author: Buchanan, J. Spojtord, J., Yoobhies, J.,

text:
    A. & F. Remy v. Municipality Number Two et al.
    As a general principle, a plan annexed to a petition should be used to explain anything that is ambiguous or unexplained in the petition, but it cannot control a written description of the metes and bounds of the land claimed in which there i? nothing ambiguous.
    Previous to the compromise of September, 1820, between the city and various claimants of the batture of the faubourg St. Mary, the levee followed the outer edge of Tchoupitoulas street, which was the original high road along the river bank, and lots for private occupation could not have been lawfully laid out upon the soil of Tchoupitulas street.
    The Act of the Legislature of the 21st of March, 1850, authorizing the city of New Orleans to lay out and establish lots upon the batture in front of the faubourg St. Mary, raised an interdict which the Legislature had imposed by the Act of March 8th, 1836, upon the private occupation of the batture outside of New Levee street.
    Until the Act of the Legislature of 8d of April, 1853, the corporation had the exclusive right to determine where and to what extent the riparian proprietors might take possession of the batture.
    The division of the batture outside of New Levee street as far as Front street, into streets and squares, was not an expropriation of the property so far as the streets were concerned, of which the riparian proprietors had never been in possession.
    The jury to be empannelled under Art. 2608 of the Civil Code, to estimate the value of property to be expropriated, should have a personal knowledge of the value of real estate in the vicinage; they act as experts, and though it is proper, especially if they request it, that they should be aided by the opinions of witnesses, a personal examination of the premises by tire jury in a body, after it is empannelled, should be a feature of every proceeding under that Article of the Code.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J. Tried by a Jury.

      Durant & TIornor, for plaintiffs and appellants.

      J. J. Miohelr for defendants.
   Buchanan, J.

The plaintiffs appeal from the verdict of a jury of freeholders,, summoned, under the 2608th Article of the Civil Code* to assess the value of their property taken for the public use.

The first question presented is, whether the soil of Tchoupitoulas street in front of the lot purchased by the father of plaintiffs from Tlúard, in 1805, is included within the land recovered by plaintiffs of defendant by judgment of this court rendered in February, 1856. 11 An. 148.

The petition describes the land claimed by plaintiffs as follows: “ A certain tract or lot of ground commencing at New Levee street, near St. Joseph street, being sixty feet in width and running to the river, being, part of the batture in that neighborhood; that the yellow coloring on the map or plan herewith filed as part hereof, shows the tract or land belonging to petitioners ; petitioners reserving to themselves, however, the right to file a more accurate description of the property by them claimed, and to correct any error into which they may have fallen in reference thereto.”

The decree of the court is, “ that plaintiffs be recognized as the true and lawful owners of the property claimed1 by them, to wit: that portion of the batture lying and being in front of the lot described in the petition, to wit, a lot of ground situated in the faubourg St. Mary, being numbered 64,” &c.

Plaintiffs pretend that the words of their petition, “ commencing at New Levee street,” are controlled by the plan annexed to and made part of the petition on which the whole of the original lot No. 64 of the faubourg St. Mary; acquired from Théarcl, as well as all the intervening space between that lot and the river, is represented colored yellow. But this construction of plaintiffs’ claim is clearly inadmissible. For the yellow portion of the plan includes the lot No. 64 itself; and the petition sets forth, that the ancestor of plaintiffs sold the lot in 1810.

But although, as a general principle, a plan annexed to a petition should he used to explain anything that is ambiguous or unexplained in the petition, yet it cannot control a written description of the metes and bounds of the land claimed in which there is nothing ambiguous. It may very well be that the party merely intended, by coloring the intervening space between the lot No. 64 and New Levee street the same as :he colored the lot itself and the space between New Levee street and the river, to present to the eye the connection between the lot in question and the batture outside of New Levee street, as claimed in the petition.

Besides, the sale from Antoine Bemy to Joseph Tabony, of January 17th, 1810, referred to in plaintiffs’ petition, and given in evidence by them as a muniment of their title, proves an alienation by the ancestor of plaintiffs, of whatever title he had to the soil of Tchoupitoulas street. The description of the land conveyed by that sale, is as follows : “ Un terrain, situé au faubourg Ste. Marie, designé sous le No. quarante, de soixante pieds de face á la levée, sur deux cents vingt-six piods de profondeur;”

In this description two things are to be noted:

1st. Bemy sells to the levee. Now it is a matter of historical and local notoriety, that previous to the compromise of September, 1820, between the city and various claimants of the batture of the faubourg St. Mary, the levee followed the outer edge of Tchoupitoulas street. It is so represented on the engraved plan of the city of New Orleans and its faubourgs made in the year 1815, by J. Tanesse, city surveyor.

2d. Bemy sells the lot loith a depth of two hundred and tioenty-six feet, whereas he had purchased from TlTeard with a depth of 160 feet. The additional sixty-six feet conveyed to Tabony, can be nothing else than the width of Tchoupitoulas street, in front of the lot No. 64, as originally bounded in the plan of the faubourg by Laveau Trudeau referred to in the deeds from Qravier to Théard, and from Thém'd to Bemy and Effingham.

Another and more important question forces itself upon our attention, in connection with the evidence upon which the jury has found the verdict of which the plaintiffs complain.

The same draughtsman who made the plan annexed to the petition, has made another plan which is submitted to us, as'a pictorial representation of the locus in quo. Both plans depict a prolongation of the side lines of lot No. 64 of the original plan of the faubourg St. Mary to the river Mississippi. On both, the space embraced within the prolongation of those lines is intersected by four streets, Tchoupitoulas, New Levee, Fulton and Front, and is occupied in a portion of its length by St. Joseph street. But on the plan last made, the soil occupied by these five streets, is cut up into thirty-one lots, of which four occupy Tchoupitoulas street, three New Levee street, three Fulton street, three Front street, and eighteen St. Joseph street. It is upon this arbitrary and fanciful configuration of lots in impossible situations, blocking up all the public thoroughfares, that the extravagant estimations of the plaintiffs’ witnesses before the jury of freeholders were based. The slightest reflection shows that this basis of estimation is false, and only calculated to lead the jury into error. For, not to speak of the absurdity of private occupation of Tchoupitoulas street, the original high road along the river bank, and for several generations the only means of communication by land between the city and the country above, it would be entirely to ignore the sovereign power of the State, the administrative power of the city corporation as settled by many adjudged cases, and the no less well settled rights of riparian proprietors themselves upon alluvial deposits of the river within the limits of this city, to suppose that lots can be laid out for private occupation upon the soil of the streets which' the city of New Orleans was authorized by the Act of the Legislature of the 21st of March, 1850, (Session Acts, page 197,) to lay out and establish upon the batture in front of the faubourg St. Mary. By that Act, the Legislature raised an interdict, which it had imposed by Act of March 8th, 1836, upon the private occupation of the batture outside of New Levee street; sanctioned a plan prepared by George T. Dunbar, city surveyor, for the extension of old streets, (including St. Joseph street,) and the creation of new streets (Fulton and Front) upon the said batture; and formally ordered, by the third section of the Act, that the batture between the river and the street to be laid off fronting the river (Front street) shall be left open, and so kept for the accommodation of the public and the convenience of commerce. Yet the figurative plan submitted to the jury in the court below, represents the streets laid out by Mr. Dunbar by order of the city council, and sanctioned by the sovereign power of the State in 1850, as susceptible of private ownership and occupation in 1856.

The administrative control which the city council had over the alluvial deposit, was settled in the cases of Municipality Number Two v. The Orleans Cotton Press Company, and Pulley & Erwin v. Municipality No. Two, in 18th Louisiana Reports. The corporation had the exclusive right to determine ''.when, and to what extent, the riparian proprietors might take possession of ■the batture.

Until the Act of 30th April, 1853, the riparian proprietor was bound to await .patiently the action of the corporation, and was not allowed to take the initiative, in limiting or terminating the public occupation of the batture.

■ The judgment in the petitory action instituted by the plaintiffs against Municipality Number Two, cannot be interpreted as having recognized a right in the plaintiffs to the private occupation of the whole of the batture in front of lot No. 64, without regard to the administrative power of the city corporations over the batture and landing, or to the action of the State and of the city in relation to this batture in the year 1850, previous to the institution of the plaintiffs’ suit, or the steps taken by the city authorities for the opening of streets on the batture, in furtherance of such legislative and municipal action. In our view of the case, the division of the batture outside of New Levee street, as far as Front street, into streets and squares, was no expropriation of the plaintiffs, so far as the streets were 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, which had previously extended to the whole batture, to the comparatively small portion of the batture covered by the streets; and it does not admit of doubt, that the reservation of streets, as avenues of communication, was necessary (in the words of the Statute of 1850,) to the accommodation of the public and the convenience of commerce. ¥e would, therefore, be inclined to the opinion, that the plaintiffs were entitled to very little, if any, compensation for the public use of the soil of the streets on the batture'; and thus thinking, cannot favor the application of the appellants to remand the cause for the purpose of having the compensation increased ; neither can we reduce the amount of the judgment appealed from, inasmuch as the appellee, the city, has not asked for an amendment in its favor.

There is a point of practice under the Article 2608 of the Civil Code raised hy a bill of exceptions which perhaps requires notice, although not strictly necessary to the decision of this case. The jury cmpannolled under that Article, is a jury of a peculiar character. It must be composed exclusively of freeholders, and the members who compose it are evidently supposed and intended by the Legislature, to have a personal knowledge of the value of real estate in the vicinage, which entitles them to rely upon their own opinion, in forming their judgment; although, doubtless, it is proper that their own opinion should be aided, especially if they request it, by the opinions of witnesses. Such a jury are, in truth, experts; and we suggest that a personal examination of the premises by the jury in a body, after it is empannelled, should be a feature of every proceeding under this Article of the Code.

Judgment affirmed, with costs.

