text:
    Thomas L. Clarke v. James S. Peak.
    The qualities of mortgagee and owner of the same thing cannot exist in the same person at the same time.
    Although the purchase of property by the mortgagee extinguishes the mortgage, yot there is nothing illegal in the insertion of a condition in the sale, by which it is arranged that the price is not to be collected until the mortgage has been satisfied.
    The courts of this State are vested with an equitable jurisdiction in cases where the laws aro silont.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Hunton & Miller, for plaintiff and appellant.

      John M. Chilton, for defendant.
   Buchanan, J.

This suit is brought upon a note held by plaintiff as endorsee, which reads as follows :

“ On or before the first day of January, 1852,1 promise to pay to James Clarice or order, seven thousand four hundred and twenty dollars, being the third and last payment on negroes bought of him. This note is not to be collected until said Clarice complies or satisfies a mortgage I hold on the above named negroes, given by James Clarice and William. Clarke, tüis the seventeenth day of April, 1849. James S. Peak.”
(Endorsed) “ Pay Thomas L. Clarice, or order.
James Clarke.”

Defendant pleads, that the suspensive condition”contained in said note has not been fulfilled, and that this suit is premature.

The mortgage mentioned in the body of the note was granted on a portion of the identical negroes sold by James Clarke to the defendant. The mortgage is in evidence. It has date April 15th, 1840 — nine years previous to the sale and note, — and recites as follows : “ Whereas James Clarice and William A. Clarke have purchased from James S. Peak two hundred shares of stock in the Real Estate Bank of the State of Arkansas, and have executed a mortgage in favor of the bank, to secure the said stock, upon property of which the title is in part imperfect, by reason whereof the bank has refused to release Peak from his responsibilities as stockholder; and whereas Peak has authorized the Clarkes to nse his credit in bank as stockholder for the purpose of drawing money from the said bank on the said two hundred shares of stock — the said James and William Clarke sell to said Peak twenty male and female slaves named, conditioned that if the said Clarices shall well and truly secure, save harmless, and indemnify said Peak against all and every responsibility, liability, risk and charge which said Peak may have incurred in any wise, or may Hereafter incur in any manner, by reason of the drawing of any money by said Clarkes out of said Real Estate Bank, on said stock so purchased by said Clarkes from said Peak, before said Real Estate Bank have acted on, received and accepted the said mortgage so made by said Clarices to said Real Estate Bank, and before the said bank shall have released the said Peak from responsibility as stockholder aforesaid; and if the bank shall receive the mortgage given by the Clarkes, and shall release Peak from liability upon the said stock, then this mortgage to be void.

It is proved that the Clarkes have not drawn any money from the Real Estate Bank upon the two hundred shares of stock in question. This is proved by the Receiver of the bank, a witness of defendant, examined under commission February llth, 1859, nineteen years after the mortgage, ten years after the date, and seven years after the maturity of the note.

It is proved that the bank has never accepted the Clarkes as stockholders in place of Peak, for the 200 shares.

And it is not proved that Peak has been subjected to any responsibility or liability by reason of his subscription of said 200 shares of stock.

The argument of plaintiff’s counsel is :

I. That the mortgage of 15th April, 1840, is merged in the sale of llth April, 1849.

II. The condition of the mortgage is fulfilled ; Clarke having drawn no money upon his stock, and the bank being in liquidation, he can draw none.

III. That the sale of stock by Peak to Clarke is void for want of the consent of the bank to the transfer — an indispensable prerequisite by the charter of the bank, 31st section, and its by-laws, sections 9,10,18 and 19.

I. On the first point. It is no doubt correct doctrine, that the quality of mortgagee and owner of the same thing cannot exist in the samo person at the same time. One of the modes of extinguishment of a mortgage recognized by law, is the acquisition by the mortgagee of the ownership of the thing mortgaged. Civil Code, Art. 3314.

But the defence of the appellee does not rest so much upon a mortgage as upon a suspensive condition inserted in the sale, by consent of parties, and which took the place of the pre-existing mortgage security. We perceive nothing illegal in this arrangement. The mortgage is a necessary part of the defendant’s case merely to explain tfie stipulations in the agreement to sell and in the note sued upon.

II. The counsel of plaintiff and of defendant, in argument, give different interpretations to the conditions of the mortgage of the 15th, April, 1840. According to the former, the condition is satisfied by a compliance with either of the clauses of that condition which ho treats as alternative; while the latter contends that they are cumulative, and that it is not only incumbent on plaintiff to show, (as he has done,) that the Clarkes have not drawn any money from bank on the credit of the stock in question, but that Peak has been released from all liability as a stockholder.

We are not prepared to adopt the construction of the plaintiff’s counsel. It appears to us clearly to have been in the contemplation of the parties, not only that Peak should not be made liable for any sums drawn by Clarke upon the stock while standing in Peak’s name, (as was authorized by the agreement between the parties, of the 14th March, 1840,) but that the transfer of stock was to be consummated by the action of the Board of Directors approving the securities for the 200 shares of stock, offered by the Clarkes, and the consequent substitution of the Clarkes for Peak upon the books of the bank, as holder of those shares of the capital stock; the effect of which would have been, in the language of section 9 of the by-laws of the bank, “ a discharge and release, both in person and property, from all (Peak’s) liability by virtue of his previous ownership of stock.”

But, at the same time that this construction appears to be the true one, the evidence shows us that a perfect transfer of this stock, which would operate as above stated, has become an impossibility without any fault of plaintiff. For the 31st section of the Charter of the Real Estate Bank of the State of Arkansas provides as follows : “And whenever application shall be made by a stockholder, to transfer his stock and be discharged, such transfer and discharge may take place upon the new stockholder’s furnishing mortgage to the satisfaction of .at least a majority of the Directors; and in all such cases of transfer and discharge, the vote shall be taken by yeas and nays.” '

Now, the record shows, that the Real Estate Bank of Arkansas was in the hands of a Receiver, and in liquidation, for several years previous to the institution of this suit. There is not, therefore, nor has there been for years past, a Board of Directors to act upon Peak’s application to transfer his stock and to sanction the mortgage security offered by the proposed transferree.

The position of plaintiff is thus seen to be a hard one. The defendant is in the possession and enjoyment of valuable and productive property, sold to him by plaintiff, of which the price is many years past due. The condition attached to the payment of that price is, in substance, a transfer of bank stock, which has become, by a change in the administration of the bank, a legal impossibility. Nemo tenetur ad impossibile. Yet, the very condition of the Bank, which has created this impossibility, makes it probable that the liability of Peak, as subscriber of the 200 shares of bank stock in question, may be attended with pecuniary loss to him. We have no doubt that the equitable jurisdiction of the courts of the State of Arkansas would afford a relief and remedy to the parties. And the courts of this State are also vested with an equitable jurisdiction in cases where the law is silent. O. P. Art. 130. Under the prayer for general relief contained in plaintiff’s petition, we will give plaintiff judgment; only to be executed, however, upon his tendering security to defendant against the contingency of defendant’s being made liable upon his subscription of 200 shares of stock sold to plaintiff. The parties have themselves fixed a measure of this contingent liability, to-wit, seven thousand dollars.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that plaintiff recover of defendant seven thousand dollars, with interest at the rate of six per cent, per annum from April 17th, 1849, until paid, and costs in both courts; and it is further decreed, that execution of this judgment be stayed until plaintiff shall have filed in court a bond with security to the satisfaction of defendant, or of the Fourth District Court of New Orleans, in the penal sum of seven thousand dollars, conditioned to save the defendant harmless from liability under and by virtue of his subscription to 200 shares of the capital stock of the Real Estate Bank of the State of Arkansas, sold by him to plaintiff on the 17th day of April, 1849, as per agreement filed herein.

Land, J., absent.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    George W. Hynson & Co. v. Oliver P. Wheeler and Owners of Ship John Sidney.
    A demand for a certain sum of. money, as commission on an amount collected "by plaintiff for defendant, gives the latter the right to reconvene for the sum of money in plaintiff’s hands, on which he charges his commission.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Durant & Honor, for plaintiff and appellant.

      Benjamin, Bradford & Finney, for defendant.
   Merrick, C. J.

The plaintiffs, ship agents in New Orleans, commenced a suit by attachment against the defendants, for the sum of $1034 55, for disbursements on account of said ship. One of the items in the account is a charge of $150, “ commission on amount of charter from New York $3000, at five per cent.”

The defendants reconvened and claimed the sum of $3000, the amount due upon the charter of the ship collected by the plaintiffs.

Plaintiffs excepted to the reconventional demand, on the ground that it was not necessarily connected with, and incidental to plaintiffs’ demand. But the exception was overruled, and they thereupon answered the demand in reconvention, and pleaded in reconvention to the reconvention.

The defendants had judgment for $19 93, and plaintiffs appeal. They present the question to this court, whether there ivas not error in admitting the reconventional demand? And further, whether the court did not err in its conclusions on the facts ?

On the first of these questions, it appears to us to be clear, that the demand of one hundred and fifty dollars as commissions on $3000 collected by plaintiffs for defendants on the charter party, gives the latter the right to reconvene for the very sum of money in plaintiffs' hands, on which he charges his commissions. The reconventional demand is necessarily connected with, and incidental to plaintiffs’ demand, in the sense of Art. 315 of the Code of Practice. It is necessarily connected with plaintiffs’ demand, and incidental to it, because it presents the question whether plaintiff can retain the principal sum, out of which his commissions should be deducted, and recover the commissions besides.

On the merits, it is shown that the charterer selected his own stevedore, and under the testimony, we cannot say that the District Judge erred in his conclusions on the facts of the case.

Judgment affirmed.

