivolous appeal and costs.


author: Ludeling, C. J.

text:
    No. 3292.
    City of New Orleans v. Home Mutual Insurance Company.
    An ordinance of the city of Now Orleans which fixes the amount of license which each insurance company must pay on the basis of the amount of tbo premium received by each company is unequal and not uniform. It is, therefore, unconstitutional and void. Constitution, art. 118.
    'The license imposed-by the municipalities or the State on persons pursuing the same profession, occupation or calling must be equal and uniform; otherwise their payment can not be enforced.
    APPEAL from the Fifth District Court, parish of Orleans."

      Beaumont, J. Bufas Wafles, Assistant City Attorney, for plaintiff and appellant.

      Bandotyh, Singleton & Browne, for defendant and appellee.
   Ludeling, C. J.

This action was brought to recover two thousand and sixty dollars, the amount of the license tax claimed of defendant, •under an ordinance of the city of New Orleans.

The defendant avers that the ordinance is “unequal, unjust, and ■contrary to the constitution of this State.”

There was judgment in favor of the defendant and the plaintiff appealed.

The ordinance provides, that the insurance companies doing business in the city, shall pay a license as follows :

Where the premium received for the year 1869, after deducting reinsurance, return premiums, and internal revenue, shall be one million dollars or over, six thousand dollars ($6000); eight hundred thousand dollars and.under one million dollars, five thousand dollars ($5000); six hundred thousand dollars and under eight hundred thousand dol- ■ lars, four thousand dollars ($4000) ,• four hundred thousand dollars and under six hundred thousand dollars, three thousand dollars ($3000); three hundred thousand dollars and under four hundred thousand dollars, two thousand dollars ($2000); two hundred and fifty thousand, dollars and under three hundred thousand dollars, fifteen hundred dollars ($1500); two hundred thousand dollars and under two hundred and fifty thousand dollars, twelve hundred and fifty dollars ($1250); one hundred and fifty thousand dollars and under two hundred thousand dollars, one thousand dollars ($1000);. under one hundred and fifty thousand dollars, seven hundred and fifty dollars ($750).”

The tax imposed is for a license to carry on a business or occupation. It is the price exacted for tho privilege to pursue a profession,, trade or occupation.

The constitution requires that a license tax as well as a tax on property shall be equal and uniform. To be equal and uniform the tax imposed must be the same upon all who engage in the particular profession or calling' taxed, without reference to the abilities, fortunes or successes of those engaging in business taxed. 10 An. 56, Municipality No. 2 v. Dubois & Mish; 11 An. 739, Police Jury v. Nogues; 20 An. 373, Parish of Orleans v. Cochrane.

The ordinance in question fixes unequal taxes upon persons pursuing the same occupation. Id is therefore unconstitutional and void. Article 118.

It is ordered that tho judgment of the lower court be affirmed with costs of appeal.

Rehearing refused.


author: Wyi.y, J.

text:
    No. 1529.
    Shepherd Brooks v. Hugh Montgomery et al.
    Thb sale of property which has been seized by tho Marshal of the United States, under a. writ of fieri facias which has issued from the Circuit Court thereof, cannot be enjoined by a State court, on the allegation of a third party that the property seized belongs to-him, and is not that of the defendant in the suit under which the fi. fa. issued. In all cases of this kind the court which issued the original process by which the seizure was-made, has the exclusive right to determine its jurisdiction in tho ease.
    APPEAL from tho Fifth District Court, parish of Orleans.

      Duplantier, J. Hays <£ New and Semines d¿ Mott, for plaintiff and appellant.

      J. H. Halsey, for defendants and appellees.
   Wyi.y, J.

The plaintiff has appealed from the judgment dissolving the injunction sued out by him in the Fiftli District Court of New Orleans, to restrain the sale of certain property seized by the Marshal,, under a fi. fa. issued on the judgment of Hugh Montgomery v. Henry Shepherd, Jr., in the Circuit Court of tho United States, on tho ground that said property belongs to him and not to tho judgment debtor.

The question is, can a party enjoin in a State court tho process of a United States court, on the allegation that the thing seized belongs to him and not to the person against whom the writ is directed? Wo think that he can not. The court issuing the process ought to have tbe right to determine its jurisdiction as to the thing seized thereunder, in order to avoid conflict between the Federal and State courts. The two systems of judicature could not be administered in harmony-in the same State if the jurisdiction of the court of one system, as to the person of thing seized by its process, is to be measured by the court of the other.

This question was elaborately examined by the Supreme Court of the United States in the case of Freeman v. Howe, 24 Howard 453, where a number of railroad cars, attached by process of the United States Circuit Court, were taken out of the possession of the Marshal by the Sheriff, under'» writ of replevin issued by a court in the State of Massachusetts; and the court held that whether the railroad cars which were seized were or were not the property of the railroad company, was a question for the United States court whicli had issued the process to determine; that although both parties to the replevin were citizens of Massachusetts, yet the plaintiffs were not remediless in the Federal courts. They should have filed, a bill on the equity side of the court irom which the process of attachment issued, which bill would not have been an original suit, but supplementary merely to the original suit out of which it had arisen; it would, therefore, have been within the jurisdiction of the court, and the proper remedy to have been pursued.

For tlie reasons stated, and on the authority of the case referred to,, we think the court below did not err in declining the jurisdiction.

Let the judgment be affirmed, with costs.


author: Taliaferro, J.

text:
    No. 2201.
    E. A. Wentzel v. Robinson & Reid et al.
    Defendants obtained injunctions from the courts of Louisiana prohibiting all other persons* from selling Anchor oil in the State, predicated on the ground that the exclusivo right to sell said oil within the State, which has been patented under tlie patent laws of the United States, belonged to them. The injunctions wore dissolved on the ground that no-patent for the Anchor oil was shown.
    Held — That the defendants, who had enjoined the sale of a certain Mnd of oil within the limits of the State, on the allegation that they held the patent and exclusive right to sell such oil, and having failed on trial to show their exclusive right or the patent, they and their sureties on the injunction bonds were liable, in solido, for the damages caused by the illegal injunctions thus obtained.
    APPEAL from tbe Seventh District Court, parish of Orleans.

      Oollens, J. Murphy & Lambert, for plaintiff and appellee.

      It. & M. Marr and ■I. If. Briehell, for defendants and appellants.
   Taliaferro, J.

The plaintiff sued for damages caused, as he avers, by the illegal and unwarrantable interference by the defendants with his exclusive right, under patent, of selling within the State of Louisiana and other States adjacent, a certain illuminating fluid known as. Anchor oil.”

The defendants admit that they enjoined the plaintiff from selling the Anchor oil, but aver that they did so under the belief that they possessed the exclusive right of vending it within the State, and not through malice towards the plaintiff. Judgment was rendered in the court below against the defendants, Robinson & Reid, in solido, for $550, and against Lacompt, one of their sureties on tlie injunction bond, for $245 of said sum.. From this judgment the defendants appealed.

The facts seem to be that Wentzel, who is a dealer in lamps and lamp oil, purchased, in 3 868, from one Hollister, of Cleveland, Ohio, the inventor or discoverer of the Anchor oil, the sole privilege of selling it in the State of Louisiana, for which he paid $1000.

The defendants, alleging themselves to be the assignees of Coats & Co., represented as the real patentees for the manufacture of this kind of oil, and averring that they had purchased the sole right of selling it in Louisiana and the adjacent States, sued out a writ of injunction inhibiting and restraining Wentzel from selling or disposing of Anchor oil in the State of Louisiana. A sharp litigation followed, which was kept up for several months. Wentzel took a rule against the defendants to set aside their injunction on the ground of the insufficiency of the surety on the injunction bond, in which he succeeded. A counter rule was taken by defendants to set aside the order which Wentzel had obtained, allowing him to continue to sell Anchor oil pendente lite, opon giving security. Robinson & Reid obtained a second injunction against Wentzel on the same ground upon which he took out the first, giving a solvent surety on their second bond. Tlie defendants’ suit was dismissed, on the grouud that they failed to prove that the Anchor oil” had been patented, and therefore the'y could not have .acquired, as alleged, the exclusive right of vending it in Louisiana.

