author: Merrick, O. J.

text:
      N. F. Rice, Curator, v. David Davis.
    The holder of a note made payable to the maker’s own order, Tyy 7dm indoi'sed, and secured by a notarial and authentic act of mortgage, may recover without any authentic evidence of transfer further than that contained in the act itself.
    PPEAL from the Sixth District Court of New Orleans, Howell, 3.

      Emmerson & Huntington, for plaintiff. /. Livingston, for defendant and appellant.
   Merrick, O. J.

This appeal is taken from an order of seizure and sale.

The plaintiff alleges himself to be the curator of the succession of Gardner Johnson, deceased, rvho became in his lifetime the owner and holder of the note annexed to the petition.

It is assigned as error, that there is in the record no authentic proof that Gardner Johnson is dead, nor that plaintiff has been appointed curator of his succession.

The note sued on was made payable to the defendant’s own order and by him indorsed. This fact appears by the notarial and authentic act of mortgage. In the act of mortgage, the defendant hypothecated the property to secure the party {John R. Clay) who lent the money, or any other holder.

The plaintiff is the holder of the note, and his description of himself as curator of Johnson’s succession may be regarded as a descriftio personae. ' In this particular, the case cannot be distinguished from the case of Montgomery, Ex’r., v. Nott, 2 An. 216.

The right of the holder of a note and mortgage in this form, to recover without authentic evidence of transfer further than that furnished by the act itself,has become a rule for the security of obligations, which, having been acted upon for the last three years, cannot now be disturbed. See Mothé v. McCrystal, 11 An. 4 ; Race & Foster v. Bruen, ibid 34.

The case of Landry v. Landry, 12 An. 167, differs from the present in the form of the mortgage and note.

Judgment affirmed.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    Maurice Scully v. Laurence Kearns.
    Where a debtor has resorted to a simulated sale, for the purpose of defrauding creditors, it is not necessary that a judgment creditor should proceed by the revocatory action, in order to have the sale annulled; he is entitled to consider the sale as without reality and to seize the property, thus sold, as that of the vendor.
    from the Sixth District Court of New Orleans, Colton, J.

      F. H. Clack, for plaintiff and appellant. W. 8. Stansbury, for defendant.
   Cole, J.

On the 10th of February, 1855, judgment was rendered in favor of Laurence ICearns against John Cavanaugh, for $225, with legal interest, for work done for the latter, and materials furnished by Kearns, in his vocation as a blacksmith, to the said Cavanaugh.

An execution issued, and the Sheriff seized a steam engine and boiler, and and some other movables, whereupon Maurice Scully, the plaintiff enjoined the sale, averring the property seized to be his.

There was judgment for defendant, dissolving the injunction, and plaintiff has appealed.

The testimony clearly establishes the sale of these movables from Cavanaugh to Scully, to have been simulated.

The price may, indeed, have apparently passed from Scully to Cavanaugh, but it is evident that the money was either advanced in part by Cavanaugh or by other persons, and that Cavanaugh returned the price.

It was never intended to be any tiling but a sham sale for the purpose of defrauding Kearns. The price was never intended to be a real one, and Cava-naugh was not to keep the same.

Under such circumstances, the judgment creditor of the protended vendor in this simulated sale, was not bound to proceed by the revocatory action, in order to have the sale annulled, but was entitled to consider the sale as without reality, and to seize the property as that of the vendor.

Judgment affirmed, with costs.


author: Land, J.

text:
    Whipple et al. v. D. G. Hill et al.
    The ordinary partnership creditors of the owners of a steamboat have no right to bo paid by preference to the individual creditors, out of the proceeds of the boat, whether these proceeds result from sales or have been received on policies of insurance.
    from the Fifth District Court of New Orleans, Eggleston, J.