Land, J., absent.


text:
    J. McConnell, Administrator, et al. v. City of New Orleans, Yeatman, Woods & Co., et al.
    Where parties undertake to disturb third persons in the possession of real estate acquired at public sale, at a time when the pretensions of such parties wore either unknown or considered as wanting in validity — they must make their case legally certain.
    A party seeking to recover property, from a third person, as belonging to the community, should establish the marriage as conclusively as any other fact.
    The suppositions and beliefs of a witness arc not admissible in evidence; but the witness may state the facts from which such inference may bo drawn by the court.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Duncan & McConnell, for plaintiffs.

      Elmore & King, for defendants and appellants.
   Merrick, C. J.

This is a petitory action, brought to recover an undivided half of a certain portion of the batture iu this city.

“ The plaintiffs set forth in their petition, that they represent the estate of Mary Ann Wall, whose succession has been duly opened in the Second District Court; that she was the first wife of John R, Pulley; that, at this remote period, they are unable to state or ascertain with certainty, when or where the marriage was celebrated, but believe it took place in New Orleans, six or seven years prior to the year 1832, when Mrs. Pulley died ; that there were (our children born of this marriage, two of whom died in infancy, the other two were the petitioners, Elizabeth, wife of L. P. B. Lazier, and Josephine, wife of Elijah Cox ; that a community of acquests and gains subsisted between the-said spouses; that, during the existence of the said community, to-wit: on the 5th February, 1830, the said John R. Pulley, as the head of said community, by authentic act, passed before G. R. Stringer, notary, purchased from the late John McBonogh a certain square of ground, then fronting on the Mississippi river, and bounded on the other three sides by New Levee, Benjamin and Suzette streets, and better known as the 1 Pulley Square,’ that a large and valuable accretion has formed in front of said square, one undivided half of which the petitioners seek to recover by this action.”

“ The defendants to this suit were—

1. The Oity of New Orleans.

2. John Bird.

3. Yeatman, Woods & Co.

Of these defendants the last named only are before this court. The city has not appealed from the judgment against her, and the plaintiffs have acquiesced in the judgment, which maintained the plea of prescription filed by John Bird. The only subject for inquiry, therefore, is the defence of Yeatman, Woods & Co,” the appellants against whom judgment was rendered.

They answer plaintiffs’ petition at great length. We do not deem it important to consider any other issue, presented by their answer, except the denial of the alleged marriage between Mary Annn Wall and John R. Pulley deceased. If that marriage has not been satisfactorily proven plaintiffs cannot recover. If it be established we can then proceed to the consideration of the other issues.

The plaintiffs undertake to disturb third persons in the possession of real estate acquired at public sale at a time when plaintiffs’ pretensions were either unknown or considered as wanting in validity. They must, therefore, make their case legally certain.

They allege the marriage to have taken place in this city, yet they produce no written or oral proof that such marriage was actually solemnized. They rely, exclusively, upon circumstantial evidence.

The weight of this circumstantial evidence will be best considered by observing what was required by the laws in force at the supposed period of said marriage.

If the inscription upon the tomb-stone be taken as the evidence of the age of Mary Ann Wall, she was a minor at that time, and also when two of the plaintiffs were born.

The marriage could not take place without the consent of the father and mother, if living, or of a family meeting, or curator. 2 Moreau, 5 and 6. O. 0. 99.

And this consent was to be given or refused (prior to 1825,) in the presence of the parish judge. If consent were given, the law required it to be evidenced by an act signed in the presence of the parish judge, and two witnesses. 2 Moreau, p. 5 and 6. Old Code, p. 24, Art. 2.

If parties were of age, proof was required of that fact, and the same was registered. 2 Moreau, p. 8. O. 0.100.

Then if the parties were minors the proposed marriage was required to be published, if made prior to the promulgation of the code of 1825.

Next, the parish judge issued a license authorizing the celebration of the marriage. 2 Moreau, 8. C. 0.103. If tlie marriage was after 1825 a bond was required of the intended husband, conditioned that there were no impediments to the marriage. 0. 0.105.

The marriage itself was required to be celebrated in the parish of the domicil of one of the parties, in the presence of three witnesses, of the age of majority, and and by the parish judge, a justice of the peace, a priest, or minister of a religious sect, domiciled in one of the parishes of this State. And if the marriage took place after the promulgation of the code of 1825, an act of the celebration of marriage was required to bo made and signed by the witnesses, and the person celebrating the marriage. 0. 0.107.

Not a trace of any of these formalities has been discovered, neither has it been shown that the records of the parish judge have either been lost or destroyed.

The plaintiffs start out, therefore, with the presumption against them which arises from Art. 88, C. 0., which says, such marriages only are recognized by law, as are contracted and solemnized according to the rules it prescribes.

They propose to overcome this presumption by the production of five witnesses, a letter and the inscription on the tomb of the deceased.

The five witnesses all concur in stating that John R. Pulley and Mary Ann Wall lived together in the same house up to the time of her death, that they had during this period four children, two of whom are the plaintiffs in interest in this suit, and so far as these witnesses observed, they, John R. Pulley and Mary Ann Wall, lived together as husband and wife, and Pulley treated their children as his children.

The witness Horace Blakely says that Pulley spoke of Mary Ann Wall as his wife, and as far as he knew she was so considered, and she was so received with some of her neighbors. He, witness, made the inscription on the tomb-stone under the direction of John R. Pulley. H. S. Dewes says, Pulley regretted the loss of Mrs. Pulley, and in speaking of her he called her Mrs. Pulley.

The witness John Mitchell used to go to John R. Pulley’s house frequently in 1824 or 1825, but he is not precise as to the date. He considered Pulley as a married man. Mrs. Pulley was buried in the Protestant Graveyard in this city, with two of her children in the same tomb. Pulley and wife kept house together as man and wife two or three years previous to her death. The oldest child at that time was 14 or 15 years of age. There were four living. Mrs. Pulley was 30 or 35 years of age at the time he visited the house. Pulley introduced his wife to witness with these words : “ This is my wife, and these are my children.”

Charles Harrod says, he first became acquainted with John R. Pulley in 1820 ; supposed him to be a married man at that time. Saw him, and the lady he supposed to be his wife, crossing the lake frequently between 1820 and 1825, and again in 1830.

In 1830 the children appeared to be from 5 to 8 years of age. He thinks when he first saw Mrs. Pulley she was thirty years of age. He supposed they were married from the manner in which Pulley treated Mrs. Pulley and the children on the steamboat in crossing the lake.

C. II. Crating says, he was acquainted with Pulley from 1829 ; lived in his yard ; rented a house from him for two years. Witness cannot say whether he was married or not. Pulley invited witness to his house, and introduced him to Mrs. Pulley by saying : “ This is'my wife and these are my two daughters.” He, witness, had no reason to doubt but what she was his wife. When he first knew the family in 1829, the oldest child was about three and the other two years old ; there was about a year and a half difference in their ages : knew this because the children used to come to witness nearly every day. The mother of Mary Ann Wall lived in Hunter street — not with Pulley — witness did not talk with her much.”

The deposition of M. Wakeland was taken by defendants, and not being-sufficiently favorable was used by the plaintiffs. He lived with John R. Pulley three years; became acquainted with him in 1831, and was living with him when Mary Ann Wall died in 1832. She lived with Pulley as his wife and was called by his name. She was living with him in 1828 when witness visited New Orleans and boarded with him for a few days. They passed as man and wife. He called her Mrs. Pulley. The youngest child, Josephine, was born in 1830 or 1831, the other, Elizabeth, was one or two years older. The parties lived together as man and wife, and she was buried as Mrs. Pulley, and the family went into mourning and the tomb-stone was inscribed Mrs. Pulley. As far as witness knew, the general understanding, or public reputation upon the subject of the relation existing between them was, that they were not married. In another place he says they lived together as man and wife, and he would not have suspected any thing to the contrary than that they were*lawfully married, had he not heard before he went to New Orleans to live that they were not married, and having frequently heard from others there that they were not.

The following is the letter relied upon by plaintiffs :

New Orleans, 19th June, 1832.
Dear Mary — I have received a letter from Captain E., which informs me you have had difficulty with Betsey. I have sent papers to Mr. Cambell, which I think will set her at liberty ; if not, I shall visit Mobile in a day or two. If you feel well enough, I think you and children had better return by the schr. Splendid. Captain E. will furnish you with any necessaries you may want.
Yours, J. R. P.
Euclosed you have $50.
Mrs. Mary Ann Pulley.
Superscription — “ Mrs. Mary Ann Pulley, Mobile, A.”
The inscription on the tomb was :
MARY ANN PULLEY,
Died July 7, 1832.
Aged 21 ys.
J. P. ag-. 7 ds. &
R. P. ag. 7 mó.
J. R. P. E. P. J. P.

Neither the letter nor the inscription on the tomb is conclusive. It is shown by defendant’s evidence, that Mary Ann Wall was reputed to be the mistress or concubine of John R. Pulley; a fact of which he could hardly have been ignorant. It may then be asked, why did not Pulley insert in the inscription on the tomb the words “ wife or consort of J. R. Pulley,” when there was so much necessity for it ? It is said by a witness, it was to give space for the initials of the children. But we see from the copy or fac simile in the record, there was room sufficient, for the initials and the full name of Pulley also. The age mentioned on the tomb is in conflict with the testimony of Miichel and Harrod. The letter- proves that he addressed Mary Ann Wall, whether his wife or not, in writing as he did at his house. But here again, as on the tomb, his name is withheld, and initials only are given.

John R. Pulley lived in the same house with Mary Ann Wall; she was the mother of his children, and presided at his table. His employees appear to have lived with him. He may have felt constrained, by a sense of propriety, to call her by his name in the presence of his children and household, and such persons as visited his house. If we assume this to be the fact, the case presents little or no difficulty. The plaintiffs’ witnesses have spoken of what they observed and heard, and it is not irreconcilable with the testimony of defendants’ witnesses.

