text:
    Rousselot & Langoumois v. John P. Kirwin and Wardens of the Church of St. Louis, of New Orleans.
    In a building contract, in which it was provided that the contractor should be paid thirty thousand dollars, at the rate of twenty-five hundred dollars per month, on the certificate of the architect stating that the work done warranted the payment—it is incompetent for the sub-contractor who claims from the owner, under the Act of 1844, on the ground that the payments have been anticipated—to go behind the architect’s certificate to show that it did not state the truth,
    The Act of 1844, in its terms and spirit, protects the sub-. ontractor,or workman, against all payments in anticipation made by the proprietor to the undertaker of a building, subsequent to the deWoery of am, attested account.

    Appeal from the Second District Court of New Orleans, Lea, J.

      J. W. Collins, for plaintiffs.

      Penjmnin & Micou, for Wardens Church of St. Louis, appellants.
   Buchanan, J.

The plaintiffs allege that they are carpenters hnd sub-contractors under the defendant, Kirwin, in the execution of work done by the latter for the other defendants, the religious corporation of the Wardens of the Church of St. Louis, of New Orlaans; that Kirwin is indebted to them for work done upon said contract, to the amount of §7,280 dollars. They allege, farther, that they have served an attested account upon the Church Wardens on tho 19th April, 1850; that Kirwin made no opposition to said account; and that the Church Wardens have made payments to Kirwin, in anticipation of their contract with him, by reason whereof they are bound to discharge the plaintiff’s demand.

The plaintiffs had judgment in the District Court against tho defendants, in solido, for the sum of four thousand one hundred and sixty dollars, with interest. Erom this judgment the Church Wardens have appealed.

The Act of 18th March, 1844, upon which this suit is founded, so far as the Church Wardens are concerned, ordains as follows:

“ Every mechanic, workman or other person, doing or performing any work towards the erection, construction, or finishing of any building in this State, erected under a contract between the owner and builder or other person, whether such work shall be performed as journeyman, laborer, cartman, sub-contractor or otherwise, and whose demand for work and labor done and performed towards the erection of such building has not been paid and satisfied, may deliver to the owner of such building an attested account of the amount and value of the work and labor thus performed and remaining unpaid, and thereupon such owner shall retain out of his subsequent payments to the contractor the amount of such work and labor, for the benefit of the person so performing the same.”

And again, in the sixth section of said Act:

“ If, by collusion or otherwise, the owner of any building erected by contract as aforesaid, shall pay to his contractor any money in advance of the sum due on said contract, and if the amount still due the contractor, after such payment has been made, shall bo insufficient to satisfy the demand made for work and labor done and performed, or materials furnished, the owner shall be liable to the amount that would have been due at the time of his receiving the account of such wrork, in the same manner as if no payment had been made.”

The appellants are sought to be made liable to the appellees under the last recited section.

There were two building contracts passed between the appellants and John P. Kirwin ; one dated the 12th of March, 1849, and the other the 22d June, 1849. By the first of these contracts, Kirwin obliged himself to do certain work upon the Cathedral in this city, within the delay of fourteen months from the date of the contract, for the price and sum of seventy-seven thousand dollars, payable, thirty thousand dollars during the progress of the work, at the rate of twenty-five hundred dollars per month, on the certificate of the architect, stating that the work done warrants the said payment; and the balance, $47,000, in two, three, foui', five, six, seven and eight years from date of delivery and acceptance of tho work, in bonds bearing interest, and secured by mortgage. The same contract fui'ther provides that should any extra work be done, it should be paid for, proportionally, in the same manner as the send, sum of seventy-seven thousand dollars.

The contract of the 22d June, 1849, is for certain additional work to be done upon the Cathedral, for which the Church Wardens agreed to pay Kirwin the sum of nineteen thousand dollars, in bonds of one thousand dollars each, delivered to the said Kirwin as the works progress, and on the certificates of the architect, approved by the building committee, stating that the work done warrants the delivery, and in the following manner, to-wit: seven thousand dollars when the walls shall be raised to level of the second floor; seven thousand dollars when the walls shall be raised to their proper height; and the balance when the flooring, flagging and pews shall be completed and accepted, the whole in said bonds.

The payments made by the Church Wardens under the contract of the 12th March, 1849, were as follows: In April, May, June, July, August, September, October, November and December, 1849, and January, 1850, ten months, $2500 each month, say,.......- $25,000

Under the contract of Juno 22,1849, they paid him, in August, 1849, 7,000

And in October, 1849, - -...... 7,000

Total,..........$39,000

The specifications of the petition, in relation to the anticipation of payments, are as follows: “ That for the work under the first contract, the payments made amounted to more than the thirty seventy-sevenths of the work actually done ; and that for the work under the second contract, the second payment, $7,000, was made before the completion of the walls, which are, in fact, not yet finished, (May, 1850.”)

As to the first of these specifications, it appears to us untenable. We cannot concur in the construction which the counsel of plaintiffs has given to the contract on this point. The expressions of the contract of the 12th March, 1849, in relation to the mode in which payments are to be made, are imperfectly given. They have been already quoted in this opinion. Twenty-five hundred dollars were to be paid monthly, from the commencement of the work for twelve months, on the certificate of the architect that the work done warranted the said payment. These monthly payments were accordingly made for ten consecutive months, upon as many certificates of the architect that the work done warranted the payment. The apparent meaning of this phrase is that there was work done, at the date of each certificate, to the value of twenty-five hundred dollars since the last certificate. The brief of plaintiffs’ counsel, however, presents us with an equation, by which it is demonstrated that the monthly work done should have been of the value of six thousand four hundred and sixteen dollars, instead of twenty-five hundred dollars, in order to entitle Kirwin to his certificate. The whole of this argument rests upon the word “ proportionally,” quoted above, as occurring in another clause of the same contract. In that clause, which relates to prospective extra work of an uncertain amount, it is agreed that the payments shall be made in the same way, proportionally, as for the contract work; that is to say, as we understand it, the whole amount of such extra work shall be divided into two portions, of which one shall be paid in monthly instalments of cash, and the other in bonds.

We consider the convention of the parties to have been an absolute one for the payment of the sum of twenty-five hundred dollars per month, provided the architect gave his certificate that there was such an amount of work done. We are further of opinion that the appellants are protected in such payment by the certificate of the architect, and that it is incompetent for the plaintiffs to go behind that certificate, and to show that it did not state the truth. The record even shows that plaintiffs benofitted by these periodical payments to Kirwin, for it exhibits a long list of cash payments from Kwwin to plaintiffs, amounting in the aggregate to $3,000, and extending through the period embraced in the monthly payments of cash from the appellants to Kirwin. We think the payments under the contract of 12th March, 1849, were not anticipated.

