text:
    J. Y. Laborde v. The City of New Orleans.
    An action for damages Incident to the action of warranty for eviction under Art. 2482 of the Code cannot be maintained where no actual eviction occurred, in consequence of a compromise made by the warrantor with the plaintiff before judgment was rendered
    PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      G. §• C. E. Schmidt, for plaintiff.

      J. Michel, for defendant and appellant.
   Merrick, C. J.

This suit is brought to recover @4800 damages alleged to have been occasioned by the institution of a suit by Richard Rdf, syndic of Morgan’s creditors, against the plaintiffs.

It appears that the plaintiffs bought a vacant lot of the city in March, 1853, for @11,000. In August following Relf, syndic, commenced a suit- against the plaintiffs and others to recover the property. In November the plaintiffs filed their answer calling the city in warranty. Judgment was rendered in the district court in favor of Relf, syndic, in January, 1854. An appeal having been taken, Relf, authorized by a decree of the court having jurisdiction of the insolvent proceedings, in June, 1854, abandoned the lot in controversy and certain other property to the city, in consideration of @31,581 06.

The plaintiffs built in September, 1854, and the property rents for @200 per month.

' The plaintiffs, alleging that they bought the property with the intention to build and that they were delayed in commencing the improvements by reason of the institution of the suit, brought the present action to recover two hundred dollars damages a month for the delay occasioned by the suit, and two thousand dollars damages occasioned by the cloud hanging over the title and deteriorating its value, and five hundred dollars for counsel fees paid for the defence of the suit.

The plaintiffs proved that they bought the property with the intention of building upon it as alleged, and that they had paid their attorney five hundred dollars for defending the suit of Relf, syndic, against them. The district judge allowed for eight months rent at @200 per month, and @500 attorneys fees, and rendered judgment accordingly in favor of plaintiff for @2100. The city appealed.

The action cannot be maintained. The plaintiffs have not, according to their own showing, been evicted, and they are precisely in the situation they would have been if final judgment had been rendered in their favor on the appeal. In that event it is clear they would have had no claim against the defendant their warrantor. They are not in any worse condition because the city chose to buy its peace with the plaintiff in that action. The city has, therefore, fulfilled its covenant of warranty in maintaining the plaintiffs in their title and possession to the lot, and under the provisions of the Code the plaintiffs cannot recover damages which, at most, are incidents to the action of warranty for eviction. C. C. 2482. The point appears to have been decided in the case Melançon’s heirs v. Duhamel, 7 L. R. 290, and the principle is the basis of the decisions Murray v. Bacon, 7 N. S. 271; George v. Roach, 7 An. 594, and Pepper v. Dunlap, 5 An. 202. See also Fletcher’s heirs v. Cavalier et al. 10 L. R. 120.

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


source: Caselaw Access Project

author: Buchanan, J.

license: Public Domain

text:
    J. B. Alexander v. Thomas Hundley.
    When in n redhibitory action, it was shown that the slave died of a chronic diarrhoea, hold that the apparent illness of the slave at the time of the sale, without any declaration by the vendor, of the nature of the illness, did not bring the case within the meaning of Art. 2497 of the Code, as to apparent defects.
    APPEAL from the Second District Oourt of New Orleans, Morgan, J.

      Geo. W. Helm, for plaintiff.

      Mott & Fraser, for defendant and appellant.
   Buchanan, J.

Defendant relies upon the Article 2497 C. C.

“ Apparent defects, that is to say, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

But the disease of which the slave Lewis is proved to have died (chronic diarrhoea), does not come within the definition of apparent defects contained in this Article. The boy was apparently ill at the time of the sale; but no declaration is proved to have been made by defendant to plaintiff in relation to the nature of the slave’s illness which might have exonerated the defendant from liability to restore the price, under Article 2498.

Judgment affirmed, with costs.


author: Spoffokd, J.

text:
    Henry D. Williams & Co. v. P. A. Rost.
    An agent undertaking to insure at a particular' place goods bought by him, will be relieved from responsibility towards his principal by notifying him at once of the impossibility of obtaining insurance, upon ascertaining the fact.
    APPEAL from the Second District Oourt of New Orleans, Morgan, J.

      Duncan & McConnel, for plaintiffs.

      Moise t)* Randolph, for defendant,
   Spoffokd, J.

The plaintiffs, as agents, purchased a flatboat load of corn for the defendants, and shipped the same from Terre-Haute, Indiana, to defendant’s plantation above New Orleans. The flatboat struck a snag in the Wabash river, about seventy-five miles below Terre-Haute, and sunk. There was almost a total loss of the cargo.

The plaintiffs having paid for the corn, sued the defendant for the price, the cost of loading, and their commissions. He resists payment upon the ground that plaintiffs, when they made the contract to sujoply him with corn, specially undertook to have it insured in Indiana ; that they negligently failed to do so, whereby they became liable to him as insurers, and that they are, therefore, not entitled to recover in this action.

The plaintiffs did undertake to insure in Terre-Haute. But they were not bound to do impossibilities. It is shown that on the arrival of the flatboat at that place, and before she set out upon her voyage, they made an effort to procure insurance in the only office at that place which had been in the habit of taking risks on corn boats; that they had been previously led to suppose that the risk would be taken, by a conference had with the agent of the company; but that, on this occasion, he informed them, for the first time, that instructions had been received from his principals not to insure any more upon corn boats. Intelligence to this effect was communicated by plaintiffs to defendant, through the mail, upon the same day that the boat left Terre-Haute, and immediately after it became known to them.

We think with the District Judge that the plaintiffs used reasonable diligence in attempting to procure insurance in Indiana. They had been led to suppose by the agent of a company there that insurance could be had. It is said that, on the 3d March, nine days before the shipment to the defendant, they were made aware that insurance could not be had, and that they ought, thereupon, to have notified the defendant immediately. But it does not appear that insurance was refused on the 3d of March. On the contrary, an insurance was then effected upon a corn risk by these plaintiffs in behalf of another party. It is true the company declined to insure the full value of the cargo, and insured but little more than half its value. But it does not appear that this was established as the rule of the company ; the inference is that, under the circumstances of that particular case, the underwriters declined to take the whole risk. No such conclusion as that the office would decline to insure at all, or even in full, upon the defendant’s corn when it should be skipped, was to be drawn from the fact that a full insurance could not be had upon the boat load destined for Mr. McCutcheon on the 3d of March.

About the 12th, for the first time, the office declined to issue at all upon such risks. It would seem that the plaintiffs did all that could be done by notifying the defendant of the fact, so soon as they learned it.

Our examination of the evidence has failed to convince us, that the plaintiffs were guilty of such remissness in the matter of insurance as to make them liable to defendant for the value of the property.

Judgment affirmed.


author: Merrick, O. J.

text:
    Waldo & Hughes v. J. M. Bell.
    Tlie first section of tlio statute of 1855, which provides a summary remedy in favor of the plaintiff in an execution against tho Sheriff for a failure to return tlio writ on or before tho return day, was not repealed by the Act passocl on tho same day, which treats of tho duties of Shorills, etc., and provides for the protection of any person who sustains damages ill consequence of the failure of the officer to return tho writ on the return day.
    Tho former is a substantial re-enactment of a statute which had boon in force for many years and had undergone frequent judicial exposition, which could not havo been unknown to the Legislature of 1855 whon they were reducing the previous legislation to a more completo system. Tho latter contains provisions of a more general nature, and. affords a remedy to a larger class of persons. They should bo so construed as to give effect to both.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      George L. Bright, for plaintiff and appellant.

      Benjamin, Bradford fy Finney, for defendant.
   Merrick, O. J.

The plaintiffs being the judgment creditors of James M. White, on an intervention in the suit of Kiefe v. White, caused an execution to issue thereon, directed to the Sheriff of the parish of Orleans, for the sum of §1807 11 and interest and costs, with a privilege on the steamboat S. J. E. Trabue. Th of. fa. was dated April 16th, 1856, and made returnable on the first Monday of June thereafter.

The execution not having been returned, the present proceeding was instituted to make the Sheriff responsible for the amount of the execution.

Te proof shows that repeated inquiries were made in the Clerk’s office for the fi.fa. after the return day, and that it could not be found. Some time afterwards it was discovered in the Clerk’s office with the following indorsement thereon, viz:

Received, the 17th April, and the same day, month and year, I levied the within writ on the steamer S. J. E. Trabue, her tackle, apparel and furniture, and gave the defendant due and legal notice of said seizure, and on the 19th day of April, 1856, the said steamboat, from some cause or accident unknown to the Sheriff, caught fire and was burnt, and the wreck sunk in the river Mississippi, and the same day I levied this writ on the policy of insurance effected on said steamboat, in the Crescent Mutual Insurance Co., by the Sheriff for the sum of twenty-two thousand five hundred dollars, which the said insurance company has failed and refused to pay, from which last mentioned seizure nothing has yet come into the Sheriff’s hands, and on the 6th day of June, 1856, the wreck of said steamer was sold for the sum of one hundred and fifty dollars, by virtue of an order of court issued in this case. No other property found after due demand made of the defendant. I have made and retained a copy of the within writ, for the purpose of farther proceedings if required, in conformity to law.
Returned, 11th June, 1856.
(Signed) P. E. DeGourey, Deputy Sheriff.”

