source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Justinian F. Davis v. Charles Oakford.
    Answers by garnishees, which are manifestly evasive, ought not to be amended — such a practice might lead to frivolous delays. But where an answer is really responsive to the question, though it might be more comprehensive, it is within the discretion of the court to allow the garnishee to answer more fully, in cases where the questions propounded admit of a truthful, but at the same time of an unsatisfactory answer.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Smiley & Perrin, for plaintiff and appellant. Bonford & Finney, for defendant. Durant & Homor, for garnishee.
   Lea, J.

In this case, a judgment creditor seeks to í-ecover.from a garnishee the amount due to him by his judgment debtor, on the ground that the garnishee, in whose hands a seizure under execution had been made, has made no direct, good, or sufficient answers to the interrogatories propounded to him under the process of garnishment. The whole issue between the parties has reference to the sufficiency of the answer to the firsWinterrogatory propounded to the garnishee.

To the question “What property, goods, rights, credits, chattels and effects have you in your possession or under your control, belonging to the said defendant, at the service hereof, and to the time of filing your answer? Was hot the value thereof sufficient to satisfy the said judgment, interests and costs? Give the particular kind and value of such property, effects, &c.” — the answer is: “ He says there is in their office a small lot of furniture consisting of a cotton-table, chairs, &c., the value of which does not exceed fifteen dollars, which is the private property of the defendant Charles Oahford, but which are in Use in their business.’'

Now it may be assumed that this is not as full and complete an answer as the garnishee might have made to the questions such as they are.

The garnishee might have added that the property designated in the answer was all that he had in any manner under his control. Such a designation, however, may have been intended, and in the case at bar (as appears from other proceedings) no doubt was intended, to he a complete and truthful answer to the interrogatory propounded.- We are not prepared to say that when question and answer are taken together, the answer is of that evasive character which would justify a judgment pro corfesso. Answers which are manifestly evasive ought not to be amended, such a practice might lead to frivolous delays in the administration of justice; but where an answer is really responsive to the question, even though it might be more comprehensive, we think it is within the discretion of a District Judge to allow a garnishee to answer more fully, in cases where the questions propounded admit of a truthful, but at the same time, of an unsatisfactory answer; and we are not prepared to say that the action of the court in this case exceeded the limits of a sound and reasonable discretion.

Judgment affirmed.


author: Merrick, C. J.

text:
    Nathan R. Stratton v. Lubins F. Rogers.
    If the heirs of full age, the estate being solvent, and no separation of goods applied for, have so far accepted the succession, purely and simply as to release its debts, the subsequent appointment of an administrator cannot revive them.
    Parol evidence is inadmissible to explain a patent ambiguity in a marriage contract.
    If the intention of the parties to a marriage contract cannot be discovered by the ordinary rules of interpretation, the contract must be declared void for uncertainty.
    The meaning of Article 1788 of the Code is this: if the donor has made a donation to his wife simply of future property, and he survives her, the donation will fail, although there was issue of the marriage.
    Construction of a marriage contract.
    Code, 1728,1730,1737.

      -LX. PPEAL from the Second District Court of New Orleans, Morgan, J.

      Magne, for plaintiff. Durant & Hornor, for defendant and appellant.
   Merrick, C. J.

On the fourth day of May, 1853,, the defendant being about to marry Miss Emma Ann Shaw,, entered into a marriage contract with her, which contained the following provisions, viz r

“ x\rt. 1. The said Me. Rogers hereby declares that, after his debts and obligations, of whatever kind,, are paid,, he is worth, freo of the world, more than the sum of $10,000, and that having neither ascendant,, or descendant relatives, he, hereby, as a marriage present,, gives to the. saiS Miss- Emma A. Shaw, his future spouse, the sum of ten thousand dollars cash; which said sum of money the said future husband to the said future wife, has, in cash, and in the presence of the undersigned notary and witnesses, well and truly paid, the receipt thereof is hereby acknowledged, and full discharge and acquittance therefore granted. And it is hereby declared and understood, that this donation is made inter vivos, gratuitous and irrevocable, and that in case of the decease of the said Mr. Rogers before his said future wife,, without issue from the said' marriage, that the said act of donation shall be a first lien and privilege on the property and effects belonging to the said Mr. Rogers,, and shall be first paid out of the property of his succession, Art. 2.. This donation shall not act as a bar to the claim which, in case of his death before the said future wife,, she may have-on his estate and succession for the one half of the acquets and gains that may accrue during their married life.”'

The parties were married on the twelfth day of May,,1853,. and lived together until the 20th day of February, 1855,. when the wife died,, without issue surviving her.

The mother and a major brother of the deceased promptly released (he defendant from any obligation arising from the act of donation.

The plaintiff, a brother-in-law, caused himself to be appointed administrator of the succession of the deceased Mrs. Rogers, and has brought the present action in that capacity, to recover of the defendant the ten thousand dollars donated by the marriage contract to Mrs. Rogers by her intended husband ; it being alleged in the plaintiff’s petition, “that the ten thousand dollars were actually paid to her in cash, and then by her replaced in his hands and possession as her own (his wjfe’s) property, and for which he acknowledged himself liable, as will more fully appear by a duly authenticated copy annexed to and filed with the present petition.”

The defendant contends that neither he, nor his wife, knew the legal effect of the instrument they signed, and that the instrument was fictitious, that no money was paid, and that'the sole object of the act was to secure to his said wife ten thousand dollars as a first privilege in the event she survived him.

The estate of Mrs. Sogers was solvent, and we discover no reason why the heirs of full age could not release their proportion of a supposed debt due to the succession. A subsequent administrator can only receive the succession in the legal condition in which he finds it; and if the heirs of full age, the estate being solvent and no separatitm of goods applied for, have so far accepted the succession, purely and simply as to release its debts, we do not know how the subsequent appointment of an administrator can revive them.

The plaintiff having successfully excluded all testimony explanatory of the intention of the parties to the marriage contract, that instrument must be considered as it stands, connected only with the fact that the parties were married, and that having lived together, subsequently the wife died. The case cannot be strengthened by the allegations' in defendants answer, unless they are all taken together, and then it would be of-no advantage to plaintiff’s case.

It must be admitted that the instrument sued upon is somewhat ambiguous, but that ambiguity is patent and does pot justify the introduction of parol proof to explain it. It is the duty of the court to construe the instrument as a whole, ascertain the intent of the parties, and if possible, give effect to the same; but if such intent cannot be discovered by the ordinary rules of interpretation, the instrument is to be declared void for uncertainty. Speaking of this kind of contract, Troplong says : “ Nul ne demande plus de certitude, de publicité et de solennité : il n’est pas seujement une régle pour les deux families qui s’unissent et pour la famille nouvelle qui va sortir de cette union ; il est encore une loi pour les tiers et la base du crédit des futurs époux.”

The instrument before us can have but one meaning. To ascertain that, let us consider first the construction placed upon it by the plaintiff. He contends that the instrument was the donation of ten thousand dollars present property, which the donor then had in his possession. And he deduces from it this important consequence, viz.- that such a donation shall not be deemed to ¿>e on condition of survivorship, unless the same be expressly mentioned. 0. C.,1737. Now if this be assumed as the fact, the same instrument shows that this sum of ten thousand dollars was actually paid in cash to Miss Shaw eight days before the marriage, which receipt was duly acknowledged and full discharge and, acquittance therefor given. Here then, according to the plaintiff’s rale of interpretation, is a donation — hut it is paid and accomplished.

In order therefore to recover, it is essential that the plaintiff should show that Miss Shaw, who had received and acquitted the ten thousand dollars paid her by her intended husband, delivered to him, in the interval of the eight days or after the marriage, the like sum of money. . There is no proof to this effect. We have, the contract, the marriage of the parties, and the death of the wife from which to infer this essential fact. They are clearly insufficient, and plaintiff’s action fails according to his own interpretation.

But let us look at the whole instrument and see if it is not susceptible of another .meaning, and if that other meaning-is not the true one.

We find the two clauses just adverted to, extinguish each other. By the one pajrment is promised : by the other it is acknowledged to have been made. But there is a third clause which looks to the future and gives tone and character to the whole instrument. It is in these words: “ And it is further declared and understood, that this donation is made inter vivos, gratuitous and irrevocable, and that in the case of the decease of the said Mr. Rogers before his said future wife, without issue from their said marriage, that the said act of donation shall he a first lien and privilege on the property and effects belonging to said Mr. Rogers, and shall be first paid out of the property of his succession.”

The second article of the marriage contract also provides:

“ That that this donation shall not a,ct as a bar to the claims which, in case of his death before her, the said future bride may have on his estate or succession, for the one-half of the acquets and gains that may accrue during their married life.”

The intent of the whole instrument we think was to secure to Mrs. Rogers at the death of her husband, out of his succession if she survived him, ten thousand dollars. It was not intended to take from his employment or means of living, the amount of money mentioned in the act, and the language used in the two first clauses of the Act which mutually cancel each other, must be considered as a mere form with which the parties chose to clothe their contract. If any bank check was used, the money was not intended to be drawn from bank, but such check to be immediately returned. The payment and receipt were not intended to be real, for the same sum was finally secured to the future wife at the death of the husband out of his succession, notwithstanding such payment and acknowledgment. The life of the instrument is in the clause looking to the future and securing to the intended wife at the decease of her future husband the sums of money promised.

This view is strengthened by these further considerations.

Money has no identity. The ten thousand dollars to be paid were such as Rogers should have or could be raised from his estate at the time of his death.

The recital in the act of donation as to Rogers' affairs would imply a doubt whether he was really worth, after his debts were paid, the sum specified in the act. The wife brought into the marriage no estate of her own. They lived at the wife’s mother and afterwards at a private boarding house from their marriage until the death of the wife. It is but fair to presume, therefore, that the sum donated was considerable, with reference to the remainder of the defendant’s estate. Hence it is hardly probable that the intention of the parties was immediately to withdraw from the defendant’s means so large a sum) or even to give to the wife the right, any time during the marriage, to exact this sum, and control the same as her paraphernal property.