      E. Woolridge, for plaintiffs and appellants. R. H. Marr and T. N. Pierce, for defendants.
   Land, J.

The plaintiff being the judgment creditor of the defendants, the owners of the steamboat Creole, for money loaned' for the use of the boat, and for wages due him as pilot, caused an execution to issue on his judgment, and garnisheed Shaw él Zuntz, under the Act of March 20th, 1839,

Shaw & Zuntz had effected an insurance on the Creole, for the owners, the defendants, for eight thousand dollars. The boat was soon after lost, and the proceeds of the policies of insurance were paid to Shaw & Zuntz, who applied a part of the same to the payment of a partnership debt due them by the owners of the boat, and another part, to wit, two thousand nine hundred and six dollars and ninety-two cents, they passed to the credit of Hill’s individual account, and the remainder they paid over to the other owner, Porter, and his assignee, David Wood, or became bound to the latter so to do.

The plaintiff alleges that he is a partnership creditor of the owners of the boat, and that the money received on the policies of insurance by Shaw & Zuntz, was a partnership fund, on which he has a privilege, and entitled to be paid out of the same in preference to Shaw & Zuntz, the individual creditors of Hill, one of the owners.

The question is, therefore, presented whether the money received on the policies of insurance, was a partnership asset, or the individual property of the defendants, as part owners of the boat.

In the ease of Violett v. Fairchild, the court say : “ We adhere to the rule laid down in the case of Byrne v. Harper, 2 R. R. 229, that when owners of a steamboat use it to carry persons and merchandise, the use of the boat only is brought into the partnership, unless there is an express stipulation to the contrary, and that as it may be enjoyed without being destroyed, the ownership remains in the partners individually, under Art. 2834 of the Civil Code, subject to the privileges which the law allows in such cases to the creditors of the partnership.”

In considering the case of Claiborne et al. v. Their Creditors, relied on by the appellants in this case, the court said : The question whether the fund in hand was a partnership fund or the joint property of the partners, was not raised in argument. It was not before the court; and the casual observation of the court, that it was a partnership fund, did not decide the question.

The part owners of a ship or steamboat are tenants in common, and not partners, and each one can only sell his own share therein, and not the entirety of the ship or boat, as he could do in cases of partnership. Story on Partnership, §419.

As the boat itself is not, therefore, partnership property, the ordinary partnership creditors of the owners, have no right to be paid by preference, to the-individual creditors, out of the proceeds of the boat, whether these proceeds result from sales, or have been received on policies of insurance.

Creditors may acquire a privilege which will entitle them to be paid out of the proceeds of the boat, in preference to the individual creditors of the owners ; but when this privilege is extinguished, the right to be paid by preference ends with it of course.

In this case, the plaintiff has a personal judgment against the owners, which does not recognise a privilege on the boat, or the money in the hands of the garnishees, and is, therefore, an ordinary creditor of the partnership, and has no right to be paid by preference out of the proceeds of the boat, or the money .in the hands of the garnishees, which was the individual fund of the partners.

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

Re-hearing refused.


author: Cole, J. Merrick, C. <L,

text:
    Mary E. Lyons, Tutrix, et al., v. R. W. McRae—Thomas Claycomb, Third Opponent.
    Where property has been seized and sold under a judgment, for the benefit of certain creditors, the money remaining in the hands of the Sheriff, and the debtor takes advantage of the Insolvent Act, before the decision of the claims of the various parties to the thing seized, the money thus held by the Sheriff will become part of the assets of the insolvent, and is subject, like all the rest of his property, to be litigated in concurso.

    Where a third opposition has been filed, claiming a privilege upon the proceeds of the thing seized, and there is a surrender before judgment in the suit, this litigation must necessarily be referred to be tried with the other insolvent proceedings.
    from the District Court of the Parish of Pointe Goupée, Haralson, J.

      T. J. <& W. H. Coohu, A. Provosty, and P. 11. Ray, for plaintiffs and appellants. U. B. & E. Phillips, for defendant.
   Cole, J.

The plaintiffs, in the four suits of Lyons, Castle, Giquel & Jamison and Wilson <fi Funk against McRae, being judgment creditors of McRae, issued executions, and caused fifty-five hogsheads of sugar, of the crop of 1857, made by McRae on his Glen Mary plantation, to be seized to satisfy their judgments against him.