Spojtord, J.,

concurring. I am of opinion that the plaintiffs’ right to a fair indemnity for that portion of their batture property heretofore converted into streets, is not an open question between these parties. See the case between the Hemys and the Municipality, reported in 11 An. 148, and the opinion of this court pronounced December 22d, 1856.

But I am of opinion that the freeholders whose duties are prescribed by the Article 2608 of the Code, are vested with a larger discretion than ordinary juries. They are not bound by the opinion of witnesses, but may make their own appraisement, either upon view of the property, or after hearing and weigh-; ing- such evidence as the court thinks to be legally admissible. The District Judge in this case stated in overruling the motionfor a new trial, that the jurors deckled themselves to be perfectly familiar with the property in question. They,“. w-ere far better able than we are to appreciate what it was worth ; and there isf \ no evidence of prejudice or passion. I do not find that the Judge committed *‘: any such errors as would require the case to be remanded, and, therefore, concur in the judgment. '

Yoobhies, J.,

dissenting. The plaintiffs, under the former judgment of this court, must be considered as the lawful owners of “ a lot of ground situated in the faubourg St. Mary, 'being- numbered 64, and having 60 feet front on the niter and 180 feet in depth, with a reservation in favor of the city to use for the purposes of Administration such part of it as may be subject to the servitudes established by law on lands fronting on the Mississippi river, within the limits of the city.” 11 A. 148.

The use of the bank of the river is, in my opinion, the only servitude established by law- on the property in question. In the exercise of it, it is clear that the plaintiffs cannot be placed on a more unfavorable footing than that of any other front proprietor. This right, however, does not appear to be the subject matter in contestation. Neither do I understand our former decision to be at variance with any of the principles laid down in the decision of the Orleans’Cotton Press case, 18 L. R. 122.

The question as to the plaintiffs’ right to a fair price for that portion of their property which has been appropriated to public use, must be considered as afflrmativcly settled by the decision of this court, in which the case was remanded merely for the purpose of ascertaining such price by submitting the matter to a jury of freeholders in accordance with Article 2608 of the Civil Code.

The record contains bills of exceptions which present several questions to the consideration of the court. The Judge a quo erred, in my opinion, in refusing to charge the jury as requested by the appellant’s counsel, that in assessing the amount to be paid to the plaintiffs they were to be guided by the testimony of the witnesses. On the contrary, he charged that they were not bound to consider it, if not disposed to do so, “ but might disregard it altogether, and decide on their own notionuna/ided by it." I do not think the law authorizes the conclusion, that greater powers are conferred on juries convoked under the Article of the Civil Code to which I have already alluded than on ordinary juries. It must be evident that if such powers were intended to be conferred, as those assumed by the Judge a quo, a trial would then amount to a mere idle and vain ceremony; indeed, it would only be necessary to obtain the report of twelve freeholders in such cases, founded on their own notions, without putting the parties to the trouble and expense of a trial. But I feel fully persuaded that a verdict rendered by such a jury must, as in all other cases, be founded on legal proof. It is true in arriving at a conclusion they may consider facts coming within their own knowledge, but such facts must be disclosed on the witnesses’ stand. Eor in the exercise of its revisory powers, in order to act understandingly, this court must necessarily be put in possession of all the facts of a case; else the right of appeal would be a mere shadow.

On the other points I am inclined to think the Judge did not err to charge the jury as requested by the appellants’ counsel.

I am, therefore, of opinion, that the judgment should be reversed, and the case remanded for a new trial.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    State of Louisiana v. C. H. Myhand.
    In the punishment of offences, where the law leaves it to the discretion of the court, the discretion of the court does not extend to the infliction ot the penalty of imprisonment at hard labor.
    APPEAL from the Sixth District Court of West Baton Rouge, Robertson, J.

      J. D. Stuan’t, District Attorney, for the State.

      JR. G-. Beale and JD. If. Barrow, for defendant and appellant.
   Merrick, C. J.

The defendant was indicted for an assault with a dangerous weapon. The jury found him guilty of an assault and battery, and the court sentenced him to pay a fine of $20, and to be imprisoned in the jail for thirty days.

The defendant appealed. We have no jurisdiction of the case; the offence charged in the indictment is provided for by the 10th section of the Act of 1855, page 131, and the punishment is fine or imprisonment, or both, at the discretion of the court.

We do not understand the discretion of the court to extend to the infliction of the penalty of imprisonment at hard labor. Acts 1855, p. 151, §6.

The jurisdiction of this court is conferred by the 62d Article of the Constitution, which, among other things gives this court appellate jurisdiction in all criminal cases on questions of law alone, whenever the offence charged is punishable with death or imprisonment at hard labor, or when a fine exceeding $300 is actually imposed. .

The 26th section of the Act of 14th of March, 1855, page 154, merely follows, but adds no force to these provisions of the Constitution. It must be considered as merely providing that appeals in criminal cases may be taken without giving bond.

It is clear that the case of the defendant does not fall within the category of cases in which appeals are allowed by the Constitution,

It is, therefore, ordered, adjudged and decreed, that the appeal taken in this case be dismissed at the costs of the appellant,


author: Buchanan, J.

text:
    J. Burnside & Co. v. McKinley & Moore.—McElroy & Bradford, Garnishees.—David Taylor & Co., Intervenors.
    The garnishees received a lot of cotton from the defendants, with instructions to sell as soon as prac? ticable or advisable, and to pay over the proceeds to the intervenors. The garnishees communicated at once with the intervenors, and submitted themselves to their arbitrament of the propriety of an immediate sale, tendering their advice to hold on for a rising market.
    The intervenors accepted this advice, and directed the garnishees to delay sales. Held: That th§ stipvZaHon pour cmirul contained in the letter of instructions to the garnishees, having been accepted by the party for whose benefit it was made, could no longer be revoked by the shipper of the cotton.
    The intervenors acquired a vested interest in the cotton, which entitled them to a preference over an attaching creditor.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Elmore & King, for plaintiffs and appellants.

      Cla/rhe & Bayne, for intervenors.
    The court having rendered a decree in favor-of the plaintiffs and appellants, Clcorhe & Bayne applied for a re-hearing:
    There is no question of more general interest ¿o a commercial community than that passed upon in this case. None that has been more frequently before the courts — none better settled by precedent — than the doctrine which is-understood to be admitted here, that “where the owner of property has lost his control over it, and cannot change its destination, his creditors cannot attach.” If this doctrine is to be varied by circumstances — after being- so often and so uniformly announced from the bench — public policy requires that the grounds of this variation should be clearly and definitely understood.
    The case is stated by the court as follows: “The plaintiffs, being creditors of McKinley & Moore, who are absent defendants, levied an attachment upon the twenty-one bales of eotton in the hands of McEb-oy S Bradford. Accompanying the shipment from the defendant to McElroy & Bradford was the following letter of instructions:
    “ ‘Shreveport, La., March 29th, 1856.
    “ 'Messrs. McElroy & Bradford:

    “ ‘I send you some eotton, which I hope you will receive in due time, and I wish you to sell as soon as you can, or as the times justify, and when sold please pay the proceeds to David Taylor & Co, I will forward some more as soon as I get it to the river. Please let me hear from you as soon as you sell.’
    “This letter was shown, before the attachment, to Demid Taylor & Co., who have intervened in this suit, and have claimed the proceeds of this shipment, as applicable to a debt due to them from the defendants. At the date of the service of the attachment, the cotton had been sold, but had not been weighed or delivered.”

      It appears by the answers of the garnishees and the testimony of their clerk that the cotton was received, with the above letter of instruction, and soon after its receipt, David Ta/ylor & Go. were informed that the cotton had been received for them, and that they (the garnishees) would hold it for them, and pay them over the proceeds. They stated to Ta/ylor & Go. that they were not selling any cotton at that time; that they would hold these twenty-one bales for them (Taylor & Go.) if they were willing. Taylor & Go. accepted the shipment made to them, and consented that the garnishees might hold for them till they made sale. They had made sale, and received eight hundred dollars from the purchasers on the day of sale, but had not weighed the cotton. These are the facts of the case.
    The court say: “The possession of the agents was, so far only as legal consequences flowed therefrom, that of the principal, and in his hands it would have been liable to attachment.” IVhat legal consequences did flow from the possession of the agent under the instructions above given ? The first consequence was that McEVroy & Bradford could not divert it from the purpose for which it had been sent — could not divert it from David Taylor & Go. This the court admit in commenting on the case oí Palmer & Go. v. Ilornor, 10 An. The next consequence is, that McEb'oy & Bradford stand charged as holders of this cotton for David Taylor & Go. the moment after they have communicated to them the receipt of the cotton for them. They attorned to them, arid recognized them as entitled to the cotton or its proceeds. Such obligations arose between them and Damid Taylor & Go. as prevented McKinley & Moore from changing the destination of the cotton. Gutter v. Baker, 2 An. 572. In the case of Gray v. Trafton, 12 M. R. 702, an order had been given upon attorneys to pay to-, when collected, and the court say: “In the present case the evidence fully establishes the fact that Trafton’s attorneys agreed to pay the claimants the amount by him ordered, when the money should be collected, which did not take place until long after the date and acceptance of his order. The attorneys were, therefore, debtors only conditionally, viz: in the event of recovering the money of their client. The latter was free to direct its appropriation in anticipation of collection, and the persons to whom payment was ox-dox-ed, after acceptance by his agents, held a vested x’ig'ht in the debt, subject, however, to the condition of said acceptance. From that period Trafton’s attorneys, thus charged with the collection, may be considered as trustees for the claimants, who had a vested interest, and consequently the funds thus transferred were not subject to the plaintiff’s attachment.” Gray v. Trafton et als., 12 M. R. 708.
    In the case of Armor v. Gocicburn et als., 4 N. S. 668, “the defendant, it appears, was indebted to both plaintiff and intervenor; he shipped twenty-five bales of cotton in Alabama, and delivered it to one Mason, with directions to sell the same on his an-ival in New Ox-loans, and pay the proceeds to Banks, Miller & Kincaid, the intervening creditors, to extinguish, as far as they would go, a debt he owed them. The cotton, on its arrival, was placed in the hands of the intervenors, as agents for the said Mason. Before the service of the attachment, he informed them that he had received the cotton from Gocicburn, on the conditions already expressed, and that, in conformity with these instructions, he would pay over the proceeds to them, to which they assented. The cotton was not sold until after the attachment was levied. We think that, after the promise made to the intervenors, and accepted by thorn, the cotton could not be attached. We cannot distinguish the case from Gray v. Trafton, and we have never had occasion to doubt the soundness of the principle on which that case was decided. The true test in such case is this: that where the owner of the property has lost all power over it, and cannot change its destination, the creditors cannot attach; the converse of the rule being that whenever the proprietor can sell and deliver the creditor may seize. Ixi this case that power was gone. After the person in whose hands the cotton was placed promised to pay the intervening creditors, he became personally responsible to them, and the owner could not, by a change of determination, have compelled him to pay the money to any other person. The agreement constituted what is called a stipulation pov/r autrui, and once accepted by those for whose benefit it was made, it could not be í-evoked.” C. C. 1806; o La. 316. Now this case is precisely on all fours with the case before the court, except oux-s is a stronger case in this, that the cotton had been sold by the garnishees, and eight hundred dollars of the proceeds had been realized by them.

