text:
    Little et al. v. Managers of the Citizens Bank of Louisiana.
    The post-notes issued by the Citizens Bank of Louisiana, payable to order, at three, four and five years from date, out of the proceeds of the sale of the bonds of the State loaned to that institution, formed a part of its capital and not of its circulation; and they are not exempted on the ground of being circulated as money, from the laws applicable to stolen property. To entitle a possessor of stolen property to demand from the owner the price paid for it before the latter can obtain restitution of it, the possessor must show that he bought it at public auction, or from a person in the habit of selling such things. C. C. 3473.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      J. Barker and T. A. Clarke, for the appellants. Pitot, for the .defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs sued the defendants on certain post-notes issued by them. The defendants filed a general denial, specially denying that the plaintiffs had acquired the post-notes in good faith; and further resisted the claim on the ground that the notes had been stolen from Boutin, Gaily Co., to whom they had been adjudged by a decree of the court to pay the amount of them. They cited in warranty Boutin, Gaily Sf Co. who appeared and joined in the defence. There was judgment in favor of the defendants, and the plaintiffs appealed.

On the night of the 23d of January, 1844, the store of Boutin, Gaily Sf Co. was broken open, and the notes sued upon, together with others, were stolen from them. Early the next morning they wrote advertisements giving a description of the notes, which were sent to all the brokers’ offices in the city, and published as soon as practible in the newspapers in New Orleans, Cincinnati, Louisville, St. Louis, New York, Philadelphia, and Boston. They were also forwarded to Europe. The papers in which the advertisements were inserted at the north, were the Journal of Commerce and Courrier and Enquirer of New York, the North American of Philadelphia, and the Boston Daily Advertiser. The witness, John A. Iselin, of New York, to whom the advertisements had been sent for publication, wrote, in answer: “Nous avons fait publier les details du vol dont vous aviez été victime dans deux de nos journaux, ainsi que dans un á Philadelphie eü an á Boston. Du reste, tons les journaux que nous avons vus en ont fait une mention détaillé.”

Between the 9tb and 13th of August following, this same person had a conversation with Jacob’Little tij- Co., who stated to him that they had not in their possession, and had never held, the post-notes advertised. In order to ascertain the fact, they examined their books in his presence, and the only post-notes shown to have been purchased by them, were purchased in February, 1844, from an english house, and were not those upon which they sue. There are in the record several letters of the plaintiffs corroborating this evidence, and stating the fact that they had neither purchased those notes nor sent them to Horace Bean & Co. of this place, in whose hands they appear to have been at the time the plaintiffs wrote the letters and made the declarations alluded to. In one of those letters, bearing date the 13th August, 1844, immediately after the examination of their books, made in presence of Iselin, they say: “We find, on examination, that the $4,900 Citizens Bank post-notes returned by yon a few days since has been in error, as the only Citizens post-notes we have sent you, since May 25th, 1843, is as per statement annexed. We shall hold yours here till we hear from you again. Messrs. Maitland, Comrie Sf Co. sold us the Citizens’ post-notes we sent you on the 27th of February, the same day on which they received them from England.';» Consequently they could not have been those stolen in New Orleans on the 2Í5jI of January.”

On the 13th of August, then, the plaintiffs absolutely denied having any knowledge of these post-notes, and held them on account of Horace Bean & Co. They now sue upon those very notes, and attempt to falsify their own positive declarations by the testimony of one of their clerks, a young man 23 years of age, who swears that the plaintiffs did buy those post-notes on the 22d June, 1844; that they paid for them 35 cents on the dollar; that they received them in the usual course of business from a person unknown, and paid the current rate for them. He farther states that the plaintiffs take no newspapers; that they are not generally acquainted with every thing that transpires about bank obligations. In the cross examination he swears to the negative fact, that the advertisement of Boutin, Gaily Co. did not come to the knowledge of the plaintiffs. The only evidence, if evidence it be, bearing oil that part of the case, besides the testimony of this unfortunate witness, is a letter of the plaintiffs to Horace Bean & Co., bearing date the 13d of September, 1844, in which they say: “We were in error about the Citizens’ post-notes; were led into it by our clerks. It appears that we bought them of Joseph Cisco, whom we do not know.*’

How this fact was made to appear to them we are not informed, and we do not perceive how they can extricate themselves from the dilemma in which this letter places them. If the name of Joseph Cisco was on their books they must have found it, and with it the transaction with which it is connected, when they searched for it in the presence of Iselin, If, on the other hand, it was not on their books, they and their clerk declare that their vendor was unknown to them, and they could not have recollected a name which they never knew. The statement that they were led into error by their clerks, will not bear examination. One of those clerks swears that the post-notes were offered at the counter, and that, after some negotiation, the plaintiffs bought them. He says they did not come into the plaintiffs’ possession by his aid, interference, or advice ; and mentions that, at the time of the purchase, other clerks were absent. If it were true, as argued at bar, that a clerk might have purchased those post-notes without making an entry in the books at the time, it is not true that a clerk could send them to Horace Bean Sf Co. without instructions from his employers ; nor could we bring our minds to believe that any commercial house, dealing in good faith, would make such a transmission without keeping any record whatever of it. This is as difficult to explain as the fact that, the plaintiffs receive no newspapers.

The attempt of one of their cbUnsel'to justify this transaction by their'habitual negligence and looseness in the management of their affairs, is not to be tolerated. Neglect, such as this hypothesis would exhibit, is incompatible vMth good faith. The oath of their clerk that they had no notice’,• is to be' deplored, but cannot be believed; and they can make nothing by throwing their affiurs into confusion, intentionally debarring themselves of the means of knowledge usually"resorted to by exchange brokers.' Besides these circumstances, one' of the post-notes is-manifestly' altered, and a number inserted in it different from that it originally bore, and under which it had been advertised. This* unexplained circumstance stamps the whole transaction with bad faith, and we are clearly of opinion that, under ottr'rtiles of practice, the defendants may show bad faith in the holder. Their' plea that the plaintiffs did not acquire the post-notes* in good faith, but purchased or acquired them with a full knowledge flint they had been stolen from Boutin, Gaily &, Co., cannot be viewed otherwise than a special plea- of malajides.

Under the rules of the commercial law we wbtiíd' hold this to be a clear casé against the plaintiffs. But we are of opinion that it does not come' under'those rules; and that the court below properly considered that it was to' be' governed by our local' laws on the subject of stolen property. In France' similar dispositions of the Napoléon Code are held to apply to promissory notes, when made payable to bearer or endorsed in blank, and we consider it a safe rule of interpretation that exceptions to substantive laws made for the preservation of property are not to be presumed. 2 Troplong, Préscri'p. no. 1065.

The post-notes of the Citizens’ Bank were issu'ed payable at three, four and five years,, and were intended to be paid out the proceeds of the sale of the bonds loaned by the State to the bank. They were a part of its capital, not of its circulation. In the legislation that has taken place in relation to that institution-' they have never been considered as circulation, either by the legislature or the board of currency, and they cannot be so viewed on general principles. They were payable to order, and at remote periods. They bore interest till paid, and'some of the coupons of interest are attached to those upon which this suit is brought. It is vain to say that they were received in New York by the plaintiffs as money, and that the laws concerning stolen property are inapplicable to them. Boutin, Gaily Sf Co. strictly fulfilled the requisites of art. 2259- of the Civil- Code. Upon proof of that fact, in a litigation between them and the defendants, the latter were adjudged to pay them the amount of the post-notes, upon their giving bond to refund whatever the holders might be entitled to recover upon them. Boutin, Gaily 8f Co. having complied with the law, the holder could in no case-recover any thing more than the price he paid (Civil Code,, art. 3473); and to be entitled to recover that price he must show affirmatively that he bought the post-notes at public auction, or from a person in the habit of selling such things; The plaintiffs in this case have proved neither. Their evidence, if otherwise- entitled to credit, would only go to show that they bought the post-notes at private sale from a person unknown to them, and, as we think, much below their market value at the time of the alleged purchase.

