text:
    No. 1881.
    John Bietry v. City of New Orleans.
    The city of New Orleans gave a contract to till up batturo property with river sand, within a given time, with, a penal clause empowering the city to annul tho contract and forfeit payment for what work had boon done, and to resell the contract in case of abandonment by the contractor, or failure to complete the work Within the time prescribed. The contractor failed to complete the work within the time. The city failed to resell, but annulled the contract. Hold — That under the stipulations of the contract the city was authorized to cancel it for failure to complete the work within the time, but n’ot having resold it, she could not enforce tho. penal clause for damages against the contractor.
    Where a contract has been annulled by the city of New Orleans on account oí the failure of the contractor to complete tho work within tho time prescribed, his right to recover pay ior work already performed will depend on the fact whether the failure was through his fault. If overpowering force, or an unusual high water occurred ‘to interfere with the operations of the contractor, he would bo entitled to recover pay for-what work he had actually performed, although the contract was forfeited.
    APPEAL from Seventh District Court, parish of Orleans. Collens, J.

      J B. Cotton, for plaintiff and appellee. J. Ii. Beclcwith, City Attorney, for defendant and appellant.
   Howell, J.

The plaintiff, a contractor for filling with river sand the battures in front of the First District, from Canal to Calliope street, the first day ef November, 1866, at the rate of thirty cents per cubic yard, sues the city of New Orleans to recover:

First — The sum of $600, being ten per cent, op tho amount of a payment or certificate, and retained nndcr the contract as a guarantee, until the completion of the whole work.

Second — The sum of $3000, for work done between the date oí said payment and the date when his contract was taken possession of by •the city,

Third — Tlie sum of $5775 1G, damages sustained in the purchase of tools, implements, etc., to enable him to execute his contract.

Fourth — The sum of $6250, profits on the unexecuted part of his contract.

The answer is a general denial; the allegations that plaintiff neglected his work, failed to use due diligence in the completion thereof,, acknowledged his incapacity to to complete it, and that the contract was annulled by virtue of its stipulated conditions, and the work was completed by the City Surveyor, at a cost exceeding the contract by $2710 G5, which, less the $600 retained, is claimed in reconvention.

Judgment was rendered in favor of plaintiff, dismissing the reconventional demand, and for the sum of $8600, and the city appealed.

It is shown that between the date of the payment made and the first of November, there was an unusual rise in the river, which greatly interfered with the jdaintiff’s operations; that during said time he performed work to the amount of $731 40 at the stipulated price; that about the latter date the City Surveyor took charge of and finished the work at a cost as set out in the answer, and on tlie ninth of November the ordinance annulling the contract was approved. It also appears that plaintiff made two applications to tlie Common Council — one on the sixteenth of October, to bo relieved from his contract, or allowed Indemnity for loss, on the ground that his outlay exceeded his compensation, and his means were insufficient to continue under the conditions oí the contract; and another on tlio twenty-third of the same month, for an extension of forty-five days to complete the work, on the ground that the high water prevented his getting sand at the place designated by the Surveyor, and compelled him to discharge a largo portion of his laborers. It appears further, that, under the stipulated conditions, the Council could, without a putting in default and without indemnity, annul the contract, if the plaintiff failed to complete the work by the firstof November; and if he should abandon the ivork, or fail to finish it in conformity with his contract, he should forfeit all claims he may have for any part of the work done by him ■up to the date of the abandonment, and the city thereby discharged from any liability therefor; and if the contract be resold, the plaintiff and his sureties shall pay the difference between the price of the first and tliat of the second contract.

Under this state of facts the reconventional demand can not be sustained, the city not having resold the contract. Nor can the plaintiff recover the third and fourth items of his demand, which have no basis in law or equity. His right, however, to the first and second items, to the extent of the work actually performed by him, depends on the question whether or not he has forfeited them.

Tlie work not being finished at the time agreed on, it was clearly within the discretion of the Common Council ■ to extend the time of annul the contract, but the right to enforce the penal clause depended on the fact whether or not the contractor was in fault within the conditions of the contract. The forfeiture is imposed by the express terms of the contract, in case the contractor abandons his work or fails .to finish it in conformity with- his agreement, hnd is applied to a claim for “work done by him up 'to 'the'date1 of Ids abandonment.’■’ ■Plaintiff did not abandon his work, but failed to complete it, as to timé, in conformity witli his contract. The evidence does not make it certain that he would not have done so, if the high water had not interfered with him. Some of the witnesses express the opinion that “ the work would have been completed under contract within the time, but for the rise in the river.’’ This can only be a matter of opinion, while the grounds of his application to the Common Council to bo relieved, mayraise some doubt. But the penal clause should be strictly construed, and in this view the forfeiture would result only from abandonment. But if this were not so, “the penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance, such as inevitable accident or irresistible force.” C. C. 2116.

Now, it is true, as stated by the City Attorney, that the city did not warrant against the rise in the river, and yet it may be an accident or force which will excuse the plaintiff, the obligor, for the non-completion of his work in the time fixed, and relieve him from the forfeiture of the pay for the work done by him up to the time, at which he should have completed the whole of it. The facts of this case bring the plaintiff within the application of this doctrine.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff, John Bietry, recover of the defendant, the city of New Orleans, the sum of $1331 40, with legal interest from November 1, 1866, and that he have judgment dismissing defendant’s reconventional demand, with all costs in the lower court; costs of appeal to be paid by plaintiff and appellee.


source: Caselaw Access Project

author: Ludeling, C. J.

license: Public Domain

text:
    No. 2696.
    L. C. A. Wagoner et al. v. Francis Phillips.
    The action to compel an agent to account is proscribed by ten years. C. C. 3503.
    APPEAL from Fifth District Court, parish of East Baton Rougo.

      Posey, J. B. B. Chaney, for plaintiff and appellant. A'. S. Herron, for defendant and appellee. '
   Ludeling, C. J.

This suit is for the recovery of twelve hundred and seventy-six dollars and fifteen cents, with five per cent, interest per annum from the fourth of December, 1856.

The defendant pleaded the prescription of ton years; which was. sustained by the court.

There is no controversy as to the facts. On the fourth of December, 1856, the defendant, under a power of attorney from the plaintiffs, received from the Treasurer of the State of Louisiana, twelve hundred and seventy-six dollars and fifteen cents for the plaintiffs. The petition was filed on the nineteenth of August, 1869. The prescription of ten years applies in this case, which is an action against an agent to account. C. C. 3508; 32 An. 632; 15 An. 145; 16 An. 397; 17 An. 250.

Article 3476, of the Civil Code, invoked by the plaintiffs, does not apply to the prescription liberandi causa. The presumption of payment, resulting from the lapse of the necessary time, is “juris et de jure.” C. C. arts. 3494, 3496, 3515 ; 3 An. 177.

It is therefore ordered that the judgment of the District Court be affirmed, and that appellants pay the costs' of appeal.


author: Wyly, J. Ludeling-, C. J., Howell, J.,

text:
    No. 2590.
    M. Hebert et al. v. John Chastant.
    Service of executory process on the mortgaged debtor interrupts prescription, whether he malíes defense or not.
    The holder of promissory notes executed for the purchase price of a plantation and slaves before emancipation, can only recover that portion which is ascertained to be ior the value of the land at the time of the sale. In case the purchaser has paid a portion of the price, the holder can recover that portion of the balanco due which is ascertained to be for the land m the proportion oí the value of the land and slaves in the original contract. The doctrine in the case of Sandidge -u. Sanderson, 21 An. 757 reaffirmed.
    APPEAL from Seventh District Court, parish of Pointe Coupee.

      Miller, J. liousseaxi, & Sstevan, for plaintiff and appellee. Thomas S. Seises, for defendant and appellant.
   Wyly, J.

In March, 1860, the defendant, John Chastant, purchased in the parish of Pointe Coupée a sugar plantation, together with the slaves and movables thereon, for the price of $200,000, paying $50,000-cash, and executing, in evidence of the deferred installments, the series of mortgage notes on which this action is based.

The defendant enjoined the executory proceedings of plaintiffs on several grounds. The most prominent are the prescription of five years, and the slave consideration of the notes.

The court below maintained the plea of prescription as to the notes-maturing on or prior to twenty-second of March, 1862, and rendered judgment for half the amount of the remaining notes, that part of the consideration appearing not to be for slaves. The defendant appealed.

He now contends that the notice of the order of seizure and sale-served on him personally, on thirteenth May, 1867, did not interrupt the prescription of the notes maturing in March, 1863, because the plaintiff did not cause the sale to be made as advertised on sixth July, 1867, but voluntarily returned the writ, and did not issue it again until twenty-first September, 1868; that proceedings by order of seizure and sale only arrest prescription when they are litigated, and in support of tbis position he relies on Walker & Co. v. Lee, 20 An. 192. The authority referred to does not sustain the position. That judgment was based on no such reason.

If prescription, has not been arrested by some act of the defendant, or some process of the court, within a limited time, the law presumes the debt has been paid. It is a statute of repose, based upon the presumption of payment, whore the creditor has failed to assert his rights in the time limited for him to do so. When the service of the executory process was made on the defendant, on thirteenth May, 1867, he became a party to a judicial proceeding against him for the recovery of the debt, whether he saw fit to litigate it or not. The law would hardly presume a creditor paid, who made his debtor a party to a judicial proceeding, and actually had his property under seizure and advertised for sale, within the period limited for prescription to accrue.

The debt evidenced by the notes was part for slaves, and part for lands and movables; and under the decisions of Soniat v. Patrick and Sandidge v. Sanderson, lately rendered, it must be apportioned, and judgment given only for that part of the debt, the consideration whereof was not slaves.

The parties do not question the correctness of these decisions, and are perfectly willing for the apportionment, but differ as to the relative-value of the slaves, and land and movables. This is rather a question of fact than of law. The opinion of numerous witnesses was taken as-to what was the relative value of these different objects of the contract of sale at the time it occurred. On this subject they differed widely.