The plaintiff, we think, has established his right to damages. The •defendants signally failed to sustain the allegations sot forth in their petitions for injunctions against the plaintiff. Coats & Co. never had any right to sell the exclusive privilege of vending the article, and it iscems, by the admission of one of the defendants, that they never used ;any effort to ascertain whether Coats & Co. had such right. The •defense is put purely on technical grounds. It is insisted on the part •of the defendants that this action is exclusively founded upon the allegation that the conduct of defendants toward tlie plaintiff was prompted by malicious feelings, and that the plaintiff has failed to make good his charge of malice.

It is true the prayer of the plaintiff’s petition contains the allegation that the defendants’ proceedings are illegal and malicious, and it is lacking in clearness and precision, yet it sufficiently appears that his «claim is upon the injunction bonds. The petition specially alleges that the two sureties are responsible to plaintiff on tho bonds. The-prayer of the petition is for judgment, in solido, against the defendants and the sureties, “as above set forth,” and the injunction bonds are introduced in evidence.

We see no reason for disturbing tho judgment, and it is therefore, ordered that it be affirmed, with-costs in both courts

Behearing refused.


text:
    No. 3126.
    Eliza C. Johnson v. J. F. Tacneau.
    Horses, mules, and other work animals, together with farming implements used on a plantation in making the crop and belonging to the lessee stand as a pledge to tho lessor for the-payment of tho rent. The pledge thus given and accorded to the lessor on tho team, implements, etc., used in making the crop need not bo recorded to give it effect. A different rule however, governs with regard to the privilege on the crop for advances made, and supplies famished to make it. In tho latter case, if tho lessor make advances and desires to preserve his privilege on tho crop and other property on tho place, ho must have the lease recorded, as required by law.
    APPEAL from the Fifth Judicial District Court, parish of West Baton Bongo.

      Posey, J. Barrow & Bojee, for plaintiff and appellee.

      Andrew S. Perron and Albert Voorhies, for intervenor, appellant.
   Ludeling, C. J.

Mrs. Johnson leased her plantation to J. F. Tacneau, during the year 1867, for twenty-seven hundred and fifty dollars. She also undertook to advance a certain sum of money for supplies-for the plantation. At the expiration of the lease, tlie rent not having been paid, Mrs Johnson had twenty-one mules and a lot of farming; implements (which had been employed in the cultivation of the place), provisionally seized to secure the payment of the rent. Charles Faurie, Jr., intervened, and claimed to be the owner of the mules, and prayed for damages done him by the seizure of his property.

In answer to this intervention, Mrs. Johnson averred that Faurie was a partner of Tacneau, the defendant, in the planting operation, and that as such he was bound jointly for the rent, and she prayed for judgment accordingly. ^

It appears from the record, that Tacneau induced Faurie to purchase-the mules and implements which were on the leased premises, in order to enable him to cultivate the plantation, and he agreed to give Faurie-. one-half of the net proceeds of the crop raised on the place for the use of the mules and utensils. Faurie contends that this was a contract of lease, while Mrs. Johnson insists it was a contract of partnership.

It is immaterial in this suit what may he the character of the contract as between the parties to it; for, if it he a lease, the property having been used to cultivate the plantation and having been seized on the place, is subject to the lessor’s privilege and pledge. 21 An. 553; 20 An. 266. If it he a partnership contract, the plaintiff did not loase to tlie partnership, but to. Tacneau individually. 22 An. 268. It seems, therefore, only necessary to determine whether or not the lessor had a right to seize the property of Faurie on the plantation.

There is nothing in the record to show that the lease was ever recorded, and if the plaintiff had had only a privilege to socuie the payment of tlie rent this omission would have been fatal.

But article 2705 of the Civil Code declares that the lessor has, for tlie payment of his rent and other obligations of the lease, a right of pledge on the movable effects of the lessee, which are found on the premises leased. In the case of predial estates, this right embraces everything that servos for the labors of the farm,” etc. 21 An. 553.

There is no law which requires the contract, which gives the right of ■pledge, to be registered. C. C. article 3218. We think tlie imputations of payment were lawfully made.

It is therefore ordered and adjudged that the judgment of the lower ■court against the intervenor be annulled, and that in other respects it be affirmed; and that the costs of this appeal be paid by the appellee.

Rehearing refused.


text:
    No. 2195.
    Smith, Newman & Co. v. J. M. Isaacs et als.
    ‘The holder of a promissory note who has acquired possession of the same before maturity as collateral security lor tho payment of a pre-existing debt, has the right to sue for and recover the whole amount thereof, notwithstanding tho equities that may exist between the maker and tlie original payee. In such a case the person holding the note as collateral security is placed upon the same footing as that of any other innocent third holder of negotiable paper before maturity.
    APPEAL from th© Seventh District Court, parish of Orleans.

      Col-lens, J. Qibson & Austin, for plaintiffs and appellees.

      D. G. Xcibait, for defendants and appellants.
   Wyly, J.

Isaacs, the maker, and A. A. Nevins and Forstall & De Lassus, the indorsers, have appealed from a judgment against them on the promissory note sued on by the plaintiffs-

The plaintiffs received the note before maturity from the payee, A. A. Nevins, as collateral security for a pre-existing debt due them by him, and it is shown that Nevins is still indebted to them iu a sum ■exceeding the amount of the note.

They have the right to sue for and recover the whole amount of the note, and are not hound by tho equities existing between Isaacs, the maker, and Nevins, the payee. See the Succession of Dolhonde, 21 An. 3, and the authorities there cited.

Tho plaintiffs are not conditional holders as contended for by the ■defendant, Isaacs, nor were they hound to credit the debt due them, by Nevins with the amount of the note in order to he considered holders before maturity for value and to avoid the equities existing between the original parties. A pawnee before maturity for a preexisting debt is a holder for a valuable consideration in the sense of •the rule applicable to negotiable instruments, and in a suit to collect •tlie note pledged, he is not bound by the equities existing between tlie maker and payee. Had the plaintiffs credited Nevins with the amount of the note, they would have become the absolute owners of the instrument. But not doing so and holding it as collateral security, they are the pawnees. In either case the holders for a valuable consideration before maturity are not bound by the equities existing between the original parties.

As to the indorsers, we think, from the evidence, that they were •duly notified of the dishonor of the note, and their liability is fixed.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


author: Ludeling, C. J. Ludeling, C. J.

text:
    No. 3244.
    In the Matter of the Succession of P. A. Kugler.
    -A policy of insurance on tlio life of a man, taken out in favor of liis wife and children, vests tho rights to tl^o x>olicy in thorn from tho (lato of its execution.
    The written acknowledgment of a debt by a deceased person made before his death, being first proved, parol evidence is then admissible to show that no other debt was due to the creditor than tho one presented.
    A promise to pay notes, alter prescription has accrued, thereon, which are secured by mortgage, creates a now debt, evidenced by the notes, hut it does not revive tho mortgage which has peremptod by the prescription of the notes. Therefore, if notes which are secured by a mortgage have prescribed, and the debtor has afterward acknowledged, thorn, they become an ordinary debt only.
    APPEAL from the Parish Court of East Baton Rouge.

      G. M. Busted, Parish Judge. S. P. Greves, for administrator, appellee.

      A. 8. Herron and Favrot <& Lemon, for opponents and appellants.
   Ludeling, C. J.

This is an appeal from a judgment homologating the final account of the administrator of the succession of P. A. dingier.

The administrator has filed an answer, praying that the judgment in his favor he amended by allowing the widow and minors one thou•sand dollars under the homestead act of 1852.

The evidence in the record shows that the life of the deceased was "insured iu favor of his wife and children, and that they received one thousand dollars from the insurance company after his death. It is contended by the counsel for the administrator that at the moment of the death of Iiugler the widow and children were in indigent circumstances, and that the subsequent payment of the policy did not affect their rights, under the law, at the period of the husband’s death.

We think the rights of the widow and children to the policy existed before the death, and that the liability of the insurance company .became fixed and exigible by the death of the insured, and, therefore, the widow and children, owned, in their ^own right, one thousand dollars when Kugler died.

. The item forty-five of the account, being two mortgage notes for eight hundred dollars each, is opposed on the ground that they were prescribed.

The notes were due on the first of July, 1859, and on the sixteenth of May, 1860. On their face they were prescribed. To prove an interruption of prescription the administrator offered parol evidence to show that the credits indorsed on the notes were made at the dates when they purport to have been made. The evidence was properly rejected. Acts of 1858, p. 138; Succession of Ilildebrandt, 21 An. 350.

