author: Porter J.

text:
      MALPICA vs. McKOWN & AL.

    The owner of the vessel is responsible for the acts of the master within the scope of his employment, even for his torts.
    Where the laws of the place where the owner resides, and that of the country where the contract of affreightment is entered into, and to be fulfilled, differ, the latter governs.
    Foreign laws must be proved like other facts; but where the country now foreign, once made a part of the same empire with that in which the proof is to be administered, the laws common to both, at the time of separation, do not require proof in either, and they will be presumed to remain the same unless the contrary is proved.
    Whether the Captain is responsible for money in a trunk, of which no declaration is made when brought onboard? Quere?

      But he is, if it is known to him after the passenger’s death, and he does not take care of it.
    The value of the vessel does not furnish the measure of responsibility.
    It is the duty of the Captain of a vessel, to take charge of the effects of a passenger who dies on board.
    Appeal from the court of the parish and city of New Orleans.
    The petition stated that Malpica embarked at Vera Cruz on board the ship Belle, Mc-Kown master, where he died, leaving money and effects to the amount of S7387.— The petition averred the liability of both master and owner, and prayed judgment against them in solido.
    Curell in his answer admitted the ownership of the vessel, and set up the following grounds of defence. That, on the voyage a mutiny broke out among the passengers, and 'the command of the ship was forcibly taken from the Captain. That, if the deceased Malpica, had money and effects on board, they never came into the possession of respondent who was in New Orleans, or into that of any of his authorized agents, but that the same was taken possession of by the friends of Malpica, or by the mutinous passengers. That, if any loss was sustained by the heirs of Malpica, it was caused by the act of those over whom, respondent had no control. That the ship carE¡G(j no freight, nor was freight chargeable for any effects in the possession of the passengers.
    It appeared from the evidence that on the 5th day out, Malpica died. That an inventory was taken of his effects, and the money counted' in the presence of the captain, who took charge of his trunk, and delivered the money to one Subietta, a passenger on board. The ship was bound from Vera Cruz to Havana, with about 150 passengers, without freight or cargo. After being at sea about 30 days, the passengers were put on short allowance. A few days af-terwards, they (the passengers} put a watch over the provisions and water, and requested the captain to make the first land. Two days af-terwards, the vessel reached a small port on the Spanish main, where most of the passengers debarked, among whom, was Subietta, but there was no evidence that he carried the money with him. One witness testified that he returned it to the captain. It further appeared, that when the ship left Vera Cruz, the captain had no notice of any money being on board, nor did he ■sign any bills of lading. There was judgment for the plaintiffs in the court below, and the -defendant appealed.

      Eustis and Dennis, for appellee.
    The owner of a vessel is liable for the acts of the Captain,

      Duncan, contra.
    The law of the case is with the defendant. C. C. 2263, 2266, 2299. Palfrey vs. Kerr, 8 Mart. n. s. Par dessus cours de droit com. vol. 3, p. 93. Boyce vs Anderson, 2 Peter’s Rep. 150.
   Porter J.

delivered the opinion of the court. This action is instituted to receive from McKown, captain, and Cur ell, owner of the ship Belle, the sum of $7378, which the petition alleges, the deceased, a passenger in the vessel aforesaid, brought on board of her, on a voyage from Vera Cruz to Havana, and which, it further alleges, the defendants refused to deliver, though requested to do so.

The proceedings against the captain, appear to have proceeded no further, than t© bring him into court. Against Curell, they have been carried onto final judgment The latter in his answer, acknowledges theownership 0f the vessel, and the voyage, but alleges, that daring its progress, a mutiny broke out on board, and that the passengers taking the control of the ship, compelled the captain to land them on the Spanish main. It avers the defendant is riot responsible for the money and effects of the passenger who died, because they were taken possession of by the friends of the deceased, or by the mutinous passengers, and it further affirms, that, if the property did not come into the hands of the captain, officers or crew of the vessel, the defendant is not responsible.

The court below, after hearing a great deal of contradictory testimony, gave judgment against the defendant for $6862, from which judgment he appealed.

Without noticing the evidence in detail, its discrepancies,and the reasons which induce us to come to the conclusion we are about to state, we think it establishes: that, the deceased Malpica came on board the ship Belle, at Vera Cruz, as a passenger to Havana, and brought on board with him, a sum of money, equal in amount to that, for which the inferior . , court gave judgment; that no freight was paid for it, nor any notice it formed part of his effects, communicated to the captain.— That after the vessel was out some days, Mal-pica died; that an inventory was made of his effects and property, in which the money was included: that the captain assisted, at the counting of the money, but refused to sign the inventory; that he took possession of the trunk, and placed the money in the care of another passenger, who did not take it with him when he debarked on the Spanish main.— That, there was no mutiny on board, nor any act of the passengers which prevented the captain discharging all obligations imposed on him by law, as commander of the vessel, in relation to property, situated as this was. And finally, that the evidence furnishes a strong presumption the captain converted the money to his own use.

On these facts the plaintiff contends the owner is responsible for the acts of the master, and he has especially relied in support of this position on the commercial laws of Spain, the places where the voyage commenced and was to terminate,being in countries governed by these laws.

The owner of sponsible for thc| acts of the mas-1 ter within the yioyment, even iSsr his torts.

The defendant resists the application of the , 1 r laws of Spain to the case, on two grounds. First, that the laws of the place where the gfjjp js owned, must determine the responsibility of the defendants. Second, that there is no evidence on record of the laws of Vera Cruz and Havana, and consequently, the court must presume it to be the same as our own.

And as to the first point, we are of opinion, that the law of the place of the cdntract, and not that of the owner’s residence, must be the rule by which his obligations are to be ascertained. The lex loci contractus governs all agreements, unless expressly excluded, or the ... , performance is to be m another country, where different regulations prevail. What , , , . . . •, we do by another, we do by ourselves, and we are unable to distinguish between the responsibility created by the owner, sending his agent to contract in another country, and that produced by going there and contracting himself

The second offers rather more difficulty. The general rule, certainly is, that courts cannot notice the laws of a foreign state, unless they be proved like other facts. But when countries have once belonged to the same government, and the same rules prevailed in ° both, it is not understood by us that the separation of the countries, renders the laws in existence, at the time they divide, foreign to each other. The act of political separation does not destroy the knowledge possessed in both, that they were subject to the same law, and what that law was. Any change made in it after the countries became independent of each other; any new statute passed in either, would certainly come under the general rule. Because it was at no time common to both. But those laws which were, stand on quite a different footing. The rule, like every other m regard to evidence, is rounded on good sense. Courts require proof of the laws of another country, because they do not judi- • 7, , . , daily possess the means oí knowing them.— , , , . . But when they do possess judicial know- , t _ , , , ledge or them, there seems no object in requiring evidence of that, which is already known, We have looked into the jurisprudence on thishead,and we donotdiscover thatthe different States in the Union require proof thecom-mon law prevails in each. Or that it has ever been deemed necessary to establish by testimony, that the same system governs in England. It is trae, they require proof of British statutes, which never were in force within their own state> but this is in the distinction already aiiU(jed to. It is a matter of history, that certain countries formed part of the same kingdom or government, of which, courts of justice take notice, without evidence; and if it be a fact that the countries separated were at one time under the same government, proof of the law at the time of separation is vain, and of no use; for the court knows its own law, which was the law of both.

0fWtheethpiacI resides, and that wheíe ^he^nment°waferRerI latter gov"

muft°heS proved 0wherefa<the for™gn,‘ 0n°ce afsamo empire which the proof tered, the laws at the time of separation do not require proof in either, and they will be presumed to remain the same unless the contrary be proved.

. , , It is the duty of the captain of a vessel to take care of the ef-ger who dies on board.

We therefore think the laws oí Spain may be referred to, and considered in the decision of the cause, although they have not been proved as facts.

By one of the laws of the Indies it is made J the duty of the master of a vessel, in case any ^ J 0f the passengers die during the voyage, to make an inventory of their property, and deliver it at the port of destination. Jacobson, in his sea laws, without referring to any special legislation as authority, declares it to be the duty of the captain to do so. It would seem to us to necessarily result from the duties which masters of vessels have to perform; and its importance cannot be doubted. The valuable effects with which men frequently , , . . /* ¶ • travel, and the unprotected state of their personal property on board a ship, after their deaths, render it necessary that some one should be responsible for its safe keeping. Numerous frauds would otherwise follow. On no one can this duty be so properly imposed, as the captain of the ship, whose situation and authority enable him effectually to discharge it. The present instance presents a case where this duty has been totally neglected. The master either converted the money to his own use, or permitted others to do it, without taking any measures to prevent them» and in either hypothesis, his responsibility is the same. Curia Phillip. lib. 3, cap. 11, No. 13, Jacobson Sea Laws, 133.

whether the sponsible for money in a trunk, 0f which no declaration is made when brought on but he is? if It is known to him after the passenger’s death, and he does not take care of it.