Randolph, a witness, said: “The property on the day of sale, as it stood, with all the appurtenances, without the slaves, was worth, in my opinion, not more than $40,000. The place would not be worth more than $25,000 at present. I would not have given more than $5000 for the place in 1863.”

Hubert, another witness, thought the land, since 1860, was worth about $39,500, and the slaves were then worth about $.1000 apiece.

The witness Bouanchaud, who was assessor, swears: “That very place was appraised by me in 1859 at about $80,000. In 1858 it was valued at about $40,000; but from that time the planters valued their lands at forty dollars an acre up to the war.”

On thirteenth February, 1860, just thirty-seven days before the sale, all the property was inventoried and appraised by order of the court (it being succession property), each piece of property being appraised separately, and the aggregate cash value fixed by the appraisers was-$170,716; of this, their valuation of the land and movables was-$86,516, and that of the slaves $84,200.

L. Y. Gasseraud., one of the appraisers at'the taking- of the inventory, was sworn as a witness on the trial, and said he was born in that parish, lived there all his life, and was fifty-seven years old. He said: ■“ I have been a planter all my life. I live about three or four miles from the Chastant plantation. I have always resided at the same place. I made an estimation of the property of Chastant before it was sold. I do not now recollect the amount at which the property was appraised, but I was one of the sworn appraisers. The property was estimated at that time at the value which it possessed then.”

' This statement was corroborated by the evidence of Lejeune, an old resident and planter of the immediate neighborhood, who was also an •appraiser at the taking of the inventory.

The district judge who heard the delivery of the evidence by the witnesses, attached more importance to the evidence of the assessor, to the inventory made by the court prior to the sale, and the evidence ■of the appraisers who testified in the case. He finally fixed the relative value of the land and movables at half the amount of the whole debt, •and rendered judgment accordingly.

After a careful review of the law and the evidence, we have con■cluded that there is no reason to disturb the judgment of the court below.

Judgment affirmed.

Ludeling-, C. J.,

dissenting. 1 dissent from the judgment of the ■court in this case, for the reasons stated bv me in-the case of Sandidge v. Sanderson

Howell, J.,

dissenting. As the case of Soniat v. J. Chastant was finally disposed of in my absence, and that of Sandidge v. Sanderson is not yet final, I deem it proper to express my dissent, for the reasons. given by me in the latter case, from the conclusions of the majority ol‘ •the court in this cause.

Rehearing refused.


author: Howell, J.

text:
    No. 2694.
    State v. R. Durbin.
    'The charge of the judge to the jury, that “ violence may be committed as well by actual unlawiul force, as under pretense of rightful proceedings,'* could not mislead the jury, where no evidence was offered showing that the accused acted under legal authority in forcibly taking the money.
    APPEAL from District Court, parish of East Baton Rouge. Posey, J.
    . M. A. Esteran, District Attorney, for the State. J. W. Burgess, for defendant, appellant.
   Howell, J.

The defendant has’appealed from a judgment sentencing him to seven years’ imprisonment at hard labor for tho crime" -of robbery.

No briefs haying been furnished, we are remitted to an examination ■of the record for any error authorizing an appeal.

First — There is a bill of exceptions taken to a part of the judge’s ■charge, coasisting of the following words: “ Violence may be committed as well by actual unlawful force as under pretense of legal and rightful proceedings,” which was objected to on the ground that .said charge tended to mislead the jury.

It is stated in the bill of exceptions that actual violence was proven,' .and the judge also charged, at the request of the prisoner, that unless the testimony shows that the defendant used violence toward the party charged to have been robbed or put in bodily fear, he can not be convicted of robbery.” Under these circumstances, the words complained of, if legally objectionable in themselves, could have had little weight with the jury — there being no proof, as stated by the judge, that the accused represented to the party robbed that he was acting upon legal authority in taking the money.

Second — There is a motion in arrest of judgment based on the ground that tile indictment is defective because it does not show that the grand jurors were impanneled, svrorn, held their sessions and conducted their inquest in the parish of East Baton Rouge.

These objections, if they can be urged after the petit jury are sworn, are not well made, as the indictment declares that the grand jurors of the State of Louisiana, good and lawful men of the parish of East Baton Rouge, duly impanneled and sworn, to inquire ior the said parish, do present,” etc., which is a ¡substantial compliance with the requirements of the law in this respect.

Judgment affirmed.


text:
    No. 2687.
    Wm. Sadler v. Wm. D. Gayle—C. O. Gayle, Administrator.
    A sheriff who received from bis predecessor an amount of money, made on execution, for which he gave his receipt as sheriff, for the amount in dolia rs without any qualification, can not setup against the demand of the judgment creditor that the sum received was Confederate motes.
    APPEAL from District Court, parish of East Feliciana. Posey, J.

      McVea & Hunter, for plaintiff and appellee. Hernán & Lyons, for defendant and appellant.
   Howell, J.

The plaintiff claims of the defendant a sum of money received by him as sheriff on an execution in the suit of Sadler v. Crawford. The defense is a general denial and the averments that the defendant was not the legal sheriff at the tíme, and that the sum recovered was in Confederate treasury notes.

There is an admission in the record that the defendant -was the ■sheriff at the date, January, 1862, when he recovered the money claimed, and as the necessities and interests of society required such an officer during tlie late war, his official acts must be recognized as legal.

Tho evidence does not sustain the other ground of defense. In November, eighteen hundred and sixty, the money was made by sheriff1 Norwood under an execution in the above named suit of Sadler v. Crawford, and on the second of January, 1862, he turned the writ and the money over to his successor, the defendant, who gave his reccip., as sheriff, for the amount in dollars, without qualification, as indeed, he could only have done. He is liable, therefore, for the money.

Judgment affirmed.


author: Howe, J.

text:
    No. 1892.
    Bernard Weiser v. Benjamin F. Smith.
    Third parties holding shares of stock, belonging to or standing in tho name of a stockholder, in pledge, can not be made parties, or be proceeded against by rule, in a proceeding by a purchaser of the stock at sheriff sale, to compel a transfer of the stock on the books of the company. In such a case the pledgees have an interest in the transfer of the stock, and. must be made parties by petition and citation,
    APPEAL from Fourth District Court of New Orleans. Théard, J.

      Gollens & Wooldridge, for plaintiff and appellee. JE. Filluel and MeGloine & Kleinpeter, for garnishee, appellant.
   Howe, J.

The plaintiff having a judgment against the defendant, issued execution and propounded interrogatories to Frank Roeder, president of the New Orleans Manufacturing and Building Company, for the purpose of ascertaining whether the latter had in its possession or under its control any property or rights belonging or due to the defendant. The garnishee, who was cited June 22, 1807, answered as follows:

“The defendant was at one time a stockholder in the New Orleans Manufacturing and Building Company, and he may still be a stockholder in said company. I think, however, from the best information I can obtain, that he has parted with all his stock in said company, either by selling the same or pledging it. I know positively that he has parted with all his stock in said company, except one hundred and sixty shares, from the transfers made on the books of the company, as appears from exhibit A. I have reason to believe that he has also parted with the one hundred and sixty shares, hut I have no absolutely positive information on that point. The exhibit A, hereto annexed, shows how defendant’s stock account stood on the books of the company. I make this exhibit a part of my answer.” *' '::i ° *

And in reply to an inquiry as to transfers, the garnishee replied that the said exhibit showed all he positively knew on tho subject. The exhibit showed that one hundred and sixty shares stood in the name of the defendant, Smith.

On tho twenty-fourth June, 1867, tho sheriff served a notice of seizure of the defendant’s stock and interest in the company on its president, Roedor. On the twenty-eighth June there was served on the treasurer a notice of seizure of the same property and interest.

The sheriff then advertised and sold one hundred and sixty shares of stock of the company, as standing in the name of Smith, and they were purchased by the plaintiff, Weiser.

The company declined, on application, to transfer the shares to plaintiff, and the latter took a rule to compel the transfer. Without objection to the form of proceeding, the company answered:

“First — That the rule ought not to be made absolute, because no stock of said company can be transferred upon the books of the company ■without surrendering the certificate of the stock thus sought to be transferred, and the sheriff did not produce said certificate or certificates.

u Second — This company lias been advised that the said stock was transferred or pledged to third parties before the sale by the sheriff thereof, and the certificates given up to such third persons, who have an interest in this proceeding, and no judgment can be rendered herein without said third persons bo made parties to this proceeding.

“ That said third persons are G. L. Dethlep, Cass & Dowling and H. Samory, as the company is advised.”

And thereupon the company prayed that these parties might bo brought in.

The plaintiff seems to have acceded to the propriety of this latter step, for upon his motion an order was forthwith made that Dethlep, Cass & Dowling, and II. Samory, bo made parties defendant to the rule, and served with a copy, and a copy of this last motion and order. Service was accordingly made on Cass & Dowling and Samory, and a curator ad hoe was appointed for Dethlep.

Samory and Cass & Dowling excepted that they could not be made parties to the proceeding, except by process of citation and petition, and their exception was sustained. Dethlep, who appears to reside in New York, seems to have been forgotten in the heat of controversy. It is not clear from the record that his curator ad hoe was ever served with the original rule at all. It is certain that the curator took no part in the contest.

The court finally gave judgment as between Weiser and the company, directing- the sheriff to make the transfer upon the books of the company, and from this judgment the latter appealed, and Cass & Dowling and Samory, by answer, also ask for a reversal of the judgment.

The argument of the cause has taken a wide range, but we do not find ourselves called upon to decide all the questions presented. It is apparent that in this case the plaintiff can not ignore the rights of Dethlon, Cass & Dowling and Samory, as he has sought to do. The order to make them parties has never been rescinded, yet it has never-been complied with. The proceeding is one to compel a transfer oi" property, which, whatever may be its intrinsic worth, has an apparent value of $16,000, and in which it is conceded they have an interest, and to which Weiser has no better right than- Smith. Not having been parties to the suit of Weiser v. Smith they should have been brought, in by petition'and citation, in order that-the rights of all may he-properly adjusted. 6 R. 435; 3 An. 206, 434; 12 An. 201; 14 An. 390.