To establish a promise to pay these debts a letter of the deceased to-Phillips was introduced in evidence, and then parol evidence was-offered to prove that the deceased owed no other debt to Phillips but the notes. This was competent evidence. It is the acknowledgment or promise of tho deceased which the law requires to be proved by the writing and signature of the deceased. When an acknowledgment- and promise in writing and under the signature of the deceased ieproved, it is competent to show by testimony that no other debt was. due the party to whom the promise was made.

We think the letter and tho oral evidence in tho record establish the promise to pay the two notes embraced iu item forty-five of tho account. But the promise to pay was made after prescription had accrued. This created a now debt, binding on the deceased and his. succession ; but it did not ronew'or create a mortgage, at least as to-third persons. C. C. 3285 .(3252); 1 An. 330, Lathet v. Hogan et al; 2 An. 927, Grayson, Tutor, v. Mayo.

The other items of the account were correctly allowed.

II. Y. Babin, for the use of the succession of A. M. Dunn and of Louis Favrot, alone having appealed, we can change the judgment of the court a qua only in his favor, and not as between the appellees.

It is therefore ordered and adjudged that the judgment of the parish court, so far as it allows a preference to the notes included in item-forty-five of the account over tho claim óf H. V. Babin, for the use of the succession of A. M. Dunn and Louis Favrot, bo avoided and annulled; and that, in all other respects, it bo affirmed, the costs of this appeal to be paid by the succession.

On Rehearing.

Ludeling, C. J.

We held that the notes included in item forty-five-of the account had been renewed by a promise to pay them after prescription had accrued, and that this renewal of the obligation did not-■create or renew the mortgage given to secure the old obligations; and we ordered that the tableau be amended in so far as it accorded a preference to the said notes held by Phillips. In the application for rehearing -we are asked to decide that the appellants7 claim shall be paid by preference over Phillips7. We can not do so. Both are ordinary claims, and, under the law, must be paid pro rata out of the funds of the estate.

I? eh earing refused.


author: Taliafrrro, J.

text:
    No. 1711.
    John T. Harris v. S. L. Nasits & Brother.
    In the salo of tobacco or otter merchandise tlio lex loci contractus governs; therefore a contract of sale of a lot oí tobacco in New York to a merchant residing in New Orleans, will be construed with reference to the laws and customs of that place which govern and regulate such transactions-
    It being shown to bo the custom iu New York among tobacco merchants, to close a transaction of the sale of a lot of tabacco at once and without reclamation, and it being shown in this case that that custom was observed, and that the purchaser examined the tobacco itself before purchasing, and having given his written acceptance in payment thereof, he could not bo allowed thereafter to resist the payment of the draft given on the ground that the tobacco was unsound and worthless.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théardr J. Bradford, Lea efi Finney, for plaintiff and api>ellee.

      J. 8. Whitaker diliice, for defendants and appellants.
   Taliafrrro, J.

This suit is brought on a. draft drawn by the-plaintiff on the defendants and by them accepted for $1334 14. The defense is failure ot consideration. Defendants aver that the draft was accepted ior the purpose of paying for a lot of tobacco purchased by one of the firm, but the tobacco when opened was found to be in a bad condition, being funky, moldy and unsound. For the reason that the quality of tho article proved not to be equal to that shown by samples, when tbe purchase was made, the defendants allege that they promptly notified the seller to take the article back, as it was of no value to them, and that they should not pay for it. Judgment was rendered in favor of the plaintiff, and the defendants have appealed.

The sale took place in Now York. • It is in proof that one of the defendants examined the quality of the tobacco which was in boxes.. There were in the whole lot ninety boxes. Half the lot was purchased. Samples were first shown to Nasits and another tobacco merchant of New Orleans. They with the plaintiff’s salesman then went to a room in an upper story of the building and at the instance of the buyers several boxes were opened and the quality proved satisfactory. Tire salesman testifies that Nasits was distinctly informed that if he desired to examine the tobacco any further lie could do so that if he purchased, the transaction was to be at once closed and ■that no reclamation would be allowed; that the tobacco was not sold by samples but upon the personal inspection of the buyer j that ha could have liad every box opened if be desired it, but that be did not require any further examination. This witness said under cross examination that the tobacco did not belong to his employer but to another person for whom, the plaintiff had agreed to sell it; that he knew the lot was not strictly sound, but as it did not belong to Mr. Harris he did not feel at liberty to make any statements concerning it, and therefore sold the lot as it was, the purchaser to make his own examination. It was fully established to be the usage or custom in New York for the purchaser to pass definitely on tobacco before delivery; that if sold by samples he comes and examines as much of the tobacco or as many boxes as he desires, and then decides finally upon the trade. After delivery no drawback or reclamation on account of defects or deficiencies in quality are allowed. The lex loci eontraetus governs in the decision of this case and not the provisions of our code. It is fully established that one of the defendants, the partner who made the purchase was informed at the time of purchasing, of this usage or custom, in New York, and bought under the conditions it imposes.

We think the judgment was properly rendered.

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

Rehearing refused


text:
    No. 2212.
    Henry Dittmer & Theo. Pelle v. Germania Insurance Company of New Orleans.
    The provision in a policy of insurance against an increase of risk by acts of tbe insured is an independent condition of itself, and is not to be controlled or limited by tbe previous conditions or specifications of tbe hazards. Therefore an act done by tbe assured, although not included in tbe class of specified hazards, nevertheless avoids tbe policy if it increases tbe risk.
    In this caso tbe assured allowed a lot of loose and unbalod bay to be stored in tbe upper part of tbe building insured, without giving notice to tbe insurers. Held — That, although unbaled bay was not specially excepted from tbe hazarvls, yet from its very nature tbe risk was increased, and therefore, it avoided tbe policy on that ground.
    APPEAL from the Fourth District Court, parish oí Orleans.

      Théard, J. JS. Howard McOaleb, for plaintiffs and appellants.

      J. M. Hirr-Jiammer and O. H. Schmidt, for defendant and appellee.
   Taliaferro, J.

Dittmer insured to the amount of $2000 his stock of groceries, wines and liquors, and to the extent of $500 on his fixtures and furniture, all contained in a frame shingled building in the town of Carrollton. Eight months afterwards the premises were entirely destroyed by fire, causing the total loss of his stock in trade, furniture, etc., which as alleged were worth at the time the fire occurred, over $2500. The defendants being tbe insurers were sued on the policy of insurance for $2500, with interest, etc.

The defense 5s, that Dittmer, after he had effected the insurance, «tored in the premises a quantity of unbaled hay, and kept it there until the fire, thereby acting in bad faith and materially increasing the risk of the defendants, in violation of the contract by which he was insured, rendering according to its conditions the policy null and void.

The defendants had judgment in the court below, and the plaintiffs have appealed.

It is in proof that after the policy was taken out, Dittmer, the ■plaintiff, permitted one of liis neighbors to store within the insured premises a large quantity of loose, unbaled hay. It seems to have been put in the upper story of the building insured, and to have been placed there about three months before the fire occurred. The witness Lieble, who owned it, says that there were about four thousand pounds ■of the hay in the building at the time of the fire, and that it was perfectly dry. The plaintiff contends that as “hay pressed in bales” is •expressly named and classed as hazardous and excepted in the conditions annexed to the policy, and unbaled or loose hay not being so classed and specified it can not be considered as excepted, and that the policy is not thereby void. An express condition stipulated by the insurers is, that the plaintiff should not in any manner increase the danger and risk of fire on his premises during the continuance jpf the jiolicy. The insurance company was not informed of the storing of the hay in the building insured, and no application was made for the assent of the company to its being so stored, and no opportunity offered the insurers to require as a condition for continuing the policy in force, a higher or increased premium.

We think the doctrine contended for on the part of the plaintiff is not maintained! We think it an established rule that the provision in a policy of insurance against an increase of risk by acts of the assured is an independent condition of itself, and is not to be controlled or limited by the previous condition or specification of hazards. Therefore, if the act done by the assured, although not included in the class of specified hazards, it nevertheless avoids the policy if it increases the risk. 1 Strobart, S. C. Reports 281; 10 Pickering 535; 2 Comstock, N. Y. Reports; 53 Penn. 353.