      In that case, as in ours, the shipment was made to pay a preexisting debt duo to the intervenors. No advance was aslcod or obtained by the agents, nor was any new credit given upon the faith of the promised appropriation of the proceeds. The shippers announced to their consignee, that the cotton was sent to him, and he was to pay the intervenors out of the proceeds. The cotton was attached before it was sold, and yet the court, treating the cotton as identical with its proceeds, gave it to the intervenors. In no case in the books is any distinction drawn between the Article itself and its proceeds, or that into which it is converted in the usual course of business ; and we do not understand the court to decide this case upon such a narrow point as this.
    In the case of the Bank of St. Mary v. Morton, 12 Rob. 411, Morton shipped 1G3 bales of cotton to Franklin & Henderson, and gave an order for the avails of shipment. This order was communicated to Franklin & Henderson before sale and before attachment. The court, putting out of view all other questions, say: “ It seems to us that, it suffices that said proceeds were regularly transferred to the intervenor for a valuable consideration, before the date of the attachment, to give the latter the right of recovering them as against an attaching creditor, provided it is shown, that due notice of the transfer was given to the debtor of the proceeds, previous to the levying of the attachment. The doctrine, so often recognized by- this court — that where the owner has lost control over his property, creditors cannot attach — is applicable to the rights of the parties in this cause.” In all the cases decided, the court intimates, that whenever the agent of the shipper has communicated to third persons notice of shipment for advantage of said third persons, from that moment the shipper loses control and has no attachable interest in the shipment. In the case of Goodhue v. MaCarty, where the decision is adverse to the intervenors, it is put distinctly upon the ground “that nothing had occurred which created, on the part of Hewitt, Horan & Go., consignees, an obligation to hold the property for the benefit of intervenors.” In the case of -Finer v. Williams, the real question argued in the court below was, whether or not the intervenors were entitled to the proceeds of the cotton, although they had no notice of shipment to pay them, and the case of Bonaffe v. Lane, 5 An. 225, was cited m support of this doctrine. The Judge of the court below put his decision distinctly upon the ground, “ that the attachment was levied before any correspondence was had with the intervenors, .or any act was done by them, based upon the supposed assignment.”
    In the court above, the Judges intimate, that Yeatman & Go., the garnishees, by receiving the cotton under instructions to pay proceeds to intervenors, accepted a trust in favor of said intervenors, even without notice to said intervenors, from which they could not be relieved by paying the money over to the original shipper; but, the court say further, that they are relieved from the necessity of deciding this question b'y proof of the acceptance by intervenors, of shipment made for their advantage. After such an acceptance, there was no doubt of the right of intervenor in preference to an attaching creditor. And in the case of Oliver v. Lake, 3 An. 78, which was argued most elaborately, it will be seen, that the sole object in seeking to make the contract sub ject to the law of Mississippi is, to relieve the intervenors from the necessity of proving that they had notice of the shipment made for their advantage — to relieve them from showing that they had accepted it.
    It will be seen, by examining- the argument of the distinguished counsel engaged in that case, (one of them, Judge Bullard, formerly occupying a seat where your honors now sit,) it was conceded, that if the intervenor had notice of the shipment for his advantage, and had accepted it, the property was not attachable as the property of the shipper; and we understand that to be the doctrine of this case.
    The cotton might be at the risk of the shipper, and yet his ownership be so far diverted as to place it beyond the reach of attachment by his creditors. The case of Urie v. Stevens, 2 Rob. 253, is put upon the grounds that the consignees, agents of shipper, had*with his consent, agreed to pay out balance proceeds cotton to Turner & Woocbruff; that the owner had lost his control, and, therefore, it could not be attached by his creditors.
    The case of Gutter's v. Baker, 2 An. 573, does not seem to be put upon any contract made at the time of the shipment, but upon the agreement made at New Orleans, by consignees, to hand over proceeds to the intervenor; and is stated by the court as follows: “We consider the rights of the bill-holders as superior to those of this attaching creditor’. The agreement made between the bill-holders and F. J. & Go. in conformity to ■Bxher's letter of advice, anterior to the attachment, placed that merchandise and its proceeds beyond the control of Baker.” And as a natural sequcnce-beyond the attachment of his creditors. The cases of Armor v. Goeleburn, 4 N. S., 667, and other cases are here cited.
    No advance was necessary by Taylor, as a special consideration. A consideration is anjithing that induces one to act or not to act. The agreement of MeEb'oy & Bradford to pay proceeds to them, may have induced them not to seize the cotton, not to seek other modes for collection of their debt. Such is a valid consideration. Mouton, Governor, v. Hoisted, 1 An. 192.
    No special advance seems to have been made or required, in the other cases heretofore cited, to bring them within the rule.
    We have endeavored to show that there is but one rule by which to solve all questions like this, now before the court. That the creditors of a shipper of property can have no more rights upon it, in the hands of consignees, than he has. That this case cannot be distinguished from the cases of Gray v. Trafton, 12 Martin’s Reports, 702; Armor v. Goeleburn, 4 N. S. 667; Oliver v. Lake, 3 An. 78; Finer v. Williams, 10 An. 278; and others. That, in those cases, the shipment was to pay a preexisting debt, without any special advance made on the shipment. That the position of the consignee is not identical with that of the shipper, because the acceptance of a shipment under instructions, to appropriate the proceeds in a particular manner, creates an obligation on his part thus to appropriate them. That, when he communicates this to the third person, for whose benefit the shipment is made, the instructions cannot be revoked by the shipper, and such third person would have a right to sue consignees for the proceeds. O. O. 1896; O. P. 35 ; 11 An. 333; Pemberton v. Zaehamie, 5 La. 316 ; numerous cases cited, Ilennon’s Digest, p. 1086.
    It was a stipulation pom' autrui, which the shipper, was authorized to make, and which the parties receiving it bound themselves to comply with; they could not divert to their own use, as decided in case of Palmer v. Horner, and suggested in case of Piner v. Williams. McKinley & Moore could not, by a change of mind, recall the cotton, and give it any other destination. They could not relieve MeEb'oy & Bradford from the obligation created by their promise to pay to David Tayld’r & Go.; and in this -respect, the position of Mc-El/roy & Bradford is far different from that of McKinley & Moore — the possession of McEb'oy & Bradford is not the possession of McKinley & Moore— they have become agents for Damid Taylor & Go., for whose account, and advantage the cotton was shipped to them. If McElroy & Bradford had wasted the cotton, or, by negligence, had lost it, Damid Taylor S Go. could, under the cases cited, have sued them for its value.

      MeKinley & Moore may have such a qualified ownership as to put the cotton at their risk, make its loss before delivery their loss, and yet have so far lost control and dominion over it as to put it beyond the reach of their creditors. In the case of Oliverr v. Lake, Chief Justice Slidel thus enunciates this doctrine: “ In this connection it is proper to notice the argument of the plaintiff’s counsel with regard to the ownership of this property, as tested by the maxim res perit domino. It is very true that, if the cotton had been lost on its voyage to New Orleans, or been destroyed by fire here, or if Martin Pleasants & Go., after selling it, and receiving the proceeds, had failed, the loss would have fallen on W. A. Lake, the shipper. But there is no inconsistency in the com current existence of a qualified ownership in one party and a control and dominion over it for certain purposes in another party. Thus, when property is given in pledge, the pledgor parts with the possession and control of the thing pledged; but, if it perishes without the fault of the pledgee, the loss is the pledgor’s, and the debt remains unsatisfied. The payee of a bill of exchange has an order upon the funds in the hands of the acceptor; but, if the acceptor fails, the drawer, if there has been duo diligence on the part of the holder, bears the loss; so a consignee, who has made advances, is deemed a qualified owner of the property consigned; but there is also a qualified ownership in the consignor, and its destruction is his loss.”

      If MeKinley & Moore were in New Orleans, in possession of the cotton it might be physically possible for them to divert the proceeds from Taylor & Go., though they could not do it in good faith ; but MeEb'oy & Bradford could not do so under new instructions from MeKinley & Moore. They may be so far the agents of McKinley & Moore as to place the cotton at their risk (as in the case of Oliver v. Lake,) and yet under such obligations to David Taylor & Go. as to compel a delivery of proceeds to them.