Our attention has been most turned to that part of the defence which claims immunity for the captain, in consequence of the passenger bringing the money on board without giving notice of it.

We have endeavored, but fruitlessly, to satisfy ourselves, whether the master and .. . ~ ' . owner are responsible for money or precious , , . , . objects placed among the baggage or a passenger, and of which no particular declara-

The value of the vessel does not furnish the measure of responsibility.

tion is made. The Consulate del Mare and the laws of Wisly, both treat of the effect of this concealment, on a claim for average, if the objects have been thrown overboard, but they are silent as to the responsibility of the captain inotbfer cases. A law of the Partidas, renders the owner responsible for every thing which is brought on board with the knowledge of the master; but whether the delivery of a trunk or parcel, without a declaration of its contents, would produce responsibility in the case supposed, the law is silent. It is probable it would. No exception is made, and even where the traveller is received through friendship, by carriers on land and water, or keepers of inns, this law makes them responsible for his effects, unless they receive them with an express declaration that the tra-veller must fake care of his own property. Peters Reports, vol. 1, appendix, p. 20, and 82; Consulat de la Mer par Boucher, vol. 2, page 451, nos. 855 a 860. Partidas 5, lib. 8, law 26.

But whether the master would have been resposible in case the money had been lost before the death of the owner, need not be enquired into. On that event taking place, the knowledge of the property being on board was brought home to him. He became by law the guardian of it, and it was his duty to take it into his possession and deliver it to the representatives of the deceased. We find nothing in the law, and we see no good reason why, on the death of a passenger, the captain should be discharged from all responsibility in relation to his effects, because he was not made acquainted with their kind and value previous to the proprietor’s decease.

The responsibility incurred by the master in this case, of which we have no doubt, settles the question as to the owners. The general principle in this matter is so well established, as to be familiar. The proprietor of the vessel is answerable for all acts of the master within the scope of his employment, even for his torts. Abbott on Shipping, 99, ed. 1829; 3 Kent’s Comm. 162; Curia Phillip, lib 3, cap. 12; Verbo Danos, No. 29 6 John. 160, 11 ibid, 107; 10 ibid,

Counsel have endeavoured to limit the responsibility of the defendant to the value of the vessel and freight earned. Such a limitation does exist in several countries, and it is wise, perhaps that it should. But the general law is otherwise, and the very passage of special statutes limiting the responsibility, acknowledges the previous rule to be otherwise. No such gfatutory provision is shown to exist in the country where the contract was made, and we cannot supply it.

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


source: Caselaw Access Project

author: Porter, J.

license: Public Domain

text:
      SUAREZ vs. DURALDE.

    Ia a contract to build, when a plan is furnished and referred to in the contract, the undertaker is governed by the plan.
    A plea in reconvention, need not be answered in writing.
    An architect may be examined, as to the usage of the trade, under a contract to build; but he cannot give his opinion^ as to the construction of the contract.
    Appeal from the court of the parish and city of New-Orleans.
    The plaintiff, a master workman, having contracted to build for the defendant, brought this suit to recover the balance of the price agreed upon; and a further sum, for extra and additional work done upon the premises.

      The defendant denied being indebted in any ° manner to the plaintiff, or that any work was done upon the premises not contemplated by the contract; and further, that by reason of the plaintiff’s non-compliance with his engagement, he' had sustained heavy damages, which he claimed in reconvention.
    It appeared from the contract," entered into on the 21st day of December, 182.7, that the plaintiff undertook to erect for the defendant two brick buildings, of the extent, depth and front, as designated on a plan signed by both parties and referred to in the contract. On this plan the back buildings were described, but no allusion was made to them in the contract. The plaintiff erected back buildings, which were proved to be worth two thousand five hundred dollars.
    The front buildings were to be compléted and delivered on the 1st day of May, 1828. — ■ They were not delivered until October; and then in an unfinished state. The city surveyor and a number of architects examined the buildings, and pronounced them defective. To put them in tenantable repair, Brand, a master workman, estimated the cost at one thousand eight hundred and eighty dollars. There was judgment for the defendánt for one thousand four hundred dollars, and the plaintiff appealed.

      Conrad for appellant.
    1. The court a quo erred, in allowing witnesses to be examined on the meaning and interpretation of the contract.
    2. The verdict of the jury, was clearly contrary to the evidence of the case and to law.
   Porter, J.

delivered the opinion of the court. The plaintiff, contracted with the defendant to build for him two houses, and brings this action for .the balance of the price agreed on, as. well as for the value of additional work done. The defendant avers, that the buildings were not erected according to contract, and denies the fact of any thing, not included in the original agreement, be:ng executed by the plaintiff. The answer concludes by a prayer in reconvention.

The cause was submitted to a jury in the court below, who found a verdict in favor of the defendant for one thousand four hundred dollars, which was confirmed, notwithstanding an effort on the part of the plaintiff to obtain a new trial. He appealed.

From the pleadings, as already noticed, it appears, that the matters in dispute between the parties, were first, whether any part of the work done by the plaintiff was exclusive of the written contract, and second, whether that part of it which is confessedly within the agreement was faithfully and properly executed.

For a proper understanding of the first question, reference must be had to the original contract, which was reduced to writing: by it, the plaintiff contracted to build “ two houses in brick, each of two stories in height, of the extent, and depth, and form, designated in the plan agreed by the parties, and identified with these presents by the signature of bothP In another part of the contract it is stated, that the buildings are to be so completed, that “ on his, the said Suarez, at the time prefixed, handing the key to the said Duralde, the latter may be enabled forthwith to enter, occupy or lease, each building, without any thing more necessary being to be done to either of said buildings, inclosures, or yards

On the plan thus made, a part of the contract, back buildings, embracing a kitchen and servants’ rooms, are marked as annexed to the main edifice. But in the description of the manner in which the house should be erected, the size of the rooms, the placing of dormant windows, &c. nothing is said which can "be considered as applicable to the back buildings; on the contrary, every thing specified in relation to the mode in which the work was to be performed, applies exclusively to the front, or main edifice.

in a contract plan is furnished in the contract, pian med by the

Testimony was offered and received from a number of master workmen, to shew how they would understand such a contract.— Some swore they would consider themselves bound to perform the work, according to the plan. Others said, they would not. The jury, by their verdict, seem to have adopted the interpretation of the former, and there can be no doubt they decided correctly. The plan, when referred to, and incorporated with the written contract, made a part of it, and the plaintiff, in agreeing to build a house ae-cording to that plan, was as fully bound to kudd every thing specified in it, as if he had expressed his engagement in words. The failure to state how such work was to be performed, cannot discharge him from his obligation. As that part of the building was des- ° , . tined for servants’ rooms and a kitchen, which in general do not require any thing particular in their construction, the presumption is, the parties understood they were to be put up in the ordinary way. But be the reasons what they may, for nothing being said in relation to this part of the edifice, on no rule of construction can the omission to express, in a contract, how work is to be done, release the party who has engaged to do that work, from a performance of it. By one of the rules for the interpretation of agreements, given in the Code, it is enacted that “when the intent of the parties is doubtful, the construction put on it by the manner in which it is executed by both, or by one with the express or implied assent of the other, furnishes a rule for its interpretation.” In this instance, the plaintiff erected the back building without ever stating to the defendant, that it was not included in the original agreement. Such conduct, on his part, would present a formidable objection to the interpretation he now gives to the contract, if its terms were doubtful. But we do not consider them so. We think they clearly embraced every thing specified in the p]an> Jjouisiana Code, 1951.

a plea in re-convention need not be answered in writing.

An architect may be examined as to the usage of the trade under a contract to-build,but he cannot give his opinion as to the construction of the contract.

It has been argued in this court, that the cause was tried without issue being joined; no answer having been put in to the demand ^ ° jn reconvention. But it has not been the practice in our courts, so far as it has come under our notiee, to answer such pleas in writing. They are considered to stand in the same way, as any other matter which is pleaded in avoidance: that is, denied. The 328th and 329th articles of the Code of Practice, sanctions this mode of proceeding. The first permits the defendant to allege new facts in his answer, and make an incidental demand ; and the latter declares, that in such case they shall be considered as denied by the plaintiff.