The testimony on the part of defendant shows, that John R. Pulley was, at that time, to-wit, when he lived with Mary Ann Wall, a man of considerable means; that he dealt, to some extent, in real estate; that it was a matter of public notoriety, that he was not married. One witness, Mrs. Short, says the common report in the neighborhood (where Pulley lived) was tliat Mr. Pulley and this woman were not married, though they lived together as man and wife.

Another witness says, it was a matter of public notoriety among dealers and speculators in real estate, that John R. Pulley was an unmarried man ; it was known that he lived with a female reputed to be his mistress.

Other witnesses depose, that the public report was to the effect that Pulley and Mary Ann Wall were not married.

It is further shown, that John R. Pulley mortgaged and conveyed immovables to shrewd and cautious dealers in real estate, and that in no instance was it stated in the act of sale or mortgage, that he was a married man; nor is there any instance, where the woman with whom it was notorious that he lived, was called upon to renounce her rights as a married woman.

Again, in 1849, after the death of John R. Pulley, his widow, Ellen Brush, put at issue the legitimacy of one of the plaintiffs, whose husbands had applied for letters of administration upon the estate. This issue was permitted to rest without trial, and another person was appointed curator.

In regard to such events as births and marriages, women usually are very well informed, yet it is somewhat singular that the plaintiffs have not called a single witness of that sex.

Again, John R. Pulley lived until 1849, when the plaintiffs were, according to every calculation, over twenty-one years of age. If the marriage had existed, would they not have been informed by the father or mother’s relatives where and when it took place ? Yet, after an exception had been filed to the petition, and the plaintiffs wore ordered by the Judge to state the date of said marriage more definitely, the administrator, after diligent inquiry of those most likely in his opinion to know, confesses Ms inability, and from such information, avers his belief that said marriage took place in the city of New Orleans certainly some years prior to 1830, but how long prior he is unable to learn.

We conclude that the plaintiffs have not established the fact of the marriage between Mary Ann Wall and John R. Pulley by sufficient proof. They must make their case not only probable, but certain. They have failed, as previously observed, to produce any evidence written or oral of an actual marriage, and the presumptions to be drawn from the circumstantial proof adduced by them are overcome by others more cogent. As the consequences of the proof of a marriage under our law often affect third parties holding property in good faith, which may thus b.® depfered to belong to the community, to their prejudice, we think the party seeking to recover should establish the marriage as conclusively as any other fact. Without therefore saying that the marriage did not exist, we content ourselves by repeating that it has not been made to appear by sufficient proof.

We observe but one bill of exception which requires our notice. The plaintiff offered to prove by the witness Harrod “ his supposition and belief, from his personal knowledge with John R. Pulley, that he was a protestan!, and would have made application to the Rector of Christ’s Church New Orleans, to perform the marriage ceremony,” and that the usual record of such marriage would have been preserved among the records of said church.”

The object was to create a presumption that the evidence of this marriage was destroyed with a portion of the records of that church. It is clear the suppositious and the belief of the witness are not evidence. The witness might have stated the facts from which such an inference might have been drawn by the court, such as, the fact that Pulley was a member of that church, or attended service there, or the like.

The District Court did not err in excluding the evidence.

The judgment must be reversed as to the defendants,|Yeaima;ra, Woods é Co.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed as to said appellants, Yeatman, Woods & Co ; and it is now ordered, adjudged and decreed, that there be judgment in their favor, and against the demand of the plaintiffs against them, and that they recover their costs in both courts.

Lard, J., absent.


text:
    Taylor & Raddin v. Alexander Smith, Jr.
    The Act of 1858, which declares that parol evidence shall not be received to prove any promise to pay the debt of a third person, will havo no application to a case in which it is proved that the promise was made prior to the passage of that Act, that the testimony was received without objection and related to a bill of exchange upon which it was sought to hol’d the defendant responsible.
    APPEAL from the Fourth District Court of ISTew Orleans, Price, J.

      T. J. <& A. O. Semmes, for plaintiff.

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

The facts of this case will be found in the opinion of the District Judge, as follows :

“ The evidence in this case shows, that although defendant’s firm did not accept the draft sued on by writing their names across the face of the same, as is usual, yet by their acts they have become liable to the plaintiffs for the amount of the draft, in the same manner as if they had formally accepted the same. When plaintiff’s clerk went around to defendant’s house to inquire if it was safe and prudent to ship the goods (the consideration of the draft,) he was informed by defendant that it was all right, and to ship the goods; and when the clerk presented the draft for acceptance, defendant did not refuse to accept it, but told him to leave it. When the witness, Baldwin, went around to defendant’s house to know whether or not they would accept the draft, he was informed that defendant’s co-partner had gone to Kimball to obtain property to secure them, and when he returned he informed witness that he had obtained property enough to pay the draft, and that as soon as the property was sold, he would pay the same. The property was sold, and defendant has failed to pay the draft.”

Defendant denies that the testimony makes out a case against him, and furthermore invokes the Act of 1888, p. 48, which declares, that hereafter, parol evidence shall not be received to prove any promise to pay the debt of a third person, but that in all such cases the promise to pay shall be proven by written evidence signed by the party to be charged, or by his specially authorized agent or attorney in fact.

But in this case, the promise is proved to have been made before the Act of 1858 was passed, the testimony was received without objection, and it relates to a bill of exchange upon which the defendant is sought to be made responsible as a debtor; — three sufficient reasons why the statute can have no application to this case.

We think that defendant’s promises to pay the draft have been sufficiently proven.

Judgment affirmed.

Land, J., absent.


author: Duffel, J.

text:
    Succession of Alexander Ewing, Ann Cannon, Widow Alex. Ewing, v. John Altmeyer, Curator, and C. Hunt, Attorney absent heirs.
    "Whoro a marriage has been, dissolved by a judgment of divorce, if either party briDgs suit to recover his or her share of the community property, it must bo shown that he or she accepted the community within the legal delays, after its dissolution by the sentence of divorce; otherwise the pretensions are without foundation in law.
    from the Second District Court of New Orleans, Morgan, J.

      M. Grivot, for plaintiff.

      J. V. F. & J. B. Cotton, for curator and appellant.

      C. Hunt and Clarice & Bayne, for absent heirs and appellant.
   Duffel, J.

Ann Cannon, the wife of Alexander Ewing, sued her husband for a divorce on the 18th of January, 1847, and obtained the divorce by a final judgment rendered on the 8th of February, 1847.

The parties had lived apart from each other three years before the divorce, the wife in New Orleans, and the husband in the parish of Jefferson.

Alemnder Ewing acquired by purchase a slave, on the 1st of February, 1847, and a lot of ground on the 4th of May, 1848 ; and he died in August, 1859. His divorced wife, alleging that her husband had died intestate, without descendants or ascendants, claims one-half of his succession as widow in community, and the other half as usufructuary, under the Act of 1844. It is neither alleged nor proved, that she had accepted the community after its dissolution by the sentence of divorce.

The District Judge decreed to the plaintiff the undivided half of the slave. We consider that her pretensions are without any foundation in law. C. C.151 2406, 2389; Antoine Audrich v. Clementine Lamothe et al., 12 An. 76.

It is, therefore, ordered, that the judgment of the District Court be reversed, and that the demand of Ann Cannon, the divorced wife of the late Alexander Ewing, be rejected, at her costs in both courts.

Land, J., absent.


author: Buchanan, J.

text:
    L. Guillet et al. v. F. Juré et al.
    The spacial mortgage, authorized by Art. 338 of the Civil Code, and by the Act of the 11th March, 1830 has not tho oifoct of annulling tho anterior mortgage upon the property imposed by law for tho security of the minor, even upon tho property included in the special mortgage.
    The effect of such special mortgage is simply restrictive and not destructive.
    Parties are entitled to recover interest from their tutors upon the sums allowed to be due them, from tho dates of their majority.
    APPEAL from the Second District Oourt of New Orleans, Morgan, J.
    C. Roselius and E. C. Guillet, for plaintiffs.

      H. H. Taylor, for defendant and appellant.
   Buchanan, J.

There is no dispute about the facts in this case.

It is a third opposition, claiming a superior mortgage right in property seized by defendant Juré.

The plaintiffs are children of the mortgagor, their tutrix. They are of age, but their tutrix has not rendered an account of tutorship.

During plaintiffs’ minority their mother, and tutrix, had the property adjudicated to herself, with special mortgage reserved, under the advice of a family meeting.

She afterwards mortgaged the property, now seized to defendant Juré, for the security of a loan.

Subsequently, she gave a special mortgage to plaintiffs, for the security of their rights as heirs of their father, on this and other property.

It is contended by defendant’s counsel that the special mortgages, thus granted by the tutrix of plaintiffs under Article 338 of the Civil Code, and under the Act of March 11th, 1830, (Session Acts, p. 46,) had the effect of annulling the mortgage upon the property of the tutrix, imposed by law for the security of the minors, even upon the property included in the special mortgages, anterior to the date of such special mortgages.

This doctrine, which would make the special mortgages, authorized in certain cases, destructive, and not restrictive, of the general mortgage resulting from the charge of tutorship, does not appear to us to be sound. The district judge has well observed, in his reasons for judgment: — -“The granting of a special mortgage is in the interest, and given for the convenience of the mortgagor. It is allowed to him, in order that his property may not be unnecessarily burthened. All the law requires, or looks to, is, that the interests of the minors should be protected ; but it requires protection, and nothing else will satisfy it. The granting a special mortgage limits the general mortgage to the property specially mortgaged, and nothing more.”