There is in the record other evidence, not material to the view we have taken of the rights of the parties, and which on other grounds we cannot no,tice, except for the purpose of expressing our regret that counsel should persist in testifying for their clients íd spite of the pains we have taken to satisfy them that nothing is gained by so doing.

Judgment affirmed.

       Eustis, C. J., being a stockholder in the Citizens Bank, did not sit in this caso.


source: Caselaw Access Project

author: SniDEix,, J.

license: Public Domain

text:
    Succession of Macarty.
    A mandamus will not be issued in any case, where the party applying for it has a full and adequate remedy by appeal.
    The Supreme Court has no general superintending jurisdiction over the inferior courts. The jurisdiction of the court in this respect is the same under .the present constitution as under that of 1812.
    The summary action of .the Supreme Court will be confined to cases in which its interposition is necessary for the maintenance of its appellate jurisdiction.
    Rule on Buchanan, Judge of the Fifth District Court of New Orleans, to show cause why a mandamus should not be issued.

      L. Janin, for the rule. Eyma and Pitot, eontrá.
   The judgment of the court was pronounced by

SniDEix,, J.

The testamentary executors of L. B. Macarty, having filed an account, a decree of homologation was rendered on the 20th November, 1847. A few minutes after the rendition of this decree, Madame Lalaurie, .an heir of the deceased, presented an opposition to the account, and moved the court for leave to file the same, which was refused ; and thereupon an application for a mandamus was made to this court. We granted a rule to show cause, and have heard the case upon the answer of the district judge, and the argument of counsel. The argument has taken a wide range, and has principally discussed questions of practice with regard to the homologation of accounts, the right of an heir to personal citation, and the effect of a judgment of homologation rendered, but not signed.

But there is a question which stands before these, and involves, if not our authority, at all events the discretion to be exercised by this .court .in issuing the writ of mandamus to an inferior tribunal. The jurisdiction of this court, so far as the subject under consideration is concerned, is not distinguishable from the jurisdiction of the Supreme Court under the former constitution. What was held therefore by our predecessors upon the present question has the authority of precedent, and the force of that authority is certainly much increased, if .it be found, upon examination of their decisions, that .they were uniform and repeated. In Laverty v. Duplessis, 3 Mart. 42, the Supreme Court disclaimed a general, superintending jurisdiction over the inferior courts.

In the case of The State v. Judge Watts, 8 La. 76, there (was an application for a mandamus, to compel a district judge to sign a final judgment rendered by him. It was then said: “That courts are clothed with authority, in the exercise of a sound legal discretion, to set aside the judgments rendered by them before they are signed, and grant new trials. In the present case the judge has thought himself authorised to grant a new trial, on the suggestion of fraud between the parties litigant, on the part of the creditor of one of them. Whether he discreetly exercised his legal discretion, is a question which we do not feel ourselves authorised to entertain, under this motion for a mandamus. H be was in error, that error can be corrected by this court only on appeal. The Supreme Court derives its jurisdiction from the constitution, by which it 1 , J . ' . . .. . is declared to be appellate. Its powers are commensurate with its jurisdiction; and the court has uniformly refused to exercise a general supervisory control over the proceedings of the inferior tribunals, and can interpose its authority only when necessary for the exercise of its appellate jurisdiction.”

In the case of The State v. Judge Morgan, 12 La. p, 120, the district judge had sustained a plea to the jurisdiction of his court, and had ordered the cause to be trasierred to the Court of Probates; and thereupon there was an application for a mandamus, to command the district judge to try the cause. It was held that the judgment of which the applicant complained was appealable, and that he must seek relief, not by mandamus, but by an appeal. See also Winn v. Scott, 2 La. 89. State v. Bermudez, 14 La. 483.

In applying the principles recognised so repeatedly by our predecessors to the present case, our first- enquiry should be, has the applicant a full and adequate remedy by appeal; and, upon this point, no doubt can be entertained. The case is within the appellate jurisdiction of this court. Madame Lalaurie is a party interested, and the decree homologating the account is of that final character which authorises a resort to the appellate court. So also, if under the .circumstances, the plaintiff in this rule had a right to open that decree, and the district court improperly refused that right, such refusal also was in the nature of a final decree which could be brought by appeal before this court for revision, by bill of exceptions, or other proper exhibition of the action of the district court in the matter.

We listened attentively to the argument of counsel, and heard no reasons assigned for the summary interference of this court by mandamus, except those deduced from the supposed or real inconvenience to the litigant of taking an appeal. The argument ab inconvenienti is entitled to no weight. If it were, it could be urged with much greater force against the plaintiff in the rule; for if applications of this sort were entertained upon the motion of every dissatisfied litigant, the whole time of this tribunal would be absorbed in superintending the proceedings of the inferior courts'; and the embarrassment and delay of litigation would soon become intolerable. The disclaimer of a general superintending control over the inferior courts, and the limitation of the summary-action of the appellate court to those cases where its interposition is necessary for the maintenance of its appellate jurisdiction, rules so repeatedly recognised by our predecessors, rest upon a wise policy, and a sound exposition of the constitution. We cannot defeat them.

The application for a mandamus is, therefore, dismissed, at the costs of the applicant.


author: Slidell, J,

text:
    Marcenaro v. Bertoli.
    Where moveables forming part oí a succession opened in this State are bequeathed to, or inherited by, a married woman, domiciled, with her husband, in a foreign country, and the wife subsequently dies, the law of the domicil of the spouses, in ease of a contest between the survivor and the heirs of the deceased spouse, will govern in determining to whom the property belongs.

      By the laws of England legacies to a wife, and residuary personal estate inherited hy her, are included under the term dioses in action; and it is only where they have been reduced into possession by the husband, that they become his property. To affect such a reduction the husband must exercise some act of dominion over the property; the mere intention to reduce them into possession is not enough. To effect a reduction the act must be such as to change the property; it must divest the wife’s right, and make that of the husband absolute.
    PPEAL from the Commercial Court of New Orleans, Watts, J. The defendant appealed from a judgment in favor of the plaintiff. In June, 1844, the late Supreme Court pronounced an opinion reversing the judgment of the lower court and rendering one in favor of the defendant as in case of non-suit; but a re-hearing was granted. The final decision on this re-hearing was rendered by the present court.
    The case was argued by L. Jarán, for the plaintiff; and Roselius and R. U. Wilde, for the appellant.
   The judgment of the court was pronounced by

Slidell, J,

Joseph Barabino, who was domiciled at New Orleans, died there in the month of May, 1834. He left an olographic will, which was duly admitted to probate and ordered to be executed. By this will he bequeathed to his sister, Anna Barabino, who at the date of his death was the widow of Angel Mordella, the sum of $2,000. A considerable portion of bis estate was left undisposed of by this will, which consequently fell by our law to his sister german Anna, and his half-brother Lorenzo Basso, in the proportion of three-fourths to the former and one-fourth to the latter. In July, 1834, Anna contracted marriage at Gibraltar, with Marcenaro, the plaintiff, both being domiciled at Gibraltar, where they continued to live till her death, which occurred on the 24th December, 1834. Marcenaro still resides there.

In the month of August, 1834, Marcenaro and his wife Anna, transmitted from Gibraltar a power of attorney to E. J. Forstall, a resident of New Orleans and a partner of the house of E. J. Forstall Sy Co., by which they and each of them constituted him “ their and each of their true and lawful attorney,” with authority for each of them, the said constituents, in his and her name, and for his and her use, to recover and receive from the executors of Barabino,’* fee., all sums of money whatsoever due or payable to them by reason of bequests to her by said will, or by reason of any residuary estate and effects to which the said Anna might be entitled by the laws of the United States, as the lawful sister of Barabino. There was given the usual power to sue, give acquittances in the name of the constituents, to represent them in any court, &c.

In November, 1834, the attorney thus appointed presented, in the name of his constituent Anna, a petition to the Court of Probates of New Orleans, in which, after alleging her heirship as sole heir, she prays that the executors of Barabino be cited, that they may be ordered to render an account; that she be put into possession of the estate of the deceased, and that all sums of money belonging to it be paid over to her. Upon this petition the Court of Probates, inFebruary, 1835, rendereda decree recognising Anna and J5a««o asthe only lawful heirs of Barabino, in the degrees of relationship above stated ; recognising Forstall as attorney of Anna, she being described in the decree as the wife of Marcenaro, and commanding the executors to render an account, and that the estate be divided in conformity to law.