For the reasons given, it is ordered that the judgment appealed from be reversed, and the case remanded to be proceeded with according'to, law, and that plaintiff pay the costs of the. appeal.


author: Tali arerró, J.

text:
    No. 1893.
    Kember & George v. Southern Express Company.
    The Southern Express Company, hy taking a package of gold to transport from liew Orleans to* Mobile with full knowledge of its character and contents, became liable for the amount which the package contained, that was lost or miscarried by the company, even though the receipt, given by the company at the time, showed that it was an ordinary package, valued at fifty dollars. The company on being made acquainted with the contents of the package by the agent for the owner, should have given a receipt for the full amount, and not attempted to limittheir liability to fifty dollars.
    The receipt, given by an express company for the shipment of a package, which contains the-clause, that, in case of loss, the company will not be responsible for anything above the-amount stated in the receipt to be its value, is not absolutely conclusive against the shipper, and he may show by evidence, in case of loss, that the package contained gold coin, and recover the amount notwithstanding the receipt.
    APPEAL from Fourth District Court of New Orleans. Théar.d, J.

      C. M. Conrad & Son, for plaintiffs and appellees. TI. J. Beomj and JS. C. Billings, for defendants and appellants.
   Tali arerró, J.

The plaintiffs sue tbe defendants for seven thousand dollars damages, sustained by them, as they allege, from the loss of four thousand dollars in gold coin delivered by their agent in New Orleans to tbe defendants, under contract with them, to be delivered to the plaintiffs in Mobile, but that defendants have failed to deliver tbe same, and are thereby liable for and bound to plaintiffs for seven thousand dollars and interest at five j>er cent, per annum from the first of March, 1866.

The answer is a general denial. The defendants specially deny that-plaintiffs are the owners of any package shipped through the defendants by George Coppell, for Mobile, in 1866, or at any other time. They deny that Coppell, either for himself or other parties, shipped any package by defendants stated by liim to contain gold or any other-article of value, or on which he paid compensation for gold or other-valuable commodity, or on which he made any contract for a value-, exceeding fifty dollars.

The plaintiffs had judgment in their favor for $5600, with legal interest from judicial demand. The defendants have appealed.

We do not deem important in tfie decision of tlie case to pass on the several bills of exceptions embodied in the record.

The facts seem to be, that early in January, 1866, the plaintiffs being-in Mobile, instructed their agent, Coppell, then in New Orleans, to-purchase for them four thousand dollars in gold, and to forward the money to them by some safe private conveyance, if an opportunity presented; if not, to send it by express. The agent accordingly obtained the gold, and decided to send it by the Southern Express-Company.

As it is important to ascertaiu the circumstances under which the intended transmission occurred, we shall notice at some length the evidence in the record.

Coppell, the agent, says: The gold was packed in oil canvas, and then enveloped in stiff brown paper, tied with either string or tape, and scaled with sealing wax, with the impression G-. C. upon the wax ; the wax was applied in three or more separate places. I applied with mucilage a small piece of white writing paper to the package, and wrote on this paper, 1 Messrs. Kember & George, Mobile.’ I stamped upon the paper, ‘ George Coppell, New Orleans.’ I took this package to the Southern Express Company’s office, corner of Gravier and Carondelet streets, New Orleans, where I saw a young man receiving-parcels. I placed the package containing the gold upon the counter, with my left hand upon it, ánd said to the young- man: This is gold.’ I-Ic asked me who was sending it, and I told him ‘ I was,’ giving my name, as I told him, in answer to his question. He made an entry in a book. The name of the young man "was Dayton or Drayton.” * * 5 “When I handed the package to Dayton or Drayton, he took it and put it by itself upon a shelf in the rear of the counter, where there was no other package or articles. As soon as I learned from plaintiffs that the gold had not been received, I lodged information of the matter with the police authorities, who thereupon had three of the employes of the company arrested, but nothing was elicited, and the gold was not secured.” During the time these parties were under arrest, the witness-states that “ the book in which the entry of the package had been made-was sent for, and that Dayton or Drayton acknowledged the entry to be in his handwriting.” The entry was of a package from “George Coppell to Kember & George, Mobile.”

In reply to a cross interrogatory, the witness said: “I made no-agreement with regard to the amount to be paid i'or the transportation of the package, except that the charges for carrying the same were to be paid by the plaintiffs in Mobile, which the clerk acquiesced in. I did not insure, the package, and I paid no premium to the defendants. There was no special contract made by me with the company based on •the value of the package.”

The way bill of the express company for February 1, 1866, has an entryin.it: “Coppell — Kember & George, Mobile ; freight 50.”

Buckley, a "witness for defendants, says: “I was way bill clerk íot the Southern Express Company in February and March, 1806. The way bill marked N. N. (the one in evidence) is entirely in my handwriting. It was made on the first of February, 1866. When we reocivr .ordinary packages we .place .them in a large packing chest, and the\ are sent out in charge of a messenger. I checked the package to Kember & George on the way bill. The check mark was made by me as called out to me to go into the chest with other packages on the war bill. ‘Calling off’ means that as another clerk would call off each package separately by the males, and put it in the chest, I would check it off. The same thing was done in relation to this package as was done with all packages. I did not see the package being put into the chest. I would not have seen one of the clerks had he put the package in his pocket. Between the second and fifth of February, 18G6, Mr. Coppell came into the office, and said the lost package contained $4000 in gold. ~ * “ He exhibited the receipt, and I called his attention to the fact that the receipt was for a package valued under fifty dollars, and asked him if he had not called the attention of Mr. Drayton to the fact that it contained gold. Coppell said he did so at the time of shipping it, but that he did not think the clerk heard him, as his (the clerk’s) attention was attracted to another clerk on his left, with whom ho was speaking at the time.”

The defendants rely mainly on their liability being limited, and that consignors are made aware of the conditions upon which they undertake to transport goods, by written or printed receipts, signed by them and delivered to their customers. These receipts they hold to be evidence of the contracts they make with shippers or consignors, and that the latter are bound by them. One clause in the receipt is, “if the value of the property is not stated by the shipper at the time of shipment, and specified in the receipt, the holder thereof will.not demand of the company a sum exceeding fifty dollars for the loss or detention of, or damage to each package receipted for.” A receipt of this1 character, it appears, was taken by Coppell. He swears, however, that he was not apprised of the fact that it contained the clause, of limitation until after the miscarriage or loss of the gold was ascertained. On this subject, he says: “A receipt was given to me for the package; the value of the package was not fixed in the receipt; I think, but am not certain, that the blank in the printed form was left unfilled. I saw that the receipt had in it a clause limiting the responsibility of the company to fifty dollars afterward, when the trouble arose, but I did not observe, and was not aware of any such limitation when I took the receipt.” This instrument was not produced on the trial. On cross examination he stated that the receipt .had been sent to Kember & George, at Mobile, and that the form annexed to the cross interrogatory “ looked like the form of the receipt taken by me, but I can not positively state; the space after the words valued at was not filled in my receipt. I did not object to the receipt at thetimé.it was given to me, nor at any subsequent time previous to the discovery of the loss.”

Wo think it clearly established that the company received the package of gold with full knowledge of its contents. The statement by one of the defendants’ witnesses that Coppell told him, after the loss of the package, that when ho delivered it for transmission, and informed the clerk of its contents, the latter did not hear him, being at the time engaged in conversation wit' another clerk, appears to be intrinsically entitled to little weight. It seems improbable that a man of ordinary prudence and business capacity would deposit in the office of an express company a package containing four thousand dollars in gold-, tell a clerk who did not hear him that it contained gold, and use no further effort to make himself understood as to what the commodity was that he desired to transmit. Certainly such evidence can not avail the company against the clear, distinct and positive statement of the agent, that the clerk to whom he delivered the package inquired, upon being informed of its contents, in whose name it was to be shipped, made an entry in a book, received the package, and laid it away on a slndf in the rear of the counter, separately and apart to itself, there being upon the shelf no other package or other articles.

In addition to this, the careful manner in which the package was made up and secured by fastenings, sealed with wax, having impressed upon it the initials of the consignor, and upon a white slip of paper attached, the names and residence of the consignees, and also the great weight of a package of so small a bulk, were all indications which could not be disregarded that its contents were of greater value than ordinary small packages of goods. No attempt is made by the defendants to account for the loss of the gold which they received for transportation. They rely upon the receipt, which does not show that the package was received as being of greater value than would, ip. the event of its loss, render the company liable for more than fifty dollars.

Under the circumstances, and the state of facts presented in this case, we think the plaintiffs should recover. They fulfilled the most important condition set forth in the receipt, that of making known the value of the thing to be shipped. This act necessarily preceded the making out and delivery of the receipt. Knowing the value of the package received for transmission, good faith and fair dealing required that the defendants should have specified its value in their receipt which they delivered to the plaintiff’s agent, who received it from the company’s clerk. The latter had every reason to believe that the former took it as an acknowledgment of the possession of the gold, and an agreement to carry it to Mobile; The facts more strongly warrant this conclusion than, as intimated in argument, that the agent was acting disingenuously by aiming to get the transportation for a very trifling sum, thinking, at the same time, the company would be responsible if the gold were lost.

For these reasons wo think the decision of the lower court ought to be adhered to.

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

Rehearing refused.


author: Taliaeerro, J.

text:
    No. 2714.
    James R. Shelton v. B. M. G. Brown.
    A party having set forth his demand by intervention, and his rights having been passed upon, is estopped from prosecuting a direct action on the samo demand against the same party. In such a case the plea of res judicata will prevail.
    APPEAL from Sixth District Court, parish of East Feliciana. Posey, J.

      Cross & Pardee, for plaintiff aud appellant. MeVea & Kilborne, for defendant and appellee.
   Taliaeerro, J.

This suit is brought to recover from the defendant $3500, with interest, as damages alleged to have been sustained by eviction from a tract of land purchased by the plaintiff from Delia Haynes, whose vendor purchased from Brown, the defendant in this suit, against whom the plaintiff proceeds as warrantor, in virtue of subrogation from his vendor. The defendant interposed the peremptory exception of res judicata, which being sustained by the court and the suit dismissed, the plaintiff appeals.