0. 0. — Art. 3308, “ If the mortgage has not been restricted at the time of appointing the tutor or curator, and if it be notorious that it exceeds the amount in which it is necessary for him to give security, it shall at his request be restricted to certain immovables____”

—Art. 3305, When by the marriage contract the parties, being of age, shall agree that the recording shall exist only on one or more immovables belonging to the husband, the immovables and other property not included shall remain free and released from mortgage."

—Art. 3306, and “ the case shall be the same with regard to the immovable property of the tutor or curator of the minor, etc.”

—Art. 3313, “ In all cases where the Judge restricts the mortgage to certain immovables____” — Acts of 1830, p. 46, Sec. 1st. — 9th An. Rep. p. 195, “... .to hold the whole subject to their legal mortgage, which mortgage had by the advice of a family meeting and the authority of the court of probates, been released on all except certain specific property.... ” Casanova’s Heirs v. Avegno.

The samé principle obtains under the French Code. The operation by which the superabundant property of the tutor or husband is discharged from the tacit lien (O. C. Art. 2143, 2144) is there called the reduction of the original mortgage. And Art. 2145, J 2. further elucidates the principle by disposing, “ dans le cas oú le tribunal prononcera la reduction de l’hypotheque a certains immeubles, les inscriptions prises sur les autres seront rayées.”

And this doctrine is well settled in France under provisions similar to our own. Troplong, hypotheque, vol. II, No. 644 bis, teaches — “ Lorsque le tribunal prononce la reduction, Thypotheque superposée sur les biens libérés disparait, et Ton raie Tinscription qui la rendait publique.

“ Mais quant a Thypotheque qui reste sur les biens non affranehis, elle conserve toujours ses prerogatives, c’est-a-dire qu’elle est dispensée d’inscription au regard de la femme et du mineur et qu’elle remonte au jour du mariage ou de l’acceptation de la tutellc.”

The appellees have joined in the appeal by an answer filed, and have prayed that the judgment be amended in their favor, by allowing them interest from the dates of their majority upon the sums respectively allowed as being the amount of their mortgage rights. We think they are entitled to the amendment.

It is, therefore, adjudged and decreed, that the judgment of the district court be amended ; and that plaintiffs and appellees have judgment for legal interest on the sums respectively allowed them by said judgment, from the dates of their respective majorities, that is to say, Leonidas Quillet from the 28th day of March, 1856, and Eponinc Quillet, from August 23d, 1857, until paid: and that in other respects the judgment of the district court be affirmed, at costs of defendant and appellant, Francois Juré.

Land, J., absent.


text:
    Taylor & Raddin v. James Graham.
    An action against a notary, to render him responsible for negligence, in omitting to give notico to a drawer or endorser or a draft protested by him for non-payment, is based on the Articlo 2296 of the Civil Code, and falls under the prescription of one year established by Article 3601.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Budd & Hall, for plaintiffs and appellants.

      Durant & Hornor, for defen' dant.
   Duffel, J.

The defendant is sought to be made responsible, as a notary, by reason of his negligence in omitting to give notice of the protest of a draft, to one of the drawers and endorsers.

The draft was protested on the 27th day of January, 1858, and on the same day the draft and copy of protest were returned to the plaintiffs, and the notice of protest to the other drawers and endorsers was also submitted to them.

This suit was instituted on the 7th of October, 1859.

The defendant opposes the prescription of one year.

This action is based on the Article 2295 of the Civil Code, and, under Article 3501, falls under the prescription of one year.

The fact that the plaintiffs, who had all the means of knowledge, did not see fit to examine the protest and notice of protest, could not suspend the precription. The District Judge sustained, and we think correctly, the plea of prescription.

Judgment affirmed, with costs.

Land, J., absent.


author: Voobhies, J.

text:
    Leo Tarleton v. M. S. Bringier & Co.
    "Whore a commission hacl been obtained to procure the evidence of a witness, and on a rule taken on the opposito party to show cause why the depositions should not be read on the trial of the case, the objection was made that they were not sigued by the deponent, and this objection was sustained by the court — Held: That in the absence of any neglect attributable to the party taking out the com-' mission, he was entitled to a new commission, and to a continuance of the cause in the moantimo.
    The object of taking a rule to show cause why «testimony taken by commission should not be read on the trial, is to enable the party, in case of irregularity or informality, not attributable to himsolf, to remedy the defect before trial.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Hays & Adams, for plaintiff.

      N. B. Trist, for defendants and appellants.
   Voobhies, J.

This cause must be remanded for the purpose of enabling the defendants to procure the testimony of Charles Belcher, of St. Louis. They had taken a commission to that effect, and procured the evidence of this witness; but, on the rule taken on the plaintiff to show cause why the depositions should not be read, the objection was made, that these were not signed by the deponent.

The objection was sustained by the District Court.

The defendants forthwith moved for a new commission ; but the application war discarded. Subsequently, the case being' called for trial, they applied1 for a continuance unsuccessfully.

Under the circumstances of this case, the parties were entitled to a new commission, and, as a consequence, to a continuance of the cause in the meantime. It is not pretended that there was on their part any laches or negligence; the bill of exceptions assigns as the reason for refusing the relief asked, that the application was not made in proper time.

The object of taking a rule to show cause why testimony taken by commission should not be read on the trial, is to enable the party, in case of irregularity or informality not attributable to himself, to remedy the defect before trial. This would be defeated if a party was concluded by the discharge of the rule, and could be coerced into trial notwithstanding his good faith and Ms diligence.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed, and that this cause be remanded for further proceedings according to law, the plaintiff paying the costs of appeal.

Land, 3., absent.


author: Cole, J. Land, J.

text:
    The State of Louisiana, (Hubert Gerard, Relator,) v. Adam Giffin, Treasurer, and Thomas Théard, Comptroller of the City of New Orleans.
    The provisions contained in Articles 896 and 897 of the Code of Practice, relative to the assignment of errors on appeal to the Supreme Court, aro not applicable whero the record is certified to contain all the testimony adduced on the trial.
    The Act of the Legislature entitled “An Act relative to elections in the parish of Orleans,” approved March 19th, 1867, is free from all constitutional objections.
    APPEAL from the Third District Court of New Orleans, Duvigneaud, J.

      J. A. Rozier, for plaintiff.

      A. J. Villeré, for defendant and appellant.
   On a motion to dismiss :

Cole, J.

A motion has been made to dismiss this appeal upon two grounds.

1. That ten days have elapsed since the filing of the transcript by the appellants, and no assignment of errors has been filed by them.

2. That the appellants rely entirely on an alleged error of law, appearing on the face of the record, and not wholly or in part on a statement of facts, an exception to the Judge’s opinion, or special verdict, to sustain their appeal; and no written paper has been filed, alleging an error of law, and more than ten days have expired since the record has been brought up.

The provisions contained in the Articles 896 and 897 of the Code of Practice are not applicable, where the copy of the record brought up is duly certified by the Clerk of the lower court, as containing all the testimony adduced.

Art. 896 expressly limits its provisions and those of Art. 897 in this manner.

It is, therefore, ordered, adjudged and decreed, that the motion to dismiss be overruled, and that the mover pay the costs thereof.

'Voorhies, J., absent.

On the merits;

Land, J.

The object of this suit is the recovery of the sum of seven hundred and ninety dollars, the amount of certain expenses incurred in carrying into effect the provisions of the Act of the Legislature entitled “ An Act relative to elections in the parish of Orleans,” approved March 19th, 1857.

The ground of defence to the action is, that the Act of the Legislature above mentioned is unconstitutional, null- and void.

In the suit of the State of Louisiana v. The City of New Orleans, recently decided by us, we held that the Act in question was free from all constitutional objections.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court, ordering a peremptory mandamus to issue, commanding the defendants, Adam Giffin, Treasurer, and Thomas Théard, Comptroller of the city of New Orleans, to pay 'to the relator, Hubert Gerard, the sum of seven hundred and ninety dollars, and costs of suit, be affirmed, with the costs of this appeal,

Merrick, C. J., and Buchanan, J., dissent in this case, for the reasons assigned in the case of the State against the City, recently decided.


author: Düeeel, J.

text:
    G. A. Blass v. Gregor & Wilson.
    To maintain an action for a malicious prosecution, tho plaintiff must prove: 1st. That he lias "been prosecuted l>y the defendant either criunnally or in a civil suit, and the prosecution is at an end. 2d. That it was instituted maliciously and‘Without probable cause. 3d. That he has thereby sustained damage.
    Malice is a principal ingredient in the offence, and its proof is indispensable as a prerequisite to a recovery.
    The proof of malice need not be direct, it may bo inferred from circumstances ; and the want of probable cause is presumptive evidence of malice, subject, however, like all presumptions, to be rebutted.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      L. M. Day, for plaintiff.

      Race <& Foster, for defendants and appellants.
   Düeeel, J.

This is an action for $10,000 damages, for a willful and malicious arrest and imprisonment, without any probable cause. The jury, after hearing the case, returned a verdict of $1000 for the plaintiff, and the defendant, after an unsuccessful motion for a new trial, appealed. The plaintiff was arrested on the following affidavit: “ The State of Louisiana, First District, city of New Orleans. The State v. Gabriel Angelo Blass. Personally appeared before me, George Y. Bright, Becorder of the First District of the city of New Orleans and Justice of the Peace, duly commissioned and sworn, William. A. Wilson, No. 3 Camp street, who being duly sworn, doth depose and say : that on or about the 30th day of November, 1855, at No. 3 Camp street, in this district and city, a man named George Wilson, alias William Wilson, obtained from deponent, who is one of the firm of Gregor S Wilson, by means of false and fraudulent representations, and under false pretences, one gold watch and chain, one opal finger-ring and one diamond breastpin, all valued at two hundred and twenty-seven dollars belonging to said firm of Gregor & Wilson. Therefore, deponent charges said George Wilson, alias William Wilson, with obtaining goods under false pretences, and by means of false and fraudulent representations, contrary to the statute made and provided, and against the peace and dignity of the State ; and from information received, deponent has good reason to believe that the aforesaid breastpin and finger-ring, valued at about fifty dollars, were received by the bar-keeper of the steamboat Frank Lyon, whose name is unknown to him, knowing them to have been fraudulently obtained, and that the said bar-keeper, although requested to do so by deponent, refused to return the said breastpin and finger-ring to deponent. Wherefore deponent charges said bar-keeper with being an accessory after the fact, to the obtaining of the said goods in said fraudulent manner, by said George Wilson, alias William Wilson, all against the peace and dignity of the State, (signed) W. A. Wilson. Sworn to and subscribed before me, this 19th day of December, 1855, (signed) George Y. Bright, Becorder of the First District.”