• In March, 1835, Lizardi Sy Co., a commercial house at New Orleans, of which house Forstall was a member, received from the executors, for the account of Anna Mordella, a sum of $4,625 87 in cash, and a sum of $4,205 in promissory notes. It appears also that Anna Mordella, at the time of her marriage with Marcenaro, had two children, issue of her marriage with Mordella. These children suryived her; one of them resided at Gibraltar, the other was married to Bertoli, the present defendant, and was domiciled with him at New Orleans.

In 1836, Bertoli presented a petition to the Court of Probates at New Orleans, in which he states the death of Anna Mordella intestate, the heirship of the two children, and his marriage with one of them, and prays to be appointed curator of Anna Mordella'.s succession. After the usual formalities of advertisements, and no oppositions being filed, letters of curatorship were granted to Bertoli. An inventory was made, comprising certain real estate inherited from Barabino, and a sum of $2,040 in cash, which isstated as an amount declared by Forstall to be the balance remaining in his hands of a larger amount received by him as the agent of Anna Mordella. Soon after the making of this inventory the house of Lizardi Sc Co. paid to Bertoli, in his capacity of curator, $2,498 95, taking a receipt in which the sum is stated as a balance of account in favor of the late Anna Mordella. Lizardi & Co., on the same day, closed their account-current with Anna Mordella, exhibiting the receipts in cash and notes, in March, 1.835, from Bambino's .executors, and charging her with divers remittances and disbursements. The balance of account thus paid by Lizardi & Co. to Bertoli forms the subject of the present controversy.

We have been thus particular in stating the facts, because their accurate statement is very essential to the due consideration of the plaintiff’s rights. Marcenan, in his individual capacity, broaght this suit in the year 1840, in the Commercial Court, for the above sum of $2,498 95, against Bertoli, in his individual capacity. He bases his light to recover this sum from Bertoli upon the law of England, which he contends is and was in force at Gibraltar, and by “ reason of which he became entitled as husband, in absolute ownership, to all the personal estate which his said wife might then (the date of her marriage) own, or thereafter acquire, and among others to her share in the estate of the said Joseph Barabino, and to the proceeds thereof.” The payment by Lizardi & Co. to Bertoli, in his capacity of curator, he treats as an unlawful payment.

In proceeding to consider the right of the plaintiff to maintain this action, we shall not notice an objection made by the defendant’s counsel, that the english laws and jurisprudence, and their prevalence at Gibraltar, have not been sufficiently proved. We shall assume, for the purpose of our present enquiry, that they do exist as the governing law and jurisprudence at Gibraltar; and shall take them to be as we find them in english treatises, the sources of information to which the witnesses and the plaintiff’s counsel refer us. And here it is first to be examined how the jurisprudence of England would consider the rights which Anna Mordella acquired by the death of her brother Barabino, as his legatee and heir. And this examination must be confined to that part of Barabino’s succession which consisted of moveables ; for as to the immovables to which the wife became entitled as heir, Marcenaro sets up no right in this action. The moveables then of Barabino’s succession, after due administration by the executors by the payment of the testator’s debts, were to be applied to the payment of the legacy and of the distributive share of Anna Mordella as heir. Her right to this payment as legatee, and to this distributive share as heir, was what the english jurisprudence would consider a chose in action. By that jurisprudence, marriage is an absolute gift to the husband of all the goods, personal chattels, and estate which the wife was actually and beneficially possessed of at that time in her own right, and of such other goods and personal chattels as come to her during the marriage. The moment these come into the wife’s actual possession they become the husband’s absolutely, jure mariti.

But the law is different with regard to such of her personal property as is included under the denomination of choses in dctwft; a term which includes debts owing to her, arrears of rents, legacies, residuary personal estate, money in the funds, Sec. Marriage is only a qualified gift to the husband of his Wife’s choses in action, viz ; upon condition that he reduce them into possession during its continuance; for if he happen to die before his wife without having reduced such property into possession, she, and not his personal representatives, will be entitled to it, in her own right, without administering on his estate, or holding such property as assets for his debts. If, on the other hand, the wife die before her husband, his rights with regard to her' choses in action whieh he has not reduced into possession during her life-time, are not absolutely destroyed. 1 hey do not belong to him as husband; but he is entitled to them as administrator of his wife, and they would be liable as assets for her debt3 dam sola. In suing for them, therefore, he must sue for them not as husband, but only in the character of administrator.

What is to be considered as a reduction into possession of the choses in action of the wife during the marriage, has been well settled. The husband must exercise some act of dominion over the fund during the marriage. The' mere intention to reduce the wife’s choses in action into possession is not sufficient. The act, to effect that purpose, must be such as to change the property in them. It must be something to divest the wife’s right, and make that of the husband absolute. Such as a judgment recovered by him in an action commenced by him alone, or an award of execution on a judgment recovered by him and his wife, or receipt of the money, or a decree in equity for the payment of the money to him, or to be applied to his use. If stock to whieh the wife is entitled be transferred to her name, it will not be considered as a reduction into possession by the husband ; nor if money be left in the hands of a trustee for the benefit of the wife; nor if the husband actually received the money, but as a trustee or in some fiduciary capacity, and not simply as husband; nor if he and his wife give a power of attorney to a person to receive, but the attorney does not actually receive it during her life. And in equity the rights of the wife meet with even greater favor.

Applying these principles to the case before us, we find no reduction into possession during the wife’s life. It is erroneously stated in the former opinion that the wife died in December, 1835. She .died in December, 1834, and the money was received by the New Orleans agent in the following March. When Lizardi 8f Co. received this money they seem not to have been aware that she was dead, and received it for her, and so credited it in account. When the petition was filed by Forstall in the Court of Probates, it was filed in her name; the prayer was that she be put into possession and that the money be paid to her. These judicial proceedings, which the husband seems to have adopted, for he refers to them in his petition, point to her rights.

It cannot be said that the payment to Forstall was a payment to the husband. At the date of this payment his power as to her was revoked by her death. Her husband’s authority as husband had also become inoperative, for he ceased, as we have seen, to have any authority as mere husband. He had, as surviving husband, the right, under the jurisprudence which he invokes; to become administrator; but he had received no grant of letters of administration, and had given no power of attorney in that capacity. The receipt therefore from Bambino’s executors by Forstall, in 1835, was an unlawful receipt; but its restoration to the curator charged with the administration of the wife’s succession was lawful.

We will not here discuss the question whether, if the husband had obtained a grant of letters of administration from the proper tribunal at Gibraltar, ho would have had a right to act upon the fund here under those letters directly, or after obtaining a judicial recognition of those letters here ; nor will We discuss the question whether, if Marcenara, without obtaining letters of administration at Gibraltar, had seasonably applied for letters of administration here, he would have been entitled to them. It suffices to say that he has received no grant of letters at either place, and stands before us claiming as husband only, of Bertoli in his individual capacity. But Bertoli, during the husband’s inaction both here and at Gibraltar, had obtained in the proper court at New Orleans-letters of curatorship, by which this fund, as well as the real estate of the wife, was placed under his administration. Letters of administration having been thus granted, if the engiish law is to govern with regard to the distribution of this fund, the husband’s rights are not gone* By that jurisprudence, if the next of kin of the wife have taken out letters of administration and thus have got the chose in action, or its proceeds, into their hands, they hold as trustees of the husband, and are thus answerable to him. We do not, however, decide this question in the present case. The counsel for the defendant has contended that this fund is an immovable, because the wife’s interest in the succession of her brother, which was opened here, was, as he alleges, an immovable by disposition of our law; that under our Code the distribution of the whole succession of Anna Mordella, as situate here, must be in favor of her children. It is unnecessary now to express an opinion upon this point. The plaintiff must, after what has occurred, go to the court where the succession of Anna Mordella is under administration, and sue the curator; or if the children of Anna Mordella have been put into possession of her estate, he must sue them. The presen1' action cannot be maintained.