In relation to the second instalment, $7,000, paid under the contract of 22d June, 1849, we find but one sentence in the testimony which directly touches it. Depouilly, a witness of plaintiffs, and the architect charged with the superintendence of the work, says “ witness does not recollect whether he approved any warrants in relation to the walls contracted' for in the second contract.” The defendants appear, however, to be absolved from the necessity of proving that the payment was made upon the certificate of the architect and building committee, inasmuch as the petition of plaintiffs alleges that such certificates were given for all the payments, by collusion.

No witness mentions whether or not the walls were raised to their proper height at the time the second instalment upon the contract of the 22d June was paid. That payment was made in October, 1849. The work of Kirwin progressed for some three months after that payment, until the 19th January, 1850, when the tower fell, dragging down with it a portion of the walls, or injuring them so that they had to be in pavt rebuilt. On the 6th April, 1850, a contract of compromise was entered into between the Church Wardens and Kirwin, in which it is recited that the value of the walls fallen down, and those necessary to be pulled down by reason of the fall of the tower, had been fixed by appraisers, mutually chosen, at $7,890; that the other injuries to the building-amounted to $1,800, which, with other items specified, made a total of $10,080; that the parties had agreed to divide this damage, and, accordingly, Kirwin bound himself to repair the damage for $5,040.

On the 26th April, 1850, the Church Wardens sued out an injunction to prohibit Kirwin from the farther prosecution of his work upon the Cathedral, alleging that he was using bad materials, &c. This injunction was, after hearing the evidence, made perpetual.

The plaintiffs had not filed an attested account with the Church Wardens at the time of the payment of the second instalment of the contract of 22d June, 1849. In fact, they did not file such account until six months after that payment, to wit: on the 19th April, 1850. In the meantime, Kirwin had been at work for three months, until the fall of the tower. The evidence leaves us entirely in the dark as to the point to which the raising of the walls had progressed, either at the time of the payment, (October, 1849,) or at the time of the fall of the tower and interruption of the work, (January, I860.) We understand the law quoted in the commencement of this opinion, to be, in its terms and spirit, a protection of the sub-contractor or workman, against all payments in anticipation made by the proprietor to the undertaker of a building, subsequentto the delivery of an attested account. Even supposing the walls had not been raised to their proper height at the time the second instalment was paid, yet if that work were done afterwards, and before the delivery of the attested account of plaintiffs, the payment must be considered as made in due time. The delivery of the attested account fixes the right of the parties, at the time of such delivery. It is does not relate back to any previous time. The question to be solved is, was the second instalment due to Kirwin, under his contract with the Wardens, on, or before the 19th April, 1850 ? The Supremo Court held in the case of Hale v. Wills, 3d Annual Reports, which is the loading case on the construction of the Building Act of 1844, that sub-contractors and material men, employed by the undertaker, hold, as against the owner, under the building-contract, and not beyond that contract.

The plaintiffs rely greatly, if not principally, upon the allegations made by the Church Wardens against Kirwin, in their suit against him, of which all the proceedings, including the evidence, are in evidence in this suit.

It is true, the Church Wardens have alleged that Kirwin)s work was defective in every respect, and that some of the walls erected by him were out of plumb, and required to be taken down and rebuilt. But this establishes no claim on the part of plaintiffs against the Church Wardens. The intention of the Act of 1844 is not that the owner shall be punished for the bad workmanship of his builder. He paid for a good wall. The wall turned out to be bad, or was injured by the bad workmanship of the tower, and its consequent fall. We cannot thence infer bad faith or collusion on the part of the owner.

A careful examination of the evidence has failed in convincing us, that the payment of the second instalment of the building contract, of the 22d June, was anticipated, or that said instalment was not properly demandable, under the said contract, previous to the delivery of the attested account of plaintiffs to the Church Wardens.

Judgment of the District Court reversed, and judgment is hereby rendered in favor of defendants and appellants, the Church Wardens of the Church of St. Louis of New Orleans, and against the plaintiffs and appellees, with costs in both Courts.


source: Caselaw Access Project

author: Campbell, J.

license: Public Domain

text:
    Rosa Gomez, wife of P. E. Barbe, v. M. Courcelle.
    The decision in AleoMnder v. Jacobs, 5 M. 682, was made before the adoption of the Code of Practice, and is not law now. The Code of Practice (arts. GS, 69,) not only defines the hypothecary action, but declares under what circumstances it may be enforced, and no where is it laid down that when mortgaged property has been seized and sold, the mortgagee, before proceeding against the third possessor, must first bring suit against the seizing creditor to obtain payment out of the proceeds of the object he has sold
    It is not necessary before proceeding against the third possessor of mortgaged property, for the hypothecary creditor to shew that afi. fa. has been sued out against the debtor and a return of miUa bona made.
    The law accords priority to the oldest mortgage, and a sale under a younger tacit mortgage does not defeat the older. The property affected passes cum onoro^ and the vendee receives it burthened with its prior incumbrance.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      Price & Denegre, for plaintiff.

      Seghers, for defendant and appellant.
   Campbell, J.

This is an hypothecary action, instituted by Rosa Gomez, with the assistance of her husband P. E. Barbe, on a judgment in her favor for twelve hundred and ninety-two dollars and interest, rendered against hcr father, in his capacity as tutor, in November, 1851.

Having in vain demanded payment of her judgment from her father, she now seeks to subject to her tacit mortgage a lot of ground in the possession of the defendant, M. Ooureelle. This lot is situated on Dumain, between Robertson and Claiborne streets, and is part of a larger lot purchased by her tutor, Joseph F. Gomez, from the corporation of New Orleans, August 31, 1829.

It may here be premised that Gomez was married to the mother of plaintiff in April, 1828, who died in 1830, leaving the plaintiff, sole issue of her marriage.

In August, 1833, Gomez was appointed tutor of plaintiff, and in this capacity-received for her, from the succession of Jacques Guesnon the sum of twelve hundred and ninety-two dollars, which sum, thus received, was the basis of the judgment against her tutor, on which this action is founded.