That the risk was increased in this case by the storing a large quantity of loose dry hay in the building insured, we think can admit of no doubt. If hay pressed in bales be excepted as hazardous for the reason that it is easy to ignite, a fortiori, hay in the loose, unbaled state, would be far more so from the rapidity with which incandescence and flame would be developed by ignition. We think the defense is sustained and that the-judgment should be affirmed.

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

Rehearing refused.


text:
    No. 3211.
    L. A. Sauton, Tutor, v. W. E. Leverich—John De Lacey, Sheriff. Louis A. Sauton, Tutor, v. Wm. J. Beatty—Wm. E. Leverich and H. S. Losee, Intervenors. (Consolidated.)
    A -written statement, under oath, of the amount and character of the wife’s claims against her husband for moneys received, etc., i( recorded in the proper office within the time prescribed by law, is sufficient to preserve the wife’s mortgage on the property of her husband as security for the restitution of her paraphernal estate, which he has received.
    APPEAL from the Ninth Judicial District Court, parish of Rapides.

      Orsborn, J. M. llyan, for plaintiff and appellee.

      Win. A. Seay and H. S. Losee, for defendants and appellants.
   Wyly, J.

In January, 1845, William J. Beatty and Clara Brown were married in the parish of Rapides; this marriage was dissolved by the death of Mrs. Beatty in the fall of 1847. Her daughter, Judith Beatty, her sole surviving heir, married the plaintiff, L. A. Sauton, and in the year 1865 died, leaving the two minor children represented by the plaintiff as natural tutor as her sole surviving heirs.

In behalf of these minors the plaintiff herein claims one undivided half of the plantation seized by W. E. Leverich, the judgment creditor of William J. Beatty, the sale of which he enjoins, and also claims the proceeds of the other half on the ground that Beatty was indebted tp his wife, the grandmother of the minors, in the sum of $12,500, for paraphernal funds received and appropriated by him during the marriage with the said Mrs. Beatty, and the tacit mortgage securing said indebtedness bears on the property seized and is superior in rank to the mortgage of William E. Leverich, the seizing creditor. The plaintiff alleges that the said plantation was acquired by William J. Beatty during the marriage with his wife, Clara Brown; that at her death one-half thereof belonged to her as partner in community, there being no community debts; that the same was inherited by Mrs. Sauton, from whom the minors derived title by inheritance.

The court gave judgment for plaintiff, perpetuating the injunction, decreeing the minors to be the'owners of one undivided half of the plantation and decreeing them to recover from the defendant, William J. Beatty, $12,500, with ñve per cent, per annum interest thereon from the thirty-first day of December, 1847, with recognition of mortgage upon the property of the said William J. Beatty, dating, ranking and taking effect from the seventh day of March, 1845.

The defendants and the intervenors have appealed.

It is proved that the iiroperty involved in this litigation was acquired by William J. Beatty during the marriage with his wife, Clara Brown; that the minors are her grandchildren, being the issue of the marriage of Judith Beatty with L. A. Sauton and being her sole heirs; and that the said Judith Beatty was the sole surviving heir of the said Mrs. Beatty, who died in the fall of 1847. The title to one undivided half of the plantation seized by W. E. Leverich, the judgment creditor of William J. Beatty, is, therefore, established in the minors, it being the share of their grandmother in the community which existed between her and her husband, William J. Beatty. The claim for $12,500 paraphernal funds received and appropriated by said Beatty, as alleged, is also satisfactorily established, together with the legal mortgage securing the same ; but it is contended that this mortgage was not recorded, .as required by law, previous to the first day of January, 1870.

The mortgage not being in the shape of a written act or judgment, M. Ryan caused to be recorded in the parish of Rapides, on the thirtieth day of November, 1869, the following statement, to wit:

“ State or' Louisiana, Parish of Rapides.

“The statement of M. Ryan,'being cognizant of the facts herein stated and of the sum received and all other matters pertinent to Uhf^ipresents, shows that Louis A. Santón, tutor of the minors Lou.0a Amelia and Clara Maria, the issue of his marriage with Judith Beatty, that they (the minors) did inherit from their mother twelve thousand five hundred dollars, and bearing five per cent, per annum interest from the thirty-first day of December, one thousand eight hundred and forty-seven, and to secure to them the said sum they have a tacit mortgage on a certain plantation in the parish and State aforesaid, containing about one thousand acres, and being the same plantation on which William J. Beatty now resides; they, the said minors, also •claim that they derived the said property in the following maimer, to wit: William J. Beatty married Clara Brown, their grandmother, in the year 1845, and that immediately after said marriage the said William J. Beatty received twelve thousand five hundred dollars, the paraphernal property of his said wife, Clara Brown; and that the said Beatty did use and convert to his own use and benefit the said twelve thousand five hundred dollars; that the said Clara Brown, the wife of ■the said William J. Beatty, died in the year 1847 j and the said minors further claim that they are entitled to be reimbursed the said sum, with interest from judicial demand, ranking from the date of the reception of said sum, as set forth. MICHAEL RYAN.

“Sworn and subscribed before me this, the thirtieth, day of November, 1869. J. H. C. BARLOW, Parish Judge.”

We regard the registry of this written statement, detailing the facts and circumstances, under oath, of the claim on which the legal mortgage of the plaintiff is based, as a substantial compliance with the first and eighth sections of act No. 95 of the acts of 1869, entitled “ An act to carry into effect article 123 of the Constitution and to provide for recording all mortgages and privileges.” The mortgage asserted by the plaintiff is not the mortgage of a minor against his tutor, which tlie act referred to requires to be registered according to sections Iavo and eleven, of said act; but it is the mortgage accorded by laAV to> secure the claim of a married Avoman for paraphernal funds received and apxu'opriated by her husband.

The plaintiff claims by inheritance the debt and the mortgage due by William J. Beatty to bis Avife, Clara Brown, and in this proceeding-seeks to recover the same.

We think the certified copy of the statement Avas properly received to prove the registry, and that the bill of exceptions to the ruling of the court receiving it was not well taken.

We see no error in tlie judgment.

Judgment affirmed.

Rehearing refused.


author: IIoave, J.

text:
    No. 2198.
    A. G. Knight, Administrator, etc., v. Pontchartrain Railroad Company.
    Persons who, while attempting to got on the cars at the depot station after they have been put in motion, were thrown oiT and severely injured, can not recover the damages therefor from the railroad company, because their own negligence and indiscretion contributed directly to the disaster. In such a case, when it is shown that the cause of the injury is attributable in the first instance directly to the imprudence or fault of the person who has received the injury, damages can not be recovered lrom the company, even though it be shown that they were in iault.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. W. B. Kounts & Elliott and Cotton & Levy, for plaintiff and appellee.

      Bradford, Lea & Einney, for defendant and appellant.
    This case Avas tried by a jury in the court below.
   IIoave, J.

The plaintiff, as administrator and tutor, brought suit,, claiming damages alleged to be due in consequence of the carelessness, of tlie defendant’s agents in causing the death of George F. Knight and. bis wife Euphemia, father and mother of the minors.

The answer was a general denial.

The cause was tried before a jury, who rendered a verdict iu favor of plaintiff for $12,000, and from the judgment entered thereon the defendant has appealed.

It appears from the plaintiff’s own testimony that on the day the accident occurred, Mr. and Mrs. Knight, with their four children and two servants, started for an excursion to the lake. They were late in arriving at the station, which extends between Girod and Lafayette streets. As they entered the building from up-town, at or near the Girod street entrance, the train bad already started moving down town, and they hastened to overtake it, Mr. Knight being considerably in advance, and Mrs. Knight following, somewhat out of breath, and in what one of the witnesses calls “a slow trot.” One servant, with the babe, was assisted on to the rear platform of the last passenger car but one, and some if not all of the other children were also helped on. Mr. Knight then sprung on the same platform, and holding out his hand beckoned to his wife. A police officer who was on duty near the Lafayette street end of the station, ran towards the party shouting, “For God’s sake, don’t you dare to encourage that lady on the cars!” Another police officer ran forward at the same time with the same intent. The warning was either not heard or not heeded. Mrs. Knight, holding her husband’s hand, caught her foot probably in her own clothing, and, falling, was swung between the moving car and the stationary platform, and ground to death as the car rolled on. It might have been better for both if the husband had let go his wife’s hand as she tripped; but naturally, perhaps, he held on, and was himself thrown down and one of his legs injured at and below the knee. A shout was raised as soon as Mrs. Knight fell, and the train was stopped before it had moved far, probably within forty feet. The train had moved about two hundred feet when Mr. Knight first sprung-on the platform of the car, and from forty to- sixty feet further when Mrs. Knight attempted to get on. How rapidly the train was moving is not certain, but it is fair to say from four to five miles an hour at least; faster than an ordinary walk. Mr. Knight died a few days after of tetanus, excited by the injury he had sustained.