Again, if the donation had been intended as of present property and not as payable out of the succession of Mr. Rogers, the second article of the contract which provided that this payment, out of his succession, should not prejudice the -wife's interest in the community, was not only surplusage but irrelevant.

Also, there can hardly be a doubt that if immediately after the instrument had been executed, the question had been propounded to the parties, whether in the event the wife should die first, without leaving children, it was their intention to take from Mr. Rogers ten thousand dollars and give it to his wife’s relations? the response from both would have been in the negative.

The answer of the law to the same question is also, as we think, in the negative.

We have satisfied ourselves that this donation was really intended as a donation in futu.ro of the sum of ten thousand dollars, payable out of Sogers' succession. It was, therefore, the donation of future property. 4 Marcadé, No. 280. This class of donations is provided for by Article 1738 of the Civil Code, which is in these words:

“A donation of property in future, tin of property present and in future, made between married persons by marriage contvact, whether simple or reciprocal, shall be subject to the rules established by the preceding chapter with regard to similar donations made to them by a third person, except that it shall not be transmissive to the children, the,issue of the marriage, in case of the death of the donee before the donor.”

If we recur to the preceding chapter to ascertain what the rules thus referred to are, we find that the donation made by a third person by the marriage contract to either of the spouses, is given upon a condition. The last paragraph of Article 1728 is in these words: “ Such a donation, though made for the benefit of the parties to the marriage or one of them, is always in case of the survivorship of the donor, presumed to be made for the benefit of the children or decendants to proceed from that marriage.”

And by Article 1734 it is expressly provided that:

“ Donations made to the husband or wife on the terms of Articles 1728 and 1730, fall, if the donor suvvive the donee and Ms or her posterity,"

The meaning of Article 1738 is, therefore, this : If the donor has made a donation to his wife, simply of future property, and he survives her, the donation will fail, although there was issue of the marriage.

We attach no importance to the word irrevocable, used in the instrument. At most, it could only mean irrevocable by the acts of the donor. It could not be intended to imply that the instrument should not be revocable by the act of God, (the death of the wife) and the condition imposed by law upon the donation.

We think that the donation is revoked by the intention of the parties and the operation of the laws. We feel ourselves therefore relieved from the necessity, of affirming the judgment which our brother of the District Court rendered with so much reluctance.

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


text:
    Succession of Daniel D. Vancourt.
    D. D. V. jr.,sonof D. D. V., the deceased, mortgaged a house to (3-, The mortgage contained the pact do non alienando. (3-. transferred the mortgage, by public act, with subrogation to V., and afterwards D. 3). Y. jr., sold the property to his father, who died; and the property was duly inventoried as belonging to the succession. The succession property was ordered to be sold. The house was accordingly sold, and bought by M. In the meantime V. obtained an order of seizure and sale, under which the house was sold and V. became the purchaser. On a rule taken by the adminis-tratrix to raise the mortgage, it was Held: That the mortgage of Y. was superior to the title of the deceased; and as the mortgage contained the pact de non aLiena/riclo, Y. had the right to pursue the property by executory process, not only in the hands of the administratrix, but against any purchaser of the property at the sale of the property of deceased.
    13L PPEAL from the Second District Court of New Orleans. Morgan, J.
    13L Oulbertson and Le Gardeur,ior Vasserot, appellant. Michel and Lemley, for administratix.
   Merrick, C. J.

On the eighteenth day of November, A. D. 1854, Daniel D. Vancourt, Jr., the son of the deceased, Daniel D. Vancourt, mortgaged a house and lot in the Fourth District of New Orleans, to E. &. Gottschalk. The mortgage contained the pact de non alienando.

Gottschalk, by notarial act, transfered the mortgage to Ghaffrey Vasserot, and subrogated him to his rights.

Daniel D. Vancourt, Jr., sold the mortgaged property to his father.

Daniel D. Vancourt, Sr., died, and the property mortgaged by his son was inventoried as belonging to his, the father’s estate.

On the 16th day of November, 1855, an order of sale, issued from the Second District Court, for the sale of the property of the succession, and on the 22d day of December, of the same year, the house and lot in question were sold as the property of D. D. Vancourt, deceased, and bought by A. A. Mellaerto for $1,300. Vasserot, in the meantime, viz: on the 24th day of November, 1855, obtained an order of seizure and sale against D. D. Vancourt, Jr., the mortgagor, for the sale of the mortgaged property. On the 12th day of January, 1856, the property was sold at Sheriff’s sale, Ghaffrey Vasserot became the purchaser for the sum of $1,350.

The administratrix of D. D. Vancourt took a rule upon Vasserot and other mortgage creditors, to show cause why the mortgages should not be erased and cancelled.

The rule was opposed by Vasserot, among other reasons on the ground that the Court had no right in this proceeding to deprive him of the benefit of his mortgage and purchase.

The District Judge was of the opinion that although he could not do away with any of the mortgagee’s rights, he could order the sale of property within his jurisdiction and thereupon he made the rule absolute, but reserved to the mortgagees the right, if any they have, to claim the sums due them out of the proceeds of the sale, in the hands of the administratrix.

Vasserot appealed.

The District Court has fallen into error in not distinguishing, between the creditors of the intestate and those of a previous holder of the mortgaged property. Vasserot was not a, creditor of D. D. Vancourt, deceased,; hence he could not be compelled to appeal- in the concourse and contest his rights to the proceeds with the mortgage creditors of the intestate.

Vasserot’s mortgage was superior to the title of D. D. Vancourt, deceased, his debtor was a former holder of the property, and having his mortgage protected with the pact de non alienando he had the right to pursue the property by his executory process, not only in the hands of the administratrix, but against any purchaser of the property at the probate sale of D. D. Vancourt, deceased. Offut et al v. Hendsley et al, 9 L. R. 14.

This is sufficient to dispose of the rule taken in this case, and it is unnecessary to pass upon any other matter discussed by the litigants.

It is, therefore, ordered, adjudged and decreed by the court that the judgment on the rule taken by widow 0. Vaneourl, administratrix, on Ghaffrey Vasserot and others, be avoided and reversed as tQ the said Ghaffrey Vasserot, appellant, and that the said administratrix and appellee take nothing by her said rule as against the said Vasserot, and that she pay the costs of both courts.


author: Voorhies, J.

text:
    Charity Hospital v. B. De Bar.
    The 4th section of the Act of 12th ¡March, 1838, re-enactedln'1850, which provides that managers and lessees of theatres shall pay $500 per annum, for the benefit of the Charity Hospital, is not unconstitutional; nor is it repealed by the Act of 1853, taxing managers and lessees of theatres $200.
    APPEAL from the Sixth District Court of New Orleans, Colton, J.

      Tapian <& Holt and T. J. Semmes, for plaintiff. Gould & Stansbury for defendant.
   Voorhies, J.

The present action is founded on the 4th section of the Act approved the 12th March, 1838, which provides that-the managers and lessees of theatres in New Orleans shall pay $500 per annum for the benefit of the Charity Hospital.

The plaintiff’s claim is resisted by the defendant and appellant on two grounds. “First, that it is contrary to the Constitution of the State; and, second, that the law which gave to the plaintiff this source of revenue has been repealed.” <

We consider the question thus presented for our solution as already settled by the decision of our predecessors in the case of the Charily Hospital v. Stickney, 2 A., 551. Article 123 of the present Constitution is identical with Article 127 of the former Constitution, under which that decision was given. The provisions of the Act of 1853, taxing the managers or lessees of every theatre $200, are not, in our opinion, contrary to, or irreconcilable with those of the Act of 1838, re-enacted as one of the revised statutes. Hence, it follows, that the latter statute cannot be considered as repealed by implication.

According to the opinions of our predecessors, in which we concur, the price of the license for theatres is not, in its proper legal sense, a tax. “ This term (taxes) in its most extended sense, says Bouvier in his Law Dictionary, includes all contributions imposed by the government upon individuals for the service of the State, by whatever name they are called or known.” We do not think it can he said with any propriety that this contribution in favor of the Charity Hospital, is, according to the terms of this definition, a contribution for the service of the State.

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

      The Charity Hospital v. Diedrick involved the same question as was decided in this case, and was decided in like manner.


text:
    Succession of Widow Victor Lerude.
    It is uofc customary to file answers to oppositions made to tableaux of distribution; such answers being1 in the native of replications. Oppositions in such cases are open to every objection of law and fact, such as minority, fraud, simulation, &c. In case of surprise a remedy may be afforded by a continuance, or a new trial.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Filleul and St. Paul & Bouny, for plaintiff and appellants. Robert and Maurian, for defendant.
   Lea, J.

This case comes up on appeal taken from the rejection of the opposition made herein by Clementine Gamón to the tableau of distribution filed by the administratrix.

The District Judge considered that the several claims set up in the petition of opposition were mere simulations. From a review of the evidence, we thinlc this conclusion is well founded.

But the judgment is based upon evidence to the introduction of which the opponent objected, on the ground that no plea of fraud or simulation was filed by the administratrix. If notice be the object of pleading, the opponent had ample notice of this defence at every step of the proceedings had on the first trial, in which her claim was opposed exclusively on the ground of simulation. It is not customary to file answers to oppositions made to tableaux of distribution, such answers being in the nature of replications; oppositions in such cases are open to every objection of law and fact, such as minority, fraud, simulation, &c. In case of surprise, a remedy may be afforded by a continuance or even a new trial. In this case the opponent had the benefit of a new trial. The admi-nistratrix, both in her capacity as heir and as the representative of the creditors, none of whom have been cited as appellees, had a right to contest the validity of the admission contained in the notarial Act, which, it is to be observed, was not a contract, nor an act in any way affecting real estate or slaves, but a mere admission of an alleged pre-existing indebtedness. It was certainly competent for the representative of the estate to contradict by parole the reality of such an alleged indebtedness.