      MaEb'oy & Bradford had sold the cotton, and on the day of sale, received eight hundred dollars. Were not Bamid Taylor & Go. entitled to those eight hundred dollars, proceeds of the cotton, the moment they came into the hands of MaEb'oy & Bradford ? But we have shown, that in all the cases the merchandize and property shipped are treated as convertible terms for proceeds. As in case of Gray v. Trafton, the order is for money when collected: and in case of Armor v. Ooelcbum, the instructions are to pay the balance of proceeds of cotton, and the attachment was before sale.
    After examining all the cases with great care, and the books are full of them, and turning them in every possible phase, we find that each one inculcates the doctrine in broad and general terms — that, “ where the owner has lost his control over it, and cannot change its destination, his credetors cannot attach.” A doctrine thus hallowed by precedent — universally understood and acquiesced in by the bar and the community at large should not be varied for any slight cause.

      Elmore & King r eplied:
    We have attentively read the argument in behalf of the intervenors for a rehearing, and consider that its whole force depends upon a very ingenious statement of the case, not at all warranted by the evidence. That statement is as follows:
    “ It appears, by the answers of the garnishees and the testimony of their clerk, that the cotton was received, with the above letter of instructions ; that soon after its receipt Taylor & Go. were informed that the cotton had been received for them, and that they, the garnishees, would hold it for them and pay over the proceeds. They stated to Taylor & Go. that they were not selling any cotton at the time; that they would, hold these twenty-one bales for them {Taylor & Go.) if they were willing.

      Taylor & Go. accepted the shipment made for them, and consented that the garnishees might hold -for them till they made the sale.”
    This is not the case before the court as shown by the evidence.
    The answers to the interrogatories were made by Mr. McEb'oy. In his testimony in the case, he shows that he had no personal knowledge whatever of the affair. That all that had passed between his firm and the house of Taylor & Go. had been through Mr. Gribble.-

    All that was said about “ accepting the letter, or the cotton, or the proceeds, came from Mr. McElroy, who says himself he had no interview with Taylor & Go. about the cotton.
    To got at the facts, then, we must, of course, refer to the testimony of Mr. Gribble.

    He tells us exactly what passed between him and the house of Taylor & Go. and winds up with the emphatic declaration, that “ this is exactly what passed and nothing more." In his testimony there are no such expressions as “ Taylor & Go. accepted the shipment made for them, and consented that the garnishees might hold for them till they made sale.”
    He did not inform Taylor & Go. “that the cotton had been received for them, and that the garnishees would hold it for them." He simply, as he states, “showed them the letter of instructions, and said McEb'oy & Bradford could sell the cotton immediately, but were then holding the cotton for an advance in the market, and should hold theirs also; and Taylor & Go. gave their assent to this.” This was what passed, “ and nothing more."

    ¥e here again insert the letter of instructions:
    Shreveport, La., March 29th, 1850.

      Messrs. Eb'oy & Bradford:
    Gentlemen, — I send you some cotton, which I hope you will receive in due time, and I wish you to sell as soon as you can, or, as the times may justify; and when sold, please pay the proceeds to Bamid Taylor S Go. I will forward some more as soon as I get it to the river. Please let me hern' from you as soon as you sell.
    Yours, vei’y respectfully,
    [Signed] J. N. McKinley

      This letter, with Mr. Griblle's testimony, and the admitted fact that the cotton was not weighed or delivered at the date of the attachment, constitute the material facts of the case.
    This letter was showed to the intervenors, and they were thus apprised of the nature of the agency of McEb'oy & Bradford, and the extent of their powers. This letter was their power of attorney. The defendants were hound by their acts, just so far as this letter authorized, and no further; and the intervenors are, in law, presumed to have known this.
    The letter, on its face, is a mere private letter, which could not be communicated without a violation of the faith of a private correspondence. This the intervenors knew. It was not intended, either from its language or by any fair implication, to put the cotton out of the control of McKinley & Moore — this the intervenors knew. Any attempt of McEb'oy & Bradford to take this cotton out of the control of MeKinley & Moore, and put it under the control of Taylor & Go., was unauthorized by the letter, and not binding on MeKinley & Moore. All this the intervenors knew or ought to have known.
    If McEb'oy S Bradford misunderstood the letter, and misconceived their powers, Taylor & Go. acquired no advantage from the mistake, because they were cognizant of the mandate and the power conferred.
    Suppose MeKinley & Moore had been in the city, and had informed Taylor & Go. that as soon as they sold the cotton and realized the proceeds, they would pay them ? Would this have placed the cotton out of their control ? Such language is common with planters to their creditors.
    This is in effect precisely what they did through their agents McEb'oy & Bradford. Is it possible that the same expressions, through an agent not authorized to make the communication, should have greater effect than when made by the principal in person ? Suppose MeKinley & Moore had casually remarked, in the presence of McEb'oy & Bradford, that when the proceeds of their cotton were realized, they intended to pay Taylor & Go. ; and McEb'oy & Bradford had repeated this casual conversation to Taylor é Go., would this have taken the cotton out of the control of MeKinley & Moore ? This is the substance of what occurred, so far as the legal rights of the parties are concerned.
    The counsel for the intervenors have argued this case as though the court had decided that the plaintiffs could attach oven when the defendant had lost the control of the property. The court made no such decision. What the court decided was, that under the facts of this case, the defendants had not so lost the control of the cotton as to exempt it from attachment.
    There was nothing in the letter to McE Iroy & Bradford which could have prevented MeKinley <& Moore from coming to New Orleans, and taking the cotton out of the hands of McEb'oy & Bradford, and selling it themselves.
    If MeElroy & Bradford had violated their instructions with a third person not acquainted with the nature of those instructions, McKinley & Moore might, to some extent, have been bound. But Taylor & Go. knew the instructions, and are presumed, in law, to have known that McEb'oy & Bradford had no power to give them the control of cotton or any right whatever in the cotton. They cannot, therefore, justify their claim by the acts of agents which they knew were unauthorized. If MeElroy & Bradford came under any obligations to Taylor & Go., not authorized by the letter of instructions, it was their own affair, and could not affect the right of control in MeKinley <& Moore.

    The counsel for the intervenors say: “ The possession of MeElroy & Bradford is not the possession of MeKinley & Moore. They have become agents for B. Taylor & Go., for whose advantage and account the cotton was shipped to them.” This position assumes the whole question at issue. We deny every syllable of it. MeKinley S Moore shipped the cotton to MeElroy & Bradford, as their agents. They never authorized them to change the control of the cotton or the possession, to Taylor & Go. Receiving the cotton as the agents of MeKinley <& Moore, MeElroy & Bradford could not, by their own act, change the nature of the possession held by them, or hold it as the agents of Taylor & Go.

    “A party cannot change, by his own act, the nature and origin of his possession.” O. O. 3480 ; Hood v. Ligrist, 12 R. R. 210 ; Phelps v. Hughes, 1 A. R. 320.
    They received the cotton as the agents of MeKinley & Moore ; and as such, they held it at the date of the attachment. The letter of instructions did not authorize them to hold the cotton as the agents of Taylor & Go. ; and this fact the latter knew, because the letter was shown to them.
    The counsel for the intervenors have assimilated this case to that where the shipper has given an order to some third person, on the agent for the property or proceeds in his hands.
    The order, in such cases, is a declaration on the part of the shipper that he desires some third person to have the control. Its acceptance is an acknowledgment on the part of the agent, that he will in future hold the property for such third person, and thereby becoming the agent of such third person. The cases cited by intervenors’ counsel apply only to such causes.

      Gray v. Trafton, 7 M. R. 702, is precisely such a case; also, Gutters v. Bahw, 2 A. R. 572 ; Bank of St. Mm-y's v. Morton, 12 R. R. 411.
    It is submitted that the distinction is so broad between such cases and the one before the court, as to render comment unnecessary.
    Another class of cases cited by intervenors’ counsel, is where the property had actually been transferred, so that the legal title was in the intervenor. Such as—

      Williams v. Finer, 10 A. R. 277. The bill of lading showed the legal title was in Grcmt & Barton, the intervenors. The cotton was shipped on “ their account." Bank of Port Gibson v. Bm-ke, 4 R. R. 440; Abbot on Shipping, old paging note, p. 334 and 335 ; Olives- v. Lake, 3 A. R. 78, is a case of the same character.
    In Armor v. Gockbus-n, 4 N. S. 668, the facts of the case and the reasoning of the court are stated so carelessly and obscurely, that it is only by an attentive perusal that the report can be understood.
    The defendant, residing in Alabama, being indebted to Banks, Miller & Kincaid, shipped 25 bales cotton, delivered to one Mason, with instructions to sell the same, and pay to B., M. & K. Mason, on arriving at New Orleans, delivered the cotton itself to Banks, Miller & Kisicaid, telling the purpose for which it was sent and the conditions- under which he had received it.
    While the cotton was thus in their own hands, placed there to pay their debt, another creditor of the defendant had it attached.
    The court decided that the cotton could not, under the circumstances, be taken out of the hands of Banks, Miller & Kisicaid.

    This is a widely different case from the one before the court. Neither law nor equity would take cotton thus situated out of the hands of one creditor to pay another.
    None of the cases relied on by intervenors’ counsel are applicable to the case; while the principles stated in the case of Goodhue v. McGlas-ty, 3 A. R. 56, cover every ground we have taken.
    The couiisel for the intervenors say that the promise of McBl/roy & Bradfos-d, to pay the proceeds to the intervenors, may have prevented their attaching.