The stationary platform was on a level with the platform of the car. The distance between the platform and the edge of the car was about eight inches. The distance to the upper step of the car about twenty-two inches.

It may be conjectured from the argument that there were two theories in the minds of the jury which led them to render a verdict for plaintiff:

First — That the police officers were in some way the agents of defendant, and either assisted and encouraged Mrs. Knight to make the rash attempt which resulted so disastrously, or neglected to prevent her; and.

Second — That the stationary platform was, by the neglect of the defendant, constructed in an improper and dangerous manner.

I. The policemen were not employes or agents of the company, and it was in no wise responsible for their acts or omissions. In justice to these officers, we may add that they did not encourage the attempt of the unfortunate lady to get on the car. One of them shouted the words of warning above quoted, and both tried to prevent the accident.

II. The record shows (and indeed it is difficult for any one who has traveled to ignore the fact) that platforms like the one in question are to be found in all parts of the country, sometimes used for freight alone, sometimes for passengers alone, and sometimes for both. The plaintiff’s witnesses do not agree in condemning it as an improper one. It is certain that it was perfectly safe for any one who used it to get on the cars when they were at rest, and it is equally certain that all platforms are unsafe for such use when the cars are in motion. But granting that there was an element of neglect in the use of such a platform, there is a rule of law, too well settled to be disturbed, that is invoked by defendant — the rule volenti non fit injuria.

The extent and application of this rule have been discussed at length in this controversy, and it seems that the numerous decisions cited may be distributed into three classes •

Mrst — Where the conduct of plaintiff has as matter of fact contributed to the accident, but such conduct has not been in a legal sense imprudent or negligent. In such case the plaintiff may recover from a defendant in fault. Such was considered the state of facts in Choppin v. The Carrollton Railroad, 17 An. 19, as appears from the record, though not from the published report.

Second — Where the conduct of the plaintiff has been imprudent or negligent, but such imprudence or negligence has not contributed to the accident. In such case the plaintiff may recover from a defendant in fault.

Third — Where the conduct of plaintiff has been negligent and has contributed to the disaster. In such case the plaintiff can not recover, even though the defendant be in fault. Such was either the state of facts or the doctrine announced in the following cases: Fleytas v. Pontchartrain Railroad, 18 L. 339; Hubgh v. Carrollton Railroad, 6 An. 496; Damont v. The Same, 9 A. 441; Hill v. Opelousas Railroad, 11 An. 292; Myers v. Percy, 1 An. 374; Carlisle v. Holton, 3 An. 48; Murphy v. Deamond, 3 An. 441.

The case at bar is clearly within the last class. Much as we may regret the calamity, and deeply as we may sympathize with the bereaved, we can not shut our eyes to the fact that the conduct of both deceased was exceedingly negligent and directly contributed to the sad result.

This conclusion makes it unnecessary to pass on the other points which have been discussed.

It is therefore ordered that the judgment appealed from be reversed and the verdict set aside. It is further ordered that there be judgment in favor of defendant with costs.

Rehearing refused.


text:
    No. 2204.
    Robert Moss v. Howard, Prestons & Barrett and H. D. Barrett.
    Ia a suit to recover the difference between, the price agreed upon for the sale of a lot of cotton and the price which it actually brought (the first sale having failed of completion), the vendor must show that he complied with every requisite and condition on his part, and that the cause of the failure to complete the first sale was attributable entirely to the vendee, failing in which he can not recover the difference from tho first vendee.
    APPEAL from the Fourth District Court, parish of Orleans.

      TMard, J. James Harrison and J). 0. I/ahatt, for plaintiff and appellant.

      Hi Wooldridge, for defendants and appellees.
   Taliaferro, J.

The plaintiff alleges that he sold to defendant* ninety bales of cotton to be paid for in cash upon delivery at thirteen and one-fourth cents per pound; that in compliance with his part of the engagement, he produced the cotton at the time and place stipulated for the delivery, when defendants refused to pay for it according to the contract; that the plaintiff, after making a tender of the cotton to defendants and their refusal to receive and pay for it, caused it to be sold in New Orleans soon afterwards, the price having declined, and received for it $1055 87 less than he would have realized upon it had the defendants complied with their obligation to receive and pay for it at the price agreed upon. The plaintiff therefore brings this suit to recover that sum, with legal interest from judicial demand.

The answer is a general denial. The defendants aver the original contract with the plaintiff in relation to the cotton was subsequently changed into a new one, by which it was agreed that for ninety hales of cotton, at the price stated, the plaintiff agreed to receive a draft on their house in New Orleans at three days’ sight; that a draft for $5352 86 was given to the plaintiff, drawn payable to his own order as required, and that the plaintiff refused to deliver the cotton, thereby violating the contract on his part. The defendants claimed the resolution of the contract and the restitution of the draft, and aver that the contract is null and void.

Judgment was rendered for the defendants, rejecting the plaintiff’s demand, with costs. The plaintiff appealed from the judgment.

From the. evidence, we gather that an engagement was entered into between the parties by which the defendants bought the entire crop of the plaintiff, which was supposed would amount to about one hundred bales or upwards, but which turned out to be ninety bales. The cotton was to be brought to Edwards Station, on the railroad, thence to. be transported to Vicksburg, weighed and paid for at the price of thirteen and one-fourth cents per pound. The money was to be sent by express from New Orleans to Vicksburg, and the price paid down when the weight of the cotton was ascertained. It seems that H. D. Barrett, one of the firm of Howard, Prestons & Barrett, and the witness, M. Duffle, were at that time in Hinds county, Mississippi, attending to business of the firm, when this contract was entered into between H. D. Barrett and the plaintiff, Moss. Barrett, under date of nineteenth November, 1867, wrote from Edwards Station to Messrs. 11. Wright & Co., of Vicksburg, stating the contract as it seems it was originally made, and then adds: “Since then I met him here (meaning Moss), and he said he wanted the matter closed up when the cotton was weighed in Vicksburg. * * * See to the weighing of the cotton, and when you have done this, see what it amounts to at thirteen and one-fourth cents per pound, then give him a draft at three days’ sight on our house in New Orleans for the amount.” This letter, it appears, was sent to Vicksburg by the plaintiff himself.

The witness, Green, of the house of Wright & Co., says: “When, the cotton was brought by Mr. Moss to Vicksburg, I soon discovered that some misunderstanding existed between the parties about the draft on the house offered him in payment of the cotton. Moss refused to let the cotton go forward until the draft was paid. No money was tendered to him. I sent the draft to,New Orleans to be collected for account of Mr. Moss, and wrote the facts to Mr. Barrett.” To this letter Barrett answered, twenty-first November: “Yours of the twentieth to hand. You ought not to have given Moss the draft, as he withheld the cotton and refused to deliver it. You will please telegraph your house at New Orleans at once not to present the draft for acceptance, but to return the same to you, and you will inclose my letter to Mr. Duffie, who will talk with you about the matter.”

The plaintiff shipped the cotton to the house of Summers & Branin, who received it on the twenty-Dinth November, 1867, and sold it on the second December following. By directions, however, of the plaintiff, the cotton was first tendered to the defendants under the contract made by them with the plaintiff, and refused.

It is contended on the xiart of the plaintiff that he at no time agreed to give possession of the cotton to any one until he received the money. This is the substance of the plaintiff’s own testimony. But he is not, we think, sustained in this position by the evidence at large. We think it pretty clear that the other party understood the last agreement made about the cotton to mean that upon its weight being ascertained at Vicksburg it was to be delivered to them, when they were to give the draft at three days’ sight. The plaintiff indorsed the draft, but he assumed the right under the agreement, as he interprets it, to retain X>ossession of the cotton until assured of its x>ayment.