For the reasons now expressed the judgment of non-suit rendered by the former Supreme Court in this cause, stands affirmed.


author: Ectstis, C. J.

text:
    Colt v. O’Callaghan.
    , Where several judgment creditors, each of whose claims is under three hundred dollars, hut whose aggregate amount exceeds that sum, unite in a petition of intervention in an action between their debtor and a third person claiming a privilege in virtue of separate seizures made by thein under execution, an appeal taken by them will not be dismissed on the ground that their claims do not severally amount to three hundred dollars.
    Where a Vendor has no privilege by the law of the place of sale, he can acquire none by the transfer of the property to a country where a privilege would be granted to a vendor under süch a contract made within its jurisdiction.
    Appeal from the Commercial Court of New Orleans, Watts, J.

      Elwyn, for the plaintiff,
    relied on Story’s Confi. Laws, § 323. Huberus, De Conflictu Legum, § 7, Harrison v. Sherry, 5 Crunch 298.

      Schmidt, on the same side. Bartletle, for the defendant and appellant. T. H. Howard, for the intervenors,
    who also appealed, relied on Whislon v. Stodder, 8 Mart. 135.
   The judgment of the court was pronounced by

Ectstis, C. J.

The plaintiff sold to the defendant, in the city of New York, several coils of wire for the sum of $500, which was seized by the appellants, who were judgment creditors of the defendant, under executions. The judge who tried the cause gave the plaintiff his privilege of vendor adversely to the seizure made by the appellants; from which judgment this appeal is taken. A motion was made to dismiss the appeal, on the ground that the claims of the appellants, who were intervenors in the court below, do not severally amouht to a Sufficient sum to give this court jurisdiction. The appellants united in their petition of intervention, and their aggregate claims exceed in amount the sum of $300. The value of the thing seized, as well as the plaintiff’s claim, exceeds that sum. The motion to dismiss the appeal is therefore disallowed.

It is alleged that the delivery of the wire to the defendant took place in New Orleans. It was shipped by the vendor to O’Callaghan, the purchaser, in New Orleans, he paying the freight; and, under the statement of facts, “ that Colt sold and delivered the wire in question to O’Callaghan, and that the Same never was paid for, &c.,” signed by counsel, we are bound to consider the contract as complete and executed in New York. The judge allowed the plaintiff his privilege of vendor, on the principle that privileges appertain to the remedy, and are not dependent on the law of the place where the contract was made. The case was before us before the adjournment in June last; and was set down for further argument at the November term.

We have been referred to the treatise of Judge Story on the Conflict of Laws, as supporting the doctrine in which the privilege to the plaintiff was allowed. In section 322 of that work it is expressly laid down, that where the lien or privilege does not exist in the place of the Contract it will not be allowed in another country, although the local law where the suit is brought would otherwise sustain it, and the case of Winston et al. v. Stodder et al., 8 Mart. 135, is cited in illustration of the principle. In that case it was decided, after argument by eminent counsel, that in a sale completed in a country in which the vendor has no privilege, he acquires none by its being brought here. By the laws of New York Colt could have no privilege on the merchandise sold by him, and it is difficult to find a reason for his acquiring one here.

This decision is said to be in derogation of a general principle that the allowance of priorities of payment belongs exclusively to the remedy. It is true that in the work referred to, in which the principle established in Whiston’s case is acknowledged, the antagonist doctrine is thus apparently recognised in section 575: “ The liens, implied hypothecations, and priorities of satisfqgtion, given to creditors by the law of particular countries, and the order of payment of their debts are generally treated as belonging to the subject of proceedings ad litis ordinationem, and not to the merits of the claim;” and Rodemburg, Boullenois and Voct are referred toas authority.

Since the decision of the case of Wkiston, we have never known it to be deviated from in our tribunals; and We are not aware of any decision of a court in the last resort, in which the rule just quoted has been acted upon. The case of Harrison v. Skerry, 5 Cranch, 298, we considered in the case of Lee v. His Creditors, ante p. 599. The opinion in the case of Harrison v. Skerry must be taken as one whole, and as applicable to the state of facts then under consideration; in -which priority of payment was given to the United States in fk0 distribution of the effects of a bankrupt over debts contracted by a foreigner in a foreign country. This opinion has been considered as adverse to the recognition of Mens under foreign contracts, and never, as we are aware of, been Meld as-sanctioning the doctrine that a party who has no-privilege on merchandise by the law of the place where his contract is completed, can acquire one by a translation of the- property to a country where a privilege is granted on similar contracts made within its jurisdiction.

The quotation made by the counsel from Huberas relates to prescription and execution; alone.

Those who are at all familiar with the subject of the conflict of laws are-often embarrassed' in their enquiries on finding that, in many rules which have-been held to be general and of universal application, the cases excepted outnumber those within their purview, under the jurisprudence of the present day; and our experience often admonishes us of the' necessity of the greatest caution in laying down or adopting any general rules, however plausible they may appear, which have not stood the test of scrutiny, of experiment, and of time.. In this case we see no reason for deviating from the law as settled in Winston’s case.

It is therefore decreed that that portion of' the judgment allowing'the plaintiff a privilege on the wire be reversed ; and that there be a judgment in favor of the intervenors, subjecting the wire seized in this case to their executions severally; the, plaintiff paying the costs of the intervention and of the appeal.


author: Slidell, J.

text:
    Sue v. Viola et al.
    0ne-v?bo made no appearance before judgment, and raised no issue in the court below, and against whom the judgment cannot have the force of res judicata, has no right to appeal therefrom.
    Appeal from the District Court of the-First District, Buchanan, J.

      Greiner, for the plaintiff. Dufour, for the appellant. No counsel appeared for the defendants.
   The judgment of'the court was pronounced by

Slidell, J.

The plaintiff sold some merchandise in France to the defendants, shipped it, and gave the defendants the bill of lading. It was to be paid for in cash : the defendants failed to do so, and absconded. The plaintiff sequestered the goods after their arrival at New Orleans, and Bousquet, in whose possession they were found, intervened and claimed the goods as having purchased them from one Peyret, the agent here of Viola fréres. They alleged in their intervention that they had paid the duties on the goods at this port, and, if not entitled to the goods, are, at least, entitled to reimbursement of the amount of duties. The court considered Bousquet a purchaser in bad faith, dismissed his intervention, and restored the property to the plaintiff. Peyret was not cited, nor did he become a party to the cause.

After judgmenthe appeared by petition of appeal, and now asks a judgment in his favor for the amount of duties, as having been paid by him. Under the evidence it is not clearly shown that he paid them. But besides this he has no-right to relief in this cause, not having appeared before judgment, nor raised any issue in the court below. The only parties litigant were the plaintiff, the defendants, and the intervene»', none of whom have appealed. The judgment of the court below is not res judicata against Pcyret. If he has any claim, it is not adversely affected by the judgment, and therefore he cannot appeal. See Williams v. Trépagnier, 4 Mart. N. S. 343. Young v. Cenas, 1 Mart. N. S. 308. Appeal dismissed..


text:
    Clarke v. Saloy et al.
    Where the laborers employed by a builder, and the furnishers of materials for its construction, deliver to the owner attested accounts of the amount doe to them for the purpose of having the amount retained oat of subsequent payments to the contractor, in pursuance of the stat;. of 18 March, 1844, and the amounts so claimed exceed the balance due to the builder, the owner may institute an action against the claimants, for the purpose of having the amount due by him distributed by order of court among the parties entitled thereto, .and himself relieved from liability on depositing the amount due by him in court.
    Appeal from the First District Court of New Orleans, McHenry, J.

      Fulhouze, for the plaintiff. Mazureau, forth© appellant.
   The judgment of the court was pronounced by

Slidell, J.