The judgment, we think, was properly rendered. This suit is merely a reiteration of the consolidated eases of The Liquidator of tho Clinton and Port Hudson Railroad Company v. B. M. G. Brown and Wife, and Delia Haynes v. the Sheriff and others, in which the idaintiff in this suit figured as iutervenor. See 21 An. 248.

It is therefore ordered, adjudged and decreed that the iudgment of tho district court be affirmed, with costs in both courts.


author: Wyly, J.

text:
    No. 2695.
    The State of Louisiana v. Henry Durbin.
    In criminal trials, all objections to the information or indictment of a strictly formal character must be urged before the jurors are sworn. Revised Statutes of 1855, section 91, page 177.
    APPEAL from Fifth District Court of East Baton Rouge. Posey, J.

      M. A. Pstevan, District Attorney, for the State. J. W. Burgess, and Pugua <& CalKham, for defendant aud appellant.
   Wyly, J.

Tho defendant has appealed from a judgment on tho verdict of a jury convicting Mm of the crime of robbery. He moved, in arrest of judgment, that the information, on which the proceeding is based, is invalid, because it “does not charge the defendant with any conversion or intent to convert the property which he is charged with robbing from Mrs. Clark to his own use.” The motion, was overruled, and the motion for new trial was overruled by the court; and the defendant, after being sentenced to- seven years’ confinement at hard labor in the penitentiary, took this appeal.

1 The information in this case appears to contain all the necessary averments to support the charge of robbery; the objection, if of any force, was merely a formal defect, which should have been made before the swearing in of the jurors and not afterwards. Acts 1855, § 91.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


text:
    No. 1707.
    Sibley, Guion & Co. v. Fernie, Brothers & Co.—Thos. Calvert, Alex. B. Frazer and Wm. Gillespie, Intervenors.
    A creditor of a part owner of a vessel, a non-resident, may proceed against the vessel by attachment when she enters the port, and he can not be held hable for the expenses incurred, or damages caused by the detention pending the decision of the attachment suit.
    In case the interest of one of the owners of the vessel is sold at the suit of the attaching creditor, no privilege exists on the proceeds for expenses incurred or supplies lurnishod during the detention or previously.
    The privilege on a vessel in favor of the furnisher of supplies, or the crow, is not affected by ' the sale of the interests of the different shareholders.
    APPEAL from the Fourth District Court of New Orleans. Timará, J.

      Campbell, Sp'offord & Campbell, for plaintiffs and appellees. Elmore & King, for defendants and appellants.
   Wyly, J.

This is a contest between the plaintiffs, who are attaching creditors, and the intorvenors, for the proceeds of the sale of the three-eighths interest of the defendants in the British ship “ Herald,” which was sold pending this litigation, on twelve months’ credit, by order of the court, and bought by Thomas Calvert, one of the intervenors, who was master of the vessel.

The plaintiffs contend that on getting judgment, their preference on the proceeds reverted to the day the attachment ivas levied, which was prior to the existence of the debts set up by the intervenors as privileged.

The intervenors contend that the claims which they set up for supplies, wages oí officers and crew, port charges and demurrage, arose in consequence of the detention of the vessel; and that it would be unjust for them, the owners of five-eighths, to suffer the expenses and losses resulting from the seizure of the vessel on account of the indebtedness of the owners of three-eighths thereof; for the amount of these expenses, paid by the captain, and for the amount claimed for demur-rage, the intervenors assert a privilege on the proceeds of the sale of the three-eighths attached, superior to that of the attaching creditors.

Tlie court below came to tbe conclusion that, although it appeared that Captain Calvert had incurred expenses and paid debts accruing during the detention of the vessel, there was no legal evidence of his subrogation to the rights of the creditors whose claims he paid; that his remedy was in an action for settlement against the coproprietors before the proper tribunal; and it gave judgment for tho amount claimed by the plaintiffs, recognizing their preference resulting from the attachment.

Tho intervenors have appealed.

The demand of tho plaintiffs was based on a bill of exchange, and tho defendants were non-residents, owning the three-eighths of the vessel attached.

There is no doubt of tho correctness of tho judgment as to tho dofandants, who have not appealed.

The intervenors have not raised an issue as to tho legality of attaching the three-eighths interest of the defendants in the vessel, and they will not now be heard making defenses not set up in their pleadings.

The question is simply whether the plaintiffs or the intervenors have a superior right to the proceeds of the sale of tho three-eighths of the vessel attached by the plaintiffs?

After examination of the evidence and authorities bearing on the case, we have come to tho conclusion that the intervenors have no privilege whatever on tho funds in dispute.

As to the claim for demurrage, we are at a loss to perceive how that can give the owners of five-eighths of tho vessel a privilege on tho share of the owners of tho other throe-eighths. It is simply an unliquidated claim for damages, which is entitled to no consideration in determining the issues of this case.

If the intervenors are subrogated to the privileged debts which they say they have paid, their privilege still remains upon the vessel, which has never boon sold; only the share or threo-eightlis interest of the defendants was attached and sold. The intervenors certainly have no greater rights than the privilege creditors they claim to have paid; and wo apprehend that tho furnisher of supplies and the crow would have no right to inteifere in the sale of the share or interest of the defendants in tho vessel, having their privilege on the vessel, and not on the interests of tho different ohareholders. Whether the share of the defendants was transferred to the purchaser by judicial or conventional sale, can make no difference to the privilege creditors of the vessel.

If the vessel had been sold by judicial process, the privileges resting thereon would, perhaps, have been transferred from the thing sold to tho procoods, and the purchaser would have taken it free of incumbrance. But the purchaser of the interest of a part owner only takes the thing subject to the incumbrances thereon. The purchaser, in this case, did not buy the vessel, but only tbe share or interest of the part owners.

We see no force in the argument of the intervenors that they should take tho proceeds in preference to the plaintiffs because it was by no fault of theirs that the attachment was levied, and the detention and loss occurred; that as the detention had occurred by the attachment of the plaintiffs, they should suffer the losses resulting from the detention, rather than themselves, who had committed no wrong whatever in the matter. Wo do not think it can fairly be said that the plaintiffs have committed a wrong by levying an attachment against the property of their debtors, who were non-residents, and who do not complain. One can hardly be said to have committed a wrong who has merely exercised his legal rights.

We think the captain’s remedy for the money advanced for the expenses of tho vessel, is against the coproprietors, and that if the vessel was detained by the fault of one of the part owners, and loss resulted to the others, their action is against him by whose fault the damage or loss occurred. It is not against the creditor who has exercised his lawful remedy.

It is therefore ordered that the judgment appealed from be affirmed, with costs.


author: Taliaferro, J.

text:
    No. 2582.
    C. H. Slocomb & Co. v. A. G. Cage, Sheriff, et al.
    The judgment creditors instructed tlieir attorney to bid on property seized in their name. Tho property sold on twelve months’ credit, and tho attorney gave a twelve months’ bond, as tho attorney in fact ot his clients, for the price bid. The judgment creditors took tho property. Pending the seizure other creditors had asserted a privilege on the property seized superior to that of the seizing creditors. The seizing creditors seek to avoid their liability on the bond, on the ground that tho attorney who signed it was without authority to do so. Held — That although the attorney, as such, could not bind his clients on tho bond, yet their accepting the property purchased by him at the sale under their instructions, was a ratification of his act in signing the bond, by which they were bound.
    APPEAL from Third Judicial District, parish of Terrebonne. J.

      Belcher c6 Beattie, for plaintiffs and appellants. Bush .d; Goocle, for defendants and appellees.
   Taliaferro, J.

The plaintiffs, who are merchants of New Orleans, having debts due them by their customers in the parish of Terrebonne, placed their claims there in the hands of Winchester Hall, an attorney at law, formerly residing in that section of the State. The attorney obtained a judgment for his clients against Lester and Tennent and also a judgment against Lester, Tennent & Co. He caused execution to issue, and a seizure was made of certain property of these debtors. An offering of the property was made without any hid being obtained at its appraised value, and it was advertised for sale on a credit of twelve months. Before this sale came on, Hall wrote to his. clients as follows: “Tennent lias an interest in a saw mill, at wliicl; some logs and lumber, amounting to a few hundred dollars, were seized, and will be sold on first of September. If no one bids tbe price of appraisement, I will bid them off for you, as I suppose they can be disposed of.”

This letter was written on the fourteenth of August, 1866, two weeks before the sale. On the fifteenth of August, Slocomb & Co. replied :- “ I have your favor of the fourteenth instant, and will accept Duroy’s proposition, as clearly explained by you. Your statement of proceedings in cases of Berger & Brown and Lester, Tennent & Co. is very satisfactory.” While the property was tinder seizure, and before the sale, Bergeron and Coloitro filed third oppositions. The sheriff was ordered to retain proceeds of sale, and the attorney of Slocomb & Co. accepted service of the petitions of the opponents. Sale was made, and the property purchased by Hall, who executed a twelve months’ bond in the name of his clients for the sum of five hundred and nineteen dollars, signing the bond as attorney in fact of Slocomb & Co. The opponents established their claims as entitled to privileges of a higher grade than that of the seizing creditors, and the bond was made payable to the sheriff for the use and benefit of the creditors of Charles Tennent. At the maturity of the bond, execution was issued in the interests of the opponents against Slocomb & Co. who enjoined the execution. The injunction forms the basis of the suit now before the court.