Makone, the only witness who it appears was present when the contract was entered into, says: “ When the trade was first spoken of, Mr. Barrett agreed to have the money expressed either to Edwards’ Depot or to Vicksburg, but afterwards a draft was proposed and accepted.” * * * “The cotton was to be weighed at Vicksburg and the settlement to be made by them, and Barrett was to give him a draft on Howard, Prestons & Barrett, New Orleans, for the money.” *' -« sí “Defendants wore to have uossession of the cotton without delay, that it might be sent forward.”

We must conclude that such was the purport of the agreement between the parties. We find nothing that, in our opinion, justifies the belief that the plaintiff was to retain possession of the cotton until the draft was paid. ■ The plaintiff having failed to comply with his. part of the agreement, the defendants were absolved from the obliga-i t-ion to pay the price, and the plaintiff’s action fails.

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

Rehearing refused.


author: Howe, J. PIowe, J.

text:
    No. 3230.
    Carl Kohn v. T. G. Davidson.
    A motion to dismiss tho appeal for informalities in the appeal bond, comes too late if not. made within, three judicial days from the filing of the transcript.
    A document or paper shown to be partly written‘by the maker of a promissory note, in* which a proposition is made to compromise the note by selling and making title to a tract of land in payment thereof, must be held as renouncing prescription by the maker of tho note.
    APPEAL from the Sixth Judicial District Court, parish of Livingston.

      Ellis, J. Clarice, Bayne & Benshaw, for plaintiff and appellant-

      T. & J. Ellis, for defendant and appellee.
   Howe, J.

The motion to dismiss in this case for informalities in the appeal bond comes too late, not having been filed witbin tbe three days prescribed by law.

Plaintiff sues upon a promissory note for $3000, due October 8,1861-Citation was served in 1870. Tbe plaintiff, on tbe trial to rebut the-plea of prescription, offered a document, “A,” which commenced with a copy in full of the note, and continued as follows:

“Mr. Carl Koiin — The original of the above note has been presented to me for payment by your attorney at law, George H. Penn. 1 acknowledge the debt to be due and Giving, and will pay; at tbe same-time I am entitled to a credit of $1500 on the note, which I paid to Mr. John Slidell while he held it, and for which he gave me a receipt, but. which receipt was destroyed when my dwelling was burned down during tbe war. I am anxious to pay this debt, and am now willing to sell and convey to you a certain parcel of land lying and being situate in the parish of Livingston and State of Louisiana, described as follows: * * '* in full satisfaction of the same. If you accept ibis proposition, inform me, and I am ready to pass you a notarial, guaranteed and unencumbered title to said land, being three hundred. ■and twenty aeres best cotton land on the Amite river, known as the Indian tract, on account of the richness of the soil in this neighborhood. Pull crops of cotton have been made this year, being three miles from the late residence of T. G. DAYIDSON.

October 24, 1866.”

The defendant, in turn, testified to this paper, as follows:

“Mr. Penn, immediately after the surrender, at the first term of court here, presented me a petition with the original note now sued on, offering to give me one, two and throe years to pay it, or any time I wanted, which I refused. I then offered, by way of compromise, to give three hundred and twenty acres of land on the Amite river to 2>ay the debt. ^He drew up document A, and asked me to sign it. I refused to sign as drawn up, but made a memorandum at the bottom, which, 1 signed, explaining what I was willing to do. The only part of document A executed between me and Mr. Penn was the memorandum describing th^ land, from the seventh 'line from the bottom down. In signing the ldwer portion of the document, it was not my intention to sign or agree to anything except what I wrote there myself. It was only intended as a memorandum to Mr. Penn, to show that which I was willing to do. Made no recognition or acknowledgment of the debt whatever only by the way of compromise, nor no promise to pay in any other way.”

The original document is attached to the record. It is written quite continuously (except a blank for description of land) on one sido of a half sheet of eap paper. The portion admitted to bo written and signed- by defendant begins with the words, being three hundred and twenty acres best cotton land,” etc , near the end of the document. It is in direct and close continuation of the sentence lastly written by Mr. Penn. It does not commence with a capital letter, nor on a new line. It refers grammatically to the previous portion of the sentence, and logically to all that precedes it in the paper, which it explains and completes. The defendant admits that lie signed it, and we must eon•clude that he thus assented to the recitals of the entire document.

The bills of exceptions do not require consideration.

Prescription being the only defense, and being clearly renounced, it is ordered that the judgment appealed from be reversed, and that the plaintiff, Carl Kohn, have judgment against the defendant, T. G. Davidson, for the sum of $3000, with interest at eight per cent, per annum from October 5, 1860, and costs.

On Rehearing. '

PIowe, J.

Through inadvertence we passed upon the merits of this «case, which had not been passed on in the court below. Our judgment should he limited to overruling the plea of prescription, in. regard to which, and the facts by which it is shown that prescription had been renounced, our opinion is unchanged.

It is therefore ordered (our former decree being set aside) that the judgment of the lower court he avoided and reversed; that the plea of prescription filed by defendant he overruled, and that this cause be remanded to the lower court to be proceeded with according to law;, the defendant to pay costs oí appeal.


text:
    No. 2207.
    David Wallace et als. v. R. D. Urquhart et al.
    Dry goods, suoli as calico, lawn, poplin, white cotton hose, and the like, sold to laborers on a. plantation, give no privilege to the vendor on the crop of cotton of that year grown on tlio place. A privilege is only given oil tlio growing crop of the year for such necessary supplies as axe used in producing it.
    APPEAL from the Seventh District Court, parish of Orleans.

      Gollens, J. JS. T, Fellows and JS. W. Huntington, for plaintiffs and appellants.

      Hags <& Hew, for defendants and appellees.
   Wyly, J.

The plaintiffs, claiming the privilege of a furnisher of supplies, sequestered fifty-four hales of cotton consigned to D. It.. Carroll & Co. by John R. Williams.

D. R. Carroll & Co. intervened, and, denying the privilege asserted1 by the plaintiffs, alleged that they received said cotton as the commission merchants of said Williams, to whom they had advanced supplies-, to the amount of $6110 72 to produce it, and that they have a privilege thereon superior to the plaintiffs.

Tiie court gave judgment setting aside the sequestration and dismissing the demand of the plaintiffs, and restca'ing the cotton to theintervenors, D. R. Carroll & Co., and recognizing the privilege of the-latter thereon for the amount claimed by them. The plaintiffs have-appealed.

The contest Is between the plaintiffs and the intervenors.

It appears that in 1866 John R. Williams purchased from the plaintiffs a lot of dry goods for the store kept by him on. the “ Willow Glen Plantation,” in the parish of Rapides, which plantation he was cultivating that year, and that the goods were purchased by him to he sold to the laborers on the place. The debt contracted for the goods-amounted to $3819 40, and the only evidence we find in reference to-their destination is the statement of Williams, who testified in the case. He says: “The goods mentioned in the account were sold to> the negroes by me on the Willow Glen Plantation; some were used in my family, and some left on hand not sold. I had a store on the plantation, from which these goods were sold.”

What part of the goods were sold to the laborers, what part was left, ■on Land, and wliat part was consumed by the family of Williams, we are not informed by the record. But whether the merchandise was furnished to the laborers or not, an examination of the invoice thereof ■satisfies us that the plaintiffs are not entitled to the privilege which they assert. The items charged in the account were not necessary ■supplies. The following' are specimens: “Apron checks, gingham, Eng. long cloth, furniture, English barege, lawn, poplin, plaid organdie, jaconets, canton flannel, jeans and satinet pants, white cottoii hose, balm orals, pins, wallets, necklaces, buckles, needles, fancy ties, vests, green barege, Victoria lawn, swiss, brilliantine, mohair orientals, pearl buttons, plaid shawls,” etc. These articles were not necessary to the subsistence of the plantation, and the plaintiffs furnishing the same are not entitled to a privilege on the cotton sequestered by them.

It is therefore ordered that the judgment appealed from be affirmed, with costs.