The petition in this cause alleges the following facts: The plaintiff had made a contract with one J. Chateau, by the terms of which he was to build a house for the plaintiff, and the plaintiff was to pay a sum in cash, and the residue in two instalments. This contract was, with the consent of the plaintiff assigned by J. Chateau to R. Chateau, who, at the stipulated stage of the work, received the second instalment. In the subsequent prosecution of the work, the contractor became embarrassed, and did not fulfil his contract; the plaintiff was compelled to have some portions of the work finished by other persons. Various parties, who had claims against Chateau asunder-workmen and furnishers of materials, delivered to the plaintiff attested accounts, pursuant to the statute of 18 March, 1844. These claims amounted to $1,471 72, while the amount coming to ihe contractors from the plaintiff was but $720. The plaintiff further alleged that each of these creditors of the contractor claimed the right of payment in full, that she had no knowlege of the justice or correctness of their claims, was unable to decide upon their respective rights and privileges, and could not pay any of them without the risk of error and responsibility towards the others. She therefore prayed the citation of all these creditors, and thal the fund which she deposited in court might be distributed among them according to their respective rights, and she discharged from all further liability.

To this petition an exception was filed by Saloy, one of the creditors, praying the dismissal of the action, .upon the ground that the plaintiff, according to her own showing, stands toward him in the relation of his debtor, and not his creditor; that she has no claims against him, and has nothing to do with the conflict, if any exist between the several defendants; that she cannot interfere nor cause them to be called, and decreed to come to a settlement of their respective claims. This exception was overruled. Judgment by default was entered, and, upon the evidence adduced, the court being satisfied that the allegations of the petition were fully proved, rendered a decree directing that the fund deposited remain for distribution among the creditors upon further hearing, discharging the plaintiff from all personal liability under the building contract, and authorising the cancellation of the privilege at the mortgage office. From this judgment Saloy has appealed.

We concur with the court below in the opinion that the allegations of the petition were proved, and our attention will be addressed to the exception pleaded by the defendant. In solving the question whether such an action can be maintained, our inquiry ought not to be limited by the literal provisions of the Code of Practice. Whether the definition of an action contained in the first article of that Code literally covers a case of this nature, seems to us of but little importance. If any provision of Jaw could be cited forbidding such an action, we should be bound to obey it, however questionable its policy; but, in the absence of such a prohibition, the true test is, whether the ends of justice, for the administration of which courts were established, will be promoted and accomplished by the maintenance of this action. In answering this enquiry it is necessary to consider the situation of th© parties; we may also take into view, in a case where the legislator is silent, such analogies as are presented by our legislation, and may gather assistance from the practice of courts of justice in other civilized countries.

Here are numerous creditors, who, availing themselves of the provisions of the act of! 844,have notified their accounts to the plaintiff, and thus given her warning that whatever she owes the contractor must be retained and paid over to them. These conflicting claims may presently become the subject of as many different suits against her, in as many different courts; for the statute has given an action to the creditor of the contractor against the owner, as “for money had and received to his use. ” The claims amount to $1,471 20, while all that she owes to the contractor, and the full extent to which she ought in law or honesty to be made liable, is $720. She is willing and anxious to pay all that she owes; but does not know to which of the claimants, or in what proportions, she ought of right to render the debt; and fears that she may be harrassed by a multiplicity of suits, and suffer injury from the conflicting claims of the parties. She therefore applies to a court of justice to protect her, not only from being compelled to pay the same amount repeatedly to the different claimants, but from the vexations attending upon the numerous suits which would be instituted against her. She places the fund of which she is the stakeholder in the hands of the court, and insists that the various claimants should settle their rights contradictorily With each other, and not at her expense and hazard. There is an obvious justice jn this; and we look in vain, either in the general law, or in the statute of 1844, for any thing which forbids such a proceeding. It certainly was not the object of that statute to oppress the proprietor, but to aid an$ protect the mechanic. When the proprietor comes forward honestly and places the fund at the disposition of the creditors, he has done all that the statute contemplated.

There is a strong analogy between the present action and the remedy which positive legislation has provided in the case of conflicting seizures. Act of February 10, 1841, sec. 11.

The Spanish law by which we were once governed, presents provisions strongly analogous to the present case. In the Partidas, that venerable monument of wisdom and simplicity, it is said: “Constreñido non deve ser ningún orne, que faga demanda a otro, mas el de su voluntad la deve fazer si quisiere; fueras ende en cosas señaladas, que! puedan los Juzgadores apremiar según deí'gpho, para fazerla. E la una dellas es, quando alguno se va alabando, e ¿liziendo contra otro, que es su siervo; o lo enfamando, diziendo del otro mal ante los omes. Ca en tales cosas como estas, o en otras semejantes dellas, aquel contra quien son dichas, puede ir al Juez del Logar, e pedir que constriña a aquel que las dixo, que le faga demanda sobredas en juizio, e que las prueve, o que se desdiga dellas, o quel faga otra enmienda, qual el Juzgador entendiere que sera guisada.” Pai'tida iii, tit. ii, ley 46.

Nay, so far did the same lawgiver go in protecting the subject from vexatious litigation, that there was a provision enabling judges to compel those to bring suits immediately, who might have claims against persons going on a journey.

An action like the present is familiar to courts of chancery, under the denomination of a bill of interpleader. Justice Story, in his treatise on Equity, sets forth at length the considerations justifying such relief, which we have already intimated, and adds that unless, under such circumstances, courts of equity would afford a party protection, he would in almost every event be a sufferer, however innocent and honorable his own conduct may have been. See also De Lizardi v. Gosset, 1 Ann. Rep. 138. We are of opinion that the exception was properly overruled, and that there is no error in the judgment appealed from. Judgment affirmed-

        " Asechan los ornes unos a otros maliciosamente, por emvidia, o por malquerencia que han contra ellos. E esto fazen contra los mercaderes, e contra los otros omes, que han a fazer sus viajes por mar, o por tierra. Ca luego que saben que tienen sus mercaderías, e sus cosas aparejadas para irse, mueven demandas escatimosamente contra ellos ante los Juzgadores, para estorbarles que se non puedan ir de la tierra, en la sazón que devian. Onde dezimos, que los Juzgadores non deven sofrir tal escatima, nin tal engaño como este, quando lo sopieron. E para refrenarlos desta maldad, mandamos, que el mercader, o otro qualquier que se temiere desto, pueda pedir al Juez que apremie a aquel que le esta asechando, quel faga luego su demanda, eque la non aluengue, fasta en la sazón que se quiere ir. E el juez develo fazer. Ca si estonce el demandador non quisiese su demanda mover, tton deve después ser oydo, fasta que el demandado tome de su viaje.” Partida, iii, tit. ii, ley 47.


author: Slidelx,, J.

text:
    Moss et al. v. Smoker et al.
    Plaintiffs, owners of a steamer, received on their boat a quantity of cotton, to be delivered to the consignees for a certain freight. They were allowed, by the terms of the bills of lading, to reship the cotton on another boat. The cotton was reshipped on a steamer belonging to defendants, to be earned a part of the distance. The bills of lading were transferred to the latter, who, after deducting the amount agreed to be allowed to them for freight for the distance it was to be carried by them, paid plaintiffs an amount in cash, and gave them a note and a due bill, which together made up the full amount of the original freight contracted to be paid by the owners of the cotton for its transportation to the place of consignment. The cash was paid without any stipulation for its return in any future event, and the note and due bill were absolute on their face; nor was any condition stated in what passed orally between the parties. The cotton was lost by an unavoidable peril of the navigation shortly after it was reshipped, and the defendants were thus prevented from delivering the cotton and earning the freight, and never received any part thereof. In an action by the payees on the note and bills Held that, by the absolute form in which defendants stipulated, they have subjected themselves to the burden of establishing their release by some implied condition resulting from the nature of the contract, if any such existed; that the peril to which the goods would be exposed, and with them the right to freight, w;as one that might have been easily foreseen; that the chance of earning freight and of re-imbursing themselves for any payments to the plaintiffs by collecting the entire freight of the consignees, was a benefit offered to the defendants, which they thought it their interest to accept with the accompanying burden; and that they tools upon themselves the risk of the whole amount of freight money.
    Where the business of a steamer is to carry freight for hire, an agreement made by the captain, or clerk of the boat, in order to obtain the carriage of merchandize and to earn freight for the owners, is within the scope of the partnership business; and notes executed in pursuance of it by the clerk, on behalf of the .owners, will be binding on the latter.
    Appeal by the defendants from a judgment rendered against them, by the Fourth District Court of New Orleans, Strawbridge, J.