The order to sell the wreck of the boat appears to have been made upon a rule taken by Thomas Kiefe against the Sheriff, but in the same suit in which the plaintiffs had obtained their judgment on an intervention, and tho order for tho sale was made, May 2d, 1856. The plaintiffs in their pleadings allege the insolvency of White.

Tlioy claim judgment against John M. Bell, late Sheriff of the parish of Orleans. ■

1st. Because the Sheriff did not return the execution on or before its return day, nor call upon plaintiffs to point out property, and, 2dly, because the destruction of the steamboat was attributable to the fault and negligence of the defendant.

Much testimony has been taken on the second ground urged by plaintiff, which it will be unnecessary to consider.

The plaintiff claims that the defendant is responsible under the first section of the Act of 1855, 478, No. 337, and the defendant replies that the statute is modified by the Act of the Legislature approved the same day, and found on page 253 of the Acts of the same session, and bearing the No. 199.

The section on which the plaintiffs rely is a substantial re-enactment of the 17th section of the Act of 1826, to amend the Code of Practice. See B. & 0. Dig., 435. The second section of the Act of 1855, 478, No. 337, reads as follows, viz : “ Be it enacted, that all writs of fieri facias issued by the clerks of the several courts, throughout this State shall be made returnable by them in not less than thirty nor more than seventy days. It shall be the duty of each of the Sheriffs of the different parishes in this State, to return all writs directed to them into the Clerk’s office from which they issued, on or before the return day mentioned therein, and also to pay over any moneys received thereon to the party entitled to the same, or their attorneys ; and in default of any of the duties imposed on him in this section, he shall become liable to the party entitled to the benefit of the writ for the Ml amount specified therein, which shall be recovered on motion before the District Court in the parish in which said Sheriff acts and resides, after ten days’ notice.”

The section of the Act, which it is claimed modifies the preceding, is in these words:

Be it enacted, etc., that from and after the passage of this Act it shall be the duty of the Sheriffs, Coroners, when acting as Sheriffs, and Constables, to return all writs of fieri facias to them, or any of them directed, on the return days named in said writs, and if any Sheriff, Coroner or Constable, shall fail to make duo return of such writ, on the return day thereof, such officer and his official sureties shall be held liable to pay to any party damages sustained in consequence of such failure.”

The promulgation of one statute before the other, can have no bearing on the construction of these statutes passed the same day. The one did not repeal the other, and we must endeavor to construe them so as to give effect to both. The statute relied upon by plaintiffs’ counsel, No. 337, it must be remembered, had been in force for thirty years, and had received a judicial exposition which could not have been unknown to the Legislature of 1855, which had undertaken to reduce the previous legislation to a more complete system. The repealing clause which is annexed to this Act is not found in Act No. 199. It, therefore, seems quite clear that the Legislature intended to continue in force the provisions of Act No. 337, and if either should give way that it should not be this statute.

Without undertaking to expound the Act No. 199, or .determine whether it is anything more than a direct recognition of general principles embodied in the Codes, we think its provisions are of a more general nature than Act 337. The latter provides for the protection of the party entitled to the benefit of the writ, and prescribes expressly the duties of Sheriffs towards such party, and provides a summary mode of proceeding against the Sheriff.

No. 199 treats of the duties of Sheri®, Coroners and Constables, and the liabilities of their sureties, and provides for the protection of any person who sustains damages in consequence of the failure to return the writ, and leaves him to the ordinary action. It may protect the defendant, or subsequent mortgage creditors as well as plaintiff, where there is a balance to be paid over. It may protect purchasers at Sheriff sales, who have an interest that there should be a proper return of their bids, and it is suggested that junior mortgage creditors, who desire a credit entered on an older mortgage, and garnishees may in some cases be interested in the proper retons. Without pretending that the statute will cover all these cases, enough is seen to make it evident that the one statute contains provisions of a more general nature than the other, and according to the settled rules of interpretations, effect must be given to the special statute, and it must be held that the section first above recited is still unrepealed.

If it be applied to this case it is decisive of the controversy. The construction put upon the law cannot be disturbed after this lapse of time, and the number of decisions upon the same. The language used in the case of Brand & Adams v. Wilkinson et al., 11 A. 273, is applicable to this case. We there said, “We consider it proved, that the Sheriff did not return the writ in time.” * * *

“ His default beiug established, the onus was on the Sheriff to show a legal excuse. We find none in the record. His return does not show that he called upon the plaintiffs to point out property. The case is quite analogous to that of Gasquet v. Robins, 2 A. 410, where the Sheriff was held liable. There it was also held, that the alleged insolvency would not excuse the Sheriff from making the call upon the plaintiff to point out property as required. C. P. 726, 727. The object of the law is to inforce the observance of diligence by public officers. See also Webb v. Kemp, 2 A. 370; Magee v. Robins, 2 A. 411; Day v. Boyce, 3 A. 623; Lynch v. Leckie, 9 A. 508.”

In addition to the above authority, which is conclusive, we will add the more recent case of Hill v. Labarre, 12 A., 420.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is now ordered, adjudged and decreed by the court, that said Waldo & Hughes do have and recover judgment against the said John M. Bell for the sum of fourteen hundred and forty-two dollars and sixty-nine cents, with legal interest from the 29th day of March, 1856, and the further sum of three hundred and sixty-four dollars and forty-two cents with legal interest from April 15th, 1856, and the further sum of one hundred and forty-two dollars and nineteen cents, costs recovered by Waldo & Hughes v. James M. White, on the intervention in the case of Thomas Kiefe v. said White, and that said Bell be subrogated to the said judgment of the plaintiffs against said White upon the payment of said sums, and it is further ordered, that the defendant pay the costs of this suit in both courts.

Spoffobd, J., took no part in the decision of this cause.


author: Merriok, C. J.

text:
    W. W. Washburn v. John Green.
    Tho purchaser at a judicial sale, acquires such a vested right to tho property hy the adjudication, that it cannot bo taken from him unless he refuses to comply with the terms of the sale.
    But if tho purchaser refuses to comply with the terms, he is considered as never having been ownor, saving to tho vendor his right to compel a specific performance of the contract.
    ■Whore that refusal to comply is recognized by a final judgment, ordering the property to be re-sold at the risk of the purchaser, it is a complete divestiture of any right under tho first adjudication, and this effect will be produced even if the purchaser be a mortgage or privilege creditor of the succession.
    APPEAL from the District Court of the parish of Jefferson, Burtke, J.

      T. A. Bartlett, for plaintiff and appellant.

      Durant fy Hornor, for defendant.
   Merriok, C. J.

This suit is brought to recover one undivided half of two squares of ground Nos. 32 and 34 in Bloomingdale, in the parish of Jefferson. Judgment was rendered in favor of the defendant, and plaintiff appeals.

A brief reference to the main facts of the case will best enable us to appreciate the questions propounded for us to solve on this appeal.

Thomas J. Cushing, who was the owner of the property in dispute, died in 1836, and John P. Todd was appointed curator of his succession in 1840. At this time the defendant, Green, appears to have had a mortgage and the vendor’s privilege upon half of square No. 32 for $3710, and upon the other square for $4745.

John P. Todd was appointed curator of Cushing’s estate as a vacant estate, and obtained an order for the sale of the property from the Probate Court in August of that year (1840), under the allegation that there -were debts, and that John M. Bach held a mortgage upon the property, and that he required the same to be sold for cash. The half of square No. 32 was sold by J. A. Beard, Auctioneer, to James Ogilvie for $500, and the half of square No. 34 to the defendant, Green, for $700 cash; but the purchasers did not comply with the terms of sale.

In February, 1841, a rule was taken in the Probate Court by Todd, the curator, on Green and Ogilvie, to show cause -why they should not comply with the terms of sale described in the proces verbal of the auctioneer, or why the property so adjudicated should not be again sold for account of and at the risk of said Green and Ogilvie. On the 14th day of June, the rule was made absolute, and it was ordered that the property described in the proces verbal should be re-sold at public auction on the same terms and conditions, for account and risk of the purchasers respectively. No re-sale was made. Twelve years afterwards, viz, in May, 1853, the State Treasurer took a rule against Todd to show cause why he should not sell the property. Todd answered, that the reason why he did not sell was, because the privileged and mortgage debt due on it to Green and Ogilvie, with interest, would have exceeded the amount which the said property could have produced, and therefore, he considered such a proceeding with the expense unnecessary. He prayed that Green and Ogilvie might be made parties to the proceeding, but this prayer does not appear to have been noticed. The rule was dismissed.