To the demand of plaintiff, defendant pleads the general denial, and in further defence urges, 1st. That having purchased the lot described from one Blois, who acquired it at a Sheriff’s sale made to satisfy a tacit mortgage— that the same property cannot be subjected to another tacit mortgage, until the judgment, under which the sale was made shall first have been annulled by a direct action. 2d. That this action cannot be maintained, inasmuch as no fieri facias was ever issued and no return of nulla bona was ever made in the suit of the present plaintiff against Gomez, in which her tacit mortgage was recognized; and 3d, That the debtor, Gomez, owns other property which should first be discussed.

Defendant likewise pleads, as a peremptory exception to plaintiff’s demand, that his rights against the mortgaged property in his possession cannot be enforced until he shall first have brought suit against Thomas Blois, to make him refund the proceeds of the sale in the case of Blois v. Boux. This exception is based on the ruling of the Court in the case of Alexander v. Jacobs, 5 M., 632. This decision was made long before the adoption of the Code of Practice, and in our opinion the rule is not applicable to the case now before us. The Code of Practice, in articles 68 and 69 not only defines this hypothecary action, but declares under what circumstances it may be enforced, and no whore do we find it laid down that when mortgaged property has been seized and sold the mortgagee, before proceeding against the third possessor, must first bring suit against the seizing creditor to obtain judgment out of the proceeds of the object by him sold. See art. 16 O. P. VOS, 9, 10 et seq.

This practice, so far as we are apprized, has never prevailed since the adoption of the Code.

We will next proceed to consider those objections urged in the answers, and 1st. That no fi.fa. or return of nulla bona, has been exhibited.

Although this point is urged with much earnestness by counsel, we are aware of no rule of law which renders it necessary. To maintain the hypothecary action it is sufficient that amicable demand of the hypothecary debt be made of the debtor for thirty days, and that the third possessor be notified ten days of such demand. Code of Practice, art. 69. The record discloses that this requirement has, in both respects, been fully complied with.

As regards that part of the defence in which defendant, as vendee of Blois, contends that the property cannot be subjected to the tacit mortgage of plaintiff until the judgment, in the case of Blois v. Gomez, shall first have been annulled, it is only necessary to state, that the legal mortgage in favor of plaintiff attached in August, 1833, Gomez, her tutor, being then the owner of the property. That in favor of Blois in 1841, Gomez having on the 20th September of that year sold the same property to Boux, who at that time was tutor to the minor Thomas Blois, by means of which tutorship the second tacit mortgage attached. Thus both tacit mortgages attached to the same property. But the law accords priority to the oldest mortgage. A sale under the younger does therefore defeat the older mortgage. The property affected passed cum onore, and the vendee received it burthened with its prior incumbrances.

It is further urged that, in 1833, Gomen, the hypothecary debtor, purchased a lot of ground on Mysterious street, which is subject to plaintiff’s mortgage; and likewise that he acquired in 1820, by purchase from the city of New Orteans, a lot of ground adjacent to that owned by himself, the title to which never has been divested by a decree of any competent Court; wherefore he claims that these lots be first discussed.

This demand is made under the provisions of art. 715 of the Code of Practice, which provides that, “the purchaser against whom a suit is commenced by a creditor having a legal or judicial mortgage on the property of the debtor sued, may require the creditor to discuss the other property which the debtor has in his possession, and even that which he has alienated since the purchase, because the creditor who has a general mortgage can only act against the property of which his debtor has disposed, in the order in which the alienations have been made, beginning at the most recent and ascending to the most ancient.”

It may here bo remarked that the record, in the matter of the succession of Rosa Guesnon, mother of plaintiff, and the record of the suit for partition between Blois and Gomen, though offered in evidence in the Court below, form no part of the transcript, they having boon mislaid since the trial.

To supply this defect, the parties have agreed that the statements of facts contained in their briefs are true. Page 4 of plaintiff’s printed brief contains the following statement: “ As to the lot of ground situated on Dumain street, and adjoining the defendant’s property, this Court decreed the same to bo the property of the present plaintiff, by inheritance from her mother, Rosa B. Guesnon, the said portion being her share in the community property acquired during- her marriage with Gomen.” This admission alone, wo would regard conclusive on this point of the case; but it is proper to observe, that defendant in his printed argument asserts that Gomen is yet the legal possessor of the lot to which, it is contended, the tacit mortgage of plaintiff attaches, inasmuch as he never has sold it; which he maintains is the true moaning of the word “alienation,” used in article 715 of the Code of Practice. We regard this as a mere deduction of counsel and not the assertion of specific fact, and must, therefore, under the agreement, g-ive to the statement of plaintiff’s counsel above quoted, the effect of an established fact. The opinion at which wo have arrived, vizthat the lot in question was owned by plaintiff and by her inherited from her deceased mother, is strengthened by the record, which discloses that it was brought by her as dowry in marriage, and was subsequently, in conformity with a judgment of the Third District Court, rendered on article 2341 of the Civil Code, sold as her property.

This lot, then, was never affected by plaintiff’s mortgage, and we have seen that the lot acquired from Guesnon Brothers was alienated by Gomen long- before the purchase of Blois, defendant’s vendor. Gomen, the hypothecary debtor, having failed to pay the judgment of plaintiff, and the lot in defendant’s possession being the last property disposed of by him, suit was properly brought to subject it to the tacit mortgage of plaintiff.

The conclusion to which we have arrived on the facts disclosed by the record above detailed, renders it unnecessary for us to decide upon the effect of the failure of defendant to furnish a sum sufficient to pay the costs of discussion.

Judgment affirmed.


author: Buchanan, J.

text:
    Thomas O’Brien v Patrick Flynn.
    The evidence of one witness is sufficient to prove payment of a pre-existing obligation, even exceeding five hundred dollars: the rule of evidence contained in article 2257 of the Civil Code, being applicable to the proof of contracts, not to the proof of the extinction of contracts.
    Appeal from, the District Court, Third District, Parish of Jefferson, Gla/rleet J.

      ff. B. Duncan, for plaintiff.
    Maries, for defendant and appellant.
   Buchanan, J.

The plaintiff sues upon a note made by the defendant on the 20th June, 1S51, for sixteen hundred dollars, payable on demand to the plaintiff or his order.

The suit was instituted the 8th April, 1852. Defendant pleaded payment. He has proved by one witness that six hundred dollars were paid by defendant’s wife to plaintiff, on account of this note, on the same day that it was made. The witness declared that it was he himself who drew the note, and that it was given in settlement of a partnership account between the parties, in jobs of ditching and canalling, which were entirely finished before the note was given.