The 2256th Article of the Civil Code is not applicable to such a case. See 2 An. 92,4 An. 501,1 La. 239, 8 N. S. 541. On the merits we concur in the opinion of the District Judge, that at the death of Mrs. Lerude she was not indebted to the opponent.

Judgment affirmed.


author: Spofford, J.

text:
    Louis Surgi v. Henry Snetchman

    An assessment on property in New Orleans, in front of which paving' has been done, of a portion of the cost, is not forbidden by the Act of 4th May, 184T, section 1; such an assessment is not opposed to the letter or spirit of Article 127 of the Constitution of 1845, and Article 128 of the Constitution of 1852.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Redmond, for plaintiff. Duvignaud, for defendant and appellant.

        Surgi v. Batalord, decided at the same time as this case, involved the same question.

   Spofford, J.

The facts of this ease have been stated in the opinion heretofore pronounced overruling a motion to dismiss the appeal.

As the amount in controversy is less than $100, our attention must be confined to the issue touching the constitutionality and Jegality of the resolution of the Common Council of New Orleans, ordering Louisa Street to be shelled, and the assessment of one third of the expense upon the property in front of which the shelling was done.

It might .suffice to say that the resolution of the 28th July, 1858, which is declared by the defendant’s peremptory exception to be illegal and unconstitutional, does not of itself appear to have imposed any liability upon the front proprietors, and consequently, the questions which have been discussed at bar do not perhaps strictly arise upon the pleadings.

But if the questions were fairly presented, we should be of opinion that an assessment upon the property in front of which paving .has been done, of a portion of the cost, was not forbidden by the-.Act of 4th May, 1847, sec. 1st, Sess. Acts, p. 140. That section merely reiterates, with regard to the municipalities of New Orleans, the provisions of Art. 127 of the Constitution of 1845, relative to State taxation, with the proviso that. “ nothing contained in the Act shall be so construed as to impair any of the powers vested by existing laws in the General Council of the city of New Orleans.” This section evidently refers to ordinary taxation for the purpose of filling the common treasury of each municipality. An Act of March 20th, 1840, p. 57, declared that “ whenever the owner of any property in front of which paving shall be done by order of the Council of the Municipality within which it is situated, shall fail to pay the third part of the cost of said paving, as he is hound to do hy the existing laws, such Municipality shall have a special privilege on said property for the reimbursement of one third part of the sums expended on such paving, which shall entitle it to be paid in preference even to' a previous mortgage thereon.” Bui. & Cur. Dig., 131. And by the Act of March 18th, 1850, sec. 8, p. 130, it was provided that the Councils of said Municipalities shall have the right of laying special taxes for local improvements, when the owners of property thereby benefited'are liable to be specially taxed conformably with existing laws, for the whole or a portion of the expense incurred for such objects. And whenever it shall be deemed necessary to make a n'ew paving in any street or footway already paved, the owners of property fronting said street or foot-way shall also be liable to be specially taxed in the proportions established by existing laws; provided, a fair and adequate allowance bp first made in their favor for the value of the materials of the old paving.”

By the 22d section of the Consolidation Act, approved Feb. 23d, 1852, p. 48, all the powers, rights, privileges and immunities of the three Municipalities were vested in the city^of New Orleans as at present organized.

It is a fair inference that in 1853, the power of imposing a special assessment upon the front proprietor to cover a portion of the costs of paving, which conferred a particular benefit upon his property, was by law vested in the City Council.

And we are of opinion that such legislation was not opposed to the letter or spirit of Article 127 of the Constitution of 1845, and Article 123 of the Constitution of 1852.

Our views upon this subject have been expressed in the recent cases of Yeatman v. Crandell, and The New Orleans Braining Company, praying for the confirmation of a tableau.

The other points made in the appellant’s brief are not put at issue by his peremptory exception, save by a vague allegation that the resoluti’on of the Common Council was “ contrary to the law of the Legislature approved March 18th, 1850.” This objection is too loosely pleaded to be noticed.'

The judgment is therefore affirmed with costs.

       Buoiianan, J. took no part in this decision.


text:
    William Florance v. Mrs. Susan W. Hills and Husband.
    The licitation of proiierty to effect a partition may be ordered, on proof by witness of its necessity, as well as upon the report of experts.
    Code 1261.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.
    Benjamin, Bradford & Finney, for plaintiff. Qoold & Stansbury, for defendants and appellants.
   Merrick, C. J.

The present is an action of partition.

The record presents the single question, whether the Judge may order the licitation of the property to effect a partition, on the simple proof of its necessity by witnesses, or whether the appointment of experts is not an indispensable prerequisite to such an ordez\

The appointment of the experts to make a report upon the practicability of making a partition in kind, and the -calling witnesses to depose to the same matters, have, the like object, viz: to inform the court of the feasibility of a partition or the necessity of a sale.

Of these two modes of proof, that by witnesses is often superior to the report of experts, for the number of the witnesses may be indefinitely increased and their testimony fully established by the test of a thorough cross-examination. Hence, in several instances, the reports of experts have been overruled after hearing witnesses.

In the case of Millaudon v. Percy et al., 5 N. S. 555, it was decided that witnesses might be heard, in an action of partition, to contradict the report of experts upon the question — whether property was divisible in kind, without injury or not.

Article 1201 of the Civil Code, evidently contemplates that evidence may be administered in such cases, in any of the legal modes. It says : “ When the property is indivisible by its 'nature, or where it cannot be conveniently divided, the Judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisement prescribed by law and in the manner hereinafter prescribed.”

In the case of Kohn et al., Syndics, v. Ma/i'sli, (an action of partition,) it was held, that the court might rescind the order appointing experts and resort to testimonial proof, in order to ascertain the necessity for a sale. 3 Rob. 49-50.

The report of the experts, when appointed, appears to possess but little value,- unless it states all the facts upon which the opinion is based. 7 Ann. 530.

The cases cited by defendants’ counsel, are not- in conflict with the case of Kohn, et al., Syndics, v. Marsh, 3 Rob. 49. In the case of Placencia's Heirs v. Placencia, 8 L. R. 576, Judge Bullard was speaking only of the necessity of proof when he remarked, that: “ The sale must depend upon the fact that the property cannot be conveniently partaken in nature, which, according to the Louisiana Code, must be made to appear by the report of experts.” In the case of Lecarpentier v. Lecarpentier, 5 An. 499, Judge Rost, after citing the preceding case, says of the matter before him: “In this case no experts were appointed, and no evidence of that fact (the indivisibility of the property in kind) was adduced,” thus recognizing both modes of making the necessity of the sale to appear. The syllabus to the case does indeed state the law as contended for by the defendant, but the text does not warrant so broad a conclusion.

The necessity of the sale in order to effect á partition, sufficiently appears from the testimony of the witnesses, and the judgment of the lower court must be affirmed.

Judgment affirmed.


author: Buchanan, J. Merrick, C. J.,

text:
    Augustus W. Walker, Curator, v. J. W. Goslee.
    The delivery of the effects of a deceased passenger to the agent of the administrator appointed in Massachusetts, before the appointment of a curator here, Trill discharge the master.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Miller, for plaintiff and appellant. . Thomas LLunton, for defendant.
   Buchanan, J.

The evidence fails to make out a case of liability on the part of defendant for the effects of Mias Jenlcins, left on board the steamer George Collier, at St. Louis, when Jenlcins was taken to the hospital. The only witness on the subject is L. McDonough, who was clerk of the boat, and who declares that he took possession of those effects on his own responsibility, and without being authorized or directed thereto by defendant. In this respect, the present case differs essentially from that of Malpicu v. McKown, 1 L. R. 248, relied on by plaintiff. In that case, the effects of the passenger were inventoried after his death in the presence of the captain, who delivered them to another person.

Again, it is admitted, that the effects of Jenkins, taken possession of by McDonough, were all handed and delivered to W. L. Gushing, as the agent of Nathaniel Jenkins, of Boston, prior to the appointment of plaintiff as curator of Jenkins, to wit, on or about the 30th October, 1852. The delivery would exonerate defendant from liability to plaintiff', even supposing defendant to be responsible for McDonough in the promises. Por it is proved that Nathaniel Jenkins was appointed administrator of Elias JenkirHs estate, by the Court of Probates of Suffolk county, Massachusetts, on the 20th of September, 1852, and that he made his power of attorney to W. L. Gushing, on tho 21st of September, 1852, authorizing him to collect and receive the effects belonging to said estate. The plaintiff was only appointed curator, by the Fourth District Court of New Orleans, on the 24th of May, 1853.

Judgment of the District Court affirmed, with costs.

Merrick, C. J.,

with whom concurred Voobiiies, J. Without expressing an opinion on the point whether an administrator appointed in another State has the right to collect assets belonging to the deceased through an agent here, I think there was no want of care or diligence on the part of the defendant in depositing the goods with Gushing. They could not be kept upon the steamboat, and there is nothing in the record to show that Gushing was considered at that time, dishonest or untrustworthy.

I can concur therefore on this ground.


author: Vooehies, J.

text:
    Police Jury of West Baton Rouge v. Marceline Bergeron, Curatrix, &c.
    It is the effect of the inscription, and not the effect of the mortgage, which ceases at the expiration of ten years, unless there be a reinscription within that time; and hence the reinscription after ten years lias effect only from the date of the reinscription.
    Code, 8883.
    APPEAL from the District Court, Sixth District, parish of West Baton Rouge, Robertson, J.

      Favrot, for plaintiff and appellant. Herron, for defendant.
   Vooehies, J.

On the 5th of April, 1839, Francois Bedat mortgaged a tract of land, of eight arpents front on the Mississippi river, to secure the payment of a loan of $8200, obtained by him from the plaintiff as trustee of the legacy, under the will of the late Julian Poydras, in favor of the indigent girls of the parish of West Baton Rouge.