      Micou, for the plaintiffs,
    relied on the case of Andrew v. Moorehouse, cited in Abbott on Shipping, new Am. ed. p. 495, and note to page 496.

      T. G. Lacy, Hunion and Rawle, for the appellants,
    cited Avery v. Lauve, 1 An. R. 457.
   The judgment.of the court was pronounced by

Slidelx,, J.

This suit is brought by the plaintiffs, owners of the steamer Hempstead, against the defendants, owners of the steamer Express Mail, to recover the amount of two due bills, signed by the clerk of the latter steamer, on behalf of her owners. One is in the following form :

“ Shreveport, April 24, 1846. One day after date due to the order of Mr. Wm. Moss, four hundred dollars, for value received.

“Steamer Express Mail and owners, R- Gillet, clerk.”

The other is dated at the same place, on the 26th April, 1846, is signed in the same way, and is of the following tenor: “ Due to the steamer Hempstead and owners, three hundred^and ninety-four dollars, for value received.”

At the trial of the cause, in addition to some other evidence, the following statement of facts was agreed upon between the plaintiffs and a portion of the defendants.

“ The note and due bill mentioned in the petition were given under the fol-' lowing circumstances: The steamer Hempstead, in the month of April, 1846, received on board and undertook to transport from Harris’ Landing on Red river to New Orleans, 396 bales of cotton, consigned to Messrs.--■of New Orleans, the damages of the river excepted. The consignees to pay freight on 362 bales at $3 per bale, and on 34 bales at $$ 50 per bale. By the terms of the bill of lading the steamer Hempstead had the privilege of reshipping the cotton on other steamboats. The Hempstead transported the cotton to Shreveport, and the cotton was then by agreement reshipped on the Express Mail; $200 in cash paid, and the note and due bill given by the Express Mail, and a freight of 75 cents reserved for the Express Mail; the said Hempstead delivering and passing the bills of lading to the Express Mail. Afterwards, on the 27th of April, 1846, the Express Mail, about fifty miles below Shreveport, on her voyage to New Orleans with the said cotton on board, was, by the unavoidable dangers and perils of' the river, lost, and was unable to deliver the cotton to the consignees, and thus to earn the freight, and never did receive the freight, or any part thereof. On the said voyage the freight of the said Express Mail was to the amount and value of $2,071, upon which insurance had been made to the amount of $9S0, which has been paid defendants.”

The plaintiffs contend that, under the agreement, the defendants became their unconditional debtors for the amount of the notes or due bills, while, on the other hand, the defendants invoke an entirely different construction. They say that the cash paid and the notes given were an advance by the defendants to the plaintiffs, to be re-imbursed by the collection of the entire freight at New Orleans upon the original bills of lading, that the defendants did not take the plaintiffs’ claim for freight at their own risk; that by the loss of the goods on the voyage the freight was lost, and they were unable to collect from the consignees; that the consideration of the notes has failed; that they are entitled to a judgment in their favor as to the notes, and to a decree against the the plaintiffs for the re-imbursement of the cash advance of f200.

The question presented by this cause is novel, and one in which, as the counsel properly stated, we cannot derive much aid from precedent and special authority. Its solution must be attained by the application of those well-established principles which control the subject of contracts in general, and some aid may also be drawn from those familiar rules which regulate the obligation of promissory notes. The true enquiry in this case is, was the promise to pay, made by the defendants, absolute ? or was it conditional, to wit, upon the condition of the safe arrival of the cargo, and the consequent ability to collect the freight from the consignees? A conditional obligation is one which is made to depend upon an uncertain event. If the obligation is notto take effect until the event happens, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition. It is certainly usual in agreements, as Domat has well said, for the parties to foresee accidents that may produce some change which they are willing to guard against; they therefore, said he, regulate what shall be done if those cases do happen.

It is not, however, indispensable to the existence of a condition in a contract, that it be expressed. There are tacit conditions, which are understood without being expressed. But this class of conditions is limited to those which are inherent in the nature of the affair, and which the law supplies, though the contracting parties are silent. Our Code defines them perhaps more correctly and fully, as those which result from the operation of law, from the nature of the contract, or from the presumed intent of the parties. An illustration is given by the civilians in the case of the sale of an estate, when the seller reserves to himself the fruits of that year. This reservation implies the condition that there shall grow fruits, in the same manner as if it had been said that he reserved the fruits in case there should be any. Tunc enim incipit actio cum ea per rerum naturam prestari potest. Another illustration is the resolutory condition which is implied in all commutative contracts, to take effect in case either of the parties does not comply with his engagements. See Civil Code, arts. 2015, 2010, 2021, 2040. Domat, book 1, tit. 1, sec. 4, § vi. Merlin, Répert. verbo Condition. Duranton, book 3, tit. 3, chap. 4, § 37.

If we examine the present contract, we look in vain for any express stipulation of a condition that the notes should not be exigible, and that the cash paid should be restored in case the goods should not arrive, and the liability of the consignees not be fixed by their delivery. The cash was paid without any positive stipulation for its return in any future event. The notes are absolute on their face. It is an absolute promise to pay, for value received, a certain sum; in one note at a certain day, in the other immediately. Nor was any condition stated in what passed orally between the parties. The defendants therefore are totally unsupported by the express terms of the agreement, and must show that the implied condition results from the operation of law, the nature of the contract, or the presumed intent of the parties. Now there is no express legislation to control a contract of this sort, and the defendants are therefore Restricted to whatever benefit maybe derived from a consideration of “the nature of the contract, or the presumed intent of the parties.”

Standing upon this narrow ground, the first difficulty which the defendants encounter is, that the whole burden is thrown upon them by the absolute form in Which they have expressly stipulated. It is obvious that to relieve themselves from a written promise, unconditional on its face, they must make out the implied Condition by very clear and cogent deductions from the nature of the contract. Now the peril to which the goods would be exposed, and with the goods the right of freight, was a peril not so strange or extraordinary as not be foreseen by men of ordinary prudence. The risk was not of so improbable a nature as not to suggest itself to the contemplation of the parties. But it is said that, if the contract is deemed an absolute one, and the defendants took the risk of earning freight from the consignees, they made a hard bargain. Certainly where a bargain is so unconscionable as to indicate surprise, or fraud, or duress, a court of justice will look into it very closely, and in a proper case might render such sum as may appear reasonable, without being bound by the terms of the contract. But here was no sort of coercion, nor any hardship but of the promissor's own making. There was a lawful and valuable consideration moving from the plaintiffs. You shall have the chance of earning seventy-five cents per bale upon this cotton by carrying it to New Orleans, as well as the chance of reimbursing yourself by collecting the entire freight from the consignees, if you will pay me, who have already labored and incurred risk in the matter, the proportion of freight money from the place of shipment to the point where we now are. Here was clearly a valuable consideration. There was a benefit offered to the party promising, which he thought it to his interest to accept with its accompanying burden, and did accept. He did it with his eyes open; the risk he incurred was one which he must be supposed to have foreseen; and which he could have guarded against by either refusing the contract altogether, or insisting upon a condition, instead of promising absolutely. He had the chance of earning $297. Opposed to this was the risk of the loss of that amount, and of the sums paid and promised to the plaintiffs. Such a risk no underwriter would probably estimate at more than one per cent, or about ten dollars.

We are of opinion therefore that the defendants took the risk of the whole freight money upon themselves; and that, as between the parties now before us, and so far as the freight money was concerned, the interest of the plaintiffs in the enteprise was closed. The defendants bought out the plaintiffs unconditionally, and must pay the price.

In considering this case we have not thought proper to embarrass the subject with an enquiry, which is not necessary to the solution of the question before us, to wit, whether, notwithstanding the privilege of reshipment, the Hemp-stead remained liable to the consignee under the original bill of lading. That was one contract, and the agreement between the Hempstead and the Express Mail was a new and distinct contract. Each stands on its own footing. The rights of the owners of the steamers inter se, for the purposes of the present controversy, are not affected by their responsibility to the merchant.