In May, 1854, Isaac Cushing was recognized by the Second District Court as the sole heir of Thomas J. Cushing, deceased, and on the 3d day of January, 1856, as sole heir, ho sold the property in dispute to the plaintiff for $3000, John P. Todd acting as his mandatary under a power of attorney. The proces verbal of the auclion salo was recorded in May, 1853, and in July, 1854, James Ogilvie, by a private writing, endorsed on a copy of the proces verbal, acknowledged that he bought the half square of ground adjudicated to him as the agent of Green, and declared Green to be the owner.

This suit was brought in 1856, and the defendant charges that the sale from Isaac Cushing to the plaintiff was fraudulent.

It is manifest from this statement of the case, that the first question to be considered is, in whom was the property vested after the judgment on the rule taken by the curator against Green and Ogilvie ?

It could not be in abeyance. It was either in the succession or in the purchasers. The defendant contends that it was in the latter. The argument is, that the adjudication gave the purchasers a good title; that if they did not comply with the sale, the curator could either obtain a dissolution (C. C. 2539), or have the property sold at the risk of the purchaser; that in selecting the second remedy, the curator obtained a judgment ordering the property to be sold for account and risk of said purchasers, and he neglected to enforce and execute said judgment, and therefore, the defendant has never been divested of Ms rights.

This argument, although it acquires some force from certain authorities, does not appear to us tenable. It is true that Article 2586, C. 0., declares that the adjudication is the completion of the sale. But it was never the intention of the lawgiver to say that this consequence should follow, and the sale should be complete where the purchaser had refused to comply with the terms of the sale on demand, and had been decreed by the judgment of a competent tribunal to be in default. Otherwise this would happen; the title would vest in the vendee and would become subject to all legal and judicial mortgages operating upon his property, and the re-sale would transfer the title of such vendee so encumbered direct to the new purchaser who would not acquire from the succession; which would bo absurd.

The purchaser at a judicial sale acquires such a vested right to the property by the adjudication, that it cannot be divested and taken from him unless he refuses to comply with the terms of the sale. It is in Ms power by a compliance with the terms of sale, to become the owner by indefeasible title. It cannot be taken from him. In this sense, the adjudication is the completion of the sale. But if the purchaser refuses to comply with the terms of sale, ho is considered as never having been owner, saving to the vendor his right to compel a specific performance of the contract.

In the case before us, the refusal to comply is recognized by a final judgment, and the property is ordered to be sold at the risk of the purchaser. This was a complete divestiture of any right which the purchasers had acquired by their bids. The curator at once became re-invested with the possession of the property, and could enter upon the same, and at a re-sale could put any subsequent purchaser in possession.

That the title to the property by the act of adjudication does not pass whore there is a refusal to comply with the terms of the sale, clearly results from the following decisions, viz : Municipality No. 2 v. Hennen, 14 La. 588, 590; Mercier v. Sterlin, 5 La. 472; Banks v. Hyde, 15 La. 398; Rowley v. Kemp, 2 An. 361.

If the curator had a right to proceed to a re-sale at public auction, the unconditional heir would, as a consequence, have a right to sell in the same manner or at private sale, if that suited him bettor.

Tlie effect of the rule taken by the State and the answer by the curator remains to be considered. The curator could not, by his mere admission in an answer, change the legal rights of the parties, and the dismissal of the rule between the Treasurer and the curator was but a conclusion of the court, that it was not the interest of the State to compel a re-sale of the property, as it would add nothing to the treasury. It does not benefit the defendant’s case.

As Isaac Cushing might himself have sued for and recovered the property, it is idle to inquire what motives induced him to sell to the plaintiff. It may be that the recovery in this ease will work a hardship upon the defendant. If it does, he can only attribute if to his refusal to comply with the terms of sale, and suffering a judgment to be rendered against him which he allowed to become the thing adjudged. If he was a mortgage or privilege creditor of the succession, it was not less his duty, if he chose to preserve his rights, to see that property on which he set up his claim was sold, and the proceeds distributed, or, as the original vendor, to have provoked a rescission of the sale for the non-payment of the price.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and we do now here order, adjudge and decree, that plaintiff, William W. WasMmrn, do recover and have judgment against the defendant, John Green, for the following real property situated in Bloomingdale, in the parish of Jefferson, in said State, viz : the one undivided half of a square of ground designated by the number thirty-two, containing 14 Jots, numbered from I to 14 inclusive, and which said square measures 205 feet 11| inches front on William street, 300 feet on State street, 200 feet 11| inches on Benjamin street, and 300 feet on the division line of property formerly owned by Cornelius Hurst, and the one undivided half of another square of ground designated by the number thirty-four, in the same village, containing 13 lots, numbered from 1 to 13 inclusive ; said last mentioned square measuring 204 feet 9 inches 5| lines front on Nayades street, 291 feet 3 inches front on State street, 200 feet 3 inches 1| lines front on Benjamin street, and 368 feet on the division line of property now or formerly owned by D. F. Bwrthe. And it is further ordered, that a writ of possession issue, and that the defendant pay the costs of both courts.

Spoffoed, J., took no part in this case.


author: Sfofford, J.

text:
    W. G. Betterton v. John J. Adams.
    ’íkc homologation of the umpire's report) contradictorily with the parties in interest, is final as to the special matter embraced in it; and they cannot be mooted again bofore the same court when the cause comes on to be heard on its merits.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Mott Fraser, for plaintiff.

      Durant Hornor, for defendant.
   Sfofford, J.

The only point presented for our consideration by the appellant, is as to the correctness of the ruling of the lower court as shown by a bill of exceptions. It appears that on the trial upon the merits “ the defendant offered to put upon the stand as a witness J. II. McCormack, and to place before him the commercial books of the plaintiff and defendant, for the purpose of contradicting by tho said witness and the entries in said books, the report of the umpire heretofore homologated in this case, and to show that the results reached thereby were unfounded in fact and in law.

But the counsel of plaintiff objected to such evidence, on the ground that Mr. McCormack had been one of the auditors of accounts appointed in this case, and had given testimony heretofore on the trial of the opposition to the umpire’s report; and on the further ground, that the judgment of the homologation of said umpire’s report was conclusive as to all matters embraced in said report.”

The court did not err.

The homologation of the umpire’s report, contradictorily with the parties in interest, was final as to the special matters embraced in it, and they could not be mooted again before the same court when the cause came on to be heard on its merits.

The Code of Practice treats such a judgment of homologation as a serious judgment, and not a mere form ; and it has made provision for a contestation upon the items of the report only previous to the decree of homologation. C. P. 456, 457, 458, 459, 460, 461.

Judgment affirmed.


author: Spoeeord, J.

text:
    E. H. Durell v. City of New Orleans.
    A deed of sale purporting to convey only the light, title and interest of defendant in execution, convoys-, by sucb description, the property itself.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      D. S. Bryon, for plaintiff.
    /. J. Michel, for defendant.
   Spoeeord, J.

The city has appealed from a judgment in favor of the plaintiff, for the value of certain squares of ground in the city of New Orleans, alleged to have been owned by Mm, and taken for the purpose of opening- or widening streets.

The City Attorney contends:

1.That the judgment of court homologating the report of commissioners under the Act of 1832, assessed the damages for expropriating these identical squares, in favor of the estate of Clark and Mine. Gaines; and that this decree forms resadjudicata between the corporation and those parties. However that may be, it does not form res adjudicata as to the plaintiff, who was not actually or constructively a party to that decree: that is to say, it does not conclude the question of title, or the right of the plaintiff to recover the indemnity assessed by the report, and which is not shown to have been paid to any one by the city,

2.It is urged that the plaintiff should have sued to annul the judgment upon the report of commissioners in favor of the estate of Clark and Mme. Gaines. This does not appear to he important. Mrs. Gaines is a party to the present suit, having been personally cited. But she does not claim the money.

3.Tho objection to the appointment of an auditor amounts to nothing, for the evidence upon which the auditor acted is before the court.

4.It is urged that the title of plaintiff to the squares, for which he claims the indemnities actually assessed by the homologated reports of the commissioners, is insufficient, it having been acquired at a judicial sale by deed, which purported to convey only the right, title and interest of the defendants in execution, whose possession was thus divested. But it lias been held that, by such a description, the property itself is conveyed. There is no older or outstanding title shown.

Judgment affirmed.

Buchanan, J., took no part in this decision.


author: Cole, J.

text:
    C. M. Rutherford v. D. N. Hennen et al.
    The broker or agent of both parties who is a party to the record, but .without interest in the suit, is a competent witness.
    A party cannot, by claiming what ho is evidently not entitled to, invest the Supreme Court with jurisdiction of an amount under three hundred dollars.
    A -PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      XX. C. T. Bemiss, for plaintiff and appellant.