The plaintiffs in injunction deny that they ever authorized their attorney at law, Hall, to sign the bond'in question, and deny that they are bound by his unauthorized act; asserting that they were never informed of his having executed the instrument until the sheriff called upon them with the execution. No authorization from them to sign the bond is shown, and as attorney at law, Hall was incompetent to do it. The plaintiffs, however, sanctioned the attorney’s intention to buy the lumber and saw logs. The reasonable construction of their sanction would seem to bo that, having a bad debt on hand, they were willing to take towards its payment anything that could be made available. We find in the correspondence between the plaintiffs and their attorney that the purpose of making the purchase was to exchange the logs at the saw mill for plank, which might be brought on the railroad to the city and sold for money. On the eighteenth of October, 3866, the plaintiffs wrote to Hall, directing him to have the lumber at Tigerville in about fifteen days so as to ship it by a boat to be ready there to receive it, to which Hall replied on the tenth of November following, that sixteen thousand feet of lumber had been, delivered there subject to the order of Mr. Bru, the captain of the boat which was to receive it. The plaintiffs having, through their agent, received the lumber, are estopped from refusing to account lor the amount brought by the sale of the property seized under their own execution, for this would ho to deprive the opponents, having.a superior privilege, of their just dues. On these grounds wo think the judgment rendered in this'case should bo maintained.

It is therefore ordered, adjudged and decreed that tho judgment of the district court bp affirmed, with costs in both courts.


text:
    No. 1772.
    Edward Heath v. Joseph Shrempp and G. Frederick.
    A surety on an official bond of a constable, wishing to avail himself of the plea of discussion, must point out the property of his principal and furnish the moans to carry on tho discussion.
    Where judgment has been rendered against a constable for damages, a general denial by the sureties on his bond, only puts at issue the existence of such judgment.
    A surety on the official bond of a constable of the city of New Ox'leans, given while the city was under military rule is not discharged from liability because the bond was not accepted by the Recorder and Board of Aldermen, as required by law. Tho military authority having made the appointment, and permitted the party to act, must be presumed to have approved the bond.
    APPEAL from Third. District Court of New Orleans. Fmerson, J.

      Hornor <& Benedict, for plaintiff and appellee. Lambert & Murphy, for defendant and appellant.
   Taliaferro, J.

The plaintiff having obtained a judgment against Baum, for $1415 damages, for au illegal seizure and sale made by him in his official capacity of constable, of plaintiff’s property, caused execution to issue, which being returned nulla bona, he instituted this suit against the defendants as sureties on the official bond of Baum, to recover the amount of the judgment, and the further sum of $72 75 costs incurred by him in the suit against Baum. During the pendency of the suit, Frederick, one of the defendants died, and the suit was revived against his widow and the natural tutrix of his minor child. Separate answers were filed, containing general denials. Schrempp denied that Baum was ever constable, or that he ever signed a legal bond conditioned as the law directs. He admitted his own signature to the instrument sued on, hut denied all liability thereby. He denied the solidarity of the act, and plead discussion.

There was judgment against Schrempp, and be appealed.

We find in the record a bill of exceptions taken by tho defendant on the following points:

First — That this is an action on a joint obligation, and, as all the obligors were not made parties, no judgment could he rendered against any.

Second — -That the record of suit No. 17,420, and the judgment rendered thereon offered in evidence and admitted by the court, constitute, as against the defendant, res inter alios acta,, he not-being a party to the suit which was brought by plaintiff against Baum.

Third — That the court erred in rejecting tho testimony of several witnesses offered by defendant to prove that there' never had been any violation of the bond sued on; that plaintiff was present when the act of the constable was performed of which he complains, and sanctioned it.

We think these objections were all properly overruled by the court. We consider it fully proved that Baum was legally appointed constable of the Third Justice’s Court. The certificate of the Secretary of State, in connection with the bond itself, establishes this fact. The bond shows that each of the sureties is bound for $2500. The defendant, if he had the right to discuss his principal’s property, can not exercise it here, as ho has neither pointed out any, nor suggested that his principal had any. It does not appear that either surety has paid any part of the bond, in regard to the second point. The general denial of the defendant put at issue only the existence of the judgment. There is no special averment of the defendant that the plaintiff’s cause of action in that suit was groundless, nor that the amount of his claim was incorrect, nor that the judgment was erroneous, nor any allegation affecting its validity in order to put the plaintiff on his guard. The objection under the third head is equally weak. There was a judgment against the principal on the bond. This was prima facie evidence against the sureties. The defendants have shown no countervailing evidence to rebut this presumption. The bond was objected to because, as defendant alleged, it had not been legally authenticated and registered. By the provisions of the act of 1855, bonds of this character are required to be accepted by the recorder and the finance committee of the Board of Aldermen of New Orleans. Baum’s bond was executed in February, 1863. When the city of New Orleans was under military rule, there were no finance committee and Board of Aldermen. As Baum was appointed by the military authorities, and they permitted him to act, the presumption is, that they approved and accepted his bond. The bond was recorded in the mortgage office. But had it not been recorded, it would have been not the less binding between the parties. 3 N. S. 594.

We find no error in the judgment rendered.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed, with costs in both courts. 6 An. 109 j 4 An. 548.


text:
    No. 2703.
    Helen Dewey v. T. J. Bird, Sheriff, et al.
    The execution of a judgment can not be restrained, by injunction, by a third party, who holds the property seized by a simulated title.
    APPEAL from District Court, parish of East Baton Rouge. Posey, J.

      B. W. Knickerbocker and Joseph Poor, for plaintiff and appellant. A. 8. Herron and Burgess & Chaney, for defendants and appellees.
   Howell, J.

Plaintiff has enjoined the sale of certain property, seized by the sheriff under executions in several suits against A. P. Converse, her stepfather, on the ground that she is the owner and possessor thereof, by virtue of an authentic act of sale from her brother, Stephen Dewey.

The deiense is, that the property seized really belonged to said A. P. Converse, the judgment debtor, the land having been purchased with his funds from one James A. Vance, by Stephen Dewey, a stepson, who sold it to plaintiff, neither of whom had any means, and the personal property, having been removed by him (Converse) from West Feliciana, and all of which was in his possession and control at the date of the seizure, and that all of said transactions were simulations-to cover his property. Judgment was rendered in favor of the defendants, and plaintiff appealed.

In August, 1865, A. P. Converse, who then resided with his family (including tho Deweys) in West Feliciana, entered into a written agreement with J. A. Vance, in East Baton Rouge, to purchase tho land and some of the personal property in controversy, for the sum of $4500, and delivered to him, as part of the price, some notes amounting to $3741 19, made on the third of August, 1865, by R. D. Day, to tho order of and indorsed by R. II. Day, and due on the third of each month from February to August, 1866; tho title not to be passed until the balance was paid in cash. Vance says Converse stated at the time, that he was buying for another party, but the name was not given. On the twenty-second of September following, a notarial act of sale of said property was executed in the name of Stephen Dewey, Converse being present and acting as agent, although Dewey was also present and signed the act. The consideration expressed in the act was four-notes of $1125 each, made on that day by Dewey, to the order of Vance, due at six, eight, ten and twelve months, and secured by mortgage on the land, and were given up to Converse, who, Vance says, “ was acting all through as agent for Dewey.” On the first of March following (1866), about a month after the maturity of the first “ Day note,” Stephen Dewey sold tho same property and some additional movables, to his sister, the plaintiff, (both describing themselves as residing in West Feliciana), for the sum of $5000, thepurchasor assuming to páy the notes, amounting to $4500, given by the vendor, on the twenty-second of September, 1865, to Vance, and the balance acknowledged to have been paid in cash. Miss Dewey says that she was tho holder of the seven Day notes,” and, through her stepfather, exchanged them with Vance for her brother Stephen’s notes, paying the difference ($760) in cash. But Vance says that he received the “ Day notes” from Converse, in August, 1865, before her brother’s notes were made, and Day says he paid all of them to Vance, one of them falling due before the sale from Stephen Dewey to plaintiff. She and Vance could not have had them at the same time, and the exchange could not have been made before her brother’s notes were-in existence. She says she obtained tho “ Day notes ” from Converse, in payment of “ important services rendered during the war, in March, 1865, when tho drag- store owned by Day & Converse, in Baton Rouge, was under seizure by tho Federal authorities,” and her counsel admits that “ tho good faith of these sales depends upon the reality of the ■contract between Mr. Converse and his stepdaughter, Miss Helen Dewey, and tho indebtedness of the former to the latter.”

On this subject, Day testifies that, during the war, the drag store owned by him and Converse 'was closed up and put under guard for five or six days. Two or three days after it was closed, he met Miss Dewey at the landing, walked up town with her, informed her that the store was closed, and'did not see her again until the store was opened. ■She did not exhibit or claim to have authority from Converse to act for Jiim in"anything connected with tho store. Ho does not know that she made any effort to have it released. She testifies that, in March, 1865i she went from their residence, in West Feliciana, through the military lines to Baton Rouge, to try to get the store releasedj saw Mr. Day, who told her lie thought the matter would be arranged in a few days. She returned home to see Mr. Converse. When she came back, the property had been released. No passes, at that time, were granted, .and Mr. Converse could not got to Baton Rouge. He agreed in writing to pay her §5000 for her services in protecting the drug store. Just before the seizure in this suit, she gave the agreement to Mr. Converse, who burnt it. If Mr. Day had not succeeded, she was to use her influence. She was to be paid out of the proceeds of the sale of the store, and, if that failed, she was to have no further claim on him. Day’s notes wore a portion of the sale of the store.

Alex. Dow testifies that he knew of a transfer or mortgage from -Converse to Miss Helen Dewey of Converse’s interest in the drug store to tho amount of $5000, for her services in going through the lines .and protecting tho drag store, which, he understood, was under seizure by tho Federáis. He .heard the agreement read. This was in March, 1865. He understood that if Mr. Day failed, Miss Dewey was to use her influence with the commander. Mr. Converse told him, in August, 1865, he had transferred a part of the notes to Miss Dewey, in payment •of her claim of $5000.