Rehearing refused


text:
    No. 2219.
    Brutus J. Clay, Administrator, v. Leroy C. Martin.
    ‘This is a seizure of tlie cotton made on the plantation for the payment of rent stipulated in tlie lease. The lessee insists that there was an overflow of tlie plantation during that year and that there was a verbal agreement of subsequent date to that of the lease that, in case of an overflow, tlie lessee was nofc to pay any rent. The plaintiff showed tlie lease and also a settlement at or near the end of the year of all matters between the parties, except the payment of rent, in which nothing was said about the lessee’s not being required to pay rent in case of an overflow. The overflow was shown to be only partial and the crop nofc a total loss. On the other hand, it was shown by the testimony of the lessee, which was corroborated by two other witnesses, that, in case of an overflow, he was nofc to pay rent.
    Held — That these facts preponderated in favor of the lessor, who was claiming under the written leaso? that the settlement which was made and reduced to writing between the partios, which was corroborated by oral testimony, when taken in connection with the written lease, was stronger than tlie verbal agreement which the lessee contended was made that he was not to pay rent in case of an overflow.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. John 3. Kewnard, for plaiutiff aud appellee.

      A.lfohert, ■curator ad hoe, for defendant and appellant.
   Taliaferro, J.

Tlie plaintiff sues on a contract of lease entered iuto between C. J. Field (whose estate is administered by plaintiff) and tlie defendant and one Childress, by which Field leased a plantation in Bolivar county, Mississippi, to Martin and Childress for ■cultivation during the year 1SG7, for tlie consideration of $4000, The •contract is a written one. The crop grown on the leased premises seems to have been a small one, in consequence of the high water of that year. It was shipped to New Orleans and sold by tlie house of Morrison, Buck & Co., in whose hands the plaintiff attached the pro■ceeds, amounting to a little over $1200, claiming the lessor’s privilege. A curator ad hoe was appointed to represent Martin, an absentee. The •curator ad hoc answered, denying any indebtedness to the plaintiff, rand averred that after the execution of the. written lease, Field, the lessor, by a contract between himself and Childress, took the place of ■Childress in the original agreement, and by this new arrangement the plantation was cultivated by Field and the defendant, Martin, who, in assenting to the second contract, stipulated with Field that the ■defendant should not be bound to pay any rent if an overflow of the plantation should occur. This agreement, alleged by the defendant to have been made, was not reduced to writing. The defense is, therefore, that an overflow of the plantation having occurred in 1867, 'the defendant was exonerated from paying rent. The defendant set ■up a reconventional demand for $4050 for cotton alleged to have belonged to the defendant and which Field received and sold and ■failed to account to him.

The plaintiff pleaded prescription against the reconventional demand.

Judgment was rendered in the court below rejecting the defendant’s •reconventional demand and awarding judgment in favor of the plain-tiff for $2000, with six per cent, interest from first January, 1868, with privilege upon the proceeds of the cotton attached.

The defendant has appealed.

The testimony conflicts materially. Martin, for himself, swears that (he condition in regard to overflow was stipulated between himself •and Field. A witness in his behalf testifies that she heard Field say ■that Martin was to pay no rent if the land should be overflowed. This statement is also made by the lady’s husband. But Martin’s testimony, in his own behalf, wo regard as greatly neutralized by the plaintiff’s testimony. The latter shows that Martin signed a written instrument importing a settlement by him and the administrator of Field on the seventeenth January, 1868, which expresses the following: “We have this day settled the partnership between Leroy C. .Martin, T. J. Childress and C. J. Field in cultivating the ‘Content Plantation’ for the year 1867, except the rent for the plantation and the amount due Coffee for supplies, for which each one agrees to pay one equal half.’’ In connection with this instrument in evidence, .Myers, a witness, says he was present at the settlement by request of the defendant. He states that Martin set up the claim for reduction of the rent on account of overflow, and also a claim for cotton, but that these claims were rejected by the plaintiff. He says that the old lease, the one in writing, was the basis of their settlement and constantly referred to. The witness Converse says: “The agreement to purchase Childress’ interest by Field was verbal. I was present; made the calculations for Colonel Field. Nothing was said about overflow ■or worms. This settlement occupied two days. Martin was present the first day; at the time of the close of the settlement he was npt .present. He was privy and present at the time of the buying, out of the lease by Field; made no stipulations about overflow or worms; nothing was said on. that subject at the time, that I heard.” This witness says that at the settlement between the administrator and Martin the latter “ claimed that he gave Colonel Field, during the war, permission to give up some seed cotton and bale it and sell it. Mr. Clay refused to allow the claim. The signing of the settlement B was after this conversation occurred.” The statement of two witnesses before referred to, husband and wife, sustaining Martin’s in regard to the condition respecting overflow, is contradicted by the testimony of Converse. This witness lived in the house with Field, and we infer was his physician. Field died on the eighteenth of July, 1867. This, verbal agreement between Field and Martin, upon the former’s taking the place of Childress under the written lease, occurred in May previous. Mrs. Buckner, one of the witnesses, says she heard Field, at her husband’s residence, speak of the agreement not to exact rent if an overflow should occur. Her husband also names his house as the place where he heard this statement. Converse says that after the verbal agreement in relation to the new contract, Field was never at Buckner’s, and he mentions facts with much circumstantiality upon which he bases this declaration and speaks in positive terms. Holloway, who was the agent of the administrator and who dealt with the parties in relation to the lease, says in the course of his testimony .- I know personally there is no dispute as to Martin’s indebtedness. I know that Martin knows of this seizure. I have seen Martin since-the seizure herein. He admitted his indebtedness and offered to-compromise.”

After a review of all tho evidence we incline to think with the judge a quo that there is a preponderance in the evidence on the side of the-plaintiff.

It appears that there was not a total loss of the crop on the Content Plantation” in 1867. The witness, Holloway, says there were-sixty-one bales raised.

In regard to the reconventional demand we think it too vague and indefinite to be admitted. No time is fixed when the cotton alleged to-have been furnished by Martin to Field was received. It is said to have been “during the war.” Martin himself says nothing about it-in his own testimony. A witness states that in 1866 he heard Field say he owed and had to settle with defendant (Martin) for cotton received. This evidence, if admissible, is too indefinite to establish the claim asserted.

We do not think, as contended for by plaintiff, that he is entitled to-ft personal judgment.

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


author: Howell, J.

text:
    No. 2100.
    Daniel & J. D. Edwards v. W. C. Harrison et als.
    If prescription has not been pleaded it will not be noticed by the court on suggestion in argument.
    If the appeal was taken for dday only, damages will be allowed the appellee as for frivolous appeal.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théardr J. Maurice Grivot, for plaintiffs and appellees.

      Randolph, Singleton c6 Browne, for defendants and appellants.
   Howell, J.

Defendants, who are the captain and owners of a. steamboat, have appealed from a judgment with privilege lor the amount of two notes, given for work and materials furnished and done on the said steamboat. They suggest in their brief that there is. error in granting a privilege as there is no evidence to show that the claim originated within the time fixed for the expiration of such privilege by article 3237, Civil Code, or the act of 1858, p. 111. To this-the successful reply is that prescription is not pleaded, and tlie court, can not supply it. C. C. 3463, 3464. The defense is a simple general denial. Interrogatories were propounded to defendants to prove the debt and its nature, which were answered affirmatively. The appeal was taken in January, 1869, and its purpose seems to have been delay. The prayer for damages must be allowed.

It is therefore ordered that the judgment appealed from be affirmed,, with eighty dollars damages and costs of appeal.


author: Howe, J.'

text:
    No. 1025.
    Thomas Schorr v. P. W. Woodlief.
    A protest of a foreign bill of exchange made by a foreign notary is admissible in the courts-of this State to establish presentment, demand and nonpayment, without proof of the-signature and capacity of the notary being made. But the act of the General Assembly of this State, which makes the certificate of notice by the notary competent evidence of such notice, only applies to notaries of this State^^Cherofore a certificate of notice by a foreign notary, attached to the protest of a foreign bill of exchange, is not sufficient proof in the courts of this State that the proper notice was given.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. John Henderson, Jr., for plaintiff and appellee.

      Thomas J. Cooley,, for defendant and appellant.
   Howe, J.'

Action on foreign bill of exchange drawn by defendant at Jackson, Miss., on a firm iii Mobile, Ala., protested for nonpayment August 28, 1862. Defense, a general denial. Judgment for plaintiff and appeal by deiendant.