He stipulated, among other things, to pay annually ten per cent, interest on the loan, which was to be reimbursed after his death, or daring his lifetime, at his option. On the 5th ot September, 1842, he sold to Daniel 'Gontini five of the eight arpents thus mortgaged, and the latter assumed his obligation to pay the loan.

Gontini died without having discharged the obligation, and all the property of his succession, including the land conveyed to him by Bedat, was adjudicated to his wife, Marceline Bergeron. On the 26th of October, 1852, the land thus conveyed to Gontini was sold by the Sheriff, under an order of seizure and sale, for the price of $1860 66|-, leaving a balance then due to the plaintiff, as seizing creditor, of $1858 661, with interest thereon at ten per cent, per annum until paid. ,

After the death of Oontini, his widow, Maroeline Bergeron, was married to Frangois Bedat, who died seized as owner of the remaining three arpents of land thus mortgaged to the plaintiff. At the judicial sale of the property and effects of Bedat’s succession, represented by the defendant as curatrix, said land was sold for the price of $1500, which the plaintiff claims to be applied by preference to the payment of said mortgage loan.

The general issue, and the prescription of five and ten years, are the only pleas contained in the answer.

The question presented to our consideration is the same as that decided in the case, of Sheppard v. New Orleans Cotton Press Company, 2 An., 100, in which our predecessors held, in an elaborate opinion; since affirmed, that under Article 8883 of the Civil Code the effect of the inscription, and not the effect of the mortgage, ceased at the expiration of the ten years, unless reinscribed within that period; and hence the reinscription, after the expiration of the ten years had effect only from the date of such reinscription. In the present case, it cannot be pretended that the principal obligation is extinguished by prescription, and the reinscription of the mortgage,, as its ^accessory, must, therefore, have effect from the date of such reinscriptjon.

As the appellee has not filed an answer to the appeal praying for the reversal of the judgment rendered against her personally, it is not in our power to relieve her.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, except against the defendant personally, that the plaintiff recover of said defendant, as curatrix of the succession of the late Frangois Bedat, the sum of fifteen hundred dollars, with preference upon the proceeds of the land, to bear date from and after the 24th of July, 1849, the date of the reinscription, to be paid in due course of administration, the costs of appeal and of the court below to be borne by said succession.


author: Vookhies, J.

text:
    Gray, Macmurdo & Co. v. Lowe & Pattison et al.
    An injunction issued to restrain the negotiation of a bill of exchange, which being dissolved, this - suit for damages was brought on the injunction bond. By the Gowt: The rule of damages would seem to be that the probable loss sustained by a party in consequence of having been deprived of the free disposal of his own property should be the true standard; in other words, he should be placed as nearly as possible in the situation in which lie woukfhave been if the disturbance had not taken place. Consequential or vindictive damages cannot be allowed.
    Plaintiff is entitled to recover lawyer’s fees actually expended by him to obtain the dissolution of the injunction. 1 _
    PPEAL from the Fourth District Court of New Orleans, Beynolds, J.

      Elmore & King, for plaintiffs. Goold '& Stanshury, for defendants and appellants.
   Vookhies, J.

This is an action for damages. Gray, Maemurdo & Go. were the holders of a draft of $5000, drawn by Alexander Pattison, Jr., to the order of and endorsed by William, E. Pattison, of the firm of Lowe & Pattison, the drawees and acceptors thereof.' On the 20th of October, 1851, Lowe & Pattison brought suit against William Partee <& Go. and Gray, Macmurdo & Go. to recover the draft, on grounds which are concisely stated in the opinion of our predecessors; (7 An., 465) and to restrain its negotiation, sued out a writ of injunction. On the 26th of November, 1851, Gray, Macmurdo & Go. brought suit on the draft against Lowe & Pattison.

Both' actions were then consolidated, and terminated in a judgment whereby the injunction was dissolved, and Gray, Macmurdo & Go. recovered of Lowe & Pattison the sum of $5254, being the amount of the draft, with damages at five per cent., and the cost of protest, with five per cent, interest from the 14th of November, 1851, until paid. The injunction bond therein given by Lowe & Pattison, with Feao-n, Donegan & Go. as sureties, for the sum of $2000, forms the basis of the present action.

The damages of which the plaintiffs complain are alleged to consist in lawyers’ foes, which they were compelled to pay to have the injunction set aside, and in the trouble, labor and annoyance to which they were subjected in attending to the defence of the case, and also damages which resulted from the inability to negotiate the draft in consequence of the injunction.

The defendants answered separately by pleading the general issue.

The cause was tried by a jury, who found a verdict in favor of the plaintiffs against the defendants for the sum of $2000, the full amount of the bond. After an unsuccessful attempt to obtain a new trial, the latter appealed from a judgment thereon rendered against them.

In cases of this kind, we think the doctrine as to the standard of damages is well settled under our jurisprudence. It is clear that consequential or vindictive damages cannot be allowed. The rule would seem to be that the probable loss sustained by a party in consequence of having been deprived of the free disposal of his own property, should be the true standard; in other words, he should be placed as nearly as possible in the situation in which he would have been if the disturbance had not taken place. 6 L. R., 169 ; 11 R., 146.

It is not pretended by the appellees that they have not realized the full amount of the draft, damages and interest, as awarded by the judgment in their favor. But even if it were, we think their objection on the trial below to the admission of proof of the payment of that judgment, coupled with the other circumstances, would afford a sufficient presumption of Such payment. In Hutchinson v. Sparks, 3 An., 548, it was held that the withholding from the party the evidences of debt upon which he desired to raise money should not induce a more rigorous measure of damages than withholding a like sum of money, and in such case the measure of damages would be interest. On this score it is, therefore, clear that the plaintiffs are not entitled to any damages.

But it is urged that the appellees are entitled to recover as special damages the amount paid by them for professional services rendered in the injunction suit. In the case of Jones v. Doles, 3 An., 388, an action for damages on a sequestration bond, it was held that, in the assessment of damages, the reasonable expense of counsel employed in the former suit was allowable. But we understand the rule to be with the qualification as laid down in the case of Penney v. Taylor, 5 An., 714, which was also an action for damages on a sequestration bond, in which it was held that the plaintiff, who had paid his counsel $250 for their professional services in the suit, was entitled to recover as damages the portion thereof fairly due for the services relating to the release of the vessel from the sequestration. In all cases quoted, in which counsel fees were allowed as damages, such fees appear to' have been for services rendered in relation to the release of the property. It follows, therefore, that the plaintiffs can only recover as damages such amount as they may have expended for professional services relating to the dissolution of the injunction.

The sum of $500 appears to have been paid by them for professional services rendered by Messrs. Elmore & King, in the case of Lowe & Pattison v. Gray, Macmurdo & Co. The record of that case shows that a rule was taken by the counsel to set aside the injunction on the ground of the insufficiency of the affidavit and bond; and the rule was discharged without prejudice to the rights of the parties.

We think, under the circumstance, the sum of $100 would be a just and equitable allowance as damages for the services, relating to the injunction. It is obvious from the evidence that Lowe & Pattison had reasonable grounds to believe that they had a good cause of action, and were not prompted by malice in the institution of their suit against the plaintiff. In the legitimate exercise of their regal rights they cannot be considered in fault, and hence they are not bound to repair all the damage which the,plaintiffs may have sustained thereby. 14 L., 50; 11 ibid, 238.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, that the plaintiffs recover of the defendants, in solido, the sum of one hundred dollars, and that said plaintiffs and appellees pay the costs of this appeal.


author: M,erbick, O. J.

text:
    Bazilie Fuselier, Wife, &c., v. J. D. Babineau.
    Equity will not permit the plaintiff and her husband to obtain a judgment against the surety of the tutrix, without accounting for so much of the funds of the plaintiff as were diverted to pay the individual debt of the tutrix and her husband to the plaintiff’s husband. The husband is a co-plaintiff in this suit, and it has been shown that the funds of the minor have been received by him in payment of a debt due to him individually by plaintiff’s tutrix and her husband.
    The judgment against the principal debtor has not the force and effect of the thing adjudged against the surety; It is prima,facie evidence against him, but the surety is at liberty to show errors and mistakes in the judgment, as well as to show that it was obtained by fraud.
    APPEAL from the District Court, Fourteenth District, Parish of St. Martin.

      Simon and Mouton, for plaintiffs. Olivier aftd Be Blanc, for defendants.
   M,erbick, O. J.

The plaintiff is the granddaughter of Julie Ozenne. Her father died in the year 1837, having survived his wife, Melanie Bavid, the daughter of Julie Ozenne, who had Simon Bavid for her first husband. In the year 1838, Julie Ozenne, who had, after the death of Simon Bavid, married Ursin Ozenne, was appointed tutrix to the plaintiff. She gave bond in the sum of $30,000, with the defendant and Antoine Beauvais as her sureties.

The plaintiff having married Gabriel Fuselier, who appears to have been the cousin of the plaintiff, and being thereby emancipated by marriage, instituted her action against her grandmother and Ursin Ozenne, to compel them to render an account. The suit was brought in the parish of Pointe Coupée, and was not defended on the part of the grandmother^and her husband further than to sign a general denial, which was prepared for them by the plaintiff’s counsel in that case, and filed by him as answer to the suit. The plaintiff, on the ex parte trial thus obtained, had judgment for $27,072 83. Having made only $18,984 09 on execution against her grandmother, she brings this suit against the defendant, as surety on the bond of the tutrix, to recover of him the remainder of the judgment.