      Mr. Gribble's testimony shows that no such promise was made; but even had it been, it was unauthorized by McKinley & Moore, and did not at all prevent Taylor S Go. from attaching. A creditor may even attach property of the debtor in his own hands. Taylor & Go. may have supposed that, under the circumstances, it would not be necessary to attach; if so, it was their own mistake, and could not be the foundation of any legal right to the cotton.
    Neither could the mistakes of McElroy & Bradford, as to their power under the letter of instructions, benefit Taylor & Go., for they were cognizant of the letter and extent of power conferred by it.
    With regard to the $800 advanced to McEb-oy & Bs-aclforcl on the purchase of the cotton, neither the defendants nor Taylor & Go. were entitled to that until the sale was perfected by delivery. Until that event, the money belonged to the purchaser, and if anything bad prevented the delivery of the cotton, he was entitled to a return of the money.
    This was the state of things produced by the attachment in this case. Suppose the Sheriff had taken possession of the cotton, would Taylor & Go. have been entitled to these $800 ? or would the purchaser, who had been disappointed in the delivery? We think, most unquestionably, the money would have to be returned to the purchaser. The same legal consequences flow from the garnishment.
    The cotton being liable on the attachment, the whole of the proceeds in the hands of the garnishees must be liable.

      Burnside v. McKinley.
    Besides, the letter of instructions did not authorize MeEb'oy & Bradford to raise money on the cotton, by way of advance or in any other mode, for the benefit of Taylor & Go. It only authorized them to pay over the proceeds after the cotton was sold. There could be no proceeds until the cotton was weighed and delivered. The condition precedent, on which the rights of Taylor & Go. depended, had not happened at the date of the attachment. That condition could not happen subsequently, so as to change the rights of parties which had become irrevocably fixed by the attachment.
   On the re-hearing, the opinion of the court was delivered by

Buchanan, J.

The garnishees, MeEb’oy & Bradford, received on consignment, between the 2d and 12th April, 1856, twenty-one bales of cotton belonging to defendants, accompanied by the following letter of instructions:

‘•'■Messrs. McElroy & Bradford:
“I send you some cotton, which I hope you will receive in due time, and I wish you to sell as soon as you can, or as the times justify, and when sold please pay the proceeds to David Taylor & Go. I will forward some more as soon as I get it to the river. Please let me hear from you as soon as you sell.
“Yours, very respectfully,
“J. N. McKinley.”

The garnishees immediately notified David Taylor & Go. that the cotton was on hand as .shipped by MeKinley for their benefit, and exhibited to them MeKinley's letter of instructions, and told them that as soon as the cotton was sold, the proceeds of the same would be paid to them. The garnishees also offered at the same time to Taylor & Go. to sell the cotton immediately, if required, but advised them to hold on for an advance in price, to which Taylor & Go. assented. Several weeks after this conversation the garnishees made sale of the cotton, but before they had weighed and delivered it, garnishment process, at the instance of plaintiffs, was served upon them herein, on the 1st May, 1856. Damid Taylor S Go. intervene in this suit, prove that they are creditors of defendants, by account, to an amount exceeding the value of the cotton, and claim its proceeds by preference over the attaching creditor.

The facts of this case are very similar to those of Armor v. GoelAwrn, 5 N. S. 668. The garnishees, as we have seen, received the cotton from the defendants, who were its owners, with instructions to sell as soon as practicable or advisable, and to pay over the proceeds to the intervenors. Those instructions left a discretion as to time of sale of the cotton, but the destination of the proceeds was peremptory. The garnishees communicated at once with the intervenors, and submitted themselves to their arbitrament of the propriety of an immediate sale, tendering merely their advice to hold on for a rising market. The intervenoi’S accepted this advice, and directed the garnishees to delay sales. The stipulation pour autrui contained in the letter of instruction of defendants to the garnishees having been thus accepted by the party for whose benefit the stipulation was made, could no longer be revoked by the shipper of the cotton. C. O. 1884. The shipper had lost the control of it, and could no longer give it another destination.

Erom the moment of the acceptance, as manifested by the acts above detailed, the garnishees are to be viewed as tx’ustees for the intervenoi’S,, who had a vested interest in the cotton and its proceeds, which entitles them to a preference over the attaching creditor. Gray v. Trafton, 12 M. R. 702; Conery v. Webb, Rawlings & Co., 12 An. 282.

We deem it proper to state that Mr. Justice Lea, upon the re-hearing, had come to the same conclusion which we now express.

It is, therefore, adjudged and decreed, that the judgment of this court, heretofore rendered, he set aside, and that the judgment of the District Court be affirmed, with costs.

Overruled Decision of Lea, J. The plaintiffs being creditors of McKmley & Moore who are absent defendants, levied an attachment upon twenty-one bales of cotton in the hands of MoElroy & Bradford. Accompanying the shipment from the defendant to MoElroy & Bradford was the following letter’of instructions:

' “Shreveport, La., March 29th, 1854.
Messrs. MoElroy <& Bradford: '
“ I send you some cotton, which I hope you will receive in due time, and I wish you to sell as soon as you can, or as the times justify, and when sold please pay the proceeds to David Taylor & Go. I will forward some more as soon as I get it to the river. Please let me hear from you as soon as you sell.
“ Yours, very respectfully,
“ J. N. McKinlev.”

This letter was shown before the attachment to David Taylor & Go., who have intervened in this suit, and have claimed the proceeds of this shipment as applicable to a debt due to them, from the defendants. At the date of the service of the attachment the cotton had been sold, but had not been weighed or delivered.

These are substantially the facts of the case.

The question to be determined is whether David Tv/ylor <& Go., the intervenors, had acquired such an interest in the cotton or its proceeds, as to protect it from attachment at the suit of a creditor of the shipper.

The cotton was in the hands of the defendants’ agent; it had not been weighed or delivered. The possession of the agent was, so far as any legal consequences flowed therefrom, that of the principal, and in his hands it would have been liable to attachment.

The case is not presented, as in that of Palmer & Co. v. Hornor, of a factor who, having accepted a consignment, seeks to divert the proceeds to a different purpose from that contained in his instructions. It may be conceded that the factors in this case could have given no other destination to the proceeds of the cotton in their hands than that contained in the letter accompanying the shipment, but the rights of third parties are not affected by their obligations as factors. The exhibition of the letter of instructions to the intervenors could, under the circumstances, confer no rights upon them: it merely conveyed information, of the intentions of the defendants with reference to the disposition which would be made of the proceeds of the shipment when sold. No advance was asked or obtained by the agents, nor was any new credit given upon the faith of the promised appropriation of the proceeds: the transaction consisted simply in the announcement of the mt&ntions of the shipper, which no doubt would have been carried out but for the seizure. Until the sale of the cotton was complete it was subject to seizure in the hands of the defendants’ agent.

It is true, as a general rule, that where the owner has lost all control over the property, and cannot change its destination, creditors cannot attach, but the application of this rule has been restricted to cases where the delegation was in some manner or form the subject matter of a contract. A mere letter of instructions from a shipper to his own agent, which is not made the basis of any new engagement or transaction, cannot be so considered, though such instructions may have been communicated by the agent to the party to whom the payment.was intended to be made.

It is ordered, that the judgment appealed from be reversed, that the plaintiffs, J. Burnside & Go., do have and recover of the defendants, MoKinley & Moore, the sum of $930 17, with interest thereon at the rate of eight per cent, per annum from the 30th day of April, 1856, till paid, and costs of suit to be paid by preference out of the proceeds of the property attached herein. It is further ordered, that the intervention of David Taylor & Co. be dismissed at their costs, and that the defendants and intervenors pay the costs of this appeal.


author: Spofford, J.

text:
    The State of Louisiana, on the relation of James Foulhouze, v. The Judge of the Fifth District Court of New Orleans.
    Writs of mandarrms prohibition to the District Judges will only be issued in aid of the appellate jurisdiction of the Supreme Court.
    APPLICATION for a writ of prohibition to the Judge of the Fifth District Court of New Orleans, Eggleston, J.
   Spofford, J.

The relator, producing his commission and oath of office as Judge of the Second Judicial District Court of Louisiana, seeks a writ of prohibition upon the following allegations: that his predecessor in office, Octane L. Eoussea/u, assuming still to be Judge of the Second Judicial District, on the 16th April, the day of the date of relator’s commission, filed in the Clerk’s office for the parish of Plaquemines a petition contesting the relator’s election to the Síád office; that assuming still to act as Judge as aforesaid, the said Rousseau, on the 29th May filed in the same Clerk’s office a paper purporting to recuse himself in the trial of the contested election suit, and referring the same to the Eon. E. B. Eggleston, Judge of the Fifth District Court of New Orleans, or any other District Judge from an adjoining district, to try the case on the third Monday in June next in the parish of Plaquemines; that said E. B. Eggleston, Judge, &c., has been notified thereof, and has also permitted and ordered to be filed a supplemental petition 'by the said Rousseau, setting forth new matter of controversy, and that unless restrained by a writ of prohibition from this court, the said Eggleston, Judge, &c., will proceed to the parish of Plaquemines and illegally assume to try said contestation i the relator avers that his commission and oath of office are conclusive evidence of his possession and title; that he is sole Judge of the Second Judicial District; that his predecessor, being functms officio, committed an act of usurpation in assuming to recuse himself and to seleqt a Judge to try this case; that no law of the State, except a special law for the parish of Orleans alone, authorizes such a judicial proceeding as is here attempted to.test the validity of the election of a Judge who is a district and not a parish officer; that there is no law authorizing a Judge of one of the District Courts of New Orleans to go to the parish of Plaquemines to try recused cases ;■ that these irregular proceedings impede the administration of justice and interfere with the appellate jurisdiction of this court, and produce injuries which cannot be redressed by the ordinary form of procedure on account of its slowness; wherefore an order is prayed for prohibiting the said E. B. Eggleston, Judge, &c., from taking cognizance of said pretended case, or attempting to hold a court in the parish of Plaquemines, and the said Rousseau from prosecuting said suit or granting any orders therein.

The petition certainly presents a strong case, but it is now the settled jurisprudence of this court that it will issue writs of mandmius and prohibition to District Judges only in aid of its appellate jurisdiction. Were we in this form to decide that the District Judge could not sit to try such a case as is described in the relator’s petition, we would fee taking original jurisdiction of a question which has not yet been mooted before the District Judge; an exception to the jurisdiction or an exception to the mode of procedure should first be presented to the court which assumes to take jurisdiction in an improper case, and then, if overruled, the question may be brought regularly before us by prohibition, as in the case of Route, 11 An. 187; non constat but that the District Judge, on looking into the law and hearing the parties, will be of opinion that there is no legal warrant to be found in the statutes for such proceedings as are sought to be carried on by the complainant Rousseau.