      W. D. Iiennen, for defendant.
   Cole, J.

Although James is a party to the record, Ms testimony was admissible, because lie is purely a nominal party. He was the broker or agent of both parties in the transaction, and plaintiff cannot deprive Iiennen of the benefit of his testimony, bymakiug him a party when he was without any interest in the suit.

Plaintiff, with several others, on the 18th of April, 1842, entered into an obligation whereby he became jointly and severally bound to D'. N. Iiennen, then the Clerk of the United States Circuit Court, for all the costs which would be incurred in the suit of Tiffin fy Perry v. Samuel Anderson and others, instituted by bill in equity, in the court in which Mr. Iiennen was Clerk.

On the 23d of November, 1849, plaintiff purchased of Iiennen, through James, the bill of costs, amounting to $439 98, for one hundred dollars.

Plaintiff alleges he attempted to collect this fee bill from one Z. White by process of law, and failed therein, because it had been previously paid by other parties, and he now asks for payment of $439 98, the whole amount of the foe bill.

Iiennen does not appear to have been a party to the proceedings in the United States Court, in which it was determined that the costs had been paid.

It appears that certain drafts were given for the costs which were never paid, and these were introduced in evidence in this suit by Iiennen to show that he had never been paid.

It is only necessary, however, to consider one point.

If other parties have paid more than was due, they have the right of action and not the plaintiff, to recover back the excess paid in error. It is clear that plaintiff can liaye no recourse upon Iiennen, except for the hundred dollars, which lie gave as the price of the thing sold, and damages which he might have suffered, but which are not alleged.

This court has then no jurisdiction of this suit. A party cannot, by claiming what he is evidently not entitled to, invest this court with jurisdiction of an amount under throe hundred dollars. Wo must, therefore, of our own motion, dismiss this appeal. King v. Read, 7 An. 492.

Appeal dismissed, with costs.


text:
    John H. Watson v. C. M. Simpson.
    In deciding the question as to a man’s actual domicil, courts of justice will look to the real facts of the caso, and the declarations of a party on that subject made, for the purpose of establishing a fictitious domicil, will be rejected.
    APPEAL from the Fourth District Court of New Orleans.

      Race fy Foster, for plaintiff and appellant.

      Singleton fy Claclc, for defendant.
   Merrick, O. J.

There are a great number of witnesses in this ease and much conflict of testimony on the single question of domicil.

• The conflict does not become so great, however, when we consider the sources of knowledge of the witnesses and that the statements of the defendant himself are evidence on this question, and many New Tork witnesses have testified positively as to defendant’s domicil in New Orleans without ever having seen him there, and upon his statements alone.

It appears that the defendant was a native of the State of New Tork and that his domicil was in the city of New Tork, where he did business in 1842 or 1843. lie then removed to New Orleans and established himself in business and resided here with his family until his wife died in 1852 or 1853. He then had a family tomb built which cost him $1100, and where the remains of his wife were deposited. He then broke up housekeeping' and went to New Tork, in August 1854, where he remained about two years, without once returning to New Orleans. He had an office there with a sign “ C. M. Simpson, New Orleans.” He had a letter box at the post-office, but attended principally to the purchase of goods for his New Orleans store.

In April, 1856, he negotiated a lease of a residence in Fifteenth street, New Tork, but took the lease in the name of J. S. Simpson, avowedly so as not to impair his right to his Louisiana domicil. He bought furniture for this house, some of which ho protended was to be sent to New Orleans. To some he boasted that the furniture in his house cost $10,000, and informed them he was about to get married. He resided at this establishment from that time until he returned to New Orleans the last of May, 1851, after the commencement of this attachment suit, and then even he came here with an intention of selling out. So it appeal's that he resided continuously in New Tork city from August, 1854, to the 30th day of May, 1851, with the exception of a period extending from the 12th day of August, 1856, to some day in September, 1856, making probably a month.

It is evident, from the testimony, that during all this time Simpson was alive to the importance of preserving his Louisiana domicil. His large stock of goods were here, and it was important that they should be preserved from attachment from his New Tork creditors, and it would also be more inconvenient for them to institute suits here than in New Tork. Hence the deceptions practiced to induce intimate friends there to suppose he was actually residing a part of the time in New Orleans. Some attachments wore also sued out against him in Now Tork city in May, 1856, and this accounts for the necessity of keeping the lease and furniture in the name of his brother.

It is evident that in most oí his conversations and wherever he had an opportunity to manufacture evidence, Simpson pretended to be a resident of New Orleans, whilst during the whole of three years he was absent, he was enjoying all the advantages of a real residence in New York, except voting, and this he seemed to decline merely because it might affect his Louisiana domicil.

The case, therefore, presents the question whether a fictitious domicil will protect the goods of a party from attachment. It appears to us that the cases of Judson v. Lathrop, 1 An. 78, and Lacock v. Davidson, 9 An. 162, are decisive of the question, and that courts of justice must look to the real facts of the case, and that where it appears that the declarations of a party are made with a reference to making testimony in his favor, they must be rejected.

The testimony in this case differs from the other cases against this defendant lately before us.

It is, therefore, ordered, adjudged and decreed, that the judgment of tho lower court be avoided and reversed, and that said attachment be maintained, and this cause be re-instated and remanded for further proceeding; the defendant paying the costs of the appeal.

SrOFFOKD, J., took no part in this case.


text:
    M. Marigny, for the use, etc., v. Home Mutual Insurance Co.
    Under a clause in a policy of insurances, effected upon a vessel for tlie benefit of the owner, that it should become void upon assignment thereof, transfer of interest or change of command—Held : That the seizure of the vessel by tlie Sheriff at the suit of a creditor, would not have tho effect of avoiding the policy.
    Nor could the policy be avoided where the assured agreed “ that the vessel should, during tho continuance of the policy, be completely found with master, officers and crew, on the ground that she was not so found while laid up under seizure.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Benjamin, Bradford ¡j Finney and C. A. Taylm-, for plaintiff and appellant.

      L. Hunton and Singleton fy Clack, for defendant.
   Buchanan, J.

On the 10th May, 1855, Thomas Keefe, for the account of the owners of tho steamboat S. F. J. Trabue, effected an insurance with defendants in the sum of five thousand dollars, loss, if any, payable to plaintiff, upon the hull, engine, furniture and appurtenances of said steamboat, valued at $35,000, to navigate the Mississippi river, not above Alton, and on the Ohio river, not above Louisville, for one year from date of insurance. Before the expiration of the risk, the steamboat Trabue was seized for debt; and while in the custody of the Sheriff, in the port of New Orleans, was totally destroyed by fire, being one of the perils insured against, on the 19th April, 1856.

The defendants being sued on the policy, plead in defence :

1st. That while the policy sued upon was running and unexpired, other insurance was effected on said boat in the Crescent Mutual Insurance Company for $22,500, which, together with the amount insured by defendants, exceeded the sum of $25,000; whereby the policy sued upon became null and void, by the terms thereof.
2d. That in consequence of the seizure made by the Sheriff, tho command of tho boat was taken from tho master thereof, without tho consent or approbation of defendants, which was a change in the command thereof, whereby the policy became null and void by its terms.
3d. That there was no commander in charge of the steamboat Trabue, and that no person was on her at the time she took fire and was destroyed: whereby defendant was released from liability.
4th. (By a supplemental answer.) That at the time of the alleged loss, the Trabue was not competently provided with master, officers and crew, and was not sufficiently provided with tackle and appurtenances, as stipulated in the policy.

The policy sued on contains the following- clause :

“ And it is hereby further agreed, that this policy shall become void upon assignment thereof, transfer of interest, or change of command, or if any other insurance be made upon the interest hereby insured, which, together with this insurance, shall exceed §25,000, unless the consent of this company thereto bo obtained and endorsed thereon.”

It appears that the boat, having- been subsequently seized by the Sheriff, John M. Bell, a policy of insurance was effected by him, in his official capacity, with the Orescent Mutual Insurance Company, in the sum of §22,500, to cover a harbor risk, in the port of New Orleans, for one month, viz :..from 2d April, 1856, to 2d May, 1856.

Mr. Blossman, the Deputy Sheriff, states, that “ this policy was taken out upon the notification of Mr. Shannon, who was the second seizing creditor; that ho wished the Sheriff to effect insurance upon the boat for his protection ; and witness and Mr. Bell made a calculation of the claims against the Trabue, and Mr. Bell thereupon took out the policy for §22,500.”

Mr. Bell himself states that he did not effect the insurance at the request of the owner of the boat; nor even, so far as he knows, with the knowledge of the owner.

From this evidence it appears that the insurance in the Orescent office was not effected upon the same interest which was insured by defendants, namely, the interest of the owners of the boat, who were defendants in the seizure. This insurance did not, therefore, fall within the prohibitory clause of defendant’s policy above quoted.