It appears that the clerk of the Frank Lyon bought of said George Wilson, who was a passenger on said boat, the day after the above articles had been so procured, the breastpin and finger-ring described in the affidavit, for $25, and sold the same to the plaintiff, on the same day, for the same amount. George Wilson had exhibited to the clerk the receipt which he had obtained from the defendants, and which showed that he had paid a larger amount for the same. The plaintiff was aware of the circumstances under which the'clerk had acquired those articles. The day after, the clerk and plaintiff were informed, by telegraphic dispatch, of the manner in which Wilson had obtained those objects. It does not appear that the plaintiff disclosed the fact that he had those articles, or offered to return them to the defendants, before being called upon to do so ; but when they were claimed by one of the defendants, the answer was, “ that he did not have the breastpin with him, having heard that there was some difficulty about it,he had left it in Vicksburg.” He said, however, that he could get possession of the breastpin, and agreed to deliver him that and the ring, if defendant, Wilson paid him what he stated he had paid for them,” the defendant refused to pay anything.

It further appears, that George, alias William Wilson, was apprehended and convicted of the offence. The defendant, Wilson, called first on a member of the bar and stated that he had ascertained that a portion of the property obtained by George Wilson, was in the possession of the bar-keeper of the steamboat Frank Lyon, and that he wanted to know how he could get them back; he was told “ by going up to Recorder Bright and making affidavit of the facts as narrated by him to witness, and that he would then issue a search-warrant for them.” The defendant did not inform witness that the bar-keeper had offered to give him up the articles on his refunding the amount paid for them, nor did he advise further with him. We next see the defendant, Wilson, in the office of the Recorder. He made to Recorder Bright apd to Capt. Moynan the statement above related, and added the fact that the bar-keepor had offered to return to him the articles on receiving back the amount which he, the plaintiff, had paid for them; whereupon the Recorder said, that he thought, as the bar-keeper was informed that the articles had been feloniously obtained, and refused to give them up, that he thought that there were good grounds for an affidavit, but that he (Wilson) had better consult his lawyer.” Witness Seymour says, that the defendant Wilson stated to him the circumstances related by the first witness, and that he “had been advised by his counsel to make an amicable demand for this property, and asked witness to go with him to the boat for that purpose and we have seen above the result of this amicable demand. It seems that the affidavit was made on the above circumstances, and that the plaintiff was thereupon arrested and kept confined in the lock-up, for about six hours, when he was released on bond for his appearance on the next day. On the next day, another counsel of the defendants having ascertained that the charge made against the plaintiff could not be substantiated, advised the defendant, Wilson, to dismiss the prosecution and to institute a civil suit for the recovery of the articles ; whereupon the prosecution was dismissed without going into the examination of the case.

It also appears, that the defendant Gregor was absent from the State during the above proceedings before the Recorder, and that he subsequently authorized William Holmes to compromise the affair for 35250, agreeing to pay all the expenses ; and as to the defendant Wilson, he is represented as a gentleman of mild and kind disposition, possessed of sterling virtues.

To maintain an action for a malicious prosecution, the plaintiff must prove: 1st. That he has been prosecuted by the defendant, either criminally or in a civil suit, and the prosecution is at an end. 2d. That it was instituted maliciously and without probable cause. 3d. That he has thereby sustained damage. G-reenleaf on evidence, vol. 2, ¡¡ 449. There can be no question as to the prosecution, and its termination ; and we will assume the absence of a sufficient cause, as we do not think the decision of this point necessary to arrive at a final determination of the case. Malice is the principal ingredient of the offence, and its proof is indispensable, as a prerequisite, to a recovery. G-reonleaf, vol. 2,1453, The proof of malice need not be direct; it may be inferred from circumstances ; and the want of probable cause is presumptive evidence of malice, subject, however, like all presumptions, to be rebutted.

The history of the case, as given above, seems to us to repel all idea of a malicious intent, and indicates clearly that the defendants acted in good faith and without gross negligence, under what they considered to be the advice of counsel and of the Recorder. Greenleaf, vol. 2, $ 459. And when we consider the good character of the defendant Wilson, (the other defendant being a nominal defendant,) and the policy of the law', which is to bring the guilty to the bar of justice, we conclude that the motives of the defendants were pure, and that no malice has been proved. 3 R. 18 ; 9 R. 388 ; 12 An. 53 and 332, and 11 An. 289.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed and annulled ; and it is further ordered and adjudged, that there be judgment rejecting the demand of plaintiff, with costs in both courts.

Land, J., absent.


author: Vooehies, J.

text:
    David L. Ranlett, Administrator, v. Eliza Jane Constance et al.
    In a twofold action by attachment against the debtor, and to set aside the sale of the property attached, and whore the property was bonded by the vendee — Held: That the plaintiff’s remedy was two fold, against the bond by means of the attachment, and against the property through the revocatory action.
    APPEAL from the Second District Court of New Orleans, Morgan, J.
    C. Roselius and A. Phillips, for third opponent, appellant.

      Collins & Wool-ridge and W. 1Plennen, for appellees.
   Vooehies, J.

The intervenor and third opponent, James P. Waters, is the appellant in this cause. He contends that the plaintiff’s remedy is upon the bond furnished for the release of the attachment, and not upon the property bonded.

The plaintiff brought a twofold suit, — against his debtor E. J. Constance, to recover the amount of his demaud, and against John G. Weir, to cancel, on the grounds of fraud and simulation, the sale of a slave made, pending these proceedings, by the former to the latter.

This slave was thereupon attached at the plaintiff’s instance, and bonded by the transferree. Subsequently, Weir reconveyed this property to his vendor, who then sold the same to J. P. Waters, for a valuable consideration.

It is admitted that Waters, is a purchaser in good faith.

The cause being tried, the plaintiff obtained a judgment, liquidating his demand against Constance, canceling the sale to Weir, and subjecting the property attached to satisfy the plaintiff’s demand. Hence the third opposition of J.P. Waters.

Under the provisions of Art. 1972 of the Civil Code, the District Judge was authorized to decree that the property itself be applied to the payment of the creditor’s claim. It was not the mere attachment that gave a privilege to the plaintiff; but, independently of the attachment, he acquired the right of recourse on the property itself by virtue of his action in revocation. His remedy is, consequently, twofold, — against the bond, by means of the attachment, and against the property through the revocatory action. C. 0. 2428.

Judgment affirmed.

Land, J., absent.


text:
    George R. Jacobs v. Pierre Sauvé.
    Where a suit was brought upon a note given in part payment of the price of a plantation, and tho defence set up was that defendant had been disquieted m his possession of the plantation by a petitory action instituted against him, — Reid (under Article 2536 C. C.) : That the District Court had tho power to render ail interlocutory judgment ordering the defendant to deposit in court the amount of the note sued upon, to await the decision of the petitory action.
    Although the value of the portion claimed in the petitory action does not equal the amount of the noto, yet the whole sum must be deposited to await the termination of the action, which may result in tho cancellation of the sale.
    APPEAL from the District Court of the Parish of Jefferson, Burthe, J.

      McPheeters and C. Roselius, for plaintiff.

      L. L. Levy and Bradford & Finney, for defendant and appellant.
   Buchanan, J.

Plaintiff sues defendant upon a note given in part payment of a plantation.

The defence is, that defendant has been disquieted in his possession of the plantation by a petitory action instituted against him by George May, for a portion of the same.

A rule was taken upon defendant by plaintiff (under Art. 2536 0. C.) to deposit the amount of the note, subject to the order of the court.

This rule was made absolute, and further proceedings in the suit ordered to be suspended until the decision of May’s action.

Defendant appeals; and plaintiff has filed an answer to the appeal, praying that the judgment be amended in his favor, and for judgment according to the petition.

The defendant has not been aggrieved by the interlocutory judgment of the court below ordering him to deposit the amount of the note sued upon, to await the decision of the petitory action instituted by George May. It is the course prescribed in cases of this kind by Articles 2535 and 2536 of the Civil Code.

But the appellee contends that, as the petition of May, given in evidence by defendant, shows that he only claims fifty-seven and fifty-hundredth acres, worth, as declared by himself, one hundred dollars an acre, and five hundred dollars or thereabouts, for its detention; and as the note in suit is for twenty-nine thousand dollars and upwards, it is unreasonable to require that the whole amount of this note shall remain on deposit; that the law will be satisfied by leaving in deposit six thousand two hundred and fifty-one dollars, and giving the remainder to plaintiff without delay. He quotes in support of this view Art. 2490 of the Civil Code, and the case of Peirce v. Morgan, 6 N. S. 523.

Those authorities do not seem to be applicable to the case before us. Article 2490 declares that, in ease of eviction of a portion of the thing sold, if the sale he not canceled, the value of the evicted part is to be reimbursed, according to its estimate, proportionably to the total price of sale.