The case of the Succession of Whipple, 2 An. 236, is precisely in point. There the Supreme Court refused an application for a prohibition, because the question of jurisdiction had never been raised before the District Court, nor decided by it. See also the State v. The Judge of the Commercial Court, 4 Rob. 48.

Application refused.


author: Merrick, C., J.

text:
    Mrs. Margaret N. Layton v. City of New Orleans.
    As it respects municipal corporations it has always been held that the law of the State creating them and conferring upon their officers a part ■of the sovereign authority as mandataries of the government is not a contract, and, as a consequence, that the Legislatut-e may modify such Acts of incorporation at its pleasure.
    The Legislature had the power to Abolish entirely the corporation *of the former city of Lafayette, until it became incorporated in the city of New Orleans, and was finally protected as a part of the same by the Constitution of 1852.
    The Acts of the Legislature which, in ccns'olidating the three municipalities and the city of Lafayette under one government, directed that ¡the debts of each* which were to be assessed by the city at large, should alternately^be liquidated and.paid by taxation of the inhabitants of the respective districts, in proportion to the burden tfliich they imposed upon the new government by their respective debts, were not contracts. TheVe'fras nothing to prevent the Legislature from changing its policy and providing, as was done by the Act of 12th March, 1#56, that the taxes should be equal and uniform within the entire limits of the city. The statute complained of is a literal compliance with the commands .of the Constitution, and does not violate any contract or interfere with any vested right.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      A. W Jourdan, for plaintiff and appellant.

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

The plaintiff’s counsel states his case as follows, viz:

“ The defendants have demanded the payment of certain taxes, known as the ‘ consolidated loan tax,’ which is imposed for the purpose of paying the interest upon and ultimately liquidating the ‘ consolidated debt’ represented by bonds, issued under the Acts of the Legislature of February 23d, 1852, by virtue of which Acts the three municipalities were consolidated, and the city of Lafayette annexed.
“ Plaintiffs have enjoined the collection of this tax upon the ground that as residents and property owners in the Fourth District, late city of Lafayette, their property can only be made to pay such a pen' centage upon property in the Fourth-District as will raise the -sum of fifty thousand dollan's, the amount fixed by the Act of 1852, as sufficient to pay the interest upon, and, ultimately, the debt of the city of Lafayette; for which debt only, the real estate and slaves in the Fourth District are liable to contribute, so far as regards debts due at the date of the said Acts.-
“ That said city of New -Orleans, have assessed the tax at ninety cents on the one hundred dollars, being the-saihe amount of tax imposed upon the other districts of said city, when in truth, and legally, the tax should not exceed sixty-three cents on the one hundred dollars, and that, by so equalizing said tax, plaintiffs and other property holders in the Fourth District, are made to pay the debts due by the ‘ old city’ and by the three municipalities anterior to the consolidation and annexation.
“ Plaintiffs therefore allege that the ordinances and law assessing said consolidated tax, and equalizing it, are in violation of the contract, and vested rights under the Act of 1852, and unconstitutional, ask that such be decreed by this honorable court, and that defendants be perpetually enjoined from collecting said tax.
“ Defendants answer by demurring to the petition of plaintiffs, aver that there is no cause of action, plead said exception as an answer, admitting the facts, and submit the case.
“ There was judgment in the District Court maintaining the demurrer and dismissing the suit.
“Plaintiffs have appealed, and ask that the judgment of the District Court be reversed, and that the suit be decided upon its merits, the facts and evidence being admitted.”

The statute complained of as unconstitutional is the Act of 12th March, 1856, which makes it unlawful for the City Council to levy any tax whatever, whether on real estate or slaves or movables, except the same be equal and uniform within the entire limits of the city. See Acts of 1856, 68, 69.

It is alleged that this Act violates the contract entered into by the Legislature with the different municipalities and the city of Lafayette, by the Acts of 20th March, 1850, (p 156,) 23d February, 1852, (p. 42,) and particularly the Act of the same date, entitled “ An Act supplementary to an Act to consolidate the city of New Orleans and provide for the incorporation of the city of Lafayette and the city of New Orleans.” P. 55.

These statutes while they consolidated the three municipalities and the city of Lafayette under one government, called the city of New Orleans, directed that the debts of each, which were to be assumed by the city at large, should ultimately be liquidated and paid by the taxation of the inhabitants of the respective districts in proportion to the burden which they imposed upon the new government by their respective debts, which the city was obliged to assume. The amount which was imposed upon the Fourth District, being the former city of Lafayette, was $50,000 annually. These Acts evidently were based upon the theory that it was right and proper that the inhabitants of each district should be charged with their own debts, and that those which had been judicious and frugal in the management of their municipal affairs ought not to pay the debts of those which had been lavish and prodigal in their expenditures.

The statute of 1856 involves a different theory, viz : that it is just and right that the people at large should pay the debts of the delinquent districts, and that they will derive an equivalent in the general prosperity of the city, in its improved credit, andthat those districts which by the new arrangement are more heavily taxed will also be benefited in the- end by new improvements which must now be borne by the city at large.

If the Acts of 1850 and 1852 were contracts fixing the amount each district should pay, as alleged by the plaintiffs’ counsel, the Legislature was not at liberty to disregard its obligation and change its principles of action. But it may be pertinently asked if there was a contract with whom was it made ? Not with the city of Lafayette, for the Legislature had the power until it be came incorporated in the city of New Orleans and was finally protected as a part of the same by the Constitution of 1852, to abolish it altogether.

There was no contract made with the individuals comprising the city of Lafayette, for they did not intervene in the proceeding, nor give an equivalent, nor stipulate in their favor that the State should surrender its power of taxation.

As it respects municipal corporations, it has always been held that the law of the State creating them and conferring upon their officers a part of the sovereign authority as mandataries of the government is not a contract, and, as a consequence, that the Legislature may modify such Act of incorporation at its pleasure. 14 L. R. 406 ; 5 An. 665.

If it has the power to create, modify, or abolish, it has the power to provide in what manner the taxes shall be levied for their support, and how their debts shall be paid upon their dissolution. 'This is a discretion vested in the Legislature, (with whom is vested the power of judging of the necessity of taxation) and nothing prevents it from changing its policy if it shall deem the necessities of the public so require. The courts can only interfere when it has overstepped the limits prescribed by the Constitution.

But it is said that taxation must be equal and uniform. The statute complained of purports to equalize the taxes throughout the limits of the city, and instead of being opposed to the Constitution, is a literal compliance with its commands in this particular.

The evil complained of is not a want of equality in the taxes but the reverse. It is that the city is burdened with the debts of the municipalities which the plaintiffs; as citizens of the Fourth District, think they ought not to be compelled to pay equally with the inhabitants of those municipalities Who contracted them.

Judgment affirmed.


author: Voorhies, J. Voorihes, J.

text:
    J. D. Weaver v. N. D. Marvel and C. Snedicker.
    Where one endorses his name on a negotiable note with a space left in blank for the name of the person to whose order it was to be made-payable to be afterwards inserted, and the maker sells the note in that condition without the blank space being filled, the holder cannot treat the party who had thus endorsed his name as merely surety and hold him liable without notice of pro-
    It is not unusual to endorse promissory notes containing blanks to be afterwards filled up so as to make the party an endorser, and the note as to him is to be treated exactly as if it had been filled up before he endorsed it.
    A PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      T. A. Bm'tlette, for plaintiff and appellant.

      Waples & Eustts, for defendants.
   Voorhies, J.

The defendants are sought to be made liable as sureties of the maker of the following promissory noté :

“ $365. - New Orleans, March 15th, 1856.
“ Sixty days after date I promise to pay to the order of-the sum of three hundred and sixty-five dollars, value received.
H. Donohoe.
“Endorsed, N. D. Marvel.
C. Snedicker.
“ It is admitted that Bono hoe sold the note, to Weaver in the condition in which it now is, with the endorsements thereon.” Further, “ that the notice of protest was not sufficient to hold the defendants as endorsers.’!

We do not think the defendants can be considered bound merely as sureties. 'The cases on which the plaintiff relies to hold them liable as such, without notice of protest, appear to us to be clearly distinguishaHejMm the one at bar.

In all of those cases, reported in 4 M. R., 639; 3 N. S., 659 ; 10 L. R. 374; 14 ibid, 380; 4 R. R., 101; 1 A. R., 248, 274 ; 2 ibid, 592; 4 ibid, 273; the notes declared upon had not been endorsed by the payees, in other words, the defendants were not parties to them. Eor in legal intendment the payee is called the endorser, and so is every other person who successively puts his name on the back of the bill of exchange or promissory note, and the person to whom it is then assigned or delivered is called the endorsee or holder. It is true in the cases of the Louisiana State Bank v. Senecal, 11 L. R. 30, and Leckie v. Scott et als., 10 L. R., 415, also relied upon, the defendants as endorsers of accommodation paper were considered to be sureties. But in neither of these cases does the question appear to have been raised as to whether the rights and obligations of the parties were to be governed in other respects according to the rules of the commercial law or not. But in the case of Jacobs v. Williams, 11 R. R., 187, where the defendants were accommodation endorsers, the court used the following language: “The suretyship between an accommodation endorser and the maker of a note exists only as between themselves ; with respect to the holders, their liability must depend on the rules applicable to negotiable instruments in general. The holder must, therefore, take the necessary steps to bind them, and they can avail themselves of any defence which might belong- to a maker, or endorser, on business paper.” The doctrine thus announced was subsequently recognized by this court in the case of Braux v. LeBlanc, 10 A. R., 98, where Mr. Justice Ogden, as the organ of the court, said: “ An accommodation endorser stands on the same footing with other endorsers,-as to what is legally requisite to fix his liability.” In the case at bar, Bonohoe was neither the payee nor endorser of the note sued upon. In receiving the note thus we think the plaintiff had good reason to consider the defendants as parties to it when endorsed by them, Marvel, the first endorser, as payee; and there was nothing to prevent him from filling up the blank by the insertion of the name of the payee.