There was also proof of a sum of one thousand dollars having been received by plaintiff for account of defendant from a third party.

The District Judge seems to have been of opinion that, as each of these payments exceeded five hundred dollars, and as they were only proved by one witness each, the proof was insufficient under the 2257th article of the Code. He accordingly gave judgment in favor of plaintiff for the amount claimed: but on motion, granted a now trial, to enable defendant to procure corroborative proof. On this new trial, the defendant offered an additional witness, who swore to an acknowledgment having been made in his presence by plaintiff to defendant of the receipt of those two sums of six hundred and of one thousand dollars respectively. The District Judge appears to have attached no credit to the testimony of this witness, for he again rendered judgment in favor of plaintiff for the full amount claimed.

Wo had not the advantage, like our brother in the District Court, of seeing the witnesses ; but agree with the counsel of plaintiff and appellee, that there are circumstances of suspicion apparent upon the face of the evidence of Michael Erwin. He testifies that he was passing by the Louisiana Hotel, where plaintiff and defendant were standing, on the 2d or 3d November, 1851—heard defendant ask plaintiff if ho had received one thousand dollars from Egaña. Plaintiff answered that ho had. Defendant asked him if he received six hundred dollars from Mr. Sullivan. Plaintiff answered, he had. Defendant then told plaintiff, I want my note. Plaintiff said he had not the note with him then; that his wife had it, and that defendant could get it at any time. All this conversation was hoard, if we may believe this witness, by a person who was merely passing by two persons standing together in the street, one of whom at least, (the plaintiff,) he declares was a stranger to him; and is detailed with the utmost minuteness of time, place and circumstance, seven months after-wards. This Court has often had occasion to declare testimony of confessions of the party to be the weakest kind of proof; and we are free to confess that the present instance offers, in our estimation, no exception to that general rule. The evidence of Erwin has produced no effect whatever upon our minds, as it produced none upon that of the Judge of the District Court. But there rcmains the positive evidence of one witness (Sullivan) as to the payment of six hundred dollars, on account of this note. We are of opinion that the evidence of one witness is sufficient to prove a payment of a pre-existing- obligation, even exceeding five hundred dollars : the rule of evidence contained in article 2257 of the Civil Code, being applicable to the proof of contracts, not to the proof of the extinction of contracts. See Ferry v. LeGras, 5 M. R. 393; Armors. Hide, 14 L. R. 346 ; Palmer v. Dinn, 2 Annual R. 536.

It is further shown, by legal evidence, that the defendant was engaged in making a canal upon Johnson’s plantation, of which J. 7. ele Egcma was agent; that plaintiff collected of Egaña, on the 19th September, 1851, one thousand dollars (whether as defendant’s agent or as his partner, does not very clearly appear’,): that he refunded to defendant’s wife eight hundred dollars of the money so collected; and that defendant sanctioned the payment to his wife.

If we add the two hundred dollars, balance of the thousand received from Egaña, to the six hundred proved by Sullwan, we have proof of eight hundred dollars received by plaintiff on account of defendant, since the date of the note sued upon; and which, in the lack of proof of any other claim of plaintiff against defendant, we think should be credited upon said note.

It is, therefore, decreed, that the judgment of the Court below be reversed, and that plaintiff recover of defendant eight hundred dollars, with legal interest from the judicial demand (10th April, 1852,) until paid, and costs of the Court of the first instance; the costs of appeal to be borne by the appellee.


text:
    The State v. John Kentuck, a slave.
    Where the record shows an appointment by the Court of an attorney to defend the accused, the Supreme Court will not inquire whether such attorney has been duly licensed to practice law.
    In an indictment against a slave under the 54th section of the Act of June T, 1806, it is not necessary to charge the intent with which the act was done.
    On the trial of slaves in the tribunals established for that purpose, the law does not require an observance of the technical rules which regulate criminal proceedings in the higher, Courts.
    Appeal from Justices Court, Parish, of Jefferson.
    Maries, for appellant. Attorney General, for the State.
   Campbell, J.

This appeal is taken from a sentence of death pronounced against John Kenbuele, a slave, by a tribunal of the parish of Jefferson, composed of Justices of the Peace and slaveholders, organized under the act of June 1st, 1846, “relative to trials of slaves.”

The accused is charged with having on the 20th November, 1852, in the parish of Jefferson, made a violent and felonious assault with a knife on one L, A. Pimur, a white man, and with grievously and wilfully wounding, beating and cutting him.

The counsel who conducts the defence in this Court, urges a reversal of the judgment on the ground that, although the record shows the appointment by the Court, of the first instance, of an attorney to defend the accused, yet that the fact is not as stated—the person appointed never having been licensed by this Court.

This is a matter into which we cannot inquire. The record states that a.n attorney was assigned the prisoner, and we must presume that an attorney of the Court was appointed.

It is next assigned as error that the information exhibited by the District Attorney does not follow the Statute, in charging the intent with which the act was done.

This was not necessary. The accusation was not framed nor was the prisoner convicted either under the 6th section of the Act of 1843, or the 3d section of the Act of 1814, which prescribe penalties for assaults with the intent to kill, but under the clause of the 54th section of the Act of June I, 1806, which denounces the death penalty against “ any slave who shall have grievously and wilfully wounded or mutilated any white person.”

The law moreover does not demand on the trial of slaves, in the tribunals established for that purpose, an observance of the technical rules which regulate criminal proceedings in the higher courts. “A brief statement of the accusation in writing,” is all that is required, and the Act of 1846, under which this prosecution was conducted, expressly declares that “no proceedings had in accordance with it, shall be annulled or impeded by any error of form.”

The last allegation of error is, that “ the Court that tried the accused was without jurisdiction.”

The counsel has not seen proper to state why the Court was without jurisdiction, or are we able to discover his reason. The record shows that the of-fence charged was committed by a slave, in the parish of Jefferson, and that the tribunal which tried him sat in that parish, and was constituted in conformity with the law “relative to the trial of slaves.”

Judgment affirmed.


author: Voorhies, J.

text:
    Diggs, McKeever & Co., v. Jesse R. Kirkland & Co., and Lowe, Pattison & Co.—Taylor & Richardson, Intervenors.
    One who is employed by plaintiffe at a fixed salary—but who was to have one-third of the profits, if the one-third exceeded his salary—is a competent witness.
    Appeal from the Second District Court of New Orleans, Lea, J.

      Halsey and H H. Straidbridge, for plaintiffs and appellants.