In the court below, an objection was made to the introduction of architects and builders, to prove their understanding of the contract, 1 ° 7 and it has been renewed here, and much discussed. We think the evidence should not have been received. The witness might have been asked, what was the usage of the trade under such agreements, but he could not give his opinion as to the construction which should be given to the writing. That was the province of the court and jury. But as we are satisfied the opinion given by the witness, was the construction which the law puts on the instrument, we cannot remand the cause on that ground.— Douglass' Rep. 527. Starkie on Ev. 1736, in note.

The plaintiff offered testimony, to prove that the work done was worth more than the price stipulated in the contract: his avowed object in offering it, was to show to the jury that his interpretation of the contract was correct. Believing as we do, the contract to be clear and unambiguous, we think such evidence was admissible.

We think the damages given by the jury are not too high, that they conform to the evidence, and it is therefore ordered, adjudged and decreed, that the judgment of the parish court be affirmed with costs.


author: Martin, J.

text:
      TIETJEN vs. PENNIMAN.

    Journeymen printers are laborers within the meaning of the Civil Code, art. 3499.
    And their wages are prescribed by the lapse of one year.

      An amicable demand is still required, although the Code of Practice dispenses with a written one.
    printer3Uravemia-the” meanbghS the Civil Code, art. 3499, and prescribed by the apse of one year
    Appeal from the court of the parish and city of New- Orleans.
    This suit was brought on the 9th November, 1829, to recover fron the defendant the amount of wages due the plaintiff, as a journeyman printer, from July 1828 up to January 1829. The defendant plead the general issue, prescription and the want of an amicable demand.— There was judgment for the plaintiff, and the defendant appealed.

      Roselius, for appellant; Nixon, for appellee.
   Martin, J.

delivered the opinion of the court. The plantiff claims wages as a journeyman printer. The general issue and prescription were pleaded, The plaintiff had judgment and the defendant appealed.

His counsel has shown that the parish Judge disallowed theprescriptionofoneyear, under the Civil Code, 3499. We think the T . . . . , , Judge erred;journeymen printers are labour-ers and workmen within the meaning of the artjcje ^g C0(Je invoked.

The Judge disallowed the plaintiff’s claim for costs, it appearing that no amicable de-man<l was made, and the appellee’s counsel has contended that the Code of Practice has dispensed with the demand in writing, and the act of 1828 has repealed the part of the act of 1813, under which a demand was necessary in writing or otherwise.

An amicable demand is stm required, altho’ the code ofPrac-tice dispenses with a written

Ttr , . We thuk the parish Judge did not err; # the proviso of the Code of Practice providing that an amicable demand is not necessary, is a negative, pregnant with the affirmative, that a parol demand is so.

It is therefore ordered, adjudged and decreed, that the judgmentof the parish court be annulled, avoided and reversed; and that the plain tiff recover from the defendant one hundred and twenty-eight dollars for fifty-six days work, from the 10th of November, 1828,. to the 5th January, 1829, and that he pay costs in both courts.


text:
      FERNANDEZ vs. SILVA & AL.

    The master of a vessel who refuses to deliver goods, on other grounds than the non-payment of freight' cannot avail himself of the want of a tender.. .
    A shipper cannot be affected by the master, taking onboard other goods, the landing of which would expose the vessel to seizure and condemnation»

      Appeal from the court of the parish and city ofNew Orleans.
    The plaintiff shipped on board the schooner Voluntario, bound from Havana to Tampico, a quantity of goods, to be delivered there upon the arrival of the vessel. At the time of the shipment it was known tp both parties that Tampico was in possession of the Spanish troops, but upon the arrival of the schooner off the bar of Tampico, it was ascertained that the place had been retaken by the Mexicans, and that the Spanish army was prisoners. Not daring to enter, the captain called a consultation of the freighters and passengers, when it was determined by a majority to proceed to New-Orleans. Upon the arrival of the vessel at the latter port, it was discovered that certain articles on board could not be landed without subjecting the vessel to seizure and condemnation. The plaintiff demanded his goods, and upon the captain refusing to deliver them, this suit was brought for damages. There was judgment for the plaintiff and the defendants appealed.

      Demis, for appellant, contended:
    1. The defendants are not liable to be sued in the manner and form as stated in the petition, because the violation, if any, is merely a passive one, and occasioned by irresistible force. C. C, 1925,1926, 1927, 1904,1905, 1906, 1907 and 3213.
    2. The freight could not be delivered, as the same would have been forfeited to the United States, with-the vessel.
    3. Demand of the same has never been made according to the laws of the land.

      Pitot, for appellee.
   Porter, J.

delivered the opinion of the court. During the late invasion of Mexico, from the Island of Cuba, the plaintiff, with several others, shipped goods at Havana on board a schooner, to be landed at Tampi-co. Arrived off the harbor of the latter place, they found the town in possession of the Mexicans, and the Spanish army prisoners. Not daring to land, the captain called the freighters and passengers on board to a consultation as to the best course to be pursued with the vessel. A majority of the passengers voted in favor of coming to New-Orleans instead of returning to Havana; upon which the captain bore away for this port.

Arrived here, it was discovered that a part of the cargo, composed of rum, had teen shipped in casks, which could not be jan¿e(j jn United States without exposing the vessel and goods to seizure and condemnation. The plaintiff demanded his goods, and the captain refusing to deliver them, in consequence of the penalty to which he wras exposed if he landed any part of his cargo, this action was brought, in which damages are demanded for the detention of the property.

The captain pleaded the general issue, and tthe owner in his answer denied any agreement on his part to land the goods in this port, though he acknowledged he was ready to do so if the laws of the United States permitted him. He averred further, that he had put in here in distress for want of water and provisions on his way back to Havana.

The answer concludes by an averment, that the defendant, in consequence of this suit, and the illegal sequestration of his vessel, has suffered damages to the amount of three thousand dollars, for which he sues in reconvention.

The court below gave judgment in favor „ . i i , of the plaintiff, for seven hundred and two dollars and the defendant appealed.

The first point made in this courtis, that the suit is prematurely brought for damages, the defendants not having been put en de-meure previous thereto.

The 1905 article of the Louisiana Code, provides as a means of putting a debtor in default, a demand in writing, or a verbal requisition in the presence of two witnesses or by the protest of a notary public. The evidence shows a compliance with these requisitions, and we are therefore of opinion this objection cannot be maintained.

The next ground of defence is, that by the 3213 article of our Code, the captain has a right to retain goods until the freight is paid or secured, and that neither was done, nor offered to be done by the plaintiff.

This article of the Code does not make a tender of money, or of security for freight, indispensable to a legal demand for the goods, or to a maintenance of an action for their non-delivery. It affords the captain or owner of a vessel a protection of which he may avail himself if he thinks proper, or which he may waive if he choose. If when . , , .. , the property is demanded, he places his refusal wholly distinct from the want of security for, or payment of the freight, he impliedly abandons all obiection on that score. J J The tender in this case would have been entirely USeleSS, as the difficulty which in- “ J duced the captain and owner to refuse th , delivery would have still existed, though , 0 the shipper had offered ftrpay the freight.

TIie mas*er of a vessel, who refuses to deliver goods on other grounds than the non-payment of freight, cannot avail himself of the want of a tender.

a shipper cannot be afiected. lung16on-board other goods, the landing of which could expose the, vessel to seizure and eendemna tion.

On the merits, it appears by an averment in the petition, that when it was found the vessel could not enter into Tampico, it was agreed by the freighters and the captain, that the voyage should be changed, and that they would proceed to New-Orleans. The cause, therefore, must be considered in the same light as if the original destination of the vessel had been here: and our enquiry, is what would be the rights of the parties in such an hypothesis. And we apprehend that the contract of affreightment is not destroyed by the captain taking other goods on board, which exposes his vesse{ to seizure and condemnation. The s^'PPer °f goods, which could legally enter the p0rt 0f destination, cannot be affected >f ’ jjy other goods being on board, which exposes the owner of the vessel to hazard and loss if he complies with his contract. His is the fault, and he must bear the consequences.

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


text:
      PATRON vs. SILVA & AL.

    A shipper cannot demand the delivery of his goods, If the landing of them would expose the vessel to seizure.
    Appeal from the court of the parish and city of New-Orleans.
    This case and the three succeeding ones, differ from that immediately preceding in only one fact, viz. that the plaintiffs were the owners of the prohibited goods. The petition also contained an averment, that not being able to enter Tampico, the vessel proceeded to New-Orleans, agreeably to a written contract, entered into between the captain, owner, and freighters of said vessel. There was judgment for the plaintiff in the court below, and the defendants apppealed.
    Dennis, for appellant.
    Pitot, for appellee.
   Porter, J.

delivered the opinion of the court. This case differs from that just decided between Fernandez and the same defendants, in the important fact, that the goods of the plaintiff were those which, according to the laws of the United States, could not be landed within their limits without exposing them, and the vessel which brought them, to seizure and condemnation.