In the interval between the appointment of Julie Ozenne as tutrix and the institution of the suit against her to compel her to render her account, she and her husband being embarrassed, placed in the hands of L. Janin, the attorney of the tutrix of Gabriel Fuselier, the plaintiff’s husband, he then being a minor, certain claims due the plaintiff, which were to be collected by Janin, and appropriated to extinguish a debt due by Ozenne and wife to Gabriel Fuselier and certain other creditors of Ozenne and wife. Accordingly Mr. Janin having collected, among other assets, in 1833, for Mrs. Ozenne, as tutrix of the plaintiff, $2484 51, applied it to the notes which Ozenne and wife individually owed to the minor Gabriel Fuselier, who afterwards became the plaintiff’s husband.

Judgment was rendered in the lower court against the defendant in this suit, allowing him, however, a credit on account of commissions due the tutrix, and for the maintenance of the minor, which had not been allowed-in the judgment against the tutrix, and also allowing a credit for the amount made on execution. By reference to the pleadings filed since the judgment was rendered against the defendant, and by the execution issued since the devolutive appeal was taken in this case, there is great reason to think that Julie Desire Beauvais, wife of Eiliare Gradnigo, and sole and unconditional heir of Antoine Beamais the co-surety of the defendant, together -with her husband, is the proprietor of this claim now in suit against Babineau. If such is the case, it is evident that a portion of plaintiff’s demand has been extinguished by confusion.

The testimony of L. Janin, although not referred to in the minutes of the testimony, has been used by counsel on both sides, and referred to in their briefs, and we have considered it.

We do not think that equity will permit the plaintiff and her husband to obtain judgment against the surety of her tutrix without accounting for so much of the funds of the plaintiff as were diverted to pay the individual debt of the tutrix and her husband to the plaintiff’s husband. He is a party, as plaintiff, in this suit, and it is shown, as we think, by the testimony, that the funds of the minor have been received by him to pay a debt due by persons who had no just right to make such an appropriation.

It is true that this appropriation was made by the intervention of others, but that does not change its character. The fund, by the acts of Gabriel Fuselier's agents, is in his hands, and -he ought to be held to account for it to his wife as having received so much of her estate. He, so far as the record informs us, administers his wife’s estate, and we see no reason why he should not be treated in this respect as an administrator of a succession who is indebted to it.

An administrator is not compelled to collect the debt of himself, which would be absurd; but he is charged directly with so much money in his hands due the estate, and so we think both the wife and third parties, who have the right of subrogation to her rights, are authorized to consider the husband who has funds belonging to her. We cannot stand by and see the funds belonging to minors and creditors misapplied to the prejudice of sureties, particularly where we have the parties benefited by such misapplication before us jointly in the demand against the surety.

It has been objected that, in the absence of any charge of fraud, there are no sufficient allegations in the defendant’s answer to justify the court in inquiring into the basis upon which the judgment against Ozenne and wife was rendered. It is true there is no charge of fraud made in the answer, but it is alleged that the judgment was rendered ex parte, and for a much larger amount than plaintiff is entitled to. "We do not understand the judgment against the principal debtor to have the force and effect of the thing adjudged against the surety. It is prima facie evidence against him, but the surety is at liberty to show errors and mistakes in the judgment a.s well as to show that it was obtained by fraud.

We think that justice requires that this case should be remanded, and that leave should be granted to the defendant to amend and claim a credit for such sums as- Gabriel Fmelier has received by the transfer of claims from, or by collections on demands belonging to the estate of his wife under the administration of her tutor, and also leave to allege and prove any confusion which may have taken place by the purchase by Mrs. Gradnigo of the plaintiff’s demand. We leave open for a now trial the plea of res judicata, set up by the defendant as to Mrs. Ozenne's interest in the succession of Judge Adolphe Fmelier, deceased.

It is, therefore, ordered, adjudged and decreed by the court that the judgment of the lower court be avoided, reversed and annulled, and that this cause be remanded for a new trial, with leave to the1 defendant to- amend in conformity to the views herein expressed.


text:
    State v. John Shields.
    On a trial for muvder the Judge told the jury that “ murder is of very frequent occurrence in this community, and when a jury has a case of murder which is clearly made out, the court believes it necessary for a jury to bring in an unqualified verdict in order to deter others from crime.” By tke Court: Such a charge was calculated to impress upon the minds of the jurors that in all cases of murder they were not at liberty, or, at least, could not with propriety exercise that discretion which is expressly conferred by the statute of 1846, which declares that in all eases where the punishment demanded by law is death, it shall be lawful for the juvy to qualify their verdict by adding thereto, “ without capital punishment.” We think the discretion of the jury should not have been trammelled by instructions which were not only' calculated to secure an unqualified verdict, but might have been construed by the jury into an intimation of the opinion of the court as to the guilt or innocence of the prisoner.
    APPEAL from the Eirst District Court of New Orleans, Robertson, J.

      Mo’ise, Attorney General. J. Q. Bradford and Field, for appellant.
   Lea, J.

John Shields, having been found guilty of murder, is appellant from a sentence of death rendered in accordance with the unqualified verdict of the jury-

One of the grounds relied upon for a reversal of the decree does not differ materially from that which has already been considered in the case of the State v. Obregon, in which the prisoner was accused of arson.

On the trial of that case in the court of the first instance, the District Judge instructed the jury “that it was their duty to find an unqualified verdict if the case was clear.” This charge was held to be erroneous, as being “ tantamount to an instruction that if a person was found guilty of arson he should always be punished with death, for, unless the case was clear beyond all reasonable doubt, they could not find the prisoner guilty at all.”

Tn the case at bar the charge of the court was similar in meaning and in its necessary effect upon the minds of the jury. The court remarked to the jury : “Murder is of very frequent occurrence in this community, and when a jury has a case of murder which is clearly made out, the court believes it necessary for a jury to bring in an unqualified verdict in order to deter others from crime.”

Such a charge was calculated to impress upon the minds of the jurors that in all cases of murder they were not at liberty, or, at least, could not with propriety exercise that discretion which is expressly conferred by the statute of 3846, which declares that in all cases where the punishment demanded by law is death, it shall be lawful for the jury to qualify their verdict by adding thereto, “without capital punishment.”

We think the discretion of the jury should not have been trammelled by instructions which were not only calculated to secure an unqualified verdict, but might have been construed by the jury into an intimation of the opinion of the court as to the guilt or innocence of the prisoner.

It is ordered, that the judgment of the District Court in the case of the State v. John Shields bo reversed, and the verdict of the jury set aside, and that the cause be remanded for a new trial according to law.


text:
    Thomas and Catharine Fitzgerald v. Robert Ferguson.
    Where a person is injured by the carelessness of a slave, the lessee of the slave is the person first liable to respond in damages, under Article 2299 of the Code.
    Where a slave occasions injury to any one by his negligence, and the lessee has not induced it by any want of vigilance or care on his part, the lessee may recover against the owner of the slave an indemnity for such damages as he may have been obliged to pay third parties.
    C. F. was injured by the carelessness of a slave in driving a carriage ; the slave was hired to defendant, but the title was in B. Plaintiff obtained a judgment for damages, and B. abandoned the slave, who did not bring enough to satisfy plaintiff’s judgment, and the balance was claimed from defendant — I/elcL: that in the particular case, both the owner and the lessee were relieved by the abandonment. By the Gov/rt: Whether there may not be cases where the parties would not be permitted to relieve themselves from a responsibility by a surrender of the slave as in those cases where particular skill and experience are required, and an incompetent slave is employed as a N workman, it is not necessary for us to determine.
    Code 180, 1S1, 2800.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Cotton & Dorsey, for plaintiffs. Hunton & Bradford, for defendant and appellant.
   Merrick, C. J.

Robert Ferguson was the lessee df a slave, hired to him by René H. Brunet, in whom the legal title to the slave was vested, although Brunet held the slave for the benefit of some person in England, and hired out the slave as agent of such person.

While in Ferguson's employment, and driving a one horse carriage belonging to the defendant, the slave negligently and carelessly drove against the plaintiff, Catharine Fitzgerald, as she had alighted' from an omnibus, and was crossing to the side-walk. The plaintiff was thrown down by the force with which she was struck by the horse, and she and her child were run over by two of the wheels of the vehicle, she being -permanently injured, as testified by the physician.

The action is brought to recover damages for the injuries sustained by her.

Brunet is also made a defendant. The District Court gave judgment against the defendants in solido for one thousand dollars, and Ferguson has appealed. The defendant, Brunet, within three days after the decree, surrendered the slave in satisfaction of the judgment rendered against him, under an exparte order of the Judge, who had pronounced tbe decree. Since the appeal has been taken in this case, the slave has been sold, and the proceeds are in the hands of the sheriff, awaiting the decision of this case by consent.

We think the proof of the injuries sustained by Mrs. Fitzgerald justified a judgment for some amount of damages. Whether for the exact amount rendered, it is unnecessary to inquire.

The questions therefore presented by the case are, is the lessee responsible for' the act of the slave? If so, has he or the person injured any further recourse against the owner? And if he has, will the abandonment of the slave by the owner, relieve both from any further responsibility, or one only?

In considering these questions in their order, we remark that the employer . is responsible for the negligence or carelessness of the workman or servant in his, the employer’s, ordinary business, even though that servant or workman •be free. -

In the case before us, if the defendant, Ferguson, had employed a -white person as his carriage driver, and the accident had occured under precisely the same circumstances, that is from mere carelessness, and without any wilful intention of doing injury on the part of the driver, he -would have been responsible for the act. We can see no reason why, therefore, he. should not bo responsible in like manner when he employs a slave. In the case of an injury occasioned by the servant who is freej the' party injured has his remedy against-either the servant or employer. In the case of the slave, the first person to respond for the injury under xlrticle 2299 of the Civil Code, would seem to be the person who has the slave immediately under his control, and who commands his services and obedience as master for the time being, and so it has been expressly ruled in the case of Gaillardet v. Demaries, 18 L. R., 492. In the 2d Annual, 406, in the case of Collingsworth v. Covington, it is said: That Article 2299 does not refer to slaves. This is true in the sense intended in that case, which was an action' directly against the owner for the injury done by his slave to the plaintiff, his overseer. That case was correctly decided by Articles 180, 181 and 2300 of the Code, which alone were applicable. But when the suit is brought against the lessee of the slave, it may happen that the owner will not be liable at all, whilst the lessee ought to be held responsible for the wholb' damage done. Suppose, for instance, a slave is hired as a field hand, and the lessee makes him his carriage driver, or sets him at some mechanical employment, by which an injury is occasioned by his want of skill arid negligence. Here it would be evidently unjust to hold the owner responsible, and it would be equally unjust to allow the party to escape who has occasioned the injury by setting at a difficult employment, a person manifestly incompetent. We think, therefore, the lessee must be held responsible. jf perSon who does the injury is not the slave of the lessee, he is, as to the relation between them, in every sense of the word, a servant, which is not prevented by being the slave of another.