      Glande, McConnell, and Bmjne, for defendants and intervenors.
   Voorhies, J.

The plaintiffs sue on an accepted draft drawn by J. R. Kirkland & Go., of Brandon, Mississippi, on Lowe, Pattison & Go., of New Orleans, for the sum of $1500, duly protested for non-payment by the acceptors, of which the drawers were duly notified. They also claim of J. R. Kw'kland & Go., the sum of $2250 03, for goods invoiced and shipped to them, including an item of $134 31, as the balance due them by the firm of J. R. Kirkland & Brother, as stated in the account annexed to their petition, at the foot of which the following credit is noted :

“By their draft on and accepted by Lowe, Pattison & Co., protested, $1500.”

Under a writ of attachment, sued out by the plaintiffs, the Sheriff seized two hogsheads of sugar, which were afterwards bonded by Taylor & Richa/rdson, intervenors, who claimed the ownership thereof.

D. J. Phelps, W. 3. Wright, and Wright, Williams & Co., were garnisheed. But their answers to the interrogatories propounded to them by the plaintiffs, fully exonerate them from any liability.

The defendants, J. R. Kirkland & Co., claim the sum of $889 45, as a balance resulting in their favor from two drafts drawn by them in October, 1851, on Wright, Williams & Go., each for the sum of $1500, after crediting plaintiffs with the amount of invoices charged in their account.

It is proper we should here notice a bill of exceptions found in the record. On the trial the testimony of Kdwcml Duncan was objected to on the score of interest. This witness stated, on his voir dire, that he was employed by plaintiffs at a fixed salary, but if one-third of the profits exceeded his salary, then he was .to receive said profits in lieu thereof. The objection, we think, was properly overruled by the District Judge. The interest was contingent and too remote, in our opinion, to exclude the witness; it was such an interest as could only affect his credibility. According to the construction given to the provisions of our Oode in relation to the competency of witnesses, it is clear that the interest which legally excludes a witness must be the prospect of gaining an advantage or profit by the judgment in the cause in which he may be called upon to testify, and which would be an immediate consequence of such judgment. 4 L. R. 201; 18 ibid. 360; 5 N. S. In the case of Burke v. Breazeale et al, 1 R. R. 74, it was held, that although a witness was entitled ‘to ten per cent, commission on the a/mount recovered for his fee as an attorney, yet he was a competent witness.

It is urged that the drafts on Wright, Williams & Go., have been improperly and illegally imputed to the payment of the plaintiffs’ claim against J. R. Kirkland & Brother. When the firm of J. R. Kwkland & Brother was superseded by that of J. R. Kirkland & Go., which was composed of the same partners, with the addition of Richardson, it was indebted to the plaintiffs in a balance of $134 37, as stated in the account referred to in the testimony of Edward Duncan. This balance resulted after allowing J. R. Kirkland & Brother, as credits, the two drafts of $1500 each, one on Lowe, Pattison & Go., and the other on Wright, Williams & Go. J. R. Kirkland & Go. in their answer expressly declare that as the draft on Lowe, Pattison & Go. was not paid-by the acceptor, it therefore created no indebtedness, and limited their demand to the two drafts on Wright, Williams & Go. As the draft on Lowe, Pattison & Go. had already been credited to the account of J. R. Kirkland & Brother, it was evidently credited in error to the account of J. R. Kirkland & Go., as stated by the witness Duncan. The draft on Wright, Williams é Go., unaccounted for, should, we think, have been credited to this account. The testimony of Michael Duncan shows, that he went to Brandon, Mississippi, in December, 1851, when he there presented to J. R. Kirkland & Go. plaintiffs’ account; Richardson was present in the store when he presented it to 3. Kirkland, who said that they wore not then able to pay it, but that he or his brother would go to the city in the course of two or three weeks, and would settle it. He saw J. R. Ki/i'klamd in the evening. No objections were made, by any of the parties, to the account presented by him, which he left with J. R. Kirkland & Go. Why have not J. R. Kirkland & Go. produced this account"? It was certainly approved, and we may fairly presume it was identical with the one under consideration. In their letter to the plaintiffs of the 10th March, 1852, they say : “ You were aware of our having been burnt out, and you must have known that it required some little time to arrange our business. We had a desire to settle our account with you, and all other of our creditors, at the earliest possible moment, but there is little or no money in the country, and we are unable to make collections at present, and, consequently, wo are unable to liquidate our debts until collections are made. We have just learned from Messrs. Riaha/rdson & Taylor that you had collected a part of the debt due you by attaching some goods belonging to them.” From the tenor of this letter they evidently considered themselves indebted to the plaintiffs when this suit was instituted ; and it is equally evident that they could not have been so without having considered the drafts on Lowe, Pattison & Go. and Wright, Williams & Go., as properly credited to the account of J. R. Kirkland & Brother. That Richardson so considered it, is strongly indicated in the letter of Taylor & Richardson, written by himself to the plaintiffs, and on the same day that the letter of J. R. Kirkland & Go. was written, the 10th of March, 1852, in which they say: “ We are in receipt of information this evening that two hogsheads of sugar, purchased of Messrs. Wright, Williams & Go., have been attached at your instance. We hereby authorize you to Or. J. R. Kirkland & Go. for one-half of the cost of the sugar, which shall have early attention. If this arrangement will suit you, forward the sugar immediately as we are much in want of it. The writer thinks there is no cause of alarm about the debts of J. R. Kirlcland & Go., and will be much disappointed if all the debts duo by them are not paid in six months.” Why did Richm'dson propose to credit J. R. Kirkland & Go. with one half of the cost of the sugar, if he did not consider himself liable as one of the members of that firm ? Why express disappointment if all its debts were not paid in six months? On the whole, wo are of opinion that the drafts on Wright, Williams & Go. and on Lowe, Pattison & Go. wore imputed to the payment of the account of J. R. Kirkland & Brother, from which the balance of $134 37 resulted, in accordance to the understanding of all the parties.