The petition contains an express averment, that on arriving off Tampico, the petitioner and the defendants agreed to come to the port of New-Ovleans, agreeably to a written eontract passed between the parties. That contract has been produced in evidence, and it appears, that on the captain calling the freighters together, to know from them whether they would return to Havana or proceed to New-Orleans, they, and the plaintiff among the rest, answered, that it was indifferent to them whether the vessel went to the one port or the other. It is questionable, whether this proof would be sufficient in itself to shew a consent to a change of voyage; but taken with the averment of the party himself, that it was so intended, there can be no doubt that we are compelled to consider the voyage as changed by mutual consent. And this conclusion renders it unnecessary to examine, whether any evidence could destroy the effect of the judicial confession, which the petition contains.

A shipper cannot demand the delivery of his goods, if the landing of them would expose the vesselt0 seizure,

The parties then'' stand before us in the same situation they would do, if they had ** contemplated originally a voyage from Havana to New-Orleans. In such case, there can be no doubt the goods could not be demanded here. For if the voyage is unlawful before it is commenced, the contract of affreightment is dissolved. So it is, if it becomes unlawful after. And there is no difference in principle, between a complete interdiction of commerce which prevents the vessel to enter, and a partial one in relation to the merchandize on board, which prevents it being landed. Besides, this is an action in damages for the non-deiivery of the goods in New-Orleans. Now, what damages could the plaintiff have sustained, since the moment they were put on shore, they would have been seized for a violation of our revenue laws.

It will be seen, from these observations, that in our judgment the whole case turns 0n the authority of the captain from the plaintiff to come to this port. We have already stated the reasons, which have brought us to the conclusion that he was; and in this view of the case, the judgment of the parish court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be reversed, that there be judgment for defendants, and that the plaintiff pay costs in both courts.


text:
      GARCIA vs. SILVA & AL.

    A shipper cannot demand the delivery of his goods, if the landing of them would expose the vessel to seizure.
    A shipper cannot demand the delivery of his goods, ifthe landing of them would expose the vessel to seizure,
    Appeal from the court of the parish and city of New-Orleans.
   Porter, J.

delivered the opinion of the . court. This case presents the same ques- . . tions as that just decided between the de- „ , fendants and Patron.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and that there be judgment for defendants with costs in both courts.


author: Porter, J. '

text:
      MONTEGUDO vs. SILVA & AL.

    A shipper cannot demand the delivery of his goods, if the landing of them would expose the vessel to seizure.
    a shipper cannot demand the delh¡ery °,f ,his goodsj it the Ian*' dins,, of th®m would exposo the vessel to seizure
    Appeal from the court of the parish and city ofNew-Orleans.
   Porter, J. '

delivered the opinion of the r court. This case presenting the same points ® ^ with that of Patron against the defendants: "

It is ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, and that there be judgment for defendants with costs in both courts.


text:
      CASTANEDO vs. SILVA & AL.

    A shipper cannot demand the delivery of his goods, if the landing of them would expose the vessel to seizure.
    nof demand^ goo&^ftheian! would exposed™ vessel to seizure.
    Appeal from the court of the parish and city ofNew-Orleans.
   Porter, J.

delivered the opinion of the court. This case presenting the same points with that of Patron against the defendants:

It is ordered, adjudged and decreed, that the judgment of the parish court be annulled avoided and reversed, and that 7 7 niere be judgment for the defendants with costs in both courts.


text:
      KENNER & AL. vs. THEIR CREDITORS.

    If on a comparison of the day of acceptance, the day designated for payment, and the tenor of the bill, it appears that the days of grace were included with those of sight, between the day of acceptance and that designated for payment, that day is the peremptory one of payment, and protest on it is legal.
    If the acceptance on it be not dated, parol evidence is admissible, to shew on what day it was made.
    paríson oif c°the day of acceptance, the day designated for payment,and the tenor of the bill, it appears that the days of grace were included with those of sight, between the day of acceptance and that designated for payment, ‘ that day is the peremptory one of payment, and protest on it is legal*

      Appeal from the court of the parish and city of New-Orleans.
    [.For the facts in this case, the reader is referred to 8th Martin’s Reports, n. s. page 36.]
   Porter, J.

delivered the opinion of the . court. 1 he appellants were placed in the . . - . tableau or distribution, as holders of bills of ... the insolvents, to which the same objection . " was made as to those held by the Bank of the J United States, who were also creditors in this concurso. See vol. 8, Martin,, n. s. page 36.

If the acceptance on it be not dated, parol evidence is admissible to show on what day it was made.

In that case, we overruled the objection, and we see no reason to change our opinion.

It is therefore ordered, adjudged and decreed, that the judgment of the parish court be annulled, avoided and reversed, that the appellants be replaced on the tableau, and the appellees pay the costs of this appeal.


text:
      MOORHEAD vs. THOMPSON & AL.

    The capacity of persons sueing as heirs, need not be proved, unless it be specially denied.
    Where an account is called for, the general rule is, the statement furnished cannot be divided.
    Parol confessions of a party, made orally, should be received with great caution.
    Appeal from, the court of probates for the parish of Iberviile.
    The plaintiff, as attorney in fact of the heirs of Nathaniel Scales, jr. brought this suit to recover from Joseph Thompson, curator of the estate of Robert Thompson, deceased, who was curator of the succession of Scales, the sum of thirteen thousand seven dollars and three cents. Erwin, the surety in the curator’s bond, was made a party to the suit, and judgment prayed against him as such. The de~ _ fendants plead payment, and filed with their answer certain accounts and vouchers against qie succession of Scales, in support of their plea. The court below gave judgment against the defendants jointly, for six thousand five hundred and seventy-five dollars and forty-seven cents, from which Thompson appealed.
    Pierce, for appellant.
    1. The court had no jurisdiction over the claim against Erwin.
    2. The judgment is against Thompson,, personally, when he is sued as curator.
    3. The power of attorney is not duly proved.
    Workman, for appellees.
   Porter, J.

delivered the opinion of the court. This action is brought against the curator of the succession of the curator of N. Scales, junior’s estate, to compel a liquidation of the accounts of the succession and payment of the balance due. The surety in the curator’s bond is made a party to the suit, and judgment is prayed against him as such.

The general issue, and payment, were pleaded.

The capacity of persons sueing as heirs need not he proved unless* it be specially denied.

After an examination of the vouchers produced by the defendant in support of his plea of payment, and the other evidence, oral and documentary, the court gave judgment jointly against Thompson and Erwin, for six thousand five hundred and seventy-five dollars and forty-seven cents, with interest from judicial demand.

The correctness of this judgment against Erwin cannot be examined, as he has not appealed from it, and is not before the court.

An objection has been made here, which the pleadings in the court below do not present. It is contended, there is no legal proof of the persons for whom suit is brought being heirs, nor any that the plaintiff is the representative of these heirs.

This objection should have been taken in 7. . . limine lites; it has been repeatedly decided by this court, that a denial of all the facts and ,. . . allegations m a petition, amounted to the general issue, and did not require proof of the representative character of the plaintiff, where suit was brought in that character; that it formed the coniestalio lites, on the merits alone. We decided a few days since, that • such-a plea did not put at issue, the amicable demand, which was one of the allegations of the petition.

There are two questions of law presented by the proceedings, which it is. proper to dispose of, before the merits are gone into.

The first relates to documents offered by the defendant in evidence. A bill of exceptions states, they were rejected. They consist of a letter from the intestate to the house of Kenner &. Co.; a draft on them for two thousand dollars; and a letter from that house to Thompson, the curator. There is also their account current with deceased. We think the judge should have admitted them, and wé are clear the cause should not be re- \ manded because he did not, For, far from establishing any payment by the curator, they prove the reverse, namely, that the account was discharged through other sources.