It is also apparent from what has just been said that the owner of the slave ought not to be held responsible for the merely negligent acts of his slave, unless the slave has been employed in business to which he has been accustomed, and for which he was hired. Where he is so employed and occasions an injury by his negligence, and the lessee has not induced it by any want of vigilance or care on his part, we think the lessee may recover against the owner of the slave, an indemnity for such damages, as he may have been obliged to pay third parties. In the case of a free servant, the employers could recover against the servant for such damages as he had been obliged to pay to a third person on account of the carelessness of the servant, and we can see no good reason why the owner, who hires out his slave for a particular employment, should not be responsible if he does not possess the requisite skill or intelligence for that employment.

The parties, lessee or lessor, stand in such a case as to third parties as defendant and warrantor.

Now, in the case before us, had Ferguson been the owner of the slave, he would have had the right to abandon him in satisfaction of the judgment, within three daj's after its rendition. It must follow that Brunet, the legal owner, has the like right to relieve himself from his responsibility as warrantor, for the acts of his slave.

The next question is, does the surrender of the slave, release Ferguson, as well as Brunet? The reason to doubt is that Fergxison is not the owner of the slave, and had it been a white servant who had occasioned the injury, the employer, in case of responsibility, would have been bound absolutely for any amount.

On the other hand it seems inequitable that the master should be able to free himself from responsibility by a surrender of the slave, and that the lessee who has only a temporary interest in the services of the slave should be held, as in this case, for two or three times the value of the slave by the surrender of which the owners had been released.

The aetio noxalis for the injuries done by slaves, and aatio de pauperie for jnjuries done by animals were both quasi actions in rem. Omnis autem noxalis actio caput sequitur. Nam si servus tuus noxam commiserit: quamdiu in tua potestate sit, tecum est actio. Si autem in alterius potestatem pervenerit; cum illo incipit actio esse. . At si manumissus fuerit; directo ipse tenetur et oxtin-guitur noxae deditio. Ex diverso, quoque directa actio noxalis esse incipit. Nam si liber homo noxiam commiserit et is servus tuus esse coeperit (quod quibusdam casibus effici primo libro tradimus) incipit tecum esse noxalis actio quae ante directa fuisiet. Just. 4, 8, §5. 7 L. R., 590.

We think so much of this character of the original noxal action may be supposed to remain as to relieve, in the particular case before us, both the owner and lessee by a surrender of the slave.

Whether there may not be cases where the parties would not be permitted to relieve themselves from responsibility by a surrender of the slave, as in those cases where particular skill and experience are required, and an incompetent slave is employed as a workman, it is not necessary for us to determine. The fact that the slave had taken two other negroes in the vehicle to ride with him accounts for his want of attention in driving, at. the,time of the accident. There is nothing in the record to show that he was incompetent as a driver, or that he was employed about a business for which he was not hired.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment appealed from be amended by adding thereto the condition that said sum of one thousand dollars and costs, shall be discharged and satisfied by the delivery'or surrender of the slave Ramis, or his proceeds to the sheriff within three days after the judgment of this court shall be ordered to be executed by the lower court, of which notice shall be given the defendants ; and it is further ordered that the judgment so amended be affirmed, the plaintiff and appellee paying the cost of the appeal.


author: Buchanan, J.

text:
    Marcel Douatt v. Auguste Louge.
    It is incompetent for a maker of a promissory note, secured by authentic act of mortgage, in which the note is said to be given for money borrowed of payee — to prove by parol, especially against a third person, not a party to the mortgage — that the payee bad acknowledged that no consideration had passed for the note.
    A PPEAL'from the Second District Court of New Orleans, Morgan, J.

      Magne, for plaintiff and appellant. Tissoi, for defendant.
   Buchanan, J.

The plaintiff relies upon two bills of exception. The first is to the rejection of parol evidence to prove fraud and simulation, in a notarial act of mortgage, and that the payee of the promissory note of plaintiff, secured by said mortgage, had acknowledged that there was-no consideration given for said note.

The party who offers this evidence is the very party who is said to have committed the simulation. Eor this suit is an injunction of executory process issued upon a promissory note of plaintiff, secured by mortgage by authentic act, in which plaintiff (the mortgagor,) declares the note to have been given for money borrowed of the payee.

It was incompetent for plaintiff to make proof, atleast by parol, and more especially against a third holder of the note, who was not a party to the act of mortgage. See Labadie v. Poydras, 3d Annual, 154, and the cases there cited-

The second bill of exceptions is to the admission, on the part of defendant, of a notarial act of subrogation of the right of- mortgage made by the payee of the note in question to defendant. The ground' of plaintiff’s objection to this .act of subrogation, is stated to be that the act contains declarations which are not binding on plaintiff, who was no party thereto.

The Judge below did not err. The act was a necessary part of defendant’s proof, and could not be divided. The essential fact which it established was the transfer of the original mortgagee’s rights-to the defendant. And as to the declarations of. which the plaintiff complains, it may be observed, that they are but recitations of other authentic acts, to which the plaintiff was a party.

No affidavit was necessary for obtaining the executory process. Roulette v. Shepherd, 7 N. S., 516.

Judgment of the District 0'o«rt affirmed with costs.


text:
    Rorert Flemming v. P. Rotchford et al.
    The removal of a mortgaged slave from Louisiana to Alabama, and his subsequent sale there, cannot be set up in this State as a bar to the mortgage existing prior to his removal.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Ramie, for Grain, appellant. E. A. Bradford, Durant & Honor, Bonier and Penrose, for different defendants.
   Merrick, C. J.

A motion to dismiss the appeal in this ease was overrulled in May last.' See 10 An.

The case, upon its merits, has turned principally upon the effect to be given to a private act of sale (which purports to have been passed in the State of Alabama) of the slave in controversy.

The plaintiff contends that having bought the slave of John Ward,, in Alabama, where he alleges the slave then was, he acquired him as personal property, free from incumbrances, and that he is so entitled to hold the slave here.

The slave having been subject to the judicial mortgage in favor of E, A. Bradford against George P. Bowers, at the time of the sale from Bowers to Grane, the plaintiff must take his title subject to the incumbrances which existed upon it at the time his vendors acquired title to it in Louisiana. The subsequent removal of the property from Louisiana to a common law State, and a sale of it there, could not be set up in this State as a bar to the judicial mortgage existing upon it prior to its removal.

It is proper to add, that none of the transfers in plaintiff’s chain of title were recorded, and Bradford was not bound to notice them in the proceedings under his judgment.

It has been recently decided by this court, that a judgment by confession, when duly recorded, operates as a judicial mortgage.

Judgment affirmed.


text:
    John Maginnis v. Henry C. Crosby.
    A partner whose interest in the partnership is for two-seventeenths of the profit and loss, ‘is liable in that proportion to one of his copartners who extinguishes this liability to third persons, whether by payment or novation.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Emerson & Huntington, for plaintiff. Rand, for defendant and appellant.
   Spofford, J.

The plaintiff, the defendant, and others, were formerly partners in the True Delta newspaper establishment, under the style of John Ha-ginnis & Go. The main object of the partnership was the publication of the newspaper, but, as usual, there was connected with it the business of job printing.

The defendant becoming dissatisfied, sought and obtained a dissolution and liquidation of the partnership, before the Eirst District Court of New Orleans, at a time when that court had jurisdiction of civil causes.

The establishment was sold, and the liabilities were found largely to exceed the assets.

The plaintiff, alleging that he had paid the entire balance of the indebtedness, -which had not been satisfied by the assets distributed under the orders of the Eirst District Court, afterwards sued the defendant in the Sixth District Court for a contribution of two-seventeenths of said balance, that being the proportion of the defendant’s interest in the partnership.

The plaintiff had a verdict and judgment for $2,568 02, and the defendant has appealed.

1. We regard the point concerning the correctness of the Judge’s charge as to the mode of attacking the judgment of the Eirst District Court between the same parties, to be immaterial, under the pleadings. That judgment was un-appealed from and was prima facie correct. / If it could have been attacked by the defendant in this suit, it was not attacked by any such averments or evidence as would authorize the court to question its correctness.

2. The same remarks apply to the position, that the judgment of the Eirst District Court could form no suitable basis for this action, until a year had expired from its date, because the parties had that time within which to prosecute an appeal. No exception was taken o'n this score in the defendant’s pleadings in this suit, nor was the correctness of the judgment impeached by any evidence.

3. The defendant contends that he and the 'plaintiff were not commercial partners; that therefore they were not bound in solido for the debts of the partnership, but only jointly ; and that, as the sole basis of the plaintiffs’ demand is the supposed legal subrogation which arises from the payment alleged to have been made by the plaintiff of the partnership debt,, the action must fail, inasmuch as the plaintiff was not bound for or with the defendant, and so had not an interest in discharging the defendant’s share. C. 0.. 2157.