There is no evidence of any contract stipulating the payment of interest as alleged by the plaintiffs. We do not think the claim of the plaintiffs for damages on the draft well founded, under the statute. The evidence shows that the sugar attached belonged to Ta/ylor & Riaha/rdson, by whom it was bonded. But, according to the consent given m their letter, one-half of its proceeds must be applied to the payment of the plaintiffs’ claims.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed. That the plaintiffs do recover of the defendants, Jesse R. Kirkland, William 3. Kirlcland, William, 3. Richarclson, B. M. Lowe, Alexander PgMison, and T. 3. Ward, as syndic of the insolvent estate of Williann 3. Pattison, in solido, the sum of fifteen hundred dollars, with legal interest from the 14th of Januaiy, 1852, the date of protest, and three dollars cost of protest, and that said plaintiffs do recover of Jesse R. Kirkland, William 3. Kirkland, and William 3. Richardson, in solido, the further sum of seven hundred and fifty dollars and three cents, with legal interest from judicial demand, the costs of both Courts to bo borne by all the defendants.

       Ogden, J., did not sit in this case, having been of counsel when the case was submitted.


author: VoonniES, J.

text:
    Philo B. Tyler v. Paul Marcelin and Isaac Depas.
    In a suit on a promissory note, the general issue is an admission of the signature.
    When an act scmis seing privé is permitted to he read in evidence, without objection, proof of its execution is waived.
    APPEAL from the Eiftli District Court of New Orleans, Buchanan, J.
    Livingston, for plaintiff.
    Cohen, for defendant and appellant.
   VoonniES, J.

This suit was brought on a promissory note executed by Massey, Mm'celin & Co., and given in payment of a steam engine and boilers purchased of the plaintiff, who also claimed the vendor’s privilege.

There was judgment in favor of the plaintiff, and the defendants appealed.

The appellants assign as errors in the judgment: 1st. That there was no sufficient evidence of the signatures to the note sued on: 2d. That there was no proof that they had assumed the payment of the liabilities of Massey, Man'celm & Co.; and 3d. That there was no privilege as against them.

1st. As the general issue is the only plea set up in the appellants’ answer, it follows that the signatures to the note sued upon, must be considered as admitted. Nothing in the record shows that any objection was made to its introduction as evidence on that ground. When an act sous seing privé, is permitted to bo read in evidence without objection, we consider proof of its execution as waived.

2d. The evidence satisfactorily shows that after the delivery of the note sued on, Massey conveyed all his interest in the partnership to his co-partners, the appellants, who thereby expressly assumed the payment of all its liabilities.

3d. The appellants having thus assumed the liabilities of the firm of Massey, Marcelin & Co., vendees of the steam engine and boilers, it is clear that the plaintiff, as vendor, is entitled to the privilege claimed by him under article 3194 of the Code.

We are not prepared to treat the appeal as frivolous, and to’ allow the damages prayed for by the appellee.

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


author: Ogdex, J. Ogden, J.

text:
    The State v. Charles Cammeyer et al.

    The Judge of the District Court was requested to charge the jury that.the facts, as sworn to, did not constitute larceny. By the Cov/i't: the jurisdiction of the Supreme Court extends to criminal cases, on questions of law alone, and if we were to examine the facts on which the jury found the verdict, in order to determine whether the Court below erred in refusing to charge them that those facts did not constitute larceny, we would certainly be exceeding our jurisdiction, and deciding on. the facts as well as the law. The facts proved in a cause constitute a basis for presumptions which can only be drawn by the jury, who are the legitimate judges of the law and fact in the finding of a general verdict, the only restraint on them consisting in the power of the Judge to set aside their verdict, when it is contraiy io the law or the evidence.
    Appeal from the First District Court of New Orleans, Lcm'ue, J.

      Morse, Attorney General, for the State.

      Dufour, for defendant.

       The case of the State v. IK It. Kinney et at., involving the same point, was decided on the same argument.

   Ogdex, J.

The defendants were indicted and convicted of the crime of larceny, and have brought the case before this Court on appeal, by a bill of exceptions, which is in the following words:

“Be it remembered, that on the trial of this cause, Alfred, Higgins, the principal witness for the State, having testified mainly as is contained in the annexed statement drawn by the Judge, the counsel for defendants requested the Court to charge the jury that the facts, as sworn to, did not amount, in law, to larceny; but the Jridge refused said charge, and gave the following, as the law, to the jury: “ It is necessary, in order to constitute larceny, that there should be a felonious taking, and that may be properly thus defined: 'the taking and carrying away are felonious when the goods are taken against the will of the owner, either in his absence, or in a clasdostine manner, or whore possession is obtained by force or surprise, or by any trick, device, or fraudulent expedient, the owner not voluntarily parting with his interest in the goods, and where the taker intends, in any such case, fraudulently to deprive the owner of his entire interest in the property against his will. Whether, in this case, there has been such felonious taking, the jury must determine, from the facts proved.”

The counsel for the defendants has argued in this Court, that the facts, a statement of which, signed by the Judge of the Court below, conies up with the record, do not constitute the crime of larceny, resting his hopes of reversing the finding of the jury, upon a distinction which he has drawn between the obtaining of the mere possession of the thing by artifice and deceit, and the case where the owner is induced by fraudulent representations, to part both with the property and the possession of the thing, in the latter of which cases he has produced numerous authorities, by which it has been adjudged there is no larceny.

The Court below was not requested to charge the jury that sucha distinction existed, but was requested to charge them that the facts, as sworn to, did not amount in law to larceny. The jurisdiction of this Court extends to criminal cases on questions of law alone, and if we were to examine the facts on which the jury found the verdict, in order to determine whether the Court below erred in refusing to charge them that those facts did not constitute larceny, we would certainly be exceeding our jurisdiction, and deciding on the facts, as well as the law. The facts proved in a cause constitute a basis for presumptions which can only be drawn by the jury, who are the legitimate judges of both law and fact. In the finding of a general verdict, the only restraint over them consisting in the power of the Judge to set aside their verdict, when it is contrary to the law or to the evidence. The Judge of the Court below being satisfied with the verdict of the jury, the only power we have is to correct any errors of law which may have been committed. . No such instructions to the jury were asked in the Court below, as to present a question of law alone for our decisions.

If the counsel for the prisoner had requested the Court to charge the jury that if they believed, from the evidence, the prosecutor had been induced by the fraudulent representations of the defendants to part both with the property and the possession of the thing, and had actually so parted with it, they were bound to find a verdict of not guilty; then the question of law involved would have been presented to us by the refusal of the Court to give the charge, but we have no jurisdiction over, and are not permitted to examine into the general facts of the case. These principles have been before decided in the following cases: State v. Fant, 2d Ann., 838. State v. Bogan, ibid 839.

We have attentively considered the charge which the Judge did give thejury, and which was excepted to, and we are of opinion it is a clear and correct exposition of the law, and that no error has been committed. The judgment of the Court below is, therefore, affirmed, with costs.