It is stated that Miss De-wey was acquainted with the commander at Bayou Sara, and several of the officers of influence at Baton Rouge. From this evidence it may be assumed that Converse agreed to pay Miss Dewey $5000 for her services in effecting the release of the store, in case his partner failed; but neither she nor any other witness says she rendered any such service. On tho contrary, tho property was released without any effort on her part, and hence she earned nothing under the alleged agreement, which was never completed. But the record leaves little doubt that Converse was the owner of the “Day notes” when he delivered them to Vance, in August, 1865, and that tho subsequent execution of notos and acts of sale between Stephen Dewey and Vance, and between the former and the plaintiff, was devised for tlie benefit of Converse. The Deweys evidently had no funds with which to purchase property, while Converse was endeavoring to protect and make available the proceeds of his share in the Baton Bouge drug store, sold to his partner. His interest in the plantation in West Feliciana was about to be seized for debts of long standing, and bearing interest from 1851 to 1861, and was sold in the fall of that year. But just before it was seized, he moved all his stock, farming implements, etc., to the land purchased by him from Vance, where he superintended the erection of buildings and the preparation for making a crop, and where he moved himself in January, and his family, including Stephen and Helen Dewey, in July, 1866.

The district judge was correct in declaring the title of plaintiff and that of Stephen Dewey, simulations, and the property to belong to A. P. Converse, and in dissolving the injunction sued out by her.

Judgment affirmed.


author: Ludeling, C. J. Litdeling, C. J.

text:
    No. 1928.

    Succession of B. de Marigny—On Opposition of S. W. Westmore to Tableau.
    A citation is good and sufficient if tlie copy of tlie petition accompanying it mentions tho residence of tho defendant, although it is not mentioned in the citation.
    A deputy clerk in the parish of Orleans is competent to sign a citation, without the absence or sickness of tho clerk being shown.
    The dismissal of a suit for the non-appearance of the plaintiff if not an abandonment or voluntary discontinuance of the action. „
    Citation on one obligor in solido will interrupt xirescriptioi n to an
    APPEAL from Second District Court of New Oilcans. Duvi/jncaud,

      L. F. Simonds, for opponent and appellant. JS. Her mudes, for •executor, appellee.
   Ludeling, C. J.

Tho claim of the opponent is resisted by the •executor of tho deceased on several grounds. The district court rejected tho claim, on the ground that it was prescribed by the lapse •of five years.

The opponent contends that prescription was interrupted on tho thirtieth of January, 1868, by the service of a citation on Mr. Marigny in person. The executor, on the other hand, claims that there was no interruption.

First — Because the citation addressed to Mr. B. de Marigny does not mention the place of his residence.

Second — It does not express the place where the office of the clerk of the court is held.

Third — -It is signed by the deputy clerk.

Fourth — The sheriff’s return shows that a copy of the citation, and not the original citation, was served on Mr. Marigny.

The only one of those objections which seems to merit notice is the first, that the defendant’s residence is not mentioned in the citation; the residence of the defendant is mentioned-in the petition, a copy whereof was served on the defendant in person, with tho citation, and a default was taken against the defendant before his death.' We think the citation sufficient to interrupt prescription. 12 La. 53-1; 17 La. 215; 10 R. 133, 119; 10' M. 155; 7 An. 240; C. P. 183, 184, 185, 186.

The executor further contends that even if the citation did interrupt prescription, the voluntary abandonment of his suit destroyed the effect of the citation. The cases cited by him establish that the dismissal of a suit for the non-appearance of the plaintiff is not an abandonment or voluntary discontinuance of the suit. 7 An. 523, Norwood v. Devall ; 14 An., Sheldon & Co. v. Reynolds. We think the principle is correctly decided in those cases. 13 An. 57; C. C. 3485.

liut even if Marigny had not been cited, prescription was interrupted by the citation of Avigno & Gordon, obligors in solido, with Marigny, in a suit on the notes now sued on. C. C. 3517.

It is therefore ordered and adjudged that the judgment of tho district court be reversed; that the plea of prescription be overruled, and that the case be remanded to bo proceeded with according to law. It is further ordered that the appellee pay the costs of this appeal.

On Application bob Rehearing.

Litdeling, C. J.

An application for a rehearing has been made in this case, and we have been requested to decide the following questions :

First — Whether or not a deputy clerk in the parish of Orleans can sign a citation, except in the absence or sickness of the clerk?

Second — Whether the filing of an opposition to an account for the purpose of Irving a claim recognized and ranked by the court, is not an abandonment of a former suit already pending in another court, in the sense of article 3485, C. C. ?

To tho first question, we answer that deputy clerks may sign citations, whether tho clerk be present or not. In 1821, Judge Martin said, Clerks of courts have had deputies ever since the establishment of tho American Government in this country, and the act of 1817 appears-to have recognized such deputies. It seems to me too late now to call in question acts done by a deputy clerk.” Judge Mathews said, “I believe it may be laid down as an undeniable fact that the clerks of the different courts of the late Territorial Government were in the constant habit- of acting by deputy, wherever tboir convenience required it. The same practice has prevailed under the State Government, without its legality or propriety having been ever before called in question. It has then been a custom coeval with the American Government of the country, and even were we to allow that it ■ originated in error, the maxim would then (if in any case) apply, communis error faeit jus.

“I am of opinion, with Judge Martin, that this custom has been sanctioned by the Legislature in the act (1817) relative to deputies oí officers of our courts.” 10 M. 156; 157.

Article 782 of the Code of Practice sanctions this custom; and the act of 1857, relied on by the counsel for applicant, extends rather than limits the authority and powers of deputy clerks in the parish of Orleans: “That,in the absence or sickness of the clerks of the several courts of the parish of Orleans, thoir respective deputies may sign all orders and issue all writs, which the clerks themselves may issue.” Acts of 1857, p. 155.

We are of opinion that the opposition to the account was not an abandonment of the suit instituted in the Fourth Court, in the sense ot article 3485 of the Civil Code.

In regard to the third ground, that an indorser is not an obligor in solido, we did not decide that. In examining the record, we were led into error of fact, from the manner in which the note with the signatures of the parties to it was copied in the transcript. The names of all the parties — Gordon, Avigno and Mariguy — were copied directly under the note, under each other, and we fell into error in supposing they were all makers. What was said on this point, however, was obiter, and was only suggested as an additional reason for the opinion rendered.

The rehearing is refused.


text:
    No. 2684.
    Falls, Howell & Co. v. Thoms & Powell.
    A witness on the stand can not be compelled to produce a private letter about which he is being interrogated, although it is alleged that it goes to show that the draft pleaded in reconvention does not belong to the defendants.
    Where suit has been filed and afterwards a transfer of the claim is made on the record to another party, the defendant, to enable him to plead in reconvention a draft accepted by the original plaintiffs, which ho holds, must show that he acquired the draft before he received notice of the transfer.
    from Fifth Judicial District, parish of East Feliciana. JPosey, J.

      McVea <£• Hunter, for plaintiffs and appellants: McVea <& Kilbourne, for defendants and appellees.
   Taliaferro, J.

The defendants, engaged in planting in the year 1867, became indebted to the plaintiffs, who were their merchants and factors, in the sum of $1290, as stated in their account. A largo portion of this account is made up of the usual plantation supplies necessary in tlio making of a crop. Some disagreement having arisen between the parties, the plaintiffs, in the month of September of that year, took out .a writ of sequestration, and caused the crop of defendants to.be seized and taken possession of by the sheriff, and prayed judgment for the amount of the account, and that the crop be sold to pay the debt, interest and costs. Tho defendants, released the seizure by entering into bond, and answered by a general denial, and. set up a reconventional demand of $1500 against the plaintiffs, for which they prayed judgment, with interest, etc. This answ.er and reconventional demand was filed-in February, 1868, an'd afterwards, on the eleventh of October of the same year, the defendants again filed their plea in rceonvention.. limiting their demand, however, to $825, with interest specified, and describing their claim to be the amount of a draft drawn by one of the firm of Falls, Allison & Co., in February, 1867, upon and accepted by that firm, payable on tho first of November ensuing, which draft the defendants averred they were the owners of. The firm of Falls, Howell & Co., it seems, were the successors of Falls, Allison & Co., tho plaintiffs., On the eleventh of October, 1869, Charles Pleasants intervened, claiming to bo the owner of the debt for which the defendants were sued, and he prayed- judgment against them as in the original petition,

The case was tried before a jury, whose verdict rejected two items .of the account, and found in favor of the plaintiffs for the remainder,, and allowed the defendants their rcconventional demand, founded on the draft.

From the judgment predicated upon tho finding of tho jury the plaintiffs appeal.

. The plaintiffs reserved two bills of exceptions during the progress of the trial; one to the admission of tho reconventional demand, on the-ground that it was not explicitly set out, and that it came too late. Tho other was to tho refusal of the court to order tho production of a certain letter in tho possession of a witness, concerning the contents of which the witness had been interrogated, and which, as alleged by plaintiffs, wont to show that the draft pleaded in reconvention did not belong to the defendants.

We do not see that these exceptions were well taken. The nature of the demand set up-in reconvention was clearly set out, and in time to be passed upon in tho decision of the caso. The witness refused to produce tho letter for the reason that it was a private one, in which, wo think, he was properly sustained by the court. .Besides,- the contents of the letter, as they are represented by the plaintiffs, could have availed them nothing if the letter had been introduced, for the transfer ■of the draft-seems clearly established, by the -express authority of the owner of. the draft to his attorneys to sell it,-and tho testimony of one-of the plaintiffs that he bought it.

The solution of this controversy depends solely on questions of fact., the' most material of which, is, had the defendants knowledge of the transfer of plaintiffs’ claim to Pleasants before they acquired the ownership of the draft? The evidence on this point is somewhat confused, but from the whole we are not inclined to adopt the view taken of it by the jury and the judge a quo. The authority given to the defendants’ attorney to sell the draft is contained in a letter written from Shelbyville, Kentucky, on October 9, -18G8. The letter was received on the sixteenth of that month. The defendant says in his testimony that the transfer of the plaintiffs’ claim to Pleasants was first made known to him on the day the reconventional demand was filed, and this is shown to. have been the twelfth of October, 18G8. The letter is introduced to. show the authority to sell. Defendant says that he owned this draft some weeks previous to the time the reconventional demand was filed.. But here is a discrepancy in the facts. The statements of the defendant are at variance'with the dates which he has to roly upon. We think these more to be depended upon than his memory, which may be in, fault, and therefore conclude that he acquired the draft after notice to him of the transfer to Pleasants.