It is next contended that the command of the boat was changed by the effect of the seizure made by the Sheriff. This appears to us a very strained construction of the clause in the policy referred to. The meaning and intention of the parties to the insurance evidently was, that the assured, the owners of the Trabue, should only employ in the navigation of their vessel, as master, a person known to and who possessed the confidence of the underwriters. For this reason the name of the commander, at the date of the policy, is expressed therein. We find by an endorsement on the back of the policy, that another person named had been substituted to the original master, with the consent of the defendants; and this new master appears to have been both commander and owner at the time of the seizure. The custody of the boat devolved upon the Sheriff, by the fact of seizure and so long as the seizure continued; because that officer was responsible that the boat should not be removed beyond the jurisdiction of the court in which the seizure was made. But this very responsibility excludes the idea of the command ” of the boat being in the Sheriff, in the sense of the policy. For it was evidently impossible that the Sheriff should navigate the Mississippi as high as Alton, or the Ohio as high as Louisville, with the boat in his charge. Captain Whitfi was no less commander of the Trabue, on account of the seizure made by the Sheriff; and lie could, at any moment, have put an end to that seizure by satisfying the claims for which the boat was seized. The right of a creditor to seize a vessel is a right secured and regulated by law. We have been referred to no authority for the doctrine that the exercise of this legal right avoided an insurance upon the vessel, effected for the benefit of the owner.

The 3d and 4th pleas are substantially the same. They amount to a denial of seaworthiness, by reason of there not being a crew on board at the time of the fire: and are based upon the clause of the policy by which the assured agrees “ that the boat aforesaid is and shall be, during- the continuance of this policy, sufficiently found in tackle and appurtenances thereto, and competently provided with master, officers and crew.

This clause is of universal use in marine policies. Its effect upon the condition of a boat, laid up under seizure, in the port of New Orleans, was considered in the case of Bell v. The Western Marine and Fire Insurance Company, 5th Rob. 446. The court said : “ When engaged on a voyage, or lying in port receiving and discharging- cargo, it is proper that a boat should be properly officered and manned ; but when laid up, it is not shown to be necessary or usual.”

The judgment of the District Court is, therefore, reversed; and it is adjudged and decreed, that plaintiff and appellant recover of defendants and appellees five thousand dollars, with legal interest from tho 19th June, 1856, until paid, and costs in both courts.


text:
    Virginia Harper v. Albert Pierce.
    The vendor of a slave by a notarial act, duly recorded, having subsequently sold the same slave by act under private signature to a second vendee, in a suit by tho first vendee against tho second vendee to recover possession of tho slave—Held: That evidence having been received without objection to show that the vendor remained in possession of the slave down to tho date of the second sale, the testimony of witnesses was admissible to prove that the price of tho first sale had not, in fact, been paid, notwithstanding tho enunciation in the bill of sale to that effect.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Mott & Fraser, for plaintiff".

      T. N. Peirce, for defendant and appellant.
   Buchanan, J.

On the 19th June, 1849, David Kinney sold, by notarial act, in New Orleans, to the minor Prieur Sidney Harper (otherwise called Sidney Prieur Harper), represented by his father Henry S. Harper, a mulatto boy slave named John, aged about eleven years, for the price of five hundred dollars, cash, to him in hand paid, the receipt whereof was acknowledged by the seller.

This act of sale was recorded in the office of the Register of Conveyances in Now Orleans, the residence of seller and purchaser, on the 25th April, 1850.

On the 9th May, 1850, the same David Kinney sold, by act under private signature, to Thomas J. Frisby, the same mulatto boy slave John, for the price of six hundred dollars cash paid.”

This suit was brought on the 29th November, 1855, by the mother and natural tutrix of the minor Sidney Prieur Harper, against a vendee of Frisby, to recover the mulatto boy John, as the property of said minor.

The defendant has cited in warranty his vendor Frisby; who has cited his own vendor Kinney ; who appeared and defended the suit, on the ground that the sale by himself to the minor Harper was without consideration and null and void. After Kinney’s answer filed, the defendant Pierce filed a supplemental answer, in which he specially denied that any consideration passed from the minor Harper to Kinney for the sale of the 19th June, 1849, and that the slave John was ever delivered under said conveyance; that the sarhe was simulated, fraudulent and ¡null and void in respect to the creditors of Kinney, and bona fide purchasers from JCisuiey for a valuable consideration.

Kinney subsequently withdrew his defence to the action ; acknowledged the justice of-plaintiff’s claim, and deposited in court the amount of the price received by him from Frisby for the slave John, with interest and costs to the day of deposit.

Judgment was rendered in favor of plaintiff against defendant for the slave, and in favor of defendant against Frisby and Kinney, as warrantors, for the price paid; reserving to defendant and Frisby their claims for hire and damages. The defendant alone has appealed, both as against plaintiff and the two warrantors.

The case is before us upon a bill of exceptions to the ruling of the district court, which rejected the testimony of two witnesses offered by defendant to prove that no price was paid for the slave John to Kinney as declared in the conveyance of the 19th June, 1849.

Evidence was received without objection that the possession of the slave remained in Kinney after the conveyance to Harper, and down to the date of the conveyance to Frisby; as alleged in the supplemental answer of defendant; and under such a state of fact's, the burthen of proof was thrown upon plaintiff to show that the sale was bona fide. C. C. 1915.

- The unity of the enunciation in the bill of sale, that the price had been paid, was expressly, put at issue by the pleadings. The defendant was not estopped from contesting the truth of this enunciation, in consequence of his title being derived from the same vendor ; for this is the very case provided in the Article of the Code above quoted. If, then, it was incumbent on plaintiff to sustain his deed by additional proof, under the circumstances, it was surely competent for the defendant to introduce proof contradicting that enunciation and supporting the presumption arising, in law, from the want of tradition of the thing sold.

The appellant has filed in this court a plea of prescription, based upon Article 3444 of the Code. But this prescription is suspended in the present case by the minority of Sidney Prieur Harper, who is not yet of age. C. C. 3488.

It is, therefore, adjudged and decreed, that the judgment of the district court be reversed, and that the cause be remanded for a new trial, with instructions to the judge not to reject the testimony of competent witnesses, to prove that the price of the sale from David Kinney to the minor, Harper, of the slave John, dated 19th June, 1849, was not in fact paid ; and further, that appellees pay the costs of appeal.

Spopford, J., took no part.


author: Sfoeford, J.

text:
    W. B. Collins v. Daniel Edwards.
    The court may authorise an intervenor to bond sequestered property.
    APPEAL from the Sixth District Oourt of New Orleans, Colton, J.

      N. W. Jourdan, for plaintiff.

      Durant § Jlornor, for defendant and appellant.
   Sfoeford, J.

The defendant has appealed from a judgment against him as surety on a bond given by Mrs. E. C. Murphy, intervenor in the suit of Collins v. Murphy & Co., to release a sequestration of certain mules obtained by the plaintiff in that suit.

The surety contends that there was no law authorizing an intervenor in a suit to bond property sequestered, that right being restricted to the original defendant and the plaintiff.

But it was held in the case of Catalogue v. Bauries, 4 An. 568, that the Judge might permit an intervenor to bond sequestered property.

In this case, there was a judicial order by a competent court, authorizing Mrs. Murphy to bond the mules. We think the surety who enabled her to avail herself of it, cannot bo permitted to question the regularity of this order, by asserting that it was rendered upon imufficient evidence, that his principal’s allegations in her intervention were false, and that'the order enabled her, in effect, to become a surety for her husband.

The appellant contends that his principal was not in default for failing to restore the property at the termination of the suit. The Sheriff’s returns show that she was. Baker v. Morrison, 4 An. 373.

The question in an action of this character is, how much has the plaintiff been injured by the failure of the principal to comply with the condition to restore the sequestered property. The damages against the surety cannot exceed the penalty stipulated, nor the value of the sequestered property. Within those limits, he is liable up to the amount of the judgment rendered against his principal. The penalty stipulated in the bond is greater than the judgment appealed from ; it is proved that the value of the mules was greater also.

The judgment against the surety who now appeals, was for the sum awarded the plaintiff in his original suit against E. Murphy, and for thirty-five dollars counsel fees in this suit. No law to which we have been referred, authorizes the latter charge in a suit of this character, more than in any other. The cases referred to relate to expenses incurred in the original suit by reason of the unlawful sequestration; and they concern the liability of sureties on a bond given to obtain, not to release a sequestration. Norton v. Cammack, 10 An. 10; Jones v. Doles, 3 An. 588; Penny v. Taylor, 5 An. 718.

It is, therefore, ordered, that the judgment appealed from be amended by striking out the allowance of thirty-five dollars counsel fees, and that in all other respects the judgment be affirmed; the costs of this appeal to be paid by the plaintiff and appellee.

Cole, J., took no part in this case.


text:
    Charles Fonda, Curator, v. Geo. W. Denton.
    A judgment dismissing a third opposition to an order oí'salo of property, is final if unappcalod from, cron though it bo rondored ex parte; and is a complot© bar to sotting up the protended title anew.
    Tho failure to appear and prosecute the opposition cannot deprive the party interested of 'the benefit of the judgment.
    APPEAL from tlie Third District Court of New Orleans, Duvignaud, J.