Boselius applied for a re-hearing:

Is it possible that it can be seriously denied that the question, whether a certain state of facts—in relation to which there can be no dispute or controversy, constitutes thq crime of larceny or not—is purely one of law? It would certainly be difficult for the wit of man to devise a question more exclusively and absolutely of law. Where, let me ask most respectfully, is the question of fact involved in this proposition ? There is not, and there cannot be any question of fact, for the plain reason that all the facts established by the evidence are not and cannot be controverted, because, they are attested under the signature of the District Judge, and incorporated in the bill of exceptions. It is therefore clearly a mistake to say that “ the Court is called upon to give a decision on the facts as well as the la/w." The Court is simply called upon to decide that which, under the Constitution, it is bound to decide, what is the operation of the criminal law on the subject of larceny on the facts ascertained and admitted. That the court must apply the law to this state of facts, is true; but human ingenuity has not hitherto been able to propound any question of law in which the same thing had not to bo done. Such a thing as a question of law without reference to a given state of facts, is a legal impossibility. When we say that a case presents a question of law alone, we do not mean to say that it is unconnected with any facts, for that would be a gross and glaring absurdity; we only mean to say that there is no dispute or question, as in the case at the Bar, about the facts. It is evident to every mind that there can be no case without facts, for the state of facts constitute the case. Hence it follows as an inevitable consequence that, if this case does not present a question of law which can be revised as presented by this record, no other criminal case can ever be brought before this tribunal, in which its appellate jurisdiction can be exercised ; and thus one important—nay, the most important—branch of that jurisdiction is lopped off.
It is said that the view taken by the Court is sanctioned by two decisions of the late Supreme Court, namely—the case of the State v. Fant, (2d A., 838,) and that of the State v. Bogan, (ibid, 839.) But an examination of those cases will show that that Court never decided the point supposed. Indeed, there is not the remotest analogy between them and that now before the Court. In the first of those cases, the only point decided was that the District Judge could not be compelled to make a statement of facts, and that the appellate jurisdiction of the Supreme Court in criminal cases can only be exercised on a bill of exceptions, as in cases of writs of error. And the second case, which immediately follows the first, only reiterates the same point.
The decision is, therefore, destitute of any support, either in principle or authority, and I have little or no doubt that your honors will reconsider the case and correct the error which has been committed. In conclusion, I would respectfully ask the Court not only to grant a re-hearing, but to give a decision at the same time on the merits of the case, for, otherwise, the injury inflicted by the error of the Court will be irremediable. All the defendants are in prison, and cannot obtain their release until their illegal conviction is set aside by the judgment of this Court, or by the expiration of the term of their sentence.

Ogden, J.

(Slidell, O. J., and Campbell, J., absent.) An application for re-hearing having been made in these cases, we have considered the reasons, and are satisfied with the judgment pronounced. We think no stronger illustration could be afforded of the correctness of it, that in passing on the question presented by the refusal of the Judge below to charge the jury that the facts proved did not establish the crime of larceny, we would be deciding a question of fact and not of law, than by quoting a portion of the opinion of the Judge in refusing a motion for a now trial, which is in these words : “ It is useless to go into an examination of cases, in which it has been decided that it was not theft where the owner has sold his property, either for cash or on credit, however much such purchasers may have been induced by the false pretence of the purchaser, and in which the purchaser has absolutely taken the property without paying or being able to pay for it, because no case of that kind can apply to the present. Sines sold one hundred and eighty-four ounces and some pennyweights of gold dust, and no more, if he sold them at all, which the testimony does not establish. If they took then from him two hundred and forty instead of one hundred and eighty-four, it cannot be presumed he had parted with the possession of the fifty-six ounces with his full consent at all. This is a fact which the jury are to determine—a fact which they did determine, and I do not choose to disturb their verdict.”

Re-hearing refused.


author: Slidell, J., Buchanan, J.

text:
    C. S. Magoun v. Wm. B. Davis—Oakey & Hawkins Intervenors and Third Opponents.
    An attachment will defeat a claim for advances, when the attachment has been served before the receipt of any bill of lading or letter of advice.
    Appeal from the Fourth District Court of New Orleans, Strmobridge, J,

      Van Dalson, for opponents and appellants.

      Matthewson, for plaintiff.
   Slidell, J.,

(Eustis, C. J., absent.) For the reasons assigned by the District Judge, it is ordered, adjudged and decreed that the judgment of the Court below be affirmed, with costs.

The following are the reasons of the District Judge:

1.I am of opinion that the advances and supplies made by a resident of Louisiana for a plantation in Mississippi are not privileged thereon hy the law of the former State, and as no privilege appears to be given in such cases by the laws of Mississippi, I am against the claim of the intervenors.

2.It has long been the settled jurisprudence of this State that an attaching creditor is to be paid by preference out of the funds attached, and this rule often bringing the attaching creditor into conflict with th e creditors claiming privilege, has been always settled in cases like the present by the rules established in Art. 3214 C. C. arid its amendments. See 1 L. R. 350, 3d Id. 301, &c., &c.

3.The proof showing the plaintiff’s attachment to have been served before the receipt of any bill of lading or letter of advice, I affirm the former judgment, and order the proceeds of the cotton to be paid to the plaintiff, with interests and costs.

Van Dalson, for a re-hearing. The judgment of the District Courtis affirmed, “ for the reasons assigned by the District Judge." Trusting that the facts and the law connected with and bearing on this case are yet fresh in the mind of the Court, it is unnecessary, in this application for a re-liearing, to examine anything but the reasons of the District Judge, which have been adopted by this Hon. Court, and whereby the opponent’s claim for a privilege on the cotton attached was defeated.

First reason assigned for judgment;

“ I am of opinion that the advances and supplies made by a resident of Louisiana for a planter in Mississippi, are not privileged thereon by the laws of the former State; and as no privilege appears to be given by the laws of Mississippi, in such cases, I am against the intervenors’ claim.”

On tho trial of this cause in this Hon. Court, we contended that, under the laws cited, merchandize and produce of every description are clearly bound, the moment they arrive in this State, for the purposes of commerce, no matter where, the shipment may have been made, nor in what State the staple may have been raised. There can be no doubt of the correctness of this position, for the law says, the merchant or factor shall even enjoy the privilege if he can show that the goods have been despatched to him.