It is therefore ordered, adjudged and decreed that the judgment of the district court be so far amended as to reject the defendant’s reconventional demand, founded upon the draft for $825, and the interest claimed upon its amount, and that in all other respects the judgment, be affirmed, the defendant and appellee paying costs of this appeal.

Mr. Justice Howell recused.


text:
    No. 2265.
    Succession of George Kaiser.—Claudel, Administrator, v. Thomas Edwards Wilson.
    A formal decree of a competent court, will protect tlie purcliasor of property at probate sale, and be can not set up in defense, to a demand to comply with his bid, that there being minor heirs interested, the sale should have been authorized by a family meeting. Such defense-if available at all, must be urged against the administrator’s tableau.
    APPEAL from Second District Court of New Orleans. Duplaniier, J':

    (acting.) Cotton d; Levy, for appellants. Fuvigneaud <£ Tissot,. for appellees.
   Taliaferro, J.

Wilson, the defendant, having become the purchaser at a probate salo of certain property of the succession of Kaiser, was proceeded against by the administrator in a rule to show cause' why he should not be decreed to comply with the terms of sale. He answered:

First — That the necessity, conditions or terms of sale were not advised by a family meeting of the minor children of Kaiser.

Second — That the debt for tbe payment of which the order of sale was obtained is not a debt of tbe succession or community, but one contracted by the widow of George Kaiser, individually, after the (loath of her husband; that the other debts, which arc the result of the administration taken by Claudel, the administrator, can bo easily satisfied out of the revenues of the property.

The tutrix of the minor heirs of Kaiser intervened, and joined the adjudicateo in liis'defense, alleging that the-sale of the pToporty was ordered without citation or notice to her as tutrix; that the debts to satisfy which the sale was ordered were debts of the minors, and for which they could only ho sued in the proper court of the parish of Avoyelles, where they reside; that the debt of Claudel, tlie administrator, if owing at all, is due by the intervenor and her present husband, and not by the succession of Kaiser.

Judgment was rendered against the defendant, ordering a compliance on his part with the terms on which he purchased the property. The ■defendant alone appeals.

The defendant, we think, has failed to show sufficient grounds to release him from his obligation to comply with the conditions of the sale at which ho became the purchaser of the property. The sale was made under a formal decree of the proper court, and according to the provisions of law. It has boon frequently decided that under such sales the purchaser is protected. C. C. 2586, 2601; 6 R. 471; 1 An. 29.

The objections sot up by the defendant seem more properly matters, which the heirs and others having an interest in the succession might urge upon tlie presentation of the administrator’s tableau.

It is therefore ordered, adjudged and decreed that the judgment of the district court bo affirmed, with costs iu both courts.


author: IIowell, J.

text:
    No. 2785.
    State, ex rel. D. M. Sharp and D. Gellen, v. Judge of the Sixth District Court for the Parish of Orleans.
    A bill of exceptions, talccn from tlie ruling of tbe judge dismissing an intervention, can not be examined on appeal from a final judgment between tbe original parties, and a writ of mandamus will not lie to compel tbe judge a quo to sign such bills.
    Iu an attachment suit, where tbe property attached has been sold, and the proceeds thereof arc in the custody of the sheriff, a third party, on disclosing an interest that entitles him to appeal lrom the judgment in favor of the attaching creditor, should bo allowed to do so oil giving bond in an amount fixed by the judge.
    In fixing the amount of the b -nd, reference should be had to the amount of costs for which the third party appellant would be liable, together with the possible amount of damages in case ot frivolous appeal.
    If a bond is tendered, which is not sufficient in amount, the judge should fix the amount.
    In case the judge refuses, the Supremo Court will, on application, fix the amount of the bend, and issue a mandamus directing the judge to grant a suspensive appeal.
    A PPLICATION for Writ of Mandamus.

      Boselius <& Philips and 1A. Hornor & Benedict, for relators. W. H. Cooley, Judge.
   IIowell, J.

The relators allege that in the suit of Wm. Richard v. Low. Lane et al., No. 1176 on the docket of the Sixth District, for the parish of Orleans, an attachment issued against the defendants,, who are non-residents, and the property of relators was attached, and, upon an ex parte order, was sold, and tlie proceeds, over seventeen thousand dollars, are now in the hands of the sheriff; that relators were made parties defendants in said suit, and the sale of said property from the defendants to relators asked to be declared fraudulent and simulated; that the relators filed an answer to said suit, setting up ownership in and possession of said property, and praying that the same be restored to them ; that they obtained a commission and the delay necessary to take the testimony of witnesses in the State of Kentucky, but before the return thereof, on the expiration of the delay granted, the case was called for trial, when they moved for a continuance, on the ground that said delay had not expired, which motion was overruled, and the trial proceeded with; that the plaintiff, after he commenced reading his petition, moved to discontinue the case as to the relators, to which they objected that they were entitled to a restitution of their property; but this objection was overruled, and relators were dismissed, to both of which rulings they reserved bills.of exception, which were allowed, but afterwards the judge refused to sign them, on the ground that relators had no right “to take these bills, as the suit was dismissed as against them.”

The suit was tried as to the defendants in the attachment, and judgment rendered for over seven thousand dollars, with privilege on the property attached, being the property of relators.

From this judgment relators, as third persons, asked for a suspensive appeal, upon offering a bond for five hundred dollars, which the judge refused, and they now ask for a writ of mandamus, directing said judge to sign the two bills of exception and grant' a suspensive appeal from the final judgment against the defendants, Lew. Lane et al.

The judge answers that he refused to sign the bills of exception for the reason stated by the relators, that the suit having been dismissed as to them, they were no longer before the court as parties defendants, the plaintiff having the undoubted right to dismiss, as they made no reconventional demand, and the prayer of their answer being responsive to the allegations of the petition; and that he refused the suspensive appeal for the reasons: First — That the petition of appeal presented by the relators, as third parties, disclosed no appealable interest in them, it not being shown that their interest exceeded five hundred dollars. Second — That the prayer of the petition for appeal was not in the form required by law, as it fixed the amount of the appeal bond and the return day, when the law imposed these duties on the judge. And, Third — The bond tendered was totally insufficient in amount, it being known to him that the costs already incurred were very largo, a statement of which, exceeding three thousand dollars, is annexed to the answer.

We think the judge did not err in refusing to sign the bills of exception, as the rulings to which they were taken can not be reviewed on the appeal which, the relators aro seeking to take from the judgment against the defendants in the attachment. The judgment of dismissal is a final judgment, and if the relators are aggrieved by it, they can have it reviewed only on appeal from it directly, and not by bills of exception on appeal from another judgment against other parties. If an appeal had been taken from the judgment of dismissal, the judge should have signed the bill of exceptions taken to the refusal to grant a continuance; but that bill would be useless without an appeal from the judgment of dismissal.

The reasons given by the judge do not, however, justify his refusal to grant the appeal asked for by the relators as third persons.

First — The record clearly discloses an appealable interest in the relators; for the plaintiff made them a party in order to annul the sale to them of property worth several thousand dollars. The dismissal of this portion of plaintiff’s demand did not change the nature of the sale attacked, nor obliterate the allegation or charge implying a sale and title. In this respect this case differs from that of the State, ex rel. Schwab, v. Judge of the Second Judicial District.

Second — The form of the prayer for the appeal was not binding on the judge. The law makes it his duty to fix the amount of the bond, and name the return day, whether mentioned in the prayer or not. It was his right to correct these, if wrong in the prayer. A judge is not compelled to grant everything prayed for, or in the precise form asked.

Third — As the record shows that the funds in controversy are in the court, the case is similar, in some respects, to that of the Fashion case, 10 An. 345, and a bond for one-half over the amount of the judgment is not required.

It is presumed that the costs in the lower court were secured by the plaintiff upon instituting his suit. If the relators, as third persons, should succeed on appeal, no judgment for any sum could be rendered against them, and for any costs which they might have to pay as appellants, they would have recourse upon the parties cast. If unsuccessful on appeal, the judgment would be affirmed, and they, being third persons, condemned to pay only the costs occasioned by their intervention as appellants, that is, costs arising upon and after their petition for appeal, and also damages, if the appeal should be frivolous, In the cases in 4 An. 3, and 13 An. 417, the appeal was taken by parties to the suit, not by third parries, who do not, by appealing, become liable for the costs in the original suit, any more than for the principal of the judgment.

As above remarked, the sum mentioned in the prayer for an appeal did not bind the judge. The tender of a bond and petition evidenced the willingness of the relators to give a bond, and it was in the province of the judge to grant an order fixing the bond in such sum as he might consider sufficient.

Taking into view the amount for which judgment was rendered, and the possibility of a frivolous appeal, and the costs for which relators may be liable, we think a bond in this case for one thousand dollars sufficient.

It is therefore ordered that the mandamus herein he made peremptory, and the judge a quo directed to grant a suspensive appeal to relators upon their giving a bond according to law for one thousand dollars.


text:
    No. 2787.
    Same v. Same.
   Howell, J.

This is an application for a writ of mandamus directing the judge of the Sixth District Court for the parish of Orleans to grant the relators a suspensive appeal from the final judgment in the case of Enoch Smith & Whitney v. W. T. Lane et al., and is based on the same state of facts as that in the application of the same parties first described, and for the reason therein assigned :

It is therefore ordered that the mandamus herein he made peremptory, and the judge a quo directed to grant a suspensive appeal to relators upon their giving a bond according to law for one thousand dollars.


author: I-Iowell, J.

text:
    No. 2786.
    Same v. Same.
   I-Iowell, J.

This is an application for a writ of mandamus directing the judge of the Sixth District Court for the parish of Orleans to grant a suspensive appeal to the relators from the final judgment in the case of Wm. W. Fisher et al. v. L. H. Lane et al., the answer to which shows that the appeal had been granted prior to the issuance of the rule nisi from this court.

The relators have thus imposed unnecessary labor on this court, whoso attention is due to those who have real cause for complaint.