It only remains to notice the grounds of defence urged by one of the defendants, Boyle. He does not dispute his being part owner of the Express Mail, but says he never authorized the captain or clerk to make such an agreement for him, and that they had no authority to make promissory notes for'him.

Upon the first of these points we are of opinion that the agreement was within the scope of the partnership business. The business of the steamer was to carry freight for hire, and the agreement was made in order to get the carriage of the cotton, and earn freight for the owners.

Upon the second point the objection is, in the present case, purely technical. If the whole agreement and its attendant circumstances were not in evidence, and the case before us nakedly upon the notes, the enquiry would then be necessary, whether the owners of a steamer are bound by notes drawn by the steamer’s captain or clerk. But here the consideration of the notes is alleged and proved.

"We are better satisfied with the conclusion we have formed in this case, from its concurrence with the views expressed by the learned and experienced judge who tried the cause in the court below, and who has given at length and very forcibly his reasons for deciding the cause in favor of the plaintiffs.

Judgment affirmed.


text:
    Berry v. Slocomb.
    One who signed an appeal bond as surety for a third person, in consequence of an obligation contracted by defendant to save him harmless, may recover from the latter a fee paid by him to counsel to defend him in an action on the appeal bond; and where defendant was notified by the surety of the name of the counsel so employed by him, and no objection was made thereto, such silence will be an implied approval of his employment.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      G. B. Duncan, for the plaintiff. L. Peirce, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought to recover an amount expended for fees to counsel, under the following circumstances. Cox desired to appeal from a judgment. Berry agreed to become his surety on the appeal bond; and as his inducement to do so, the defendant executed in Berry's favor a written obligation, by which she bound herself to save him harmless. Berry was sued upon the appeal bond, employed counsel to whom he paid the amount now claimed, and defended the suit successfully. When suit was brought against him, Berry transmitted a copy of the citation to Mrs. Slocomb, reminding her of her obligation indemnify to him, stating also that ho had retained counsel, whose name he gave, and who would “cheerfully receive whatever aid or advice your [the defendant’s] counsel may think proper to give him.” It is quite clear that where one party thus agrees to hold another harmless, the latter may recover the costs and charges reasonably disbursed in consequence of a suit against him. See Mott v. Hicks, 1 Cowen, 538.

But the defendant urges that Berry could have called upon her to employ counsel to defend him, had he wished or intended that the counsel’s fee should be paid by her; and that, upon her neglect or refusal so to do, that then only would she have been chargeable with the sum paid to counsel of his selection. "We are inclined to concur with the district judge in the opinion that Berry had a right to employ competent counsel of his own selection, unless, at least, a tender of suitable counsel was made by the defendant, which was not done. However, it is not necessary to decido this point. Berry notified her that ho had employed counsel, whom he named. Her silence was an implied approval. See Hale v. Andrus, 6 Cowen, 225. We think the defendant has nothing to complain of. The counsel employed must be considered competent, for he was successful. The compensation paid to him is admitted to be moderate. If the defendant had' employed counsel herself, the result of the defence could not have been more satisfactory, and the expense, we must suppose, wauld-not have been lighter. Judgment affirmed.-


author: Rost, J.

text:
    Lee v. His Creditors.
    In homologating a tableau of distribution presented by a syndic of tlic creditors of an insolvent, the decision of the court upon each claim is a separate judgment belonging to the party in whose favor it is rendered, and binding upon all who do not appeal from it; and where one creditor alono appeals from the judgment of homologation the other creditors must he viewed as strangers to the proceeding, and unaffected by any judgment rendered on the appeal.
    Appeal from the Fourth District Court of New Orleans, Strawbridgc. J.

      Mott, for the plaintiffs in the rule. T. R. Wolfe, for other creditors. T. A. Clarice, for the syndic, appellant.
   The judgment of the court was pronounced by

Rost, J.

In the tableau filed by the syndic of the insolvent in this case, two privileged claims were disallowed: That of George Handy, claiming the vendor’s privilege on a steamboat; and that of the present plaintiifs in the rule, claimed Oii the proceeds of the Boat, under the laws of Kentucky. On the oppositions filed there was a judgment in the first instance in favor of the Kentucky claims, and against Handy, who alone appealed. Neither the syndic, nor any of the other creditors joined in the appeal nor opposed these claims in the appellate court. The case was contested between these two parties alone. The judgment so far as appealed from was reversed, the privilege claimed by Handy was allowed; and the court' held that the plaintiffs in the rule were not entitled to the privilege claimed by them. The funds in the hands of the syndic are more than sufficient to satisfy the judgment in favor of Handy, and the present rule was taken by the plaintiffs therein upon the syndic, to show cause why the balance remaining should not be paid over to them, on the ground that the judgment of the district court so ordered it, and that said judgment has not been appealed from, except' by Handy, who will become disinterested by the payment to be made to him. The district court ordered this balance to be distributed between tlie plaintiffs and Handy on account of his ordinary claims, in proportion to the amount due to each. The syndic has appealed; and some of the ordinary creditors to whom no dividend is allowed have joined in the appeal, and insist that the decree of this court on the appeal of Handy enures to their benefit, and that, as it has been decided that the privilege claimed by the plaintiifs in the rule does not exist, it cannot be enforced against any one.

This case presents a question of practice, which we consider well settled in the case of Jean Francois Girod v. His Creditors, ante 546.

We held there that, parties considering themselves aggrieved by the judgment homologating a tableau of distribution mustappeal, and make proper parties; and that the decision of the court upon each claim was a separate judgment belonging to the party in whose favor it was rendered, and binding upon all parties who did not appeal from it. We recognized the right of the syndic to appeal on behalf of the mass. But in this case the syndic did not appeal. The contest was exclusively between the plaintiff’s and Handy, upon their respective claims. The other creditors appeared to have acquiesced in the judgment of the district court, rather than incur the expense of further litigation.

Had the appellant been cast, the other creditors could not have been compelled to pay costs. They would have maintained successfully that the appeal had been taken by him alone, for his exclusive benefit. The result cannot affect the question of right; and they must be viewed in all cases as having remained strangers to the proceeding. Judgment affirmed•


author: Eustis, C. J.

text:
    Florance v. Yorke et al.
    Plaintiff, who bad applied for afi.fa. against a defendant, propounded interrogatories to c, third person under the provisions of sec. 13 of the stat. of 20 March, 1839, for'the purpose-of ascertaining whether he had in his possession any real or personal property belonging to defendant, or was in any manner indebted to him. The answers to these interrogatories were traversed, and a rnlo taken on the respondent to show cause why judgment should not be rendered against him for the amount of the plaintiff's claim. On the trial of the rule objection was made to proceeding until plaintiff declared in writing, specifically, what property he expected to prove to be in possession of the party interrogated; when the court ordered the plaintiff to specify “ what real estate or slaves ” he intended to prove to be in the hands of the party interrogated, belonging to -the defendant. The specifications filed by plaintiff not being considered a compliance, on motion of the party interrogated, the proceedings were dismissed. On appeal; Held, that the only effect of the non-compliance with the order to specify, would be to exclude any evidence as to the subjects embraced by it —real estate and slaves; that in relation to personal .property and debts, the. order was inoperative; and that the proceedings should not have been dismissed.
    Where one, to whom interrogatories are propounded under sec. 13 of the stat. of 20 March, 1839, for the purpose of ascertaining what property he may have in bis possession belonging to a defendant against whom an execution has been taken out, objects to the mode of proceeding, he should make such objections appear by exception or plea.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Carter, for the appellant. Benjamin and Micou, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff having an execution against Edward Yorke, propounded interrogatories to Joshua J. Hanna and Leonard Matthews, under the 13th section of the act of March, 1839, which were annexed to a petition praying that they be cited to answer as garnishees. They answered, and their answers were traversed by the plaintiff, and a rule was granted by the court for the garnishees to show cause why judgment should not 'be entered against them, for the amount of the original judgment against Yorke. On the trial of this rule, after some testimony was offered for the plaintiff and admitted, an objection was made by the counsel for the garnishee against proceeding further until the plaintiff disclosed in writing the specific property which he expected to prove in the possession of the garnishees which belonged to the defendant; and thereupon the court made an order that, the plaintiff put on file specifications of what real estate or slaves he intends to prove were in the hands of the garnishees belonging to Edward Yorke. The case was continued, and the plaintiff filed a document which he contends was sufficient in law to apprise the garnishees of the facts which he intended to establish in order to contradict the answers of the garnishees. Additional specifications were afterwards filed to the same effect. On another hearing, the judge being of opinion that the plaintiff had not complied with the order of the court, on motion of the counsel for the garnishees, dismissed the proceedings, and the plaintiff has appealed.