It is not material to decide whether this was a commercial or a particular partnership. The doctrine of subrogation has nothing to do with the plaintiffs’ right of action, as no liens, mortgages or privileges, are claimed by him. His right to recover, rests upon the position that he has done the defendant’s affair, by paying the defendant’s debt. If they were commercial partners, they were bound in solido, for the debts which the plaintiff says he has paid ; if they were ordinary partners, the defendant was bound (towards the creditors) for his virile share, in proportion to the number of partners, which far exceeded what he would owe his partners on a settlement inter se, since his share of profit or loss was limited to two-seventeenths of the whole.

If the plaintiff has paid the whole amount of the partnership losses, he has a right to claim a contribution of two-seventeenths from the defendant, even if they were ordinary partners. This is an inference of law from the terms of the partnership agreement.

4.The only remaining question is, has the plaintiff satisfied the debts of the firm of John McGinnis S Go. ; for it is not denied that the alleged indebtedness really existed. The appellant argues that some of these debts have been novated merely by the substitution of the plaintiff’s individual obligations for the extinguished partnership liability. We deem this immaterial, for if the defendant has been discharged from an absolute pecuniary liability, he has been benefited to that extent by the plaintiff’s act, and he is liable to reimburse him, in the ratio of two-seventeenths of the entire balance of the indebtedness of the partnership, after deducting all its assets. The proof is sufficiently clear of the amount of that balance, and that the partnership has been discharged from liability for it, by the act of the plaintiff. Por this service, he is entitled to an indemnity.

Judgment affirmed.


author: Lea, J. Merrick, C. J.

text:
    Robert B. Woodworth, for the use of Warren Stone and Alexander Grant, v. Levin J. Wilson.
    Plaintiff was liable on certain notes on which M. was primarily bound. M. died; and plaintiff having applied for the curatorship of M’s estate, was induced to withdraw his application at the instance of defendant — who having an interest in the estate of deceased — agreed to deliver a certain quantity of lumber to plaintiff, at certain designated times, equal to the amount of the notes. Held: there is nothing immoral in such a contract; and defendant having failed to deliver all the lumber within the stipulated period, his liability to plaintiff is absolute for the • amount of the notes, less the value of the quantity of lumber actually delivered.

      Quaere. "Whether it is not against the policy of the law to enforce any contract which directly or indirectly has for its consideration the withdrawal of the applicant for the office of Executor, Curator, or Administrator of a succession, in order to secure the appointment to another? — Merrick, C. J.
    APPEAL from the First District Court of New Orleans, Buchanan, J.

      Bartlette and Clack, for plaintiff and appellant. Roselius, for defendant.
   Lea, J.

Robert B. Woodworth being the endorser of a note drawn by S. O. Mauson, and the drawer of another made for Mauson's accommodation, made application, upon the death of Mauson, for the curatorship of his estate. This application was opposed by the defendant, Levin J. Wilson, who was the son-in-law of the deceased. For the purpose of inducing Woodworth to withdraw his claims to the curatorship, Wilson signed the following obligation:

“ New Orleans, December 28th, 1841.

“ I agree to deliver to R. B. Woodworth lumber to the amount of two notes held by Messrs. Cucullu, Lapeyre & Co. and Alexander Grant, amounting to $2,377 08, in consideration the said Woodworth agree to give me the said notes and withdraw all claims as Syndic or Curator of the estate of the late 8. C. Mauson, the price of lumber to be as follows: prices flooring dressed, $28; weather hoarding, $12 50;' inch 1-J-i flooring, $14; scantling and inch boards, $12 50. The above prices Mr. R. B. Woodworth agrees to guarantee and use all diligence to realize a higher price, which if done, he, said Woodworth, is to give me strict account of the same. I further agree to deliver to said Wood-worth the lumber at following time, say, one, two, three and six months, and sooner if convenient, and at New Basin, New Orleans.

L. J. Wilson.”

This document is the basis of the litigation between the parties, and upon its proper construction depend their respective rights. The document is evidently drawn up by a person not accustomed to composition, and is expressed in obscure and incorrect language. The circumstances, however, under which it was executed are so clearly established by the evidence, that we think there is nodifficulty in arriving at a correct interpretation of the true intent and meaning of the parties. We think the identity of the notes annexed to the petition with those referred to in the document sued upon, is sufficiently established; and the fact that the stipulations therein contained were acted upon by both parties, we consider sufficient proof of an acceptance by Woodworth.

What then was the nature of the obligations which the parties' respectively contracted? It has been argued as if it were a-contract for the purchase of lumber, deliverable at fixed periods and at certain prices; but we think a perusal of the document itself (to say nothing of the explanatory evidence) will show that it is wanting in the essential ingredients of a contract of sale. It is true Wilson agrees to deliver lumber to Woodioorth; but for whose account? clearly for his own. Woodworth agrees to sell the lumber; it is true he guarantees to Wilson a minimum price, but in the same sentence he agrees “ to use all diligence to realise a higher price,” and if successful, “ to give a strict account of the same” to Wilson. This language absolutely repels the idea of a sale. A vendee cannot be accountable to his vendor for the re-sale of the property purchased; far less is he bound to credit his vendor with the proceeds of the re-sale.

It is evident that Woodioorth’s position was that of an agent with an interest in the agency. As we understand the relations of the parties, they are substantially as follows: Woodworth was likely to be a successful applicant for the curatorship of Mauson’s estate; he had an interest in this curatorship, which was, to secure the payment of the two notes'upon which he had become liable for Mauson’s accomodation. Wilson had also an interest in the administration, as representing, on behalf of his Wife or her children, a residuary interest as heirs at law. Now, it was certainly competent, under the circumstances, for Wilson to say to Woodworth, as in substance he did say, if you will withdraw your claim to the curatorship, and allow me to administer upon this succession, I will see that these notes upon which you are liable shall be paid; and for the purpose of securing the payment, I promise to deliver to you at stated periods within the next six months “ and sooner if convenient," a sufficient amount of lumber to enable you by a sale of the same to realize funds to extinguish the notes. You are to deliver to me the notes when paid; you are also “ to use all diligence to realize” a high price for the lumber for which you are to render me “ a strict account ,” and in no event is the price of the lumber to fall below a fixed sum for which you agree to be accountable. Under this contract, Wilson actually did deliver lumber to the amount of $300 ift value, but has altogether failed and refused, though thereunto requested, to deliver any more; and he now urges as matter of defence that the contract was immoral, that it involved the sale of a curatorship and ought not to be enforced. We think that under the contract entered into between the parties, Wilson undertook to pay the two notes upon which Woodworth was liable; and for the purpose of effecting this payment, he also'undertook within six months after the date of the contract to deliver to Woodworth 'a sufficient amount of luthber to enable the latter by sales to realize funds to be applied to the payment of the notes. Woodworth stands, as respects his liability, very much in the same position as a planter who has promised to make shipments of cotton to meet a city acceptance made for his accomodation. Having failed to deliver the lumber within the stipulated period, his liability on the notes has become absolute, and the plaintiffs are entitled to a judgment for the amount of the notes after deducting a credit of $300 for the proceeds of lumber delivered to Woodworth.

We can perceive no legal objection to the substitution of Slone and Grant as plaintiffs in the case, they being the equitable assignees under a valid contract of Woodworth's interest in the subject matter of this litigation, — the defendant not having been deprived of any equitable defence as against Woodworth.

It is ordered that the judgment appealed from be reversed, and that Warren Slone and Alexander Grant, plaintiffs substituted herein, do have and recover of the defendant, Levin J. Wilson, the sum of $2,074 08 with interest thereon at the rate of 5 percent per annum from the 26th day of February, 1845, till paid, with costs of suit in the District Court; and that the costs of this appeal be paid by the defendant and appellee.

Merrick, C. J.

I concur in the construction placed upon the contract by the majority of the court; but I doubt whether it is not against the policy of the law to enforce any contract which directly or indirectly has for its consideration the withdrawal of the applicant for the office of Executor, Administrator or Curator of a succession, in order to secure the appointment of another. See Gray v. Hook, 4 Comstock, 455. Marshall v. Baltimore and Ohio Railroad Co., 16 Howard, 384.


author: Merrick. C. J.

text:
    Trimmel & Burnett v. Marvel & Irwin.
    Where a person who was a witness on a former trial, was present at the second trial, it is not competent to show, by a bill of exceptions taken at the previous trial, that he had then refused to answer certain questions, without, at least, first propounding the questions to him.
    PPEAL from the Sixth District Court of New Orleans, Ootton, J.

      Ogden & Leovy, for plaintiffs and appellants. Hague and Roselius for warrantors.
   Merrick. C. J.

The District Court erred in excluding the testimony of Robt. Mott. Being the surety of Creseps on his administration bond, did not render him incompetent. If he was interested at all, it was against the party calling him. This testimony is in the record, and the cause will not require to be remanded on that account.

There was no error in refusing to receive the bill of exception taken in a former trial, which was offered for the purpose of proving that Purvis had declined to answer certain questions propounded to him, and to deduce unfavorable infer-enees therefrom. Purvis was in court and ready to testify. The plaintiff could m>t"<Jffer the bill of exceptions in evidence without at least first propounding his 'jforrpgittories to Purvis who was present and offered to testify.

From a“ careful examination of the testimony, we are not prepared to say that the'decision of the lower court was erroneous, nor that the testimony of Molt in addition :to the evidence adduced, would justify us in adopting a conclusion .different from that which prevailed.

Judgment affirmed.

Rehearing refused.


author: Voordies, J.

text:
    City of New Orleans v. George Guth.
    Defendant was sued for the cost of a license for keeping a beep-house, &c. He pleaded that he was protected by the statute which provides that “it shall not be lawful for any municipal, corporation within this State, to levy any tax on persons engaged in selling articles of their own manufacture, manufactured within this State.” By the Court: The evidence shows that the appellant keeps a beer-saloon, in which he retails, by the glass, b„eer of his own manufacture. His manufac-tory and saloon are both situated on the same lot. It -appears to us that the immediate sale of beer from a manufactory, and the retail of it in a public saloon, form distinct branches of business,' trade or occupation. We do not think it was the intention of the law-maker to exempt from taxation such articles thus retailed to carry on a public salpon. Hence, we conclude that the appellant, as keeper of a beer-house, or saloon, does not fall within the exemption of the statute.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Siestand & Levy, for plaintiff. Phillips, for defendant and appellant.
   Voordies, J.