In tho case of Lee v. Ms creditors, 2d Ann. Rep., p. S99, this Hon. Court sustains the doctrine as fully as it is possible for judicial decision to establish a fact in jurisprudence.

In delivering the opinion of the Court in Lee v. his creditors, the Hon. Chief Justice said : “ We think that the framers of our Code, in establishing privileges on ships and vessels, did not intend to confine the operation of their legislation to those belonging to this port, or owned in this State.”

We humbly submit to the Court, whether this doctrine is changed in any particular, by the fact, that the object of contest in this case is cotton, and not a ship or vessel ? In the very next paragraph to the above quoted, is found the following language:

“A nation (State) within whose territory personal property is found, has as entire jurisdiction over it, while there, as it has over immovable property.”

It is therefore believed that the “first reason assigned”, is not well founded; for, if it be, the principle so clearly defined in Lee v. his creditors, is at once overthrown, and no longer to be regarded as authority.

Second reason assigned:

“ It has long been the settled jurisprudence of this State, that an attaching creditor is to be paid by preference out of the funds attached; and this rule often bringing the attaching creditor into conflict with the creditors claiming privilege, has been always settled in cases like the present, by the rules established by art. 3214, 0. O."

This reason entirely disregards the statute of 1841, which amends article 3214, 0., 0.—a law made expressly to better secure the merchant and factor for the advances made to farmers and others, both in the State and out of it.

The law of 1841, Eeb. 17th, section 1st, says :

“ That article 3214 be so amended, that every consignee, commission agent or factor shall have a privilege preferred to any attaching creditor on the goods consigned to him for any balance due to him, whether specially advanced on said goods or not, provided they have been received by him, or invoice or bill of lading has been received by him previous to the attachment.”

Now the article amended by this law reads as follows :

“ Every consignee or commission agent who has made advances on goods consigned to him, or placed in his hands to be sold for account of the consignor, has a privilege for the amount of these advances, with interest and charges on the value of the goods, if they are at his disposal in his stores, or in a public warehouse, or if before their arrival he can show a bill of lading or letter of advice, that they have been despatched to him.”

Now, both the article and the amendment are clear on one point at least, which is, that the privilege is conferred on any one who has the goods at his disposal—in his stores—or in a public warehouse, or, if before the arrival of the goods, he can show a bill of lading or letter of advice that have been despatched to him, uor invoice on bill of lading has been received by him previous to the attachment.”

At pp. 26 and 27 of the Record, are to be found not only the bill of lading received by Oakey & Hawkins, but a letter of advice, of this and other shipments from the defendant Davis to Oakey & Hawkins—the very case provided for by article 3214, and the 1cm of 1841. And yet, the “ reason assigned” permits these facts to slumber in the Record, while a foreign attaching creditor— who dared not attempt to execute the judgment obtained against Davis at the very domicil of both plaintiff and defendant—carries off, triumphantly, the very thing which the law has declared to be a security to the commission agent or factor for the restitution of his advances to the shipper.

It were idle to enter into an elaborate argument to show that the goods shipped were “at the disposal” of the consignee and factor the moment the carrier had delivered the bills of lading for them; for if Magoun, the ordinary judgment creditor of Davis, could not, by virtue of the laws of Mississippi, execute his judgment on this cotton at the very point of shipment, upon what hypothesis is he accorded that privilege, at the very domicil of the factor, and at the very period of time when the transit of the goods shipped is perfectly completed? Can it be pretended that the plaintiff had no opportunity of executing his judgment at defendant’s domicil and at the point of shipment, if by the laws of Mississippi he had a right to do so ? The answer is no, for two reasons :

First. Because the plaintiff’s counselor at law acted as his attorney in fact in the attachment, and could not possibly have had an officer on the levee in this city waiting/or that particula/r boat with that particular cotton, without the most explicit information from the plaintiff himself.

And, secondly, because the record shows that Demis shipped his cotton in the usual manner—concealing nothing, nor adopting any measures to divest himself of his property except in the form of ordinary commercial transactions, to wit: hy regular consignment to his factor. It is, therefore, believed that the second “ reason assigned ” is also unfounded in law and equity.

Third reason assigned:

“The proof, showing plaintiff’s attachment to,have been served, before the receipt of any bill of lading or letter of advice, I give the proceeds to plaintiff.”

We respectfully inquire how this reason can possibly be reconciled with the fact, that the record shows both bill of lading and letter of advice, etc. The District Judge in his “ reasons assigned,” never mentions the bill or letter found in the record, when a moment’s reflection shows to any legal mind that these two circumstances or facts, constitute the very essence of the consignee’s right and privilege on the goods shipped to him.

By every principle of commercial law, the destination of the cotton was fixed hy the shipment thereof and the delivery of the bills of lading; and from that moment the shipper himself could not divert the shipment from the factor. It is only in cases of bankruptcy of the consignee that even the shipper can stop the goods while the transit is yet incomplete ; but all the authorities declare that if the transit bo completed by the arrival of the ship at the port of destination, the property is at once vested in the consignee. This case is the same, as far as the vesting of the property goes; and we cannot conceive how a creditor of Magoun can exercise a right over his property, when Metgoien himself has no such right under the law.

These remarks being well considered, it is believed your honorable Court will grant a re-hearing- in tlfe premises.

All of which is respectfully submitted.

The re-hearing having been granted, the judgment of the Court was pronounced hy

Buchanan, J.

In this case our predecessors affirmed the judgment of the District Court for the reasons given by the Judge of that Court.

A re-hearing having been granted, the case has come before us for consideration, upon additional argument of counsel.

The contest is between an attaching creditor, and an intervenor claiming a privilege for advances, acceptances, supplies to a plantation, &c., and for a balance of account due by the defendant, a planter, to the intervenor, a commission merchant.

The District Judge was of opinion, that it was proved the attachment was served before the receipt of any bill of lading, or letter of advice by intervenor.

The evidence upon this point is not altogether clear; hut it may he assumed that the intervenor has entirely failed to show that he had received a bill of lading, or letter of advice, before the service of the attachment, and the seizure and detention of the cotton by the Sheriff.

The intervenor claims a privilege, under the Article 3214 of the Civil Code, and the Act of 1841, amending- that Article.

We are of opinion that the burden of proof was incumbent upon the intervenor, to make out such a state of facts as would give him a privilege under the law; and as he has failed to do so, that the plaintiff must be maintained in the right acquired by his attachment.

It is, therefore, decreed that the judgment heretofore rendered in this cause by the former Supreme Court, be maintained.