Judgment affirmed.

SAME CASE ON A RE-HEARING.

Voorihes, J.

In refusing a re-hearing wo will briefly add, that it is not unusual to endorse promissory notes containing blanks to be afterwards filled up, so as to make the party an endorser. In all such cases, as against him, the note is to be treated exactly as if it had been filled up before he endorsed it, and he will be bound accordingly.

5 Cranch, 142; 4 Mass. R., 45, 55 ; 7 Cowen’s R., 336.

It is, therefore, ordered, adjudged and decreed, that the re-hearing prayed for in this caso be refused.


text:
    John C. Shannon v. Steamer America and Owners.
    Where the consideration of a note due in presentí was the acceptance by the plaintiff of the maker’s draft payable at twelve months, by which the latter was enabled to purchase property — Held : That the maker could not resist payment on the ground that the note was not immediately ex-igible.
    APPEAL from the Eourth District Court of New Orleans, Reynolds, J.

      T. B. ScM't, for plaintiff and appellant.

      J. Ad. Bonier, for defendants.
   Spofford, J.

We are not prepared to say that the District Judge erred in considering the surety on the attachment bond insufficient. The judgment dissolving the attachment must, therefore, be affirmed.

The exception of prematurity of suit is clearly untenable as to the accounts embraced in the plaintiffs’ demand. There is no evidence of any fixed term of credit having been given, and the promises and letters relied upon are too indefinate to constitute an extension of time such as would be available in law to postpone a right of action. There seems- to have been no consideration for a contract of the nature alluded to, and the fact that supposed promises subsequent to the date of the account are relied on by the appellant, shows that whatever credit was originally given had expired.

The due-bill presents a greater difficulty. On its face it is payable on demand. It is not a contingent obligation. If it had a valid consideration, we-do not perceive any good reason why it should not he exigible at the will of the plaintiff, according to its tenor. The consideration was an acceptance by the plaintiff of the draft of the defendants at twelve months, which enabled the latter to buy the steamboat America. By taking a note due in presentí for this acceptance, the plaintiff, perhaps, became absolutely hound on the acceptance. At any rate, he could hardly he considered a mere accommodation acceptor. He had received value for accepting. Nor are we prepared to say that if he were simply an accommodation acceptor, the parties might not lawfully so modify their contract as to give the acceptor the means of indemnifying himself so soon as he should find that he was in. danger from the impending insolvency of the drawers. ' The defendants certainly meant something by giving the due-bill payable on demand; and, without intimating any opinion to the prejudice of third parties who may hereafter complain of this arrangement, we do not think it lies in the mouths of the defendants to deny their own contract, and to say that the due-hill is not now exigible.

It is, therefore, ordered, that the judgment of the District Court dissolving the attachment sued out in this case he affirmed. And it is further ordered, that the judgment dismissing the suit he avoided and reversed, the petition reinstated, and the cause remanded for further proceedings according to law; the costs of this appeal to he borne by the defendants and appellees.


text:
    J. Rouanet v. L. Castel et al.
    The Code of 1825, on the subject of respite, has not introduced a new rule of counting the votes at the meeting of the creditors. The majority in number and amount is to be'ascertained by reference to those admitted by the debtor upon the tableau.
    The Legislature haying apparently acquiesced in this previous construction of the law, which is one proving the obligation of contracts, the court has less difficulty in adopting it.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. & JE. Bmmudez, for plaintiff

      L. JEyma, for defendants and appellants.
   Merrick, C. J.

In the Code of 1808, under the title Respite, it is provided that “ the creditors who have not taken the oath, (at the meeting of the creditors,) cannot be reckoned in the number of the creditors who possess three-fourths of the debts.” Page 438, Art. 4.

This provision of law is reproduced in the Code of 1825, in these words:

“ The creditors who do not make this oath, shall not have the right of voting, and their credits shall not be counted among those by which it is to be determined whether the respite is granted or not,” 3054, No. 5.

Under the Code of 1808, it was held that those creditors placed on the bilan who did not appear at the meeting of the creditors and vote, should be counted among those refusing the respite. 3 N. S. 440; ibid 504.

The question presented in the present case is, whether the provision of the Code of 1825 just cited, has introduced a new rule of counting the votes ; whether in counting the votes to ascertain the majority in number and amount, those at the meeting of creditors alone are to be considered, or whether the majority in number and amount is to be ascertained by reference to those admitted by the debtor upon the bilan ?

The point was made and the question appears to have been considered in the case of Janin v. His Creditors, 8 L. R. 467, and the same construction was put upon the New as upon the Old Code in this particular. It is possible that we might have found some difficulty in arriving at the same conclusion. But as the construction is one favoring the obligation of contracts, and as the Legislature has, since the abovementioned decision was rendered, passed a law amending Art. 3053 C. C., so as to give power to a majority of creditors in number and amount to bind the others, thus apparently acquiescing in the construction of our predecessors, we do not feel ourselves called upon to adopt a different construction of the Article in question, See Acts 1843, p. 51.

Judgment affirmed.


text:
    Succession of Martin Broderick.—On opposition of Spencer Field & Co. et als. to the tableau of distribution.
    A. steamboat is not an object susceptible of hypothecation under the laws of this State.
    The Act of Congress regulating the mode of registering mortgages on vessels was not intended to legalize contracts between citizens of the same State, made within the limits of that State, and intended to be executed there, which are contrary to the law of the State.
    The limitation of sixty days does not apply in the case of a privilege of a vendor of coal furnished to a steamboat when the coal had never been received on the boat, but was piled up on the bank of the river.
    The privilege of the vendor of the engine, boilers and machinery of a vessel, which form a component part thereof, is a privilege under Article 3204 of the Code, and is lost in the sixty days after the materials were furnished.
    A judgment obtained by the furnisher of such materials, with a lien and privilege, is not binding upon other creditors who were not parties to the judgment.
    An allowance cannot be made for the support of the mjnor heirs of a succession, under the Act of the 29th March, 1826, when such minor heirs are not creditors of the succession of their deceased parent.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      T. W. GolUns, L. Fyma and B. M. Dyson, for appellants.

      Durant & Ilornor, for appellees.
   Buchanan, J.

Spencer Field & Go., appellees, claim a privilege of vendor on certain coal found in this succession, and also a right of mortgage on the ferry-boat Two Brothers.

Their privilege was allowed but their mortgage rejected by the judgment of the court below. They have answered the appeal, and pray that the judgment be amended in their favor by allowing them a right of mortgage upon the proceeds of the Two Brothers.

They offer in evidence an act under private signature, made at New Orleans the ISth July, 1854, whereby Martin Broderich, sole owner of the steamboat called the Two Brothers, of New Orleans, as per enrollment No. 100, granted at the port of New Orleans on the 24th day of May, 1854, acknowledged himself -indebted to Speneer Field & Go., merchants of this city, in the sum of three thousand four hundred dollars, for coal furnished by said firm to the said steamboat, for which amount said Broderick had given nine promissory notes, dated the 18th July, 1854, and payable, monthly, from one to nine months after date, and in order to secure the payment of said notes at their maturity, said Broderick mortgaged his said steamboat to the said Spencer Field & Go. until the final payment of said notes.

Appended to the mortgage is a certificate from the Oollector’s office of the port of New Orleans that this mortgage was presented for record at that office on the 18th July, 1854, and recorded in Book A, p. 77.

The counsel of Field & Go. contend that under the constitutional power given to Congress to regulate commerce, and Congress having by the statute of 29th July, 1850, (9th Statutes at Large, p. A40,) regulated the mode of registering mortgages on vessels, and the registry of this mortgage having been made in conformity to that Act of Congress, this mortgage is valid and binding, and has the effect of incumbering the steamboat Two Brothers to the prejudice of third persons.

The Act of Congress of 29th July, 1850, includes not only hypothecations butall conveyances of vessels. Its expressions are (sec. 1st): “No bill ®f sale, mortgage, hypothecation or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation or conveyance be recorded in the office of the Collector of the Customs, where such vessel is registered or enrolled.” „

"We regard this as a mere registry law. It certainly was never intended to legalize contracts between citizens of the same State, made within the limits of that State, and intended to be executed there, which are contrary to the law of the State. And that this pretended hypothecation of the steamboat Two Brothers is contrary to the law of Louisiana is settled by many decisions. See Malcolm & Wood v. Schooner Henrietta, 7 L. R. 490; Grant v. Fiol, 17 L. R. 158; Hills v. Phœnix Co., 2 Rob. 35; Clark v. Laidlaw, 4 Rob. 345; Lambeth v. Vawter, 6 Rob. 127; Harrod v. Churchman, 4 An. 310. To the same effect was the case of Wickham v. Levistones, decided by us in May, 1856, and not reported. And we find, upon an examination of the record and briefs in the last mentioned case, that the mortgage of Humnaoille Hill & Go. upon the Steamship Cincinnati was duly registered under the Act of Congress, and that its registry was specially set forth in the pleadings and argument of counsel. The District Court did not err in rejecting the claim of Spencer Field & Go. to a mortgage upon the Two Brothers.

Neither did it err in allowing them the privilege of vendor upon the coal sequestered by them and sold by the Sheriff. The identity of that coal with the coal sold by them to Broderick is proved by the witnessRandolph. Neither does the limitation of sixty days apply to this privilege, as contended by counsel of appellants, for the coal sequestered had never been on board the Two Brothers, but was at first in a flatboat, whence it had been removed on shore, and was piled up on the bank of the river near the ferry landing.