      Durant §■ Horner, for plaintiff.

      Clarice § Bayne, for defendant and appellant.
   Cole, J.

Although this is not strictly a petitory action, both parties are willing to consider it as such for the sake of terminating the present litigation.

There was judgment for plaintiff, and defendant has appealed.

The controversy is as to the ownership of certain lots in the Pully Square, in the city of New Orleans.

The title of defendant to a part of these lots has already been adjudicated upon in the suit of Fowler v. Irwin, in which defendant filed a third opposition, averring himself to be the proprietor of a part of the lots now in question; tho opposition was dismissed, and on appeal to this court, the judgment was affirmed.

After the death of Irwin, his curator obtained an order for the sale of tho property now in dispute, consisting partly of the lots adjudicated upon in the suit of Fowler v. Erwin. Defendant filed a third opposition to the proceedings for a sale of these lots in Erwin’s succession, on the ground that they were his property.

On the 29th March, 1856, a judgment was rendered, which dismissed defendant’s opposition; he did not appeal; it is then final as to the pretentions of defendant to tho lots in contestation, and estops him, even if the judgment was ex parte, from again setting up his pretended title to the same. Moch v. Garthwaite et als., 11 An., p. 287.

I-Iis neglect to appear and prosecute his opposition cannot deprive plaintiff of the benefit of the judgment.

Tho judgment must be considered to have been rendered on the issue, which was that of title to the lots in dispute in the suit at bar.

Defendant avers that the judgment was not final, because the sale of the property was abandoned subsequently to his opposition, and there was no reason why an appeal should have been taken.

Such abandonment of the prosecution of a sale is not of itself proof that plaintiff did not deem the property his own, and he could afterwards have again seized it; as then the court had obtained jurisdiction over the title to these lots, it was highly proper that it should for ever terminate the controversy, and adjudicate upon the title to the same. As the judgment was rendered on the title of defendant to these lots, and as it is now final by the lapse of time for an appeal, it is then res judicata, so far as regards the rights of plaintiff and defendant to these lots, and a bar to any claim of defendant to tho same, so far as plaintiff is concerned.

The testimony establishes, that these lots belong to the estate of James Erwin, of which plaintiff is curator.

Judgment affiimed with costs.

Spofford, J., took no part in this case.


author: Spofford, J.

text:
    John Cragg v. S. M. Westmore.
    The plaintiff held a commission as Notary Public in the parish of Orleans, when, on the 12th of March, 1857, the Legislature passed an Act declaring the office of each and every Notary Public appointed previous to the passage of the Act, to be vacated. The same Act provided that the Governor should appoint for the parish of Orleans, not less than forty nor more than sixty Notaries. The Governor having appointed only forty-eight Notaries. Held: That by the terms of the Act of the Legislature, the plaintiff, whose commission expired before May, 1857, was functus officio, although no one had been specially appointed to take his records.
    ON an application for a mandamus to the Judge of the Sixth District Court of Now Orleans.

      Whitaker § Fellows, for appellant.

      A. P. Fugué, for appellees.
   Spofford, J.

The plaintiff asks a mandamus upon the Register of Conveyances in New Orleans, to compel him to record an Act of sale purporting to have been passed before the plaintiff as a Notary Public, on-the 15th December, 1857.

We agree with the District Judge in the opinion that said act was not authentic, for the reason that the plaintiff was not then a notary public. He was formerly in commission as a notary, but it is admitted that his commission expired before May, 1857. The Act of March 12th, 1857 (p. 84), “ Relative to Notaries Public in and for the parish and city of New Orleans,” provided that from and after the 1st of May, 1857, the offices of each and every Notary Public, appointed previous to the passage of the present Act, shall be and they are hereby declared to be vacated,” sec. 1.

The object of the Act was to reduce and limit the number of Notaries. The second section provided that the Governor should appoint not less than forty, nor more sixty Notaries for the parish of Orleans, who, besides the qualifications previously required, should give a bond in the sum of $5,000. The Governor has appointed forty-eight Notaries under this Act who have given bond. The plaintiff has not been appointed. By the terms of the Act he is fundus officio. The Register cannot be compelled to record an act as a notarial act, which is not authenticated by an official signature. It matters not that no one had been specially appointed to take the plaintiff’s records.

The plaintiff’s whole demand is based upon the assumption that when he prayed for a mandamus he was still a Notary. If the parties in interest wish to have the act recorded as a private act, they can do so upon a proper showing. But the plaintiff, unless he has been aggrieved himself, cannot stand in judgment for them. If he was not a Notary Public, he has no grievance to complain of.

Judgment affirmed.

Cole, J., took no part in this case.


author: Merrick, 0. J.

text:
    T. Landry v. L. Klopman.
    Tho Article of tho Constitution of the United States which provides for the delivery of fugitive slaves to tho owner does not apply to the case of a runaway slave who is .arrested in another State, confined in jail, and after advertisement for a reasonable tim.3 to notify the owner, sold at public auction for his benefit.
    The laws of the slave States on that subject are matters of police essential to the protection of their citizens, and are designed also for tho protection of tho owner himsolf.,
    A sworn copy of a commitment annexed to the deposition of the witness who examined it and who had tho custody of the same, is admissible in evidence.
    APPEAL from the Sixth District Oourt of New Orleans, Howell, J.

      Durant & Hornor, for plaintiff.

      L. Klopman, for defendant and appellant.
   Merrick, 0. J.

It appears to be conceded, that the slave in controversy was tho property of the plaintiff, but the defendant contends that the plaintiff’s title has been divested by a Sheriff sale made in Warren County, Mississippi, to one A. Mizel, in March, 1855. It appears that the slave ran away from plaintiff’s plantation in May, 1854. He was on the 19th of July of the same year committed to jail in Vicksburg, Warren County, Mississippi, as a runaway slave, where he was advertised for six months in the Vicksburg Weekly Whig, and not being called for by his owner, he was then advertised for sale for thirty days and sold to Mizel, a dealer in slaves, for $809. The purchaser brought the slave to New Orleans and sold him to the defendant, Klopman, for $1100, on the 20th of March, 1855, and this suit was brought to recover the negro on the 27th day of the same month.

The defendant has assumed the burden of proof to show a divestiture of the title of the plaintiff by the sale under the laws of Mississippi.

Ho is met at the outset of tho discussion with the objection that the slave was a fugitive from service due a citizen of Louisiana, and, therefore, the defendant could acquire no title to the same in virtue of the laws of Mississippi, because it is provided in the 3d section of the 4th Article of the Constitution of the United States, that no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, he discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”

The question was before this court in 1848, when the court was equally divided in opinion, and, as a consequence, the judgment of the lower court affirmed. That decision was favorable to tho views maintained by plaintiff’s counsel. But, as under our system, a single decision is not considered as conclusive upon any question of law, we are compelled by tho course of the argument to review that decision.

In the determination of constitutional questions the same rules of interpretation may ho resorted to as with other laws. The duty imposed upon the judiciary to discover the spirit and intention of the lawgiver or the true meaning of the instrument is not less imperative than in case of statutes. It is only a labor of greater delicacy, because the rights of sovereignty are brought in conflict and of more grave importance, because the principles involved underlie our social structure, are fundamental and affect more extensive interests. But an adherance to the letter and a violation of the spirit of the instrument ought not to he tolerated or supposed possible.

The history of the Constitution of the United States shows that this clause was introduced into “ the Constitution solely for the benefit of the slave holding States to enable them to reclaim their fugitive slaves who should escape into other States where slavery is not tolerated.” Story Const., sec. 952.

And the language of the clause clearly shows that this was the intention. It declares that no person held to labor shall, in consequence of any law or regulation, be discharged from such service or labor. The regulation here spoken of is one therefore between the slave and his master ; the slave is not to be discharged from labor, but is to be given up. Now this cannot in our opinion be applied to controversies arising between two persons claiming the ownership of a slave depending upon the laws of different States although the slave was a fugitive from labor ; for the slave is not discharged from labor or service, but the right to Ms service or labor is the subject-matter of a controversy between others, in which, in a legal point of view, he has no interest.

If we hold the contrary, these consequences follow : a slave, the moment he becomes a fugitive, acquires a sacred character under the Constitution and is above the laws and extra commercium. He cannot be sold as property nor punished for crime.

The slave of A, a citizen of Louisiana, who is the judgment debtor of B, a resident of Mississippi, by judgment of a Mississippi court, escapes into the latter State and is there sejzed and sold under execution to pay A’s debts. If the doctrine contended for be true, the purchaser acquires no title. See another example Reynolds v. Batson, 11 An. 729. If a slave, while a fugitive, commits murder or - other high crimes in the State to which he has fled, he must, (according to the same doctrine,) be given up to his master, because a fugitive from labor and covered by the letter of the Constitution.