But in the present ease, the petitory action of May not having been decided, we cannot know whether or not the result of that action may not, possibly, be the cancellation of the sale for the price of which the note now in suit was given. Neither is there any proof before us of the estimated value of the land claimed by May, proportionably to the whole value of the land and slaves sold by Jacobs to Same.

The case in 6 N. S., Peirce v. Morgan, was a sale of three lots of ground in New Orleans. The purchaser was disturbed in the possession of one only of the lots, and the court decided that he had not the right to suspend the payment of the other two lots. The sale here was of three distinct objects, each having its distinct price, although all comprised in the same conveyance; which is a different state of facts from that now before us.

It is obvious that the amendment of the judgment of the court below, asked for by the appellee, cannot be granted.

Judgment affirmed; costs of appeal to be paid by appellant.

Land, J., absent.


text:
    H. Simons & Co. v. Edward Jacobs.
    "Where an affidavit is made, that a debtor has left the State with the intention not to return, his subsequent return will not alone be sufficient to dissolve a writ of attachment, where there are circumstances which render it probable that the original intention was not to return.
    After an affidavit has beeu made for an attachment, some prima facie proof must be made by the defendant, that the facts sworn to aro untrue, in order to throw the burden of proving their verity on the plaintiff. The affidavit has a greater effect than merely enabling the party to obtain process against defendant.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Emerson & Huntington, for plaintiff.

      E. Fillieul, for defendant and appellant.
   Merrick, C. J.

This suit was commenced by attachment. The indebtedness arises upon promissory notes amounting to ©952 37, and interest.

The defence is, that the affidavit upon which the attachment issued is untrue. The defendant is an Englishman. He was a daguerrotypist, and had rooms for his business in this city, and with his wife boarded at a boarding-house.

In July, 1858, some time after the maturity of the notes sued on, he sold out his establishment and visible effects, with the exception of a negro boy, for whom he left verbal instructions with his agent for the collection of debts, to give him his freedom on the 1st of January, 1859.

He left no agent on whom service of citation could be made, or who was authorized to stand in judgment.

Defendant not having returned, in January, 1859, plaintiffs sued out the attachment, and obtained judgment in February, which was signed 4th March, 1859, and was executed by the sale of the property attached.

The appeal was taken by defendant in November, 1859. The only proof that plaintiff intended to return to New Orleans is his own statement, and the fact that he had an adopted daughter here.

In the case of Offut v. Edwards, it was said : “ Where an affidavit is made, that the defendant has left the State with an intention not to return, his subsequent return will not alone be sufficient to dissolve the writ where there are circumstances which render it probable that the original intention is not to return. It is otherwise where nothing suspicious existed, or where an intention to return was proved. 1 Rob. 231; 3 ibid, 363. In the 16 La. 341, it was held, that after an affidavit is made for an attachment, some prima facie proof must be made by the defendant, that the facts sworn to are not true, in order to throw the burden of proving their verity on the plaintiff. The affidavit has a greater effect than merely enabling the party to obtain process against defendant.” 9 Rob. 94.

In the case at bar, the testimony by no means destroys the presumption arising from the affidavit. The defendant was a foreigner. He closed his business and returned with his wife to his native country, after selling all his effects except a neg-ro, which he intended to emancipate. He left no agent to represent him, on whom process could be served, and he did not return at the usual season of the year for persons absent for pleasure or health; and if he returned at all, it was after the second season abroad, and after the attachment suit had been carried forward to flual judgment, and the money made by the sale of the slave he intended to emancipate. The case in 13 An., p. 473, is not entirely analogous.

If an attachment did not lie in the present case, our law would be singularly defective, as the creditor would be without remedy.

Judgment affirmed.

Land, J., absent.


author: Merrick, 0. J.

text:
    C. Espinola v. Mrs. E. Blasco, Administratrix of M. Blasco.
    An administrator pro tempore of an interdicted person cannot bind the interdict for tbe payment of any specified amount, in order to effect a liquidation of partnership affairs.
    A mistake in the special prayer ought not to prejudice a party’s right to recover on the averments of his petition, when they are sufficient to sustain the proper action, and are followed by a prayer for general relief.
    APPEAL from the Second District Oourt of New Orleans, Morgan, J.

      Semmes & Labatt, for plaintiff and appellant.

      G. LeGardeur, for defendant.
   Merrick, 0. J.

The plaintiff alleges in his petition, that Madame E. Blasco, administratrix pro tempore of Manuel Blasco, is indebted to him in the sum of $161417, with interest; that petitioner was proprietor of a drug store known by the title of C. Espinóla t& Co.’s Drug Store, and was the equal partner in the profits of said store with Manuel Blasco; that since the proceedings for the interdiction of said Manuel Blasco, petitioner, under a promise of a speedy and prompt settlement of his rights in said partnership, delivered up the possession of said drug store to the defendant, and his rights in the said partnership were fixed and understood to be $1614 17, which the defendant has promised to pay or settle; that the liabilities of said firm were assumed by said defendant, but petitioner has discovered that there are still unpaid and outstanding debts and notes for which in law he is responsible in case of non-payment; that all the assets of the partnership are in the possession of defendant; that the Second District Oourt authorized her to enter into a new partnership in the same business ; that he is thereby entitled to be indemnified, and to receive the amount of his interest in said partnership, as fixed by the books of said partnership. He prays for judgment for said sum of $1614 17, and that the defendant give security against the liabilities of the firm, and for general relief.

The answer denies the partnership; admits plaintiff had an interest, which ceased when Blasco was interdicted; avers that until the debts are paid and the affairs liquidated, plaintiff cannot claim any specific sum, and denies that she had any right to make, or did make the contract • relied upon by plaintiff for recovery.

The judgment was rendered in favor of defendant, reserving to the plaintiff the right to sue for the settlement of the partnership affairs in another form.

It is clear, that the administratrix pro tempore, who had only a power of administration, could not, at least without a decree of the court, bind the interdicted M. Blasco for the payment of any specified sum of money in order to effect a liquidation of the partnership affairs, and acquire the sole interest in the partnership effects. This can only be done in a suit for the liquidation of the partnership affairs. The averment in plaintiff’s petition, that the partnership debts have not yet Been all paid, shows an insuperable obstacle to the recovery of a specific sum of money.

But plaintiff’s petition is quite full, and contains every averment essential to a decree for the liquidation of the partnership affairs; and as the defendant insists that this is the only mode of proceeding, and the plaintiff prays for general relief, we are of the opinion that the case ought to be remanded to the lower court, to be proceeded in as an action- for the liquidation and settlement of the partnership affairs and a partition of whatever surplus may remain after payment of the debts, &c.

A mistake in the special prayer ought not to prejudice plaintiff’s right to recover upon the sufficient averments of his petition followed by a prayer for general relief. 7 La. 51; ibid 152 ; 11 An. 69.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that this case bo remanded to the lower court to be proceeded in as a suit for the liquidation of the partnership affairs and a partition of the partnership effects between the plaintiff and said interdicted M. Blasco; the appellee paying the costs of the appeal.

Land, J., absent.


author: Voorhies, J.

text:
    Bernard Marigny v. Pontchartrain Railroad Company.
    Where the right to open a canal on a certain tract of land, was. transferred to a company , who allowed thirty years to elapse, after the contract was made, without attempting to avail themselves of their rights, but, 'on the contrary, by their own acts rendered the servitude impracticable — Held: That the right was extinguished, and the transferror entitled to receive back the land free from the servitude created thereon.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      G. LeGardeur, for plaintiff.

      E. Briggs, for defendants and appellants.
   Voorhies, J.

The question for adjudication is, whether the plaintiff has parted, in favor of the defendant, with his title to the tract or lot of ground in controversy between the parties.

The plaintiff owned a strip of land, designated as “ Canal Marigny” on the plan of Faubourg Marigny, and having fifty feet in width, extending from the River Mississippi to Bayou St. John. On the 23d day of February, 1830, he sold to the Pontcharlrain Railroad Company all his rights, titles and pretensions to this tract, from the public road to Bayou St. John ; and further transferred to them the right to open the canal to the river, upon the width of fifty feet.

The ownership of the land situated between the public road and the river, has always remained in the plaintiff, — subject to the right of the defendants to extend the Canal Marigny to the margin of the river. Thirty years have elapsed since this contract was made without the defendants having ever attempted to avail themselves of their rights in this respect. On the contrary, they have filled up some portions of the canal, and built a railroad in its place; they have put up a depot on this land. No canal was ever opened from the public road to the river ; and for many years the railroad ran to the levee. So that, by the acts of the defendants, the exercise of the servitude in question has become impracticable.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.

Land, J., absent.


text:
    William E. Johnson v. Watt, Noble & Mobley.
    ■Where a bill of exchange was given for a sum of money loaned, and it was agreed tbat upon the borrower’s executing a mortgage to secure the payment of the sum, the bill of exchange should bo given up — -Held That although tho mortgage was objected to when presented, yet the fact that it was retained and suit instituted on it. would act as a waiver of the objection, and all recourse on the bill of oxchange be lost.
    This exception is not personal to the principal debtor.
    APPEAL from the Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford & Finney, for plaintiff and appellant.

      Hays S Adams, for defendants.
   Duffel, J.

On the 4th of June, 1857, the defendants issued a letter of credit in favor of B. C. Adams, which reads as follows :

“New Orleans, 4th June, 1857.
B. C. Adams, present.
Dear Sir : We hereby authorize you to value on ns for such amounts as you may find necessary. Tour drafts to mature from sixty to three hundred and sixty-five days from this date.
Tours with respect.
(Signed) Watt, Noble & Mobley.”
The Bank of Camden, South 'Carolina, having advanced to the said Adams $15,000, he gave for the same his draft or hill of exchange to the plaintiff as president of said hank, as also the above letter of credit to stand as a security for the $15,000 advanced as aforesaid. The bill of exchange is as follows :
“ $15,000. Charleston, S. Ca., Sept. 11,1857.
On the 15th of March after date of this first of exchange, second unpaid, pay to the order of Wm. E. Johnson, president, fifteen thousand dollars value received, and charge the same to account of
(Signed) B. C. Adams.
To Messrs, Watt, Noble & Mobley, Now Orleans.”