It is therefore ordered that; the application be dismissed, with costs.


text:
    No. 2723.
    Phillip Wiederecht v. Michael Biegel.
    Where the evidence of the i liinfciff, as a witness, is negatived by that of the defendant, judgment will be given in accordance with the weight of testimony of other witnesses and the surrounding circumstances of the casé.
    APPEAL from Sixth Judicial District, parish of Tangipahoa. Ellis, J.

      J. E. Wilson and II. & II. Marr, for plaintiff and appellee. T. G. Davidson, for defendant and appellant.
   Taliaeerro, J.

In this case suit is brought on a promissory note, made by Biegel, the defendant, in favor of the plaintiff, for $737, with interest at eight per cent, per annum from date, fifteenth of May, 1868. The defense is, that the note sued on was given in renewal oí one, the consideration of which was Confederate money. The plaintiff obtained judgment, and the defendant appeals.

Suit was brought on tho first note which the defendant gave the plaintiff. It was dated January 1, 1862, and made payable one year after date. This suit was compromised by the parties, in May, 1868, and the note now sued on given. The only evidence bearing directly on the consideration of the note first given, is that of the parties themselves, and, as not unfrequently happens where plaintiff and defendant confront each other under oath in a court of justice, their testimony is antipodal. In this case we think the scale, so nicely balanced, is turned in favor of the plaintiff, by facts stated by some of the witnesses, and from the fact, also, that the note sued on was given in a compromise of the previous litigation between tho parties, and which might form a valid consideration. C. C., article 3045.

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


text:
    No. 2680.
    B. F. Fort, Administrator, v. J. L. Delee and J. C. Reily.
    An obligation to pay money to one of,two persons named, on a day fixed, although it contains stipulations authorizing execution to issue in case it is not promptly paid at maturity, falls under tho denomination of promissory notes, and is prescribed by five years. 21 An. 121.
    APPEAL from District Court, parish of East Feliciana. Posey,

      McVea & Eilbourne, for plaintiff and appellant. Cross & Hardee and Pace, Poster á E. T. Merrick, for defendants and appellees.
   Howell, J.

This suit is brought on the following written instrument, designated a “ bond” :

“Isaac Wall, use of al.

v.

John L. Delee.

No. 221.

Seventh District Court,

East Feliciana.

On the first day of February A. D. 1862, we, John L. Delee, as principal, and Joseph C. Reiley, as security, promise to pay to George Williamson, attorney for the estate of Mrs. Elizabeth H. Dickson, deceased, or to his order, or to H. Skipwith, clerk of the Seventh District Court for the parish of East Feliciana, the sum of two thousand four hundred and eighty-eight dollars and ninety-one cents, with interest thereon at tho rate of seven and one-half per cent, from February 1, 1861, until paid, and the costs of protest of a certain draft drawn by said Delee, in favor of said George Williamson, for non-acceptance and non-payment.

This bond is given after waiver of seizure and advertisement and delays and notices, and all the formalities consequent upon a process oí a fieri facias, and is intended by us to have tbe full force and binding effect of a twelve months’ bond; and we further bind ourselves that in case of non-payment at maturity we will not resist a fieri facias issued upon this bond as a twelve months’ bond for and on account of any irregularities or want of formality in the drawing, making or taking of the same.

Signed, sealed and delivered this twenty-seventh day of March, A. D. 1861, at Clinton, in the parish of East Feliciana, State of Louisiana.

Witness: J. L. Delee [Seal.]

James W. Doyle. Joseph C. Reiley [Seal.]

Filed March 27, 1861. H. Skipwitii, Clerk.”

Among other exceptions and defenses set up, the prescription of five years was pleaded, which the judge a quo sustained.

The document was not given for the price of property sold by the sheriff on twelve months’ credit, but to prevent the issuance of an execution in the case of Wall v. Delee, and, if paid at maturity, to extinguish the debt evidenced by the judgment. It contains an unconditional promise to pay a specified sum, on a day fixed, to one of two persons named, or to the order of one of them, and comes within the description of instruments mentioned in article 3505 C. C., and act of 1852, as prescribed in five years. 6 An. 224 ; 21 An. 121.

Judgment affirmed.


text:
    No. 1503.
    J. B. Sanarens & Co. v. H. M. True et al
    Tiie goods of a sub-lessee on the leased premises are only liable to seizure ior tbe rent that is past due. A lessor can not bold tbe sub-lessee for rent that is not yet due, unless be show an assumpsit of tbe lease.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.

      33. G. G^uillet and Gollens & Wooldridge, for plaintiff and appellant. 33. JSgan and Gotion & Levy, for defendants and appellees.
   Wyly, J.

The plaintiffs have appealed from a judgment dismissing, on a rule, the writ of provisional seizure sued out by them, under which the property of the defendant, H. M. True, was seized.

They allege they leased to Benjamin F. Smith, by notarial act, their door, blind and sash factory, in the city of New Orleans, from the sixteenth of February, 1867, to the thirty-first of August, 1869, for the monthly rent of $250, evidenced by notes drawn to the order of and indorsed by H. L. Fulkerson, and payable monthly. “ That on the eighth of June, 1867, or thereabouts, Benjamin F. Smith sold his said lease and interest to H. M. True, Esq., who took possession of the same on the same day, and has ever since carried on the business.”

They sued Smith, the lessee and maker of the rent notes, Fulkerson, the indorser, and True, the occupant of the premises, in solido, for the whole amount of the rent under the contract of lease, to wit: $6500,, of which onlv the sum of $250 was theu due.

The prayer of the petition is for judgment for $250, the amount of the rent due, less $14 45, with eight per cent, interest from thirty-first of July, 1867, together with lessor’s privilege on the movables on the premises; also, for judgment against the defendants in solido for the amount of the rent notes to become due at the end of each calendar month, from the first day of August, 1867, to the thirty-first day of August, 1869, conditioned that execution do issue for the sum of $250, and interest at the expiration of each month due and unpaid under said lease. The petition also contains a prayer for a writ of provisional seizure, which was accordingly issued, and the movables of the defendant, True, found on the premises, were seized.

As soon as the writ was levied, True paid into court tho amount of the rent due, with interest and costs, and took the rule herein to have the provisional seizure set aside, and his property released.

The principal grounds stated in the rule are, that there was no rent due, he, True, having paid into court the amount then due; also, that his property was not liable to seizure for the debt of the other defendant, there being no privity of contract between himself and the plaintiffs and the other defendants.

The question is, was the defendant, True, entitled to have his property under provisional seizure released, after paying up the amount of the rent due ? This raises the question: What was the attitude of the occupant, H. M. True, to the lessors, the plaintiffs 1

If he was merely a sub-lessee, or held under the lessee, Smith, without assuming or engaging to discharge the rent notes made by the latter, his liability to the lessor was only to the extent of his indebtedness to the principal lessee, (C. C. 2676), and his movables on the leased premises were only subject to seizure for that amount. If he occupies this position in the case, the judge did not err in setting aside the provisional seizure.

But if his position toward the plaintiffs was as they claim, to wit: liaving bought the lease from Smith, he assumed the payment of all the unmatured rent notes, undoubtedly the judge erred in dismissing the provisional seizure.

After examining the evidence, we have arrived at the conclusion that the plaintiffs have failed to prove the assumption by H. M. True of the rent notes executed by the principal lessee, Smith.

Not having assumed the unmatured installments for rent, his property was not liable to provisional seizure therefor. Having paid into court the full amount of the debt, interest and costs due for rent, the defendant, H. M. True, very properly demanded the release of his property from provisional seizure; and, in our opinion, the district judge did not err in setting aside the writ.

It is therefore ordered that the judgment appealed from be affirmed, with costs.

Rehearing refused.


text:
    No. 1702.
    J. B. Sanarens & Co. v. H. M. True et al.
    'Where property has been provisionally seized, and it is afterwards ascertained judicially that it was not subject to the provisional seizure, the sheriff can not be held liable on account oi the insufficiency of the security on the release bond given by the owner of the property.
    APPEAL from the Fourth District Court of Now Orleans. Théard, J.

      B. 0. Quillet and Gollens & Wooldridge,for plaintiffs and appellees. B. Bgan and Ootton & Levy, for defendants and appellees. Hays & New, for Hays, sheriff, defendant and appellant.
   Wyly, J.

Harry T. Hays, sheriff, has appealed from a judgment making him personally liable for releasing on bond, without sufficient securities, to II. M. True, his property provisionally seized by the plaintiffs. In the case of the same title (No. 1503) just decided, we held that the property released was not liable to the provisional seizure under which it was held by the sheriff, and the writ was set aside.

The sheriff, therefore, is not liable on account of the insufficiency of the sureties on release bond, given by the owner of the property.

It is therelore ordered that the judgment of the court a qua be annulled, and it is ordered that there be judgment for the appellant, and that plaintiffs pay all costs.

Behearing refused.


text:
    No. 1869.
    J. B. Sanarens & Co. v. H. M. True et al.
    The sheriff can not; be made liable ior having released property, provisionally seized, without sufficient security, where it is shown by a judicial decree that the property released was not liable to the provisional seizure.
    APPEAL from the Fourth District Court of New Orleans. Théard, J.

      Hays & New, for the sheriff, appellant. Gollens <& Wooldridge, and Quillet & Murjphy, for plaintiff and appellee. Bellows & Mills, and A. Robert, for defendants and appellees.
   Wyly, J.

George W. Avery, sheriff, has appealed from a judgment rendering him personally liable for releasing, on bond, without good and solvent securities, to H. M. True, his property provisionally seized by the plaintiffs.

In the case of the same title, No. 1503, just decided, we held that the property released to its owner, was not liable to the provisional seizure sued out. by the plaintiffs, and the writ was set aside. It is then quite immaterial whether the bond, taken by the sheriff, on releasing the property to II. M. True, was good and sufficient; the plaintiffs having no claim on the property, have no interest in the bond representing it.

It is therefore ordered that the judgment appealed from bo reversed and annulled, and it is ordered that there be judgment for the appellant; plaintiffs paying costs in both courts.

Behearing refused.