Before the sugar was sold Claycomb, on the 5th of February, 1858, filed his third opposition, claiming a privilege on the proceeds, for the payment of hogsheads and barrels furnished by him to McRae, which were used in taking off the crop of 1857.

There was judgment sustaining the opposition for $1480, with interest, and ordering the Sheriff to pay it, and costs of the opposition, and costs in the four suits aforesaid, by preference, out of the proceeds of the sugar sold by him under the executions aforesaid, in preference to all other claims.

The plaintiffs in tlio four cases aforesaid appealed.

Upon the trial, A. Provosty, provisional syndic of the insolvent R. W. McRae, opposed the trial of all the said eases, on the ground that McRae, on the 6th of March, 1858, surrendered all his property to his creditors; that the money in the hands of the Sheriff forms a part of the assets of the insolvent, and is subject, like the rest of his property, to the claims of all the creditors, to be litigated in concurso.

This opposition ought to have been sustained. McRae took the benefit of the Insolvent Act before the decision of the claims of the various parties to the sugar seized. The different suits and the opposition of Claycomb ought to have been referred to the court in which the insolvent proceedings were pending, to have the claims of the parties adjudicated upon.

It is true that fifty-five hogsheads of sugar have been seized by the plaintiffs, but this sugar, or its proceeds, does not belong to them by virtue alone of the seizure, if there be persons having privileges superior to those possessed by them.

Claycomb has filed his third opposition, claiming a privilege upon the proceeds of the sugar; and as McRae has no legal existence, but is represented by the syndic, this litigation must necessarily be referred to be tried with the other insolvent proceedings.

The sugar does not belong to the seizing creditors absolutely, for if it did, no creditors could contest their claims on the ground of privilege.

In Elmes v. Estevan, 1 M. 193, the court said, that when a debtor cedes his goods to his creditors, and a stay of proceedings is granted, the cession operates the civil death of the debtor. lie cannot, consequently, remain a party in a suit. The judge’s order stops all proceedings against the debtor, whether they be carried on against his person, general estate, or any part of it. His rights pass to other persons, and cannot be affected by legal proceedings to which the new owners are not parties.

In Syndic of Bermudez v. J. Canez & Milne, 3 M. 39, the court held, that a cession of property, and the order thereon, operates a stay of all proceedings, oven the sale of property encumbered as security for a debt, which a court of competent jurisdiction, by a judgment rendered before the failure, had ordered to be sold. The court say, that the decree ordering a stay of proceedings against the owner of the land ought to have stopped the judicial sale of that land, and that the sale made in contravention to it was illegal and void. The court also ordered, that the said land be surrendered to the syndics of the creditors of Bermudez, the owner of the land, to be sold.

In Canez et al. v. Schooner James M. Kinley et als., 2 N. S. 307, where a creditor had levied an attachment upon a vessel, the joint property, of his joint debtors, which was sold, and, before payment of the proceeds by the Sheriff, one of the debtors became insolvent, it was held, that his syndics were entitled to receive his portion of the proceeds, but not that of his co-debtor.

The court say, “ We are of opinion that the syndics had a right to take into their possession all the property of the insolvent, and of course, that they were authorized to demand and receive any moneys belonging to his estate. Such are the express commands of the law, and without such a right, it would be impossi-bio to adjust the conflicting pretensions of creditors, or make a final settlement of the estate.”

The decisions of this court establish, that after the acceptance of the cessio bo-norum. by the judge, for the benefit of the creditors, the property surrendered is . vested in the latter, so as to be no longer liable to seizure, attachment or execution, but they acquire no real ownership in it; that a judgment is improperly signed, after the debtor has made a cession of his goods ; for the suit should be cumulated with the proceedings of the concurso; that the object of the law is, that the rights of all the creditors should remain in the state they were in at the time of the insolvency. Rivas v. Hunstock, 2 R. 187, 9 R. 219, 3 An. 387, 4 M. 562, 4 An. 490 ; Clark v. Oddie, 4 N. S. 625, 10 M. 178, 5 R. 101, 3 An. 582, 7 R. 61; Collins v. Duffy, 7 An