Tho hill of exchange was duly protested at maturity, for non-payment, and the plaintiff) as president of the Oamden Bank, now sues the defendants for the payment of tho above draft, on the faith of their above letter of credit.

The case was submitted to a jury, who returned a verdict in favor of the defendants for costs, and the plaintiff is appellant from the judgment confirming said verdict.

It appears from the evidence, that ihe advance of the $15,000 was made to Mr. Adams in anticipation of an arrangement by which he was to receive $50,000, for which two notes of $25,000 each were to be furnished by him, as also a mortgage, or deed of trust, on real and personal property, in the State of Mississippi, worth more than fifty per cent, over the amount, to secure said notes and subsequent advances, &c., and that the bill of exchange and letter of credit were to be given up to Adams upon the execution of the mortgage, in accordance with the agreement. The two notes of $25,000 each, and the mortgage to secure the same, were executed by Adams on the 24th of September, 1857, and sent to the Oamden Bank ; and it is admitted that on the 28th of September, 1857, Mr. Adams notified the defendants not to accept, or pay the bill of exchange sued on, as he had arranged the debt by giving a mortgage ; and it is also admitted, that the defendants suspended about tho 15th of November, 1857.

It also appears, that the arrangement under which the two notes of $25,000 each and tho mortgage were executed, was never completed or carried out, because the bank was not satisfied with the value of the property mortgaged, and also on account of the commercial crisis of the fall of 1857 ; nevertheless, the bank kept, not only the draft sued on, but likewise the two notes above described, and notwithstanding' its objection to the mortgage, did, on the 18th day of October, 1858, (this suit was instituted on the 25th February, 1859,) enter a bill of complaint in the Chancery Court of the County of Yalobusha, Mississippi, wherein said plaintiff claims, as president, from the said B. C. Adams, the amount due on the two mortgaged notes, and the seizure and sale of the property mortgaged, to satisfy such judgment as will be rendered in the premises, on the account to be taken according to the forms adopted in said State; and we are informed by one of the plaintiff’s witnesses that the amount actually claimed is the above sum of $15,000.

It is conceded that, had the bank accepted the mortgage, it would have lost its right of action against the defendant, for novation would then have taken place ; and hence, the only question submitted to us is, whether the suit instituted in Mississippi to enforce the mortgage is not tantamount to an unqualified acceptance of the mortgage which,"according to the terms of the contract of the parties, carried with it the extinguishment of the bill of exchange. Jt appears to us, that when parties enter into a lawful agreement, they should be bound by the terms of their own contract, and that, as it was distinctly understood that the mortgage and the bill of exchange could not exist together, but that the existence of the first would destroy the latter, that an action cannot lie, at the same time, to enforce both the mortgage and the bill of exchange. It is true that the bank objected to the mortgage, and did not accept it in express terras; but the bank, by instituting her action on the mortgage, in the State of Mississippi, thereby waived her objections, and lost, by her own act, all recourse on the bill of exchange. Any other construction would be in dirept apposition to the agreement of the parties.

It cannot be urged that the exceptions opposed by the defendants are personal to the principal debtor, Adams. C. C. 3028, 3029; Gilbert v. Meriam, 2 An. 160; Leckie v. Scott et al., 10 La. 413; Short v. The City of New Orleans et al., 4 An. 281.

Judgment affirmed, with costs.

Land, J.. absent.


author: Merrick, O. J.

text:
    James Maury v. Captain Wm. Watts and Owner of Steamship Tweedside.
    Where a ship was chartered, and by the terms of the charter party it was stipulated that the charterer should advance the expeuses of the ship to a certain amount, and he consigns her to a person at tho port from which the cargo is to bo shipped, who makes these advances in his stead — Reid: That if the consignee was cognizant of the terms and conditions of the charter party, in the absence of any express agreement to the contrary, he must be considered as having advanced funds for his principal, the charterer, and has no action for reimbursement against the ship owner or captain. Reid, also : That although the captain had requested him to have his bill made out, and had stated that it would be paid by a party whom he named, yet this would give him no right of action against the captain.
    An engagement to advance the expenses of a ship, under such circumstances, cannot be understood as giving the party advancing the right to instant payment where the advances are made, and ns a consequence, the right to attach the ship.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Benjamin, Bradford & Finney, for plaintiff.

      Singleton <& Clack and McCay, for defendants and appellants.
   Merrick, O. J.

This suit was commenced by attachment to recover $2,108 59, advances made by the plaintiff to defray certain expenses incurred by the vessel at Galveston and in this port.

The amount of the disbursements made by the plaintiff appears to be admitted. The only question is, who is plaintiff’s debtor, whether the ship owner, or the charterer ?

The ship was owned by Thomas S. Begbie, of London, and was chartered to Rutson Maury, Jr., the brother of the plaintiff, in September, 1857, for a return cargo from Galveston or New Orleans to Liverpool. The cargo was to consist in cotton in square compressed bales. The charterer promised to pay nine-sixteenths of a penny per pound on the net landing weight on the quay at Liverpool, and to advance sufficient cash for ship’s disbursements at New Orleans and Galveston, not exceeding £1000, ship paying four per cent, for commission and insurance. -

The ship was consigned to plaintiff, who, having made the advances, claims reimbursement of the same of the captain and ship owner. He contends that there is nothing to indicate the nature of the relations which existed between Ruison Maury, Jr., and the plaintiff. And as the captain called and requested the plaintiff to have his bill made out, and said a Mr. Nivius would pay it, that the captain and owner are responsible. That at all events, the master of the ship Is bound, and cites 5 La. 335.

The testimony in regard to the relationship of Ruison Maury, Jr., and his brother, the plaintiff, in regard to this transaction, appears to have been overlooked.

It is conceded, that the charterer consigned the ship to the plaintiff. It is also proven by Harding’s testimony. On the 26th of November, 1857, the plaintiff, by letter dated N ew Orleans, and signed by him as agent for the charterer, directed the captain to take on board at Galveston 1000 barrels of flour and 5000 staves. Again, when a protest was made by Captain Watts through the British Consul, because the plaintiff failed to furnish the amount of advances stipulated by the charter party, he gave for answer, in writing signed by himself, that, “ owing to the derangement of mercantile affairs, as well as certain clauses in the charter party of the steamship Tweedsidc, he found it utterly impossible to negotiate the captain’s draft on consignee in the usual manner.”

It is thus quite clear, that he was aware of the clause in the charter party by which his brother had agreed to advance £1000 at Galveston and this city for the. expenses of the ship. As he was consignee of the charterer, and cognizant of the conditions and terms of the charter party, in the absence of any agreement to the contrary, it must be held that the plaintiff was advancing funds for his principal, and that too for the purpose of speeding the ship. . His principal had contracted to advance the expenses to the amount of £1000, and further to pay £30 demurrage for every day of detention in these ports exceeding twenty-five days. After advancing a portion of the funds, the plaintiff was not at liberty to disregard his agency and make the general owner and the captain his debtors, and frustrate the very object of the voyage by attaching the ship.

The declaration of the captain, that Nevius would pay, gave the plaintiff no right of action against the captain. For the latter had been acting under the directions of the plaintiff, as agent of their common principal, the charterer. The captain had the right, after he had taken advice, to decline to direct Nivius to reimburse the plaintiff for the money he had advanced as the agent of his brother.

The engagement to advance the expenses of the ship in this port, cannot be understood as giving the party advancing the right to instant payment here, and as a consequence, the right to attach the ship. These expenses were but a part of the wages of the ship paid in advance, and to be deducted when the voyage should be completed. Under this view of the contract, the ship owner has already credited Rutson Maury, Jr., with these advances.

The plaintiff neglected to provide the amount required by the charter party, and the captain was compelled to borrow money by a bottomry bond in order to be able to leave the port.

Under all the circumstances of this case, we are of the opinion that the plaintiff is not entitled to recover. See Abbot on Shipping, 44, 45, and notes, ed. 1854; C. C. 2971, 2274. See also Hynson & Co. v. Wheeler, ante p. 409.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment against plaintiff’s demand, and in favor of the defendants, and that the plaintiff pay the costs of both courts.

Land, J., absent.


text:
    Robert G. Beverley v. Captain and Owners of Steamer Empire.
    Where a slave, belonging to a party residing in Kentucky, was hired as fireman on board a steamboat running as a packet between Louisville and New Orleans, but occasionally making trips to St. Louis, and upon the boat’s making one trip to Cincinnati the slave disappeared — Held: That although she was advertised for Cincinnati to the knowledge of the lessor at the time he hired the fireman to the boat, yet there was a great want of prudence and care in proceeding to Cincinnati with the slave on board, and that under the common as well as civil law the lessees are responsible for the value of the slave.
    The fact that the boat was in the habit of landing at points in Indiana and Illinois does not change the case, so long as it is not shown that there was equal risk of losing a slave there as at Cincinnati.
    APPEAL from the Third District Court of New Orleans, Buvigneaud, J.

      Mott & Fraser, for plaintiff.

      Benjamin, Bradford & Finney, for defendants and appellants.
   Merrick, 0. J.

The plaintiff, who resides in Henderson, Ky., was the owner of a slave which he hired to the defendants on board their steamboat the Empire, as a fireman.

At «the time the slave was hired the boat was running- as a packet between Louisville and this city. The boat also made occasional trips to St. Louis.