The second grows out of a position assumed by the defendant, in support of his account. He contends, that if the plaintift relies on it .'to establish the sums received by-defendant, he must admit all the items which it offers in discharge; that it cannot be divided. . The plaintiff insists, the principle in_ voked does not apply to persons who are; bound by law to furnish accounts, agents, &c. And of that opinion is this court. We have already expressed ourselves to the same effect, in the case of Smith vs. Hanrathy, Where the account is called for, the general ruleis, the statement furnished cannot be divided. But where it is the duty of the party producing it to render one, no such consequence follows. The distinction appears to us, to rest on solid grounds. Where the evidence is, or was, equally within the power of both parties, and one of them, instead of procuring it, and furnishing it, chooses to rely on his adversary’s confessions, it is proper he should take them together. He voluntarily makes him a witness. But where business is intrusted to the gestión of an agent, the principal has no means in the greater number of instances, of ascertaining, how it is conducted, except through the account which that agent furnishes. If the latter, in rendering this account, had nothing more to do, but by charging himself with the sums received, to obtain credit for every thing he placed on the other side in discharge, it is evident the legal obligation to render an account, would be of no use to the party for whose benefit the law imposes this obligation. — 5 Martin, n. s. 320.

where an ac-fo™lhe5S general ™’®t3S’ ^™ot be divi"

Proof of confession of a party made orally should be received with grat caution.

On the merits, the principal matter contested between the parties, is the credit due to the witness, who testified in relation to a large portion of the items in the curator’s account. He swears that the father and heir of the deceased, admitted them in his presence to be correct. Proof of confessions of this kind, as we have more than once remarked, is extremely dangerous, and should be received with great caution. But the high respectability of the witness on this occasion, who is no other than the judge of probates of the parish whei-e the succession was opened, forbids the belief that he has stated more or less than the truth. Indeed, it is not pretended he has done so intentionally, but it is said he may be mistaken, and probably is so, because the date of the account is posterior to the time at which the acknowledgment was made. The judge states, that the father acknowledged certain items contained in the account now presented, but it does not follow, those stems may not have been presented in another account previous to the drawing off of that which was filed with the answer. The difference in time is easily accounted fox’, by supposing, a not unfrequent occurrence, of parties making some steps towards a settler . merit, before the regular submission of the accounts to the court of probates.

, The persona? ^curator %0°& f?1 de™lve ow his curator.

The acknowledgment of the father, in his own right, and as attorney for the mother of the deceased, from whom he had authority to compound and settle the debt, binds the parties to this action, unless they show it was made in error.

On an examination of the accounts, we are unable to say the court of probates erred, in the balance it considered due to the plaintiff; but there is error in giving judgment personally against the defendant. He is curator, of the succession of the curator of Scales’ estate, and it is not seen how he is personably liable. The 1007í/¿ article of the Code of Practice authorises judgment, against the curator in his personal capacity, who fails to pay over the balance due to the heir. But that responsibility does not descend upon the representative of the curator. The debt, as it relates to ’ him, is in the same situation with every other, against the estate he administers. J °

The curator to Scales’ estate was appointed under the old Civil Code, which gave a mortgage on his estate from the day of his appointment. C. C. 176, art 135.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates, so far as it relates to the defendant, Joseph Thompson, be annulled, avoided and reversed; and it is further adjudged and decreed, that the plaintiff do recover from the said Joseph Thompson, curator of the estate of Robert Thompson, the sum of six thousand five hundred and seventy-five dollars and forty-seven cents, with interest thereon at five per cent, from judicial demand, the same to be paid by the defendant curator as aforesaid, in due course of administration as a mortgaged debt; and it is further decreed and ordered, that the appellees pay the costs of this appeal, and the defendant and appellant those of the first. instance.


text:
      LEGGETT vs. PEET & AL.

    The defendant causing a copy of the judgment to be served on the plaintiff, is not such an execution of it, as deprives the former of his appeal.
    The plaintiff must make out his title to the instrument sued on, and if the contract by which he acquired it was null and void, it can produce no effect whatever.
    Where no objection is made below, to the admissibility of the evidence, the supreme court considers its effect only.
    Appeal from the court of the first district.

      This was an attachment sued out by the plaintiff, as endorsee, against the defendants as drawers of a bill of exchange. An attorney was appointed to defend the suit, who pleaded, first, that no property had been attatched, and that the court was without jurisdiction; second, the general issue; third, that the plaintiff took the bill after he knew it was dishonored, and with the knowledge that it was given without consideration.
    The facts are substantially these.
    Wm. A. Peet, James A. Peet and Munson S. Peet,.composed a commercial partnership, doing business in New-Orleans, under the firm ofWm. A. Peet Sc Co.and in New-York,under the firm of J. Sc M. Peet Sc Co. On the 30th March, 1826, Wm. A. Peet Sc Co. made and delivered to R. & B. McDevitt, a bill of exchange on J. M. Peet of New-York, ordering the said J. & M. Peet, sixty days after sight, to pay to the said R. Sc B. McDevitt, $6,000 for value received. J. Sc M. Peet refused to accept the bill — no protest was made, and it remained in the-hands of R; 8c B. McDevitt until July, 1827. Previous to that time, R. and B, McDevitt had applied in New-York for the benefit of the insolvent laws, and being opposed by the plaintiff, and other of their creditors on: the ground of fraud, were detained in prison.. While there, they agreed; that if the plaintiff would withdraw his opposition, they would transfer to him the bill of exchange on J. &-M. Peet, which they still held. The plaintiff accordingly withdrew his opposition. R. and B. McDevitt were discharged, and on the 19th of July, 1827, the bill was transferred to the plaintiff. It further appeared, that the bill of exchange was given to R. and B. McDevitt in payment for goods, bought of them by Wm. A. Peet and Co.andthat one Prall had brought suit to set aside the sale of the goods from the McDevitts to Wm. A. Peet and Co., on the ground of collusion and fraud.
    • This suit of Prall, was pending at the trial of this cause,, and the uncertainty of its termination,, was urged as an objection to the plantiff’s recovery in the present action. The cause was tried by a jury, who returned the following verdict. “We the jury, find for the plaintiff a vercict of thirty-one hundred dollars, and interest from the judicial demand; but we find that Wm. T. Prall commenced suit against Wm. A. Peet and others, No. 7662 of this court,, the 10th of July, 1827, if said suit in law, prevents the recovery of the plaintiff we find for . the defendant.” On this verdict, the court decreed as follows. It is ordered that judgment be entered in favour of the plaintiff, upon the verdict of the jury, for the sum of $3,-100, with costs; subject to this condition, viz: that if the suits referred to in the verdict ■of the jury, viz: the suits of Prall vs. Willaim A. Peet and others, and Muller vs. Wm. A. Peet and others now pending, shall be determined against said Peet, then this judgment is to be considered as null, and of no effect, and ■the plaintiff Leggett, in that case, instead of Peet, is to pay the costs of this suit. The plaintiff Leggett, is not to have the benefit of this judgment, before the final decision of the suits aforesaid; this judgment is considered as within the equity of article 2535 of the Civil Code.”
    Prom this judgment the defendants appealed.
    Hennen, for appellants.
    1. The demand of plaintiff is illegal, and without consideration.
    2. The Judge erred in his charge to the jury-.
    •8. The evidence shows that j udgment should be rendered for defendants.

      Prestan, contra.

      1. The judgment is made conditional, and _ .. dependant upon the suit of Prall vs. Peet and others; and Muller vs. Peet and others In the latter suits, the Peets may confess judgment or compromise, and make a collusive defence. The condition is therefore protestative as to the Peets, and null. C. C. 2029.
    2. The jury submitted to the court a mere question of law; whether the suits in their actual state barred plaintiff’s recovery or not; this should have been unconditionally decided.
    3. The Peets cannot oppose to Leggett as assignee of the McDevitts, the danger of eviction, by Prall and Muller, because they knew that danger at the time of giving the bill of exchange. C. C. art. 2533.

    4. The Peets cannot avoid the contract between them and the McDevitts, however fraudulent. C. C. art. 1969.
    5. The actions brought by Prall and Muller, on which the judgment is dependant, are prescribed. C. C. art. 1982.
   Porter, J.

delivered the opinion of the court. This action is brought against the defendants as drawers of a bill of exchange on J. &• ML Peet of New-York. The draft waspayabletoR.&B, McDevitt, whoendors-i • , , • • m • • , ed it to the plaintiff 1 he petition states, that the firms of Peet So Co. in New-Orleans, and J. So M. Peet of New-Yew, were composed of the same persons, viz; of William A. Peet, James A. Peet and Munson S. Peet; and this suit is brought against them all. They are alleged to be absent debtors, and an at-tatchment was prayed for, and granted against their property.

The bill of exchange was dated the 30th of March 1826; and payable sixty days after sight; acceptance was refused by the drawees, J. &. M. Peet. There is no allegation of protest, and notice; but the petition avers, that by reason of the non-acceptance, the plaintiffs have become liable to pay the amount of the draft.

The attorney, appointed by the court to defend the suit, pleaded, first, that no property had been attached, and ^he court was without jurisdiction; second, the general issue; and third, that the plaintiff took the bill after he knew it had been dishonored, and with the knowledge that it was given without consideration .