The plaintiff brought this suit to recover from the defendant the following sjums, to wit: $100 as the price of a license fixed by law for exercising or pursuing the trade or business of a beer-house keeper and bottler of malt liquor, and where no spirituous liquors are sold, for the year 1854; $105 as the price of a license for the same business for the ensuing year, and $100 as a penalty for his non-compliance with the provisions of the ordinance of the city. . ~

There was judgment in favor of the plaintiff for the sum of $105, and the defendant appealed.

The appellant claims an exemption from the payment of this tax under the statute of 1853, which provides “ that it shall not-be lawful for any municipal corporation within this State, to levy any tax on persons engaged in selling articles of their own manufacture manufactured within this State. (Sess. Acts 1853, p. 135.)

The evidence shows that the appellant keeps a beer-saloon, in which he retails, by the glass, beer of his own manufacture.- His manufactory and saloon are both situated on the same lot.

It appears to us that the immediate sale of beer from a manufactory, and the retail of it in a public saloon, form distinct branches of business, trade or occupation. We do not think it was the intention of the law-maker to exempt from taxation such articles thus retailed f¿o carry on a public saloon. Hence, we conclude that the appellant, as keeper pf a beer-house or saloon, does not fall under the exemption of the statute.

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


text:
    Succession of Victor Duclos.
    Where witnesses differ as to the charges made by physicians, the correct rule is to allow the lowest estimate.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Drouett, for appellant. Quillet, Soulé and Lugenbtihl, for opponents and appellees.
   Buchanan, J.

The deceased, Victor Duclos, died of a pleurisy or “ fluxion de poitrine.” He was ill from the 30th November to the 29th December, 1854.

On the 3d December, Dr. Anfoux, who had been his family physician for several years, paid him his first professional visit in this, his last illness, and visited him several times a day from that period to the day of his death.

On the 4th December, Dr. Natili was called in by the family to consult with the attending physician upon the state of the patient. A consultation took place on that day, and another on the 5th December, at which time, when the consultation was over, Dr. Natili told a witness, the deceased’s house-keeper, that his services were no longer required, and that he would not return. It appears however that Dr. Natili did visit the deceased every day afterwards until his death.

The charge made by these physicians for their professional services to deceased in his last illness, is as follows:

Dr. Anfoux — 80 visits, day and night. $175

30 consultations. 300

Total. $475

Dr. Natili (without specifications). $320

The testamentary executor has appealed from a judgment which reduced these charges to $195 severally; and upon a review of the evidence, we conclude that a further reduction ought to be made.

As to the number of visits paid to the deceased during his last illness by these two physicians, the proof is as follows: Celina Dumas, the housekeeper of deceased, swears, as already noticed, that Dr. Anfoux visited deceased several times a day, from the 3d December to the 29th of the same month, in elusive, or twenty-seven days.

Jean Bidegaray proves that he saw the two physicians calling twice on the same day, morning and evening. He saw them come one after the other.

Celina Dumas proves that Drs. Anfoux and Natili only met together, or called at the same time to visit the patient, five times after the consultation of the 5th December.

Upon this evidence, we fix the number of visits of the physicians as follows:

Dr. Anfoux, twice a day for 27 days, or fifty-four visits.

Dr. Natili, twice a day for 26 days, or fifty-two visits.

Of these visits, only two for each are entitled to rank'as Consultations, under the evidence. As to the pretension that, from the moment more than one physician is called in, and attends regularly upon a case, every visit made by every physician employed, takes rank as a consultation, it cannot be listened to, even supposing that the visits are made at the same hour, so that the physicians actually meet at the patient’s bedside. The difference of the charge for what is technically styled a consultation, and for a simple visit, would make it ruinous to most patients and unreasonably onerous to all, to avail themselves of the lights of more than one of the faculty in time .of need.

As to the value of the medical attendance thus proved, there is very considerable discrepancy between the witnesses. Dr. Joubert taxes the ordinary visits of physicians to a patient, at two dollars for the first visit, and one dollar for each subsequent one. By Dr. Daret, such visits are taxed at three dollars each, without distinction.

For consultations, Dr. Joubert allows $10 for the first, and $5 for each subsequent consultation, to each physician assisting. Dr. Daret allows $10 for each consultation. • -

We think the correct rule, as settled by authority, is to allow the lowest estimate. Villalobos v. Mooney, 2 L. R., 333.

According to this rule, Dr. Anfoux will be entitled to sixty-eight dollars, and Dr. Natili to sixty-six dollars, for medical attendance on the deceased in his last illness.

There is no proof in support of items 3, 4 and 5 of the appellee Anfoxix's account, which items were properly rejected by the court below.

The sixth and last item of Dr. Anfoux's account is for medicines furnished from Dr. Anfoux’s apothecary’s shop to the deceased, in the year 1854, $180 15 cts. The bill of particulars of this item includes- also a balance from the year 1853 of $28 15, and all the remaining charges have no date whatever. They are styled in the account medicines furnished in 1854 — not medicines furnished during the last illness. In fact, there is' no proof nor even allegation which entitles this apothecary’s bill to the privilege given it by the judgment of the District Court. The proof of the correctness of the bill, even as an ordinary debt, is of the vaguest description. The clerk of the apothecary who testifies, came into his employment after Duelos’ death, and merely proves that the charges were made by a previous clerk, who was dead. Some prescriptions were produced, it appears, on the trial in the court below. But they have not been incorporated in the transcript: and though the witness says the bill' was made from these prescriptions, yet there are many things in the bill which could not have figured in a prescription.

We think the opponent has not made out this portion of his account, either as a privilege or as an ordinary claim. '

Dr. Anfoux figures upon the executor’s account as a debtor of the succession, by note, for two hundred dollars, which is not.disputed by the opposition, and must therefore be taken as an admitted fact. We only mention it, that it may not be inferred from our judgment upon the claim of opponent for medical services, that we reject any claim of the succession against him, if any claim should hereafter be sought to be enforced.

Judgment reversing the judgment of the District Court; that the account of executorship be amended, by placing thereon Dr. Anfoux as creditor with privilege for services in last illness, for the sum of' sixty-eight dollars, and Dr. JTatili as creditor with like privilege, for sixty-six dollars; that upon Dr. An-foux's claim for medicines furnished from his apothecary’s shop, there be judgment of nomsuit; and that the costs of these oppositions in the District Court be borne by the estate, and those of this court by opponents and appellees.


text:
    John J. Roe v. The Crescent Mutual Insurance Company of New Orleans.
    Facts warranting an abandonment of a voyage by a steamboat on the Mississippi, and the recovery of freight thereupon, on a policy of insurance.

      By the Court: In steamboat navigation on our rivers, where the trip, as from St. Louis to this city, i s made in seven or eight days, and sometimes less, the owner of a boat would not be justified, even where there were warehouses, to detain a cargo a month or six weeks in order to make the necessary repairs, and continue the voyage.
    XJL PPEAL from the Third District Court of New Orleans, Kennedy, J.

      Garrett Duncan, for plaintiff. Odhen, for defendant and appellant.
   Merrick, C. J.

The plaintiff, being the owner of the steamboat Delaware, through his agent, took an insurance of $4000 at the office of the defendant, on charges and three-fourths of the freight of the boat, for a trip from St. Louis to New Orleans. '

The boat proceeded on her voyage, and about one hundred and twenty miles below St. Louis struck a snag, or some other obstacle, and was so seriously injured in her timbers as to be unable to proceed without risk of sinking.

The place where the accident happened was in the unsettled portions of the river: there was no warehouse near, where the merchandize could be stored, nor any way of protecting it from the weather or depredation.

A large part of the carge consisted of potatoes and apples. St. Louis was the nearest port at which the repairs could bo made. It was thought that the repairs could not be made under a month. The captain of the boat thereupon concluded to abandon the voyage. He sent forward the merchandize by another boat, the Illinois, at same rate for the whole cargo, $5397 52, deducting $2000 pro rala Uineris for the freight earned by his own boat. The freight was paid to the steamboat Illinois on the safe delivery of the merchandize in this city.

The Delaware returned to St. Louis, was placed in the dock, and five or six weeks elapsed before her repairs were completed, when she took another cargo, and proceeded to New Orleans.

The plaintiff having brought suit on the policy against the insurance company for the loss of freight, the latter rested the action on the ground that the abandonment of the voyage was not justified by the state of facts then existing, and that it was the duty of the owner of the boat to have repaired and completed the voyage, and earned the freight, and that he was not justified in abandoning it on account of a temporary delay.

There was judgment against the defendant in the District Court, and the insurance company has appealed.

The insurance in the policy was merely upon the freight for the particular voyage.

We think, under the circumstances in this case, that the captain of the boat acted wisely and for the interests of all concerned in abandoning the voyage. He could not have continued it, for his boat was in danger of sinking. He could not have stored the goods, for he was in a wilderness, and moreover a large part of the freight was of a perishable kind. It w'as evidently the duty of the captain to.send forward the freight by the first convenient opportunity.

In steamboat navigation on our rivers, where the trip, as from St. Louis to this city, is made in seven or eight days, and sometimes less, the owner of a boat would not be justified, even where there were warehouses, to detain a cargo a month or six weeks in order to make the necessary repairs, and continue the voyage.

The judgment of the lower eourt ought to be affirmed. Rogers & Co. v. Nashville Marine and Fire Insurance Company, 9 An., 537; Arnould on Ins., 1136, 1137; Jordan v. Warren’s Ins. Co., 1 Story; C. C., 342.

Judgment affirmed.

Rehearing refused.