The next matter of which the appellant complains is the allowance of a privilege of vendor upon the boilers, engine and machinery of the Steamboat Two Brothers, in favor of John Ooleman, as subrogated to a judgment of Knap & Wade. The evidence shows that Knap & Wade sold the boilers, &c., to Broderick in March, 1854, and took in part payment his notes, endorsed by Coleman, at four and six months, which were protested at maturity for non-payment, and suit brought against Broderick on October 2d, 1854. Broderick confessed judgment on the 6th of the same month, “with vendor’s lien and privilege upon the boilers, engine and machinery of the steam ferry-boat Two Brothers.” On the 11th October the steamboat, her machinery, tackle and apparel were seized in execution and advertised for sale by the Sheriff. But this seizure seems to have been abandoned, for the boat was afterwards, to wit: on the 29th January, 1855, sold by the Sheriff on an order of court obtained on the petition of the executors of Mao'Un Broderick, who had died on the 24th October, 1854. Succession of Gaulden, 9 An. 205.

Oolemrn has claimed, in an opposition which has been sustained by the judgment of the District Court, the vendor’s privilege upon the proceeds of the steamer Two Brothers, but it is very clear that it cannot be allowed. It is true the judgment in favor of Knap & Wade recognized such a privilege, and it is also true that Ooleman has acquired all the rights of Knap & Wade under their judgment. But the engine, boilers and machinery sold by Knap & Wade were part of the materials of the vessel, and formed a component part thereof. The privilege of Knap & Wade was a privilege under the 8204th Article of the Code, which was lost in sixty days after the materials were furnished. The judgment for a privilege is not at all binding upon the other creditors of Broderick, who were not parties to that judgment.

The appellants are special mortgagees upon the real estate of the succession to an amount exceeding the proceeds of said, real estate. And as there are no special privileges upon said real estate, they can only be primed by general privileges. Those general privileges are—

1st. Funeral expenses........................................ $128 50
2d. Law charges............................................. 1808 55
3d. Expenses of last illness.................................... 243 30
4th. Widows’ Homestead, $1000 — deduct paid on account by executor, $404 97.............................................. 595 03
5th. Provisions for family of deceased during last six months....... 108 40
$2883 78

The account shows that the net proceeds of movables and cash collected to have been (exclusive of the proceeds of the coal, which was absorbed by the special privilege of 8. Field & Co.) as follows:

Furniture................................................... $740 99
Flathoat, &c................................................. 56 60
Collections................................................... 55 00
Steam ferry-boat Two Brothers................................. 1818 18
Hire of slaves and rents....................................... 424 18
$3094 95

It is thus seen that the general privileges may he satisfied in full without encroaching upon the immovables.

The application for an allowance of fifty dollars a month to the minors Broderick, in addition to the portion allowed under the Homestead Act, was properly rejected.

This application was grounded upon an Act of 29th March, 1826, (Bullard & Curry, 497, 498) section 10. The Act in question only applies to minors who are creditors of the succession of their deceased parent. It is not pretended that the minors Brodwiek have any such claims. The allowance made them under the Homestead Act of 1852 is predicated upon a state of facts inconsistent with the application now made on their behalf. It strikes us as being both unjust to their father’s creditors and unwarranted by law to cumulate in their favor, those two statutory remedies.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended by rejecting the opposition of John Coleman, claiming the privilege of vendor upon the proceeds of the steamboat Two Brothers; and that, as thus amended, the judgment be affirmed; the costs of the lower court to be paid by the succession and those of appeal by the appellee, John Coleman.


author: Vooruies, J.

text:
    Hayden & Bancroft v. The Heirs of H. M. Shiff.
    Where the right to the unexpired term of alease, together with the movables on the premises, were sold under an execution against the lessee, and the leased premises were afterwards destroyed by fire — Held: That the purchaser had no right of action against the lessor for the repetition of the rent which had been paid to him on the distribution of the proceeds of the sale.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Baoe & Foster, for plaintiffs and appellants.

      Durant <& Hornor, for defendants.
   Vooruies, J.

Cha/rles Cottingham, it appears, leased of defendants certain premises for the term of one year, from the 1st of November, 1853, for which he stipulated to pay them the monthly rent of $111 G6$.

Having absconded, the movables found on the premises, together- with his right to the unexpired term of the lease, were seized under different attachments and afterwards sold under an execution on a judgment in favor of J. L. Bach & Co., the movables producing $2,141 98, and the unexpired term, of which the plaintiffs became the purchasers, $112. On the distribution of the proceeds, the defendants received, in advance, the full amount of their rent, ending the 1st of November, 1854, and the plaintiffs retained in their hands the price of adjudication of the unexpired term, as the first attaching creditors thereof. Shortly after the judicial sale, to wit, the 4th of June, 1854, the leased premises were destroyed hy fire. The present action is brought against the defendants for the repetition of the rent thus paid from the date of the destruction of the premises, until the expiration of the stipulated term of the lease.

The mere statement of the case, it seems to us, clearly shows the action to be groundless. The plaintiffs by the adjudication, it is obvious, only acquired the right of Cottingham as lessee, burdened with the conditions or obligations implied by law. We think it would be unreasonable to conclude, as being in legal contemplation, that the rent thus prepaid should, in the event of the distraction of the property, enure to their benefit as vendees of the unexpired term of the lease. To hold that the claim for rent erroneously paid in advance also passed by the adjudication, cannot, we think, find any sanction in the law. The lease was at an end not only by the adjudication quo ad Cottingham, but by the destruction of the property. O'. O. 2667; 11 An. 433. Hence the sum thus erroneously applied to the payment of the rent, in advance, out of the forced sale of the movables must be considered as a debt due to Cottingham, and not to the plaintiffs.

Whether there was any error in the distribution of the proceeds of that sale or not, and what effect such distribution may ultimately have on the rights of the parties, are questions upon which we refrain from expressing any opinion.

Judgment affirmed.

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


author: Buchanan, J. Spoeford, J.,

text:
    C. & J. M. Tate v. Samuel Garland.
    %'Jie Act of the Legislature of the 5th March, 1852, having fixed the prescription of the accounts of merchants and all other open accounts at three years, whereas the prescription was previously ten years, when more than one-third of the time required for the prescription under the former law had elapsed — JTéld: that the account sued on was prescribed after the lapse of two years (being two-thirds of the time required under the new law) from the date of the promulgation of the statute to the institution of the suit.
    The Act of the Legislature of 1848 abolishes the distinction between residents and absentees in matters of prescription.
    APPEAL from the Eourth District Court of New Orleans Reynolds, J.

      Elmore & King, for plaintiffs.

      Steele and Kamner & Kays, for defendant.
   Buchanan, J.

The plaintiffs were in 1847 and 1848 the factors in New Orleans of the firm of G. T. Williams & Go., tobacco manufacturers in Lynchburg, Virginia, of which firm defendant was a partner.

The petition alleges that, on the 15th Eebruary, 1848, by a mistake and error on the part of plaintiffs, they paid G. T. Williams & Go. six hundred and seventy-three dollars and forty-seven cents. In an account which is annexed to the petition, and which is referred to as making part of the petition, it is charged that this amount of §673 47 was paid defendant’s firm, in plaintiffs’ acceptance of the draft of George T. Williams & Go. in favor of Turnee' and Bw'well, at four months date, due and paid Eebruary 15th, 1848, the same being the suspended debt due by Samuel M. MeLean.

The plaintiffs further allege in their petition and annexed accounts, that they committed an error to their own prejudice of thirty-six dollars in an item on the debit side of an account current rendered 'by them to defendant’s firm on the 11th July, 1848.

And now the plaintiffs sue the defendant, by citation served on the 7th April, 1855, for reimbursement of these two sums thus erroneously paid, and omitted to be charged, in Eebruary and July, 1848.

Defendant pleads the general issue and the prescription of five and ten years.

The evidence shows, .that George T. Williams & Go. drew upon plaintiffs a draft for fifteen hundred dollars, which was accepted by plaintiffs, and was by them paid at its maturity, the 15th Eebruary, 1848. But it is also proved, that the the plaintiffs charged defendant’s firm with the amount of this acceptance and interest in the account current of the 1'lth July, 1848, rendered by plaintiffs, and that the same has been thus refunded to plaintiffs.

As to the error of thirty-six dollars which appears in the same account current, in the charge of P. K. Prout & Go’s, note due 18th October, 1847, and not paid, we think it covered by the plea of prescription. By the Act of 5th March, 1852, (No. 118 of the Session Acts,) the prescription of the accounts of merchants, and all other open accounts, was fixed at three years. Before that statute the prescription of such an account as this was ten years. Erom the date of the account current to the date of the promulgation of that statute, a period of three years and eight months intervened. More than one-third of the time required for prescription had then elapsed. Under the statute of 1852 this account became prescribed, therefore, by the lapse of two years — or two-thirds of the prescription time as reduced thereby — and those two years expired in 1854, a year before the institution of this suit.

By the Act of 1848, page 00, the distinction between residents and absentees in matters of prescription was abolished.

The judgment of the District Court is, therefore, reversed, and judgment is rendered in favor of defendant and appellant, with costs in both courts.

Spoeford, J.,

concurring. I concur in the judgment, because I think the whole claim of the plaintiffs is barred by prescription.

The basis of the suit is an account. It is an open account, because it has never been stated or acknowledged expressly or impliedly by the defendant. It comes within the meaning of the 2d section of the Act of March 5th, 1852, (p. 90,) by which it is declared that the prescription of all other open accounts the prescription of which is ten years under the existing laws, shall be three years. Giving the items of this account their proper date, the whole account is prescribed. The fact that the defendant resided in another State of the Union did not suspend prescription during his absence. He did not conceal himself, but his domicil was known to the plaintiffs who* were constantly in correspondence with him. See McMasters v. Mather, 4 An. 418.