From the evidence adduced in the cause, it appears that a suit was commenced, and at the time the trial was pending in which one William T. Prall was plaintiff, and Peet & Co. defendants. In that suit the plaintiff charges the sale made to the defendants by tbje payee of the note, now sued, to be false, fraudulent and collusive, and he prays for a rescission of it. The pendency of the demand, and the uncertainty of its termination, was offered as an objection against the plaintiff’s recovery in the present action; the bill of exchange, on which it is instituted, being given in payment of the property which Prall was endeavoring to recover.

The verdict was in the following words: 44 We the jury, find for the plaintiff a verdict of thirty-one hundred dollars, with interest from judicial demand; but we find that William T. Prall commenced suit against Win. A. Peet and others, in this court, the 10th of July, 1827. If said suits in law prevent the recovery by the plaintiff, we find for the defendant.”

On this verdict, the court below ordered as follows. “It is ordered that judgment be entered in favour of the plaintiff upon the verdict of the jury for thirty-one hundred dollars with costs, subject to this condition, viz: that if the suits referred to in the verdict of the jury, viz: the suits of Prall vs. William A. Peet & al. and Muller vs. Peet & al. now pending, shall be determined against said Peet, then this judgment is to be considered as null and of no effect, and the plaintiff, Leg-gett, in that case, instead of Peet, is to pay the costs of the suit. The plaintiff Leggett, is not to have the benefit of this judgment before the final decision of the suits aforesaid. This judgment is considered within the equity of article 2535 of the Civil Code.”

From this judgment the defendants have taken the present appeal. The plaintiff has moved to dismiss it on the ground that the defendants by their acquiescence in the judgment below, have deprived themselves of the right of appealing; but should this motion fail, he insists there is no error in the de-creeof the district court, except to his prejudice. The specification of this error is, that the Judge has made the recovery of the plaintiff conditional, on the event of the suit .pending between Prall & Peet & Co. when it should be absolute.

The defendant ofTheSjudgmentin thebplaintiff °¡s cution°of Tt eXa¡ deprives the former of his appeal

The acquiescence in the judgment, by which the defendants have lost the right to ap-peai5 ¡s supposed to result from their having taken out of the clerk’s office, and procured to be served on the attorney of the plaintiff, a copy of the judgment rendered in the inferior court.

The 567th article of the Code of Practice provides, that the party against whom judgment has been rendered, cannot appeal “if such judgment has been confessed by him, or if he has acquiesced in the same by executing it voluntarily.”

We do not think the act of the defendants in servinS a C(W of tlie judgment on the plaintiff, such an execution of it, as deprives of the right of appeal. The act should jje unequivocal, to authorize a presumption of 17 r r the abandonment of so important a right. And it is not a voluntary execution of the judgment in this case, because no such obligation was imposed on the defendants. It is different from the case of the party, in whose favour judgment is given, proceeding to execute it. The plaintiff who takes the necessary measures for issuing execution, would perhaps be considered as coming within the article of the Code of Practice, because he can perform no other act of voluntary execution.

It is proved that the plaintiff in this case took the bill from the payees for a debt they owed to him; but it is also proved that at the time the trasfer was made, they were in pri-SOH in New-York, and had applied for the benefit of the insolvent laws of that state. The plaintiff had made opposition to their demand, and charged them with fraud, upon which they proposed to assign to him the note now sued on, if he would withdraw his opposition. He did so; the note was transferred, and the endorsers were discharged.

It is objected that this transaction was null and void by the laws ofNew-York, and that no right could be acquired under it. The plaintiff insists that it is a matter entirely between him and the endorsers*, that the maker of the note has nothing to do with it. Of this opinion was the Judge of the court of the first instance, and so charged the jury. The defendants excepted.

If the act of withdrawing the accusation of fraud, in consequence of receiving the note now sued on, was a relative nullity, the Judge belowdid not err; but if itwas anabsolutenullity, he did err. Because the plaintiff must make out his title to the instrument sued on, and if the contract by which he acquired it was null and void, it can produce no effect whatever.

The plaintff must make out his title to the instrument sued on ■and if the contract by which he acquired it was null and void it can produce no effect whatever..

From an examination of the adjudged cases in the State of New-York, where the transaction took place, it appears, that the courts of that state, consider all agreements, such as that proved in this instance, void ah initio. In the case of Wiggins vs. Bush, the note had passed into the hands of a third person; but the defence was sustained, and the case did not require a positive opinion whether the obligation was void or voidable. The reasoning of the court on the subject matter, and in reference to previous decisions, leaves no doubt in our minds of the legal character of the transaction there. Were we, however, to admit, that the laws or jurisprudenc of New-York have not been sufficiently shown to enable us to pronounce positively on the question, the case of the plaintiff would not be strengthened. We should then be obliged to have recourse to our own laws, and in this state there can be no doubt such a contract Is void. The 1887th article of our Code de-dares, that an obligation with an unlawful cause, can have no effect. The 1889th article says, the cause is illicit when it is forbidden by law, or contra bonos mores. We have already expressed our opinion of agreements, such as this, in the case of Perry vs* FriloL In England and our sister states, the protection afforded by the law merchant to the innocent endorsees of negotiable paper, does not extend to instruments which are null and void. But this case is free from any consideration of this kind. The note was endorsed long after it came due. The obligation of the holder to prove that the rights of the transfer are vested in him, is totally in-dependant of the commercial law. Uuntil he does so, he establishes no right in himselfj and he cannot do so by a void contract; because such a contract produces no effect. 2, John. Reports, 386, 4 Ibid 410, 9 Ibid, 295, 12 Ib. 306. La. Code 1887, 1889, 6 Mart, n. s. 217, 3 Ib. 205.

In the state of New-York, there are two statutes in regard to persons unable or unwilling to pay their debts; one is entitled ’“an-act for ¿the relief of debtors, with respect to the imprisonment of their persons;” the . . other, “an act for giving relief in cases of insolvency.” The counsel for the plaintiff has referre(i us t0 several sections of the former law, and argued from them, that as the cession made by the debtor in confinement, was only for the benefit of the creditors who had charged him in execution, there was nothing immoral nor contrary to the policy of the law, in any creditor entering into terms with the person whom he had caused to be imprisoned. It is not necessary for us to say, whether the construction which the counsel has given to the statute be or be not correct. For the evidence shows that the endorsers of the note had applied for the benefit of the act for insolvents. And in looking into it, we find it contains the provisions which are common to laws of this description, and that any stipulation of a creditor to withdraw a charge of fraud against the debtor, would be a violation of its policy, fraudulent, and void. The ninth section of this act, provides for the case of persons in custody, and points out the manner a cession of their estate shall be made. Laws of New York, vol 1,348,460.

Objections have been made to the enquiry into the consideration of the endorsement, because it was not specially pleaded; and it , i ¶ , , , ,, , was also urged, that the record should have been produced of the application of the endorsers, for the benefit of the insolvent law. The contract under which the plaintiff claims may perhaps be shown to be void, under the general issue, and the corrupt agreement in this case being matter en pais, it is questionable whether it was necessary to produce the record to which it referred. The deposition of a witness, who proved the facts, was taken some time before the trial, and subject to all legal exceptions. But when the case was before the jury, no objection was made to the testimony by which the same matters were established. The ease therefore must be decided on the legal effect of the evidence given.

Where no objection is made below to the admissibility of the evidence, the supreme court considers its effect only.

We think the contract, under which the plaintiff claims to stand in the right of the payees of the note, void, and that he cannot maintain an action on it.

It is therefore ordered, , adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that there be judgment for defendants with costs in both courts.


author: Mathews, J.

text:
      SAUL vs. HIS CREDITORS.

    The sale of stock, by the syndics of an insolvent w]j0 was koun¿ to return it, changes the nature of his obligation into one for the payment of money, puts the parties in the precise situation of creditor and debtor, and gives rise to compensation.
    Appeal from the court of the first district.
    The Bank of Orleans, filed their opposition to the tableau of the irisolvent, and contended that from the sum of seven thousand six hundred and seventy-two dollars and twenty-five cents, allowed to the estate of Morgan, there ought to be deducted six thousand eight hundred dollars, being the amount which was to be paid to Astor, of New-York, by the syndics of Saul, on an accommodation note of Morgan’s endorsed by Saul, and for which no consideration had been received.
    It appeared, that the amount for which the syndics of Morgan had been placed on the tableau, was produced from the sale of stock belonging to Morgan, which remained in the possession of Saúl at the time of his failure, and was sold by his syndics as part of his estate. The only question in the case was, whether the syndics of Saul had a right to retain the proceeds of the stock, on account of the payment and liability to Astor.
    The court below sustained the opposition, and the syndics of Morgan appealed.