The only evidence of the notice of protest was furnished by the introduction, without proof of signature or official capacity, of an official copy of'the act of protest by the notary in Mobile, which contains a clause stating that notices of protest for P. W. Woodlief were sent by mail directed to him at Jackson, Miss. The defendant, by objection and exception, presents the- question' as to how far this paper establishes the liability of the defendant. We understand the rule to be that protests of foreign bills bjr foreign notaries are received in aid of commerce to establish the facts of presentment, demand and nonpayment, and this without proof of their signatures and official capacities. 15 La. 555. But beyond this the rule has not been extended, either by decision, or, in this State, by statute. 9 An. 235, Schneider v. Cochrane. And, therefore, in this case, even if the protest of the draft was proved, the service of notice was not.

It is therefore ordered that the judgment appealed from be reversed, and the action of plaintiff dismissed, as in case of nonsuit, and at his costs.


author: Wyly, J. Wylt, J.

text:
    No. 2206.
    Spalding & Rogers v. John P. Walden et als.

      In. a forced sale of an absentee’s property under an attachment process, in 1862, while Confederate notes were a circulating medium, the absentee will be presumed not to have consented to the sale of his property in such unlawful currency; and in case it has been subsequently determined that the absentee should receive the price of the sale, the sheriff who made the sale and received the price, can not be permitted to set up in defense to its payment that the sale-was made for and the price received was in Confederate notes, and that he, the sheriff, could not be compelled to pay any other than such currency as he had received. In such a case the presumption is the other way; that is, that the absentee did not sanction or approve the sale of his property for unlawful currency.
    A suit to recover from the sheriff money made by him in a judicial proceeding, is not an action against the sheriff for misfeasance or nonfeasance in office, and is not therefore prescribed by two years.
    APPEAL from the Fourth District Court, parish of Orleans.

      Théard, J. Richard Shackelford, for plaintiffs and appellees.

      Felloivs & Mills, for defendants and appellants.
   Wyly, J.

In September, 1861, David Bidwell, claiming- to be a creditor of the plaintiffs, who. were citizens, the one of New York and the other of Pennsylvania, xsued out an attachment against them in the Sixth District Court of New Orleans, under which was seized their steamboat called the Banjo, which was sold by the defendant, Walden, then sheriff, under a preliminary order of court, on the twenty-fourth day of February, D62, for $2000 cash.

After the occupation of the city by the United States forces, in 1862, the attachment was released, and the court ordered the proceeds of the sale of the steamboat Banjo to be paid over by the said John P. Walden to Spalding & Rogers, the defendants in the said attachment suit. Having failed to do so, the present suit was instituted by the plaintiffs against him and the sureties on his bond as sheriff.

The defense urged in the brief is that the currency at the time of the sale was Confederate treasury notes; that such currency could only have been expected at the time of the sale, and that the sheriff was bound to hold the same until the parties agreed to the distribution. In support of this position, the case of Harvey, syndic, v. Walden et ais., lately decided, is relied on. In the case cited, the plaintiff obtained from the court an order of sale, and placed it in the hands of the sheriff in 3862, and under the writ the sheriff sold the property for Confederate treasury notes, which he deposited in bank, and the proceeds of the sale were not called for by the plaintiff till August, 1863, and it was proved that the sheriff was roady and willing at all times to pay over the currency received by him. In that case the court held that the plaintiff, residing in the city of New Orleans, must be presumed to have known that there was no other currency in circulation except Confederate money at the time he placed the writ in the hands of the sheriff, and by placing the writ in the hands of the latter to sell the property of his debtor, he authorized him to receive Confederate treasury notes for the price.

The theory of that decision was that by requiring the sale at the time he knew it could only be effected for Confederate money, the plaintiff in execution authorized the receipt of that unlawful currency by the sheriff, and should not be permitted to take advantage of the latter in a proceeding sanctioned by himself.

In the case at bar, however, there is entirely a different state of facts.

The defendants in the attachment suit, the plaintiffs in this suit, can not be presumed to have authorized the sale, or in any manner to have sanctioned the proceeding, being at the time absent from the city, and residing, one in New York and the other in Pennsylvania.

It would be unreasonable to presume that these citizens of loyal States, whose property was attached in rebel lines, authorized the sale thereof under a preliminary order of court for Confederate treasury notes, or that they sanctioned the receipt of said notes by the sheriff for the sale of their property.

We think the judgment of the court below in favor of the plaintiffs is correct.

Judgment affirmed

On Application por Rehearing.

Wylt, J.

It is unnecessary to grant a rehearing on the question of prescription, which escaped the attention of the court, because there is nothing in it to change our conclusions.

The case, as made in the pleadings, is not an action for misfeasance or nonfeasance by the sheriff, to which the prescription of two years is applicable under the act of 1855, but it is for the recovery of money which the answer says was received by the sheriff and put in bank, and which funds he was unable to withdraw to liquidate said claim by military orders, etc.

The Confederate money defense was not pleaded; it is only set up in the brief, and all that the record shows in relation to it is the evidence of one witness, that at the period of the sale that illegal currency was in circulation. As it was insisted in the brief that the case is covered by the rule announced in Harvey, syndic, v. Walden et als., and as indeed the whole defense was placed upon that decision, we assumed for argument the fact that Confederate money was received, as asserted in the brief, and proceeded to show that the theory of that decision is not applicable to this case, because the facts are different.

While a judgment creditor, requiring the sale of his debtor’s property at a time he knows it can not be effected by the sheriff except for Confederate money, is presumed to sanction the receipt thereof by Mm, an absent defendant, whose property ha's been attached and sold under a preliminary order of court, as in this case, is not presumed to authorize the sale, and parties residing in loyal States are not presumed to sanction the sale of their property in rebel lines for Confederate treasury notes. In using this argument, -we did not decide the character of the action. That must be determined by the pleadings. And we repeat there is nothing in the pleadings showing that this suit is for a misfeasance or nonfeasance, or for an offense or quasi offense committed by the sheriff, in bar of which the prescription of two years is applicable. Revised Statutes of 1870, section 2816,

The application for rehearing is therefore refused.


text:
    No. 2268.
    E. W. Burbank v. I. Bloom.
    "Where the evidence in the record in a suit for damages for the violation of a commutative contract makes it clear that the defendant is in fault and liable, the judgment of the court below awarding the damages will be affirmed on appeal.
    APPEAL from the Sixth District Court, parish of Orleans.

      Cooley, J. Fellows & Mills, for plaintiff and appellee.

      F. W. Huntington and Clarice, Bayne & Bens haw, for defendant and appellant.
   Wyly, J.

The defendant has appealed from a judgment condemning him to pay the amount of damages claimed by the plaintiff for failing to deliver the twenty-five barrels of alcohol and the forty barrels of whisky which the defendant sold to the plaintiff on the tenth day of December, 1804, “to arrive,” and to be delivered, as the plaintiff alleges, in fifteen days.

From the evidence we are satisfied that the judgment appealed from is correct, and the defendant should pay the damages occasioned by the unjustifiable violation of Ms contract.

For the reasons assigned in the written opinion of the learned judge a quo, it is ordered that Ms judgment be affirmed, with costs.


text:
    No. 1004.
    Levy & Dieter v. The Pontchartrain Railroad Company.
    If a railroad company undertakes tlie transportation of cotton, with the special exception of liability on account of loss by fire, and the cotton is destroyed by fire while on the route, and it be shown that the loss was not attributable to tho fault of tho company, then and in that case the owner can not recover the damages from the company which the loss of the cotton has caused him.
    APPEAL from the Fourth District Court, parish of Orleans.

      Tkéard, J. Bradford, Lea & Finney, for plaintiffs and appellants.

      W. H. JLant, for defendant and appellee.
   Ludeling, C. J.

The plaintiffs sue the defendant for the sum of $5250, and interest from eleventh November, 1865, the alleged value of thirty-five bales of cotton destroyed by fire while being transported by defendant from Lake Pontchartrain to New Orleans.

The bills of lading show that the parties expressly excepted the carriers from liability on account of loss by fire, and the evidence m the record proves that the loss was not attributable to the fault of the defendant. 7 An. 235, Oakey & Hawkins v. Gordon, and New Orleans Mutual Insurance Company v. Jackson Railroad Company, 20 An. 303.

It is therefore ordered that the judgment of the lower court be affirmed, with costs of appeal.