After the slave was hired the boat made one trip to Oincinnati, where he disappeared. It is in proof that it is customary to leave slaves at Louisville or to land them at Covington, Ky., where boats are about to land at Oincinnati. It is proven (as well as a matter of notoriety) that there is great risk in taking slaves to Oincinnati. The witness says: “ It is a matter of almost absolute impossibility to prevent them from being run off.”

It is proved that the boats running- between Louisville and New Orleans, ox-Louisville and St. Louis, are in the habit of landing at points in Indiana and Illinois. One witness shys : The boat, besides running to St. Louis and New Ox-leans, ran occasionally to Madison, Indiana ; that before the slave was hired to the boat, her sign-board showed her destination to be Oincinnati, and that the destination of the boat really depended on the inducements held out on the arrival at Louisville. The judgment of the lower court was in favor of the plaintiff for $1200, the value of the negro, and defendants appeal.

By the common law, the defendants were bound to take the same care to preserve the thing which a good and px-udent father of a family would take of his own, and to restore the thing hired when the bailment was determined. I Bouvier Inst. $ 993. By our law the lessee is liable for the injuries and losses sustained through his own fault.

We ai-e of the opinion that the defendants are l-esponsible. Thex-e was a great want of prudence and care in proceeding to Cincinnati with the slave on board. And the case would not be different if the boat really were advertised for Cincinnati to the knowledge of the plaintiff at the time he hired the fireman to the boat. For he would have reason to think that on the arrival of the boat at Louisville, the captain, if he intended to proceed to Cincinnati, would take the usual precautions for the security of such hands as were liable to be enticed away and lost. The fact, that the boat was in the habit of landing at points in Indiana and Illinois, does not change the complexion of the case, so long as it is not shown that there was equal risk with Cincinnati. It is not to be supposed that a slave owner would be willing- that the hirer of his slave should take him to a point where there would be so much danger, and the captain of the boat seems to have known this well, for when he returned from Cincinnati he told the plaintiff, (who naturally enough inquired about the safety of his property,) that the boy was on the boat, hoping, no doubt, that he should be able to recover him and deliver him to the owner.

Judgment affirmed.

Land, J., absent.


text:
    Converse, Kennett & Co. v. Steamer Lucy Robinson, Captain and Owners.
    A judgment awarding a privilege on a steamboat, by virtue of an attachment, although entirely binding between the parties to it, may nevertheless he questioned by another creditor who was not a party to the judgment, by way of third opposition.
    If an attachment of a steamboat be bad as to some of the owners, on the ground that they are residents of this State, it must he set aside in toto.

      By the Act of the 18th of March, 1858, which was in force from its dato, the prescription for privileges on vessels was extended to six months.
    This court is only seized of jurisdiction to amend tho judgment as between appellant and appelloe ; not as between the appellees. Articlo 800 of tho Code of Practico declares that if the appellee demand the reversal of any part of the judgment or damages, lie shall file his answer at least three days before that fixed for the argument, otherwise it shall not bo received. This clause has inference to tho flrst fixing for trial in this court.
    APPEAL from the Sixth District Court of New Orleans, Howell, J'.

      Hwnton & Miller, for plaintiffs and appellants.

      Durant & Hornor, Clarke & Bayne, and Whittaker & Fellows, for defendants.
   Buchanan, J.

Plaintiffs, by petition filed April 27, 1858, sequestered the steamboat Lucy Robinson for amount of account for supplies (provisions) furnished the boat at various dates, from January 6th to April 17th, 1858, $2204 40. Also, for balance of account for sundry country orders filled and charged to said boat, $573 66. ,

The Lucy Robinson was subsequently attached at suits of various persons in various courts, which suits were transferred to the Sixth District Court, and consolidated with this suit, as being the first seizure.

Plaintiffs filed an opposition to the allowance of a privilege to the other seizing creditors by virtue of their attachments, on the ground that the affidavits to obtain said attachments were made in error, the owners of the Lucy Robinson being residents of the State.

Some of the parties excepted to the right of plaintiffs to question the legality of the attachments. This exception was overruled.

The consolidated cases were tried, evidence offered to sustain the respective claims of the parties, and judgment rendered, distributing the proceeds of the Lucy Robinson. It was proved that Livingston, one of the owners of the boat, lived in Morehouse parish; and that Mix, another owner, lived in New Orleans.

Plaintiffs appeal, and some of the appellees have filed answers to the appeal, praying amendments of the judgment of the court below.

The questions presented for our decision, are :

1st. Can a judgment awarding a privilege on a steamboat, by virtue of an attachment, be questioned by another creditor, who was not a party to the judgment, by way of third opposition ? Or must a revocatory action be instituted for that purpose ?

Answer. The object of the statute which authorizes the consolidation in the court whore the first seizure was made, of all the claims for debt against the thing seized, is that each creditor may have the opportunity of asserting his own right of preference in the order of payment; which manifestly cannot be done, unless he is at the same time allowed to contest the rival pretensions of the other parties to this concurso. It is entirely inconsistent with the reason of this practice, that any creditor shall be concluded by the judgment between the common debtor and another creditor. We are not to be understood as deciding that the judgment for the debt, once rendered by a court of competent jurisdiction, is reopened for every purpose; on the contrary it is entirely binding as between the parties to it. Its effect upon third parties, is alone at issue.

2d. If an attachment of a steamboat be bad, as to some of the owners, on the ground that they are residents of this State, must it not be set aside in toto ?

Answer. Tes. The ownership of a steamboat employed in transporting goods and passengers for hire, creates a commercial partnership between the owners of the steamboat. The object of this partnership is indivisible. The share of one partner cannot be detained in the custody of the law, while the share of another partner is exempt from such detention, by reason of the residence of that partner. This exception to the attachment must, therefore, operate upon the whole of the thing attached.

3d. The plaintiffs have imputed a sum of money received.on the 17th April, to the account against the boat, for orders filled for planters. Had they the right to make this imputation ?

Answer. Tes, under the evidence. The clerk of plaintiffs testifies, that what money was received from the boat was paid for orders to supply country customers.

4th. Previous to what date is the privilege for supplies prescribed ?

Answer. By the Act of 18th March, 1858, which was in force from its date, the prescription for privileges upon vessels, which previously had been sixty days, was extended to six months. The rule first laid down in Union Manufactory v. Lobdell, 7th N. S. 111, and confirmed by many subsequent decisions. See Hennen’s Digest, page 1262, No. 4; has been properly applied by the district court in this case. The privilege of plaintiffs for supplies applies to all the items subsequent to the 29th January, 1858.

5th. In this court some of the appellees complain of a preference allowed to other appellees to their prejudice, and pray that the judgment be amended in this regard. It is well settled that this cannot be done, without an appeal, on the part of the party complaining. This court is only seized of jurisdiction to amend the judgment as between appellant and appellee ; not as between the appellees.

6th. The answer of some of the appellees praying for an amendment of the judgment as against the appellant, is objected to by the counsel of appellant in argument, as being filed too late.

Article 890 of the Code of Practice declares that if the appellee demand the reversal of any part of the judgment, or damages against the appellant, he shall file his answer at least three days before that fixed for the argument, otherwise it shall not be received. We construe this clause to mean the first fixing for trial in this court. Now, we find, upon inspection of our calendar, that this cause was assigned for hearing four times in this court. It was only heard upon the fourth day fixed for its argument. The answer of appellees was filed more than three days previous to that day, it is true ; but the cause had already been fixed twice, previous to the filing of the answer. It was, therefore, too late, and cannot be considered.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed ; and it is further decreed, that the plaintiffs and appellants have a personal judgment against Jesiee Dwell, Solomon Maltón, George T. Parker, Frank D. Rogers, Amos B. Mix, and Rollo S. Livingston, owners of the steamboat Lucy Robinson, in solido, for two thousand, seven hundred and seventy-eight dollars and six cents, with legal interest from 9th April, 1858, and privilege of supplies for $1732 06 of said sum upon the property secpiestered ; that the proceeds of the steamer Lucy Robinson in the Sheriff’s hands be distributed as follows :

1st. To pay the costs of this suit, in both courts, including one hundred dollars fee allowed John Livingston, Esq., curator ad hoc.

2d. The following privileged claims :

Converse, Kennett <& Co.............................$1732 06
A. S. Washburn.................................. 120 00
J. Cottle......................................... 7 70
G. W. Langdon.................................. 12 75
J. S. Relf.............................,.......... 66 77
Mrs. M. J. Fleming............................... 51 70

With the costs of those parties respectively.

3d. The remainder of the proceeds to be distributed rateably among the following claims, not privileged, but due by the present owners of the Lucy Robinson :

Converse, Kennett & Co............................$1045 91
Cottle............................................ 88 31
Fleming......................................... 612 35
James McNeill, (with interest from 1st Dec., 1857)...... 263 50
Fred. Cook, (with interest from 1st Dec., 1857)....... 48 50
Wm. M. Mix, (with interest from 15th Nov., 1857)____ 58 00
J. S. Relf, (with interest from 7th April, 1857)........ 304 61
Frank Pelham.................................... 250 00

The amounts due the ordinary creditors, who are to be paid pro rata according to the judgment herein, are the amounts opposite their respective names, and it is agreed that the blanks in said judgment be filled up accordingly, viz :

Converse, Kennett & Co............................$1045 91
John Cottle....:.................................. 88 31
Mrs. Fleming..................................... 612 35
James McNeill.................................... 263 50
F. Cook.......................................... 48 50
W. M. Mix...................................... 58 00
J. S. Relf & Co................................... 304 61
Frank Pelham.................................... 250 00

Whitaker & Fellows.

Durant & Hornor.

Hunton & Miller.

Bentinck Egan.

Land, J., absent.