      Eustis, for appellant.

      Fierce and Slidell, for appellee.
   Mathews, J.

delivered the opinion of the court. The present opposition to the claim of Morgan’s syndics, involves a question of compensation or set-off By a decision of this court, found in 7 Mart. Rep. n.s. p. 601, it was settled, that the syndics of Morgan’s estate had a right to recover from the estate of Saul, a certain amount of stock of the Bank of Orleans, which was intended to have been given by Saul to Morgan in exchange for a similar amount transferred from the latter to the former, but not having been delivered to Morgan, remained as a part of Saul’s estate at the time of his failure,and as such, was sold by his syndics. It is not contended that this sale was illegal, but that the price for which it was sold is due to Morgan’s estate. It seems, from the opposition, now filed on the part of the Bank of Orleans,, that a sum of seven thousand six hundred and seventy-two dollars and twenty-five cents was allowed to the estate of B. Morgan, from which the in- . ° . . . , tervenmg party claims a deduction to the amount of six thousand eight hundred dollars, j,ejng a sura pa£(3 0r to be paid by Saul’s syn-dics, on account of his endorsement on an accommodation noteofMorgan’s, held by John Astor, &c. By the sale of the stock, the estate of Saul became debtor to that of Mor§an f°r ÍÍS Price 5 and ty the Payment of Mol’-gan’s debt; his estate is debtor to Saul’s, pro tanto. This appears to us to make a case in which compensation legally takes place. The sale of the stock by the syndics of Saul’s estate, changed the nature of the obligation to return the thing into one for the payment of money, and puts the parties in the precise situation of creditor and debtor.

by ethe syndics of Zn who was bound to re-ÍesVe natureaof t“s onegafórnth¡ neylputs the par-sitimtion^cred! and gives^rise°to compensation.

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


author: Mathews J.

text:
      SHIFF vs. INSURANCE COMPANY.

    The insurers are liable for all the labour and expense attendant upon an accident which forces the vessel back into port, but not for a claim for commission on the whole, amount of the cargo.

      Appeal from the parish court for the parish and city of New-Orleans.
    The brig Mechanic, insured by the defendants on a voyage from New-Orleans to Philadelphia, sustained an inj ury in descending the river Mississippi, and was towed back to the city to be repaired. A genera average was made up in which a commission of two and a half per cent, was charged on the amount of the cargo shipped by the plaintiff, and to recover which, (the defendants having refused payment) the present action was brought. " •
    Lewis, a witness for the plaintiff, deposed that he had been a merchant for thirty years, and during that time had made up between three and four hundred general averages. That it was his constant custom to charge two and a half per cent, on the whole amount of the cargo, in cases similar to the present. That he had known that charge paid in many instances by an insurance company in New-Orleans, of which he had been the secretary, and that the same charge had been allowed and paid in London and in New-York. Several other witnesses testified that the charge was a customary one, and had been allowed and paid by different Insurance offices in the United States. The defendants introduced one witness only, who stated that he had been a merchant for twenty-five years, and had never known a charge like the present ma¿ejn the United States, and further, that he was acquainted with the custom in Great Britain, and that payment of such a charge had been invariably refused by the offices in London and Liverpool. There was judgment for the defendants and the plaintiff appealed.

      Pierce, for appellant.
    The judgment of the court below is against the evidence and the law.

      Morse, for appellee.
   Mathews J.

delivered the opinion of the court. This suit is brought in consequence of the Insurance Company having refused to pay to the plaintiff an item in an account of general average, by which they were charged a commission of two and a half per cent, on the cargo of the brig Mechanic, insured from New-Orleans to Philadelphia. The judgment of the court below is in favour of the defendants, from which the plaintiff appealed.

It appears from the evidence of the case that the vessel and cargo were both insured. She suffered an injury in descending the river , . , , Mississippi, and it became necessary to tow her back to the port again to be repaired. All the charges for expenses actually incurred and services performed in towing the brig from the place where the accident happened to New-Orleans; landing and restowing cargo ; in storing it when taken from the vessel &c. were admitted by the defendants as correct, and payment was offered, with the exception of the commission charged on the whole value of the cargo.

The plaintiff insists that he has aright to claim and recover this commission, according to a general custom of merchants in relation to goods placed in a situation similar to that, in which the cargo of the Mechanic was found after her return &c.

No adjudged case, or commentary on the law merchant, has been adduced, showing the existence of such a custom; but an attempt is made in the present case to prove its existence by the testimony of factors and brokers, and officers or agents of Insurance Companies, and other persons in several states of the Union. This testimony is contradictory, and does not establish a general average or custom in relation to the plaintiff’s claim. His . „ _ _ right to recover, must theriore, depend on a contract either express or implied on account 0f services rendered, or risque and responsibility. But it is not supported in either of these ways. Over and above the commission claimed, full wagesseemed to have been charged for unloading and re-loading the vessel; also, expenses for storage, cooperage and every item of expense that can possibly be imagined. On account of services, then the commisson cannot be justly allowed. And it is equally inadmissible on the score of risque or responsibility, for the vessel and cargo remained at the risque of the insurers from the time she was first laden, until the completion of the voyage, insured according to the terms of the policy. They were the persons principally concerned in the safety of the brig and cargo, whose interest was to be secured by all the labour and expense which became necessary after the occurrence of the accident, which forced the vessel again into port; and - - . . for these they are justly responsible, but not - . . . - . . . tor the claim of a commission on the whole amount oí cargo. This claim has no just or reasonable grounds of support.

are Se “ftr ail pense attendant which forces the vessel back into port, but not for a claim for commission on the he eargo.

It is therefore ordered, adjudged and ’ . decreed, that the judgment of the parish court be affirmed with costs.


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      BACK vs. MEEKS.

    With the knowledge of redhibitory vices in a slave, the attempt to impose him on another as free from them is fraudulent.
    A defendant is liable under his warranty, whether the redhibitory defects be known to him or not.
    Appeal from the parish court for the parish and city of New-Orleans.
    This was a redhibitory action to rescind the sale of a slave.
    It appeared from the testimony that the slave was sold to the defendant without warranty against any vice, malady or defect, and that the defendant afterwards sold him to the plaintiff, warranted free from the vices prescribed by law. It further appeared, that the slave was in the habit of running away, both prior and subsequent to the sale to the plaintiff. There was judgment for the plaintiff* and the defendant appealed.

      Eustis, for appellant. — Canon, for appellee.
   Mathews, J.

delivered the opinion of the court. This is a redhibitory action in which the plaintiff claims the recission of a sale made to him by the defendant of a certain slave named Andrew, and restitution of the price on account of the vice of running away, as alleged in the petition. The judgment of the court below, is in favour of the former, from which the latter appealed.

With the knowledge of redhibí-tory vices in a ■slave the attempt to impose him on another as free ■fraudulent. ’

The only question in the case is one of fact, i. e. whether the testimony establishes the existence of the vice as alleged ?

This slave was sold as a runaway and a thief, to the person who sold him to the defendant. And in the sale to the latter, his vendor refused to warrant against any vices, maladies or defects whatever.

Notwithstandingtheseciroumstances,which may be presumed to have been known by the J 1 . J defendant, he sold the slave in question to the plaintiff with full warranty With this knowl- ... edge of his vices, the attempt to impose him on another as free from them, was fraudulent.

The testimony of the keeper of the police jail, shows this slave was frequently confined as a runaway, whilst in the possession of two distinct proprietors, who owned him previous to the defendant, and that he was confined since by the plaintiff, amongst the slaves who work in chains. The whole evidence of the cause taken together, leaves no doubt on our minds of the existence of the redhibitory vice, as alleged in the petition, and of its being known by the vendor at the time of sale. But whether thus known or not, the plaintiff must succeed in his action, as the defendant is answerable under his warranty.

A defendant is liable under his warranty, whether the redhibito-ry defects be known to him or not.

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


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      HITCHCOCK vs. HARRIS.