The interrogatories propounded to the garnishees were by no means confined to real esate and slaves belonging to Edward Yorke in then- possession, but extended to every description of property, moveable and immovable; and a direct interrogatory is put to them as to their indebtedness to Yorke, all of which are negatived by their answers, and are covered by the traverse of the plaintiff. The petition, interrogatories and specifications, under the case as before us, we must consider as one whole. There is no objection made to this mode of proceeding on the part of the plaintiff by the garnishees, by plea or otherwise, except as noticed. It is obvious that we have nothing before us, except to determine on the sufficiency of the cause for dismissing the proceedings, which the district judge has assigned. The only effect of the order made by the judge, and its non-compliance on the part of the plaintiff, would be to exclude the evidence as to those subjects which it embraced, to wit, real estate and slaves. In relation to personal property and indebtedness the order was inoperative. If the garnishees objected to this mode of proceeding, they ought to have made it appear by exception or plea; and whatever conclusions we might come to, were the question properly presented to us, we are under the necessity of sending the case back, as we think there were no grounds for dismissing the proceedings as they were dismissed, namely, on motion of the counsel for the garnishees, on the ground that said Florance had not complied with the order requiring him to file specifications, &c.

It is to be regretted that a case of this importance should be sent back on a mere question of practice. This mode of reaching garnishees under the law of 1839, has been sometimes practiced; and we think it incumbent on the garnishees, in all cases where they object to it, to put their objections formally on record. This wa3 done in Samory v. Hébrard, 17 La. 559, and Laville v. Hébrard, 1 Rob. 435, in which cases the practice under this act was considered.

The judgment of the district court is therefore reversed, and the case remanded forifurther proceedings; the appellees paying costs.


author: King, J.

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    Hampson v. Reynaud et al.
    Where the certificate of the clerk does not show that the record contaius all the evidence upon which the caso was tried, and there is no statement of facts, bill of exceptions, or assignment of error, the appeal must b,e dismissed.
    Appeal from the City Court of Lafayette, Carrigan, J.

      Schmidt, for the appellant. . Lockett and Micou, contrá.
   The judgment of the court was pronounced by

King, J.

The appellees motion to dismiss this appeal must prevail. The • only certificate furnished by the clerk is, that the record “contains a full and correct transcript of all the records filed in the case of John Hampson v. Raynaud & Guillet,” &c. A former motion was made to dismiss this appeal on the ground of the insufficiency of this certificate, and on the further ground that the petition, proceedings and judgment of the plaintiff, and the execution and marshal’s return thereon, were not contained in thq'record. A certiorari thereupon issued, under which the execution and marshal’s return have been brought up. The other deficiencies of the record have not been supplied, nor has the certificate been amended. The judge of the court to which the mandate issued states in his return, that the cause was tried and decided by his predecessor in office; that he is ignorant of the evidence adduced upon the trial; and is consequently unable to certify that the transcript contains all the evidence upon which the cause was tried. He further states that the person who was clerk of that court when the case was tried is out of office, and that the judge himself is now, by virtue of his office, the clerk of the court. This return has been on file for nearly two years, and no further effort to bring the appeal regularly before us has been made. The record contains no bill of exceptions, statement of facts, or assignment of errors. • Appeal dismissed.


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    Clay v. Fisher.
    In an action to recover moveables in defendant’s possession, it is sufficient to allege that defendant took illegal possession of the things claimed, and continues to withhold them wrongfully. It is not necessary that the time, place, and manner of the taking possession should be averred. ’
    To acquire property in moveables by the prescription of three years, the party must have possessed as owner. C. C. 3472.
    Appeal from the City Court of Layfayette, Burthe, J.

      Burns and Michel, for the plaintiff. Eliott, for the appellant.
   The judgment of the court was pronounced by

King, J.

The plaintiff sues for the recovery of certain articles of moveable property, alleged to be in the possession of the defendant. The defendant first excepted that the plaintiff’s petition did not sufficiently set forth the cause of action, and was defective in not having averred the time, place, and manner of his taking possession of the effects claimed. This exception was overruled, and the defendant pleaded the general issue, and the prescription of three years. A judgment was rendered against him, from which he has appealed.

The judge did not, in our opinion, err, in overruling the defendant’s exception. The averments that the defendant took illegal possession of the objects claimed, and continued to withhold them wrongfully, are sufficiently distinct and explicit to put the defendant upon his defence, if any he had to oppose to the action.

In order to establish his title to the property by the prescription pleaded, it was incumbent on the defendant to show that he had possessed as owner, by a just title, and in good faith, during the time required by law, in which he has failed. C. C. art. 3472. A short time previous to the institution of this suit, he acknowledged that the property claimed was in his possession, that it belonged to the plaintiff, and that he was ready to surrender it upon being reimbursed a sum of money which ho alleged was due to him by the plaintiff.

'Thus, from his own admission, his possession was not that of owner, and he ^aS ne*t'lei’ avei'red nor proved that he holds the property in virtue of any title which authorises him to detain it until his alleged claim against the plaintiff shall have been paid; nor, indeed, has he shown the existence of any debt due to him by the plaintiff. Judgment affirmed.


author: Kino, J.

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    Roebuck v. Curry.
    Where a person of color offered .as a witness is objected to as incompetent on the ground of his being presumed to be a slave, and it appears from evidence presented by the party by whom the witness was introduced that he had been emancipated by a notarial act, the witness will not be permitted to testify on the statement of another witness that he had formerly owned the person objected to, and had emancipated him a few years before. The production of .the written act of emancipation, if insisted on by the opposite party, could not be disposed with, nor be supplied by secondary evidence without proof of the loss or destruction of the written instrument.
    Appeal from the First District Court of New Orleans, McHenry, J.

      J. M. Wolfe, for the plaintiff. Budd and Redmond, for the appellant.
   The judgment of the court was pronounced by

Kino, J.

This action is instituted to recover damages for injuries alleged by the plaintiff to have been inflicted on her slave, by a slave belonging to the defendant. From a judgment rendered in favor of the plaintiff, the defendant has appealed.

On the trial below the plaintiff offered Thomas Burns, a person of color, as a witness, who being objected to as incompetent to testify, his testimony was excluded until evidence could be adduced of his freedom, and time was allowed to make this proof. A .certificate was next offered, stating that Burns had been emancipated by an act passed before Louis T. Caire, a notary public in this city, which was also objected to, and excluded by the judge. A witness was then introduced who deposed that he had formerly owned Thomas Burns, and that he had liberated him about three years previously. Upon this evidence of his freedom the witness was permitted to testify, the defendant objecting and .excepting to the opinion of the judge.

We think that the judge erred. Burns had been held in slavery, and, except in the criminal cases specially provided for by law, could only be heard as a witness on producing evidence that he had been liberated; the evidence of that fact, if it really existed, was shown to be in writing, and its production, when insisted on by the defendant, could not be dispensed with, nor supplied by secondary evidence, without showing the loss or destruction of the written instrument. The failure to produce the act of emancipation, which was stated to be within the immediate reach of .the plaintiff, after time had been allowed for that purpose, leaves room to suspect that the instrument relied on, if produced, would not have established the liberty of the witness. In the absence of the testimony of this witness, there is no proof that the alleged injuries were inflicted by the slave of the defendant.

The judgment of the district court is therefore reversed. It is further ordered that the cause be remanded for a new trial, with instructions to the district judge not to permit Thomas Burns to testify therein until legal proof of his' emancipation shall have been produced. It is further ordered that the plaintiff pay the costs of this appeal* '