It is thus evident that the Article of the Constitution is not to be taken literally but to be interpreted according to its true meaning and intent.

The question then arises, does it cover the case of runaway slaves who are arrested and confined in jail and advertised a reasonable time to notify the owner, and, in default of the appearance of the latter, sold at public auction for his benefit.

In our opinion the provisions of law which are common to all, or nearly all, of the slave .States on the subject of arrest of fugitive slaves partake of a two-fold character, the one being a matter of police essential to the protection of the citizen of the State against the depredations of this class of persons, who are often driven by hunger to commit acts of violence, and are dangerous from their evil examples and nightly meetings to others of their race and the peace of the community at large; the other, a municipal regulation designed for the protection of the owner himself and necessary to the recovery of his property and in the nature of a service, by which the thing itself is preserved and as much a real salvage of the thing as would be the rescue of the slave from a sinking ship or steamboat; they do not discharge the slave from service but hold him to serve.

Such being the design of these provisions of law they are no violations of the Constitution, but in aid of it, and if not essential to the existence of the institution of slavery itself, still of the last importance to the internal peace and quiet of these States.

Neither in our opinion are they prohibited by any laws of the United Slates under the Federal Constitution, and, if we have rightly comprehended and defined the nature of these regulations, it was so considered by the Supreme Court of the United States in the case of Prigg v. Commonwealth of Pennsylvania, 16 Peters, p. 539.

On page 625 Mr. Justice Story, as the organ of the majority of the court, says: “ To guard, however, against any possible misconstruction of our views, it is proper to state that we are by no means to be misunderstood in any manner whatever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States and has has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration: which is exclusively derived from and secured by the Constitution of the United States and owes its whole efficacy thereto. We entertain no doubt whatsoever, that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves and remove them from their borders and otherwise to secure themselves against their depredations and evil - example, as they certainly may do in cases of idlers, vagabonds and paupers. The rights of the owners of fugitive slaves are in no just sense interferred with or regulated by such course; and in many cases the operation of this police power, although designed generally for other purposes, for the protection, safety and peace of the State, may essentially promote and aid the interest of the owners. But such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave derived from the Constitution of the United States, or with the remedies of Congress to aid and inforce the same.”

This was said in reference to a law of Pennsylvania, a free State. Prigg, the agent of the owner duly empowered, arrested a fugitive in Pennsylvania and took her to the owner in Maryland. He was indicted and convicted under an Act of Pennsylvania, declaring’ it to be a crime to carry away a negro or mulatto for the purpose of detaining them as slaves.

. In the case of Moore v. People of Illinois, 14 Howard, 13, it was held, that the individual States might pass regulations which were in aid of the Constitution and which do not impede, limit, embarrass, delay or postpone the rights of the owner to the immediate possession of his slave and the immediate command of his services. This also was said in reference to the regulation of a free State ; the subject-matter of discussion before the Supreme Court in both cases being- regulations tending to discharge the slave from service, but not a question as to the change of ownership of the slave himself.

But, supposing that the principles enunciated do affect a question of ownership, and the absurd consequence does not follow that the State cannot punish by death or imprisonment a fugitive slave who has committed murder or other high crimes, and thus impede or postpone the rights of the owner of the slave, we will consider whether the regulation of the State of Mississippi in question in any just sense deprives the owner of these rights. We think the whole question turns upon the first act, the arrest and detention of the slave by the authorities of Mississippi. If they had the right to make the arrest and commitment and charge a reasonable compensation for the same the rest must follow.

The right is conceded by the Supreme Court of the United States in Prigg’s case as a police measure. And it does not impede the rights of the owner because the object is also to preserve his rights; to prevent the escape of the slave to a freo State or Canada, where his services would be wholly lost to his owner. But if this arrest and detention is legal, the rest of the proceedings in reference thereto are a matter of expediency left to the Legislature. Por the owner is justly bound for the fees, advertisements and costs of keeping and guarding the slave in prison or other custody, by which his property is preserved, and good faith requires that the proceedings should not become oppressive to the owner, and that after a reasonable time the accumulating expenses should cease, and not that the slave should be kept in prison until expenses had been created exceeding his value.

After a bona fide effort on the part of a State to find the owner-, continued for a reasonable time, it appears to us the State may presume that the owner prefers to abandon the slave for the payment of the expenses incurred, and claim any surplus that may bo loft at the sale rather than advance the costs. -He has not been deprived of his slave because the same has been sold to pay his just debts, precisely as in the instance given where sold under execution on a judgment in the State of Mississippi. C. C. 2278.

The statute of Mississippi must be held to be reasonable, because it is similar to the statutes which were in force in this State up to 1857, and the notice of the arrest and commitment is published six months instead of three, as required by our law, and the purchaser is allowed six months longer to redeem his property. It appears to us that the comity which exists between different States requires us to inforce rights acquired under this statute adverse to a citizen of Louisiana, as on the other hand we would do had the sale been made under our own law of a slave belonging to a citizen of Mississippi.

But it is said that the sale made under the law of Mississippi was made without any form of judicial proceedings. Judicial proceedings were not necessary to add force to the statute acting on property in the State of Mississippi. The statute did precisely what our statute did, and what is done on sales of estrays and property sold for taxes, and yet no one supposes that these sales are not valid.

Again it is said that criminal, police and revenue laws are purely local, and forfeitures by reason of such laws are not inforced extrarterritorially. This is true, but it has no application to the present case. The court is not asked to declare a forfeiture, but, on the contrary, the plaintiff demands that a right already acquired shall bo declared void, and the person in the enjoyment of the same compelled to surrender such right. It is a suit to set aside rights vested under the law of another State. Suppose a slave is sold in Mississippi to pay taxes, will not our courts maintain the possessor in his title ? Suppose the goods of a citizen of Louisiana are sold for a violation of the revenue laws of another country and the purchaser comes to Louisiana with them—will our courts deprive the purchaser of property in his possession under a title acquired in another country ?

In qui tam actions the informer acquires a part of the penalty. Is he not to be maintained in his rights so acquired in all countries ? To ask these questions is to answer them. The Acts of the Legislature of Mississippi do not, therefore, appear to be unconstitutional, and, as they appear also to be reasonable and place the citizens of Louisiana on a footing of equality with the citizens of Mississippi, we think rights acquired under them must be maintained.

The objection made to the copy of the commitment was not sufficient to exclude it. It was a sworn copy annexed to the deposition of the witness who examined it, and who, in fact, had the custody of the same. Authentication, under the Act of Congress, is not exclusive of all other modes of proof. Wo know no good reason why the Sheriff might not, after having compared a copy with the commitment in Ms custody, annex tlie same to Ms deposition, and swear to its faithfulness, and thus make it proof of the original, of which he is the custodian. Such we understand to bo the rule of evidence in our sister States, and we think it is applicable here. Greenleaf, sec. 91, 501, 502, 508.

From all the lights before us we think the sale made in Mississippi was in conformity with her laws, and that tho judgment of tho lower court should have been in favor of defendant, and the plaintiff left to obtain the proceeds of the sale to his credit in Warren County, Mississippi.

It is, therefore, ordered, adjudged and decreed, that tho judgment of tho lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff and in favor of the defendant, quieting him in the title and possession of said slave, and that the demand in warranty bo dismissed, and that the plaintiff pay the costs of both courts.

Spofford, J., took no part in the decision oí this cause.


text:
    Heirs of Delord Sarpy v. City of New Orleans.
    The division of the hatture outside of New Levee Street as far as Front Street into streets and squares, was not an expropriation of tho property, so far as tho streets were concerned, of which tho riparian proprietors had never been in possession. 12 An., 500.
    By the terms of the Act of tho Legislature of the 30th April, 1853, (Session Acts, p. 298,) tho proprietors of batture in the limits of the city of New Orleans, in reducing the batture to private occupation are bouud to leave open to public use, without charge, whatever space may be required by tho corporation for public highways or streets.
    APPEAL from the Sixth District Court of New Orleans, Ilowell, J.

      Janin §• Griffon, for plaintiff.

      J. J. Michel, for defendant and appellant.
   Buchanan, J.

The facts of this case are similar to those of Remy v. the same defendant, reported in 12th An., 500. The plaintiffs, proprietors by right, of accretion of a batture or alluvion formed by the action of the Mississippi River, within the limits of the corporation of New Orleans, claim compensation for the soil of streets laid out many years ago upon the batture by the city authorities. The proceeding which plaintiffs have' adopted to enforce this claim, is that prescribed by Articles 2604 and following of the Civil Code, in cases of expropriation.

The following language of the decision in Remy’s case (12th An., 502,) is the expression of an opinion to which we still adhere, and which is applicable to the present case.