    Evidence of the receipt of a sum of money for a slave, and a promise to warrant the title, is sufficient evidence of a sale, and a document which c.ontains evidence of these two facts, is a bill of sale, and admissible evidence.
    Whether parol evidence can be received of a promise to warrant the soundness of a slave? Quere?
    Appeal from the court of the first district.
    This suit was brought to recover back the price of two slaves, purchased with twelve others, by the plaintiff from the defendant, and which the petition alleged were unsound at the time of the sale, to the knowledge of the defendant. The general issue was pleaded, and on the trial of the cause the plaintiff offered in evidence, as a sale of the slaves, a receipt of the defendant for the price, and containing a pro-m5se to warrant and defend the title, and offered a witness to prove the hand writing of the defendant. To the introduction of this instrument the counsel for the defendant objected, on the ground that it had not the form or requisites of a sale, and that parol evidence of the defendant’s hand writing could not be received. The objection was overruled, and the witness, on being sworn, testified, that he presented the receipt to the defendant, who acknowledged his signature, and said that he had warranted the negroes therein mentioned to be sound, and they were so. •
    There was judgment for the plaintiff and the defendant appealed.

      Grymes and Me Caleb, for appellant,
    contended:
    1. The bill of exceptions was well taken, at least in part, the j udge most assuredly erred in permitting parol evidence to prove that defendant confessed he had warranted the slaves to be sound, when the written instrument shows that he warranted the title only. 3 Starkie, 1007, note 1; 1 Carolina Law Repository 263; 1 ^Murphy, 426.
    2. Even admitting that parol evidence could be received, yet the court erred in not taking the whole admission together and undivided. The witness deposed, viz: “Defendant said he warranted the negroes in said document to be sound, and they were so» The admission that proved the warranty as to soundness, proved the soundness itself.
    JEustis, for appellee.
   Martin, J.

delivered the opinion of the court. The plaintiff seeks to recover the price of two slaves, sold to him by the defendant, and damages, on an allegation, that at the time of the sale, they were, in the knowledge of the defendant, absolutely unsound, and of no value; laboring under a pulmonary disease, from which they since died. The general issue was pleaded. The plaintiffhad judgment and the defendant appealed.

His counsel has called our attention to a bill of exceptions taken to the opinion of the court, who admitted in evidence an instrument of writing, offered as a bill of sale, and received parol proof of the defendant s hand .. l , writing.

Evidence of the receipt of a sura of money for a slave, and a pro-raise to warrant the title, is sufficient evidence of a sale, and a document which contains evidence of these two facts, is a bill of sale, and ad-snissibleevidence..

evidence^can^be misc'To "warrant **B¿vc?dQ»e'reí

The document objected to, was a mere receipt of the price of the slaves, concluding with a promise to warrant and defend the title.

It is very clear that evidence of the receipt of a sum of money for a slave, and the * . . . promise to warrant the title to him, is a sul-_ “ ficient evidenceof a sale, and that the document which contains evidence of these two facts, is a bill of sale, and in the present case the court did not err in receiving the paper _ ... in evidence,, nor in admitting testimonial proof of the signature of the vendor. 3 Martin, n. s. 336.

On the merits, the evidence was partly oral and partly written, and, as is often the case,, somewhat contradictory, and we are unable to say the inferior judge erred in the conclusion to which he arrived.

The appellant’s counsel has, however, complained thafparol evidence was receiv-a promise to warrant the soundness of the slaves: this evidence however was received without any objection on his part.

A charge of forty dollars for medical attendance is also said to be improperly allowed, and it is said the doctor deposed he made no charge for these services. The testimony shows, the doctor said iie made no particular charge for these two slaves, having attended them with others of the plaintiff — but he added, had he made a particular charge, he would have asked forty dollars for them. We conclude the judge did not err in taking it for granted that the plaintiff was charged for these negroes on the general bill he paid for his negroes» including these.

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


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      WILLIAMS vs. BETHANY.

    The plea of res judicata, like that of prescription, may be plead at any stage of the cause-
    In a suit for holding over after the expiration of a lease, an offer ofpossession must be specially pleaded.
    The deposition of a witness taken on, a former trial for a previous year’s rent, is proper evidence on a trial between the same parties for the rent of a subsequent year.
    This was an action for rent, and damages done to the premises leased. After the jury had been sworn, the defendant plead res judi- ^ that part of the petition which claimed damages. To the admission of this plea, the plaintiff objected, on the ground, that being m the nature of payment for damages, it was presented too late.
    The plaintiff having made an ineffectual attempt to procure the attendance of two witnesses, Vaughn and Cooney, offered to read their depositions taken down by the clerk upon the same contract now sued upon, and contained in the record of the suit, which the defendant introduced as res judicata. The defendant objected to their depositions being read, on the ground that they had not been taken in the present action. There was a verdict and judgment for the defendant, and the plaintiff appealed.

      Watts, for appellant.
    1. The plea of res judicata came too late; it changed the issue and the cause was on trial.
    2. The evidence of Vaughn and Cooney was improperly rejected.
    3. The evidence of offer of possession was improperly admitted.
    Andrews, contra,

      Bes Judicata is a peremptory exception, founded in law, and can be plead at any stage of the cause. C. P.345, 346.
   Martin, J.

• • p delivered the opinion of the court. This is an action on a written lease for rent and dilapidation. The defendant craved oyer and time to plead. After oyer, but before an answer was filed, a jury was impanneled, and the plea of res judicata to the dilapidation was filed. The defendants had averdietand judgment, and the plaintiff appealed.

His counsel has urged that the plea ought not to have been received: improper evidence was received and properly rejected. The judge gave an erroneous charge, and judgment ought to have been given for the rent.

It has been urged that the plea came too late, as the cause was on trial, and th® issue was thereby changed. Code of Practice, 419, 420.

The appellee’s counsel has urged that the plea of res judicata is a peremptory exception, founded on law, and is pleadable at any time. lb. 345, 346.

The plea ofre* judicata, like that of prescription, may be plead at any stage of the cause.

The articles of the Code relied on by the appellant’s counsel, provides that the petition and answer may be amended after issue joined on leave; provided the plaintiff’s amendments does not alter the substance of the demand, and the defendant’s amendment is subjected to the same rule; and he may add new exceptions, not of the dilatory kind.

The articles filed by the appellee’s counsel, provide, that peremptory exceptions, founded on matter of law, may be pleaded in every stage of the action previous to the definitive judgment; and such exceptions are said to be these, which, without going into the merits of the cause, show that the plaintiff cannot maintain his action, because it is either prescribed, or destroyed, or extinguished.

The exception of res judicata, like that of r. J prescription, is one which does not go into r the merits of the cause, but shows that the plaintiff cannot maintain his action, because r • it is destroyed or extinguished by a judgment. Such an exception is timely at any stage of the. action before definitive judgment, and may therefore be pleaded after the trial has begun. It is no objection to it, that it changes the nature of the defence, . ■ , ..... . because such an objection lies only to exceptions on matters of fact, not to those on matters of law.

In «• suit fo* holding over after the e*Pira-tión of a lease, an offer of pos-specially pleaded

II. Evidence was given of an offer of surrendering possession, and the appellant complains that this was improperly permitted, as perfectly foreign to the issue, which was res judicata vcl non.

The appellee’s counsel has replied the 1 evidence was proper, as the plaintiff claimed damages for the defendant’s holding, even after the expiration of the lease.

As the defendant did not plead such an offer, without the plaintiff was prepared to contradict it, the evidence was improperly admitted.

III. Vaughn being out of the state, and process of attachment against Cooney having been issued (on his failing to attend on a subpoena) without success, this testimony taken down in the suit between the same parties, (in which the judgment relied on in the plea of res judicata was given,) was rejected.

The appellant’s counsel has referred us to the testimony of these witnesses, which comes up with the record, and contended it was properly rejected, as thoy relate to the plaintiff’s demand for the first year’s rent of the premises.

The deposition of a witness taken on a former trial for a previous year’s rent, is proper evidence on a trial between the same parties for the rent of a subsequent year.

In a suit for holding over at the expiration of the lease, rent and dilapidation, many facts are proper evidence, which were proven on the claim of the first year’s rent. The testimony was given in the presence of both parties, each had the opportunity of cross examination. We think the testimony ought to have been admitted. This case does not differ from that of Hennen vs. Monroe, which was for contribution, on a general average,for books of the plaintiff’s in the defendant’s vessel; in which testimony in a former suit between the same parties for injury to the plaintiff’s books, through the defendant’s neglect was admitted.

IV. We have not examined the judge’s charge; the appellee’s counsel having shown that it was made contrary to the wishes of bis client, who alone excepted to it.

V. As the conclusion we have come to, on the third point renders it necessary to remand the case, we have not examined whether judgment ought to have been given for the second year’s rent.

It is therefore ordered, adjudged and de-ereed, that the judgment of the district court be annulled,avoided and reversed, the verdict set aside and the case remanded for a new trial, with directions to the judge to reject evidence of the offer of surrender of possession, and to admit the testimony of Vaughan and Cooney, the appellee paying costs in this court.