“ The judgment in the petitory action instituted by plaintiffs cannot be interpreted as having recognized a right in the plaintiffs to the private occupation of the whole of the batture in front of their land, without regard to the administrative power of the city corporation over the batture and landing.* * * * * * In our view of the case, the division of the batture into streets and squares, was no expropriation of the plaintiffs, so far as the streets are concerned, for they had never been in possession of the soil of those streets, nor indeed of any part of the batture. Such division was, in fact, a restriction of the public use, previously embracing the whole batture, to the comparatively small portion of the batture covered by the streets.”

In justification and support of the doctrine of the Remy case, a brief review of the legislation on this subject may not bo out of place.

Formerly, and at tlie time Front, Fulton and Delta streets wore laid out, the city corporation, as administrator for the public, was judge without appeal of the extent to which the batture, within the corporate limits, was required for public use; and it was only with the consent of the corporation, and under such limitations as the corporation chose to impose, that the riparian proprietor could obtain individual occupation of the batture formed in front of his land. Erwin & Pulley v. Mayor, &c., 18 L. R. But the Act of the Legislature of 30th April, 1853, (Session Acts,) p. 298, subjected the powers of the city corporation in this regard to judicial control; and a right was given to any riparian proprietor, who conceived that the corporation was withholding from him more of the alluvion than was necessary for the public use, “ to institute suit,” says the statute, “ against said corporation for so much of the batture as may not be necessary for the uses of commerce and navigation, and for the necessary public highways and other public uses, and if it be determined by the court that any portion of said batture be not necessary for the public uses above-mentioned, the court shall decree that said owner is entitled to said property, and compel said corporation to permit him to enjoy the use and full ownership of such portion of said batture.”

From the terms of this law it is plain, that the proprietors of batture in the limits of the city of New Orleans, in reducing the batture to private occupation, are bound to leave open to public use, without charge, whatever space may be required by the corporation for public highways or streets.

It is, therefore, adjudged and decreed, that the judgment of the District Court bo reversed; and that there be judgment in favor of defendant and appellant, and against the plaintiffs and appellees, with costs in both courts.

Spoitord, J., took no part .in this case.


author: Merrick, C. J.

text:
    William Massey v John J. Steeg.
    By the Act of the Legislature of 2Gth March, 1844, the surviving spouse owes no interest on the share of the community property belonging to the children of the marriage as long as he or she remains single.
    "Whore a suit is brought by the purchaser of property subject to a mortgage in favor of minors, to fix the amountof tlio mortgage, the court will not order the sum to bo paid over to the tutor of the minor. It must remain in the hands of the purchaser until the liquidation and final settlement of the tutor’s account at the majority or emancipation of the minor, or until tlie tutor takes legal stops to have the mortgage released.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Durant (f Plornor, for plaintiff and appellant.

      A. W. Jourdan, for defendant.
   Merrick, C. J.

This case is a sequel to the case of the succession of Christine Herman, decided in January, 1856, and the case of William Massey et als. v. Steeg et al, 12 An. 78.

The plaintiff was a judgment creditor of John J. Steeg, with a judicial mortgage upon his immovable property. The common property, real and personal, existing at the death of Christine Herman, former wife of Steeg, was subsequently adjudicated to him contradictorily with the under-tutor to his minor children, under Art. 338 C. 0., for 152800. The real estate so adjudicated was purchased by plaintiff under his execution.

The object of this suit is to reduce the special mortgage of the minors on the fund, the proceeds of the Sheriff’s sale, the mortgage of the minors standing on the mortgage records for $2800.

The District Court reduced the mortgage to $1400. Plaintiff appeals. Defendant, in his answer to the appeal, prays for an amendment of the judgment.

The court did not err in overruling the plea of res jvAicata. The suit to have the debt declared community, and thus operative upon the property of the community, and to confine the legal mortgage to the one-half belonging to the minors, is not the same thing (as the Judge a quo observes) as a suit to reduce the amount of the minors’ mortgage.

On the merits we see no error in the judgment to the prejudice of the plaintiff and appellant. The special mortgage in favor of the minors is intended to cover that portion of the price and interest going to them; that belonging to the surviving partner in the community has not been awarded them by the decree.

The appellee contends that the judgment ought to be so amended as to allow the minors interest from its date or the adjudication to the tutor. It does not appear to us, that the Judge erred in refusing this interest, as we are not advised by the evidence that Steeg has contracted a second marriage, by which he has forfeited his right of usufruct under the Acts of 26th March, 1844, p. 99. By this statute, he owes no interest so long as he remains single. Moreover, the interest on $1400 must have been taken for the support of the three minors.

We understand the judgment of the lower court simply to fix the amount of the minors’ special mortgage. It does not order this sum to be paid over to the tutor. It must, therefore, remain in the hands of the purchaser until the liquidation and final settlement of the tutor’s account, when the minors shall have been emancipated or arrived at the age of majority, or when the tutor shall have taken steps under the Act of 1855, p. 444, (re-enacting the Act of 1830,) to release the property sold from the legal mortgage in favor of the minors. Rev. Stat. 336; Barnard v. Erwin, 2 Rob. 408; C. P. 679, 683.

Nor will this judgment prejudice the right of the plaintiff in the event a loss sum than $1400 shall be found to be due the minors on the final settlement of their accounts in the Probate Court, to cause the difference to be appropriated to his judgment, if not then satisfied; provided the $1400 shall not before that time be withdrawn from the plaintiff in the manner we have indicated.

The plaintiff ought also to credit the defendant annually on the judgment, with interest at the rate of five per cent, per annum on $1400, from 24th March, 1857, until the usufruct of the defendant be terminated by marriage, if said sum shall remain so long in his, plaintiff’s hands; and after such marriage, the interest at that rate will bo covered by the special mortgage. If Steeg be already married, ho must credit him with such interest to the date of this decree, and the judgment in this respect ought to be amended.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended so as to fix the said special mortgage of said minors at the sum of fourteen hundred dollars, with legal interest thereon from the time said John J. Steeg shall contract a second marriage, and if such marriage be already contracted, then from the date of this decree; and that said tutor instead of the plaintiff pay the costs of the lower court, the plaintiff paying the costs of appeal; and that this amended judgment stand in the place of the judgment of the lower court.

Spoffoed, J., took no part in this case.


text:
    Mina Gimble v. F. S. Goode.
    Tho rights granted the widow, or minor children of a deceased person, by tho Homestead Actof 17th March, 1852, vest in them at the time of the death of tho deceased—provided their condition of life at that moment of time, entitle them to tho benefit of the provisions of the Act—their pecuniary circumstances at the time of death of tho insolvent and not at any subsequent time settles their right to any claim under tho Homestead Act.
    APPEAL from tlio District Court of the parish of Terrebonne, Roman, J.

      Connelly (f Rightor and Semmes Sf Labatt, for plaintiff and appellant.

      Goode Of Ay cock, for defendant.
   Cole, J.

We are of opinion, that the rights granted the widow or minor children of a deceased person, by virtue of the Homestead Act, of 17th March, 1852, vest in them at the time of the death of said deceased, in the event they come within its provisions at that moment of time; their condition then in pecuniary matters, and not at any subsequent time, is to be the test of their right to any claim under the Homestead Act.

Even conceding that the widow did intermeddle with the estate of her husband, her unlawful acts can not deprive the minor of her rights; the said Act empowers the widow, or minor children to receive a certain amount, when they are in necessitous circumstances. Tho minor children have the right to claim the benefit of the Act, even if the deceased person has left no widow, their right is then independent of the existence of the widow, and, a fortiori, if a widow does exist, her acts of maladministration can not affect the rights of tho minor.

Tho minor child of plaintiff appears to have been in the condition, at the time of tho death of her father, which entitles her to the relief of the Homestead Act.

Plaintiff has entered into a second marriage, and has been authorised by. a family meeting to retain the tutorship of her minor child; she is then by the second section of the Homestead Act no longer entitled to the usufruct of the money to bo received under said Act. The said section declares, “ That the surviving widow shall have and enjoy the usufruct of the money so received from her deceased husband’s succession, during her widowhood, afterwards to vest in, and belong to the children or other descendants of said deceased.”

The money due the minor in the case at bar must be paid to the plaintiff as natural tutrix of her minor child, and she is not therefore compelled to furnish security, as in the case where she would have the usufruct, if she were still a widow.

It is, therefore, ordered, adjuged and decreed, that the judgment be avoided and reversed, and that plaintiff, as natural tutrix of her minor child, Lina, recover of F. S. Goode, administrator of the estate of Michel Gimble, deceased, one thousand dollars, for the use and benefit of said minor child, to be paid in preference to all other debts, except those for the vendor’s privilege and expenses incurred in selling the property ; it is further ordered, that said F. 8. Goode, administrator, place plaintiff, as-natural tutrix of her said child, on tho tableau of his administration, for said thousand dollars, with privilege as aforesaid, and that he pay the same in due course of administration.

It is further ordered, that tho costs of both courts in this proceeding be paid by the estate.

Buchanan, <7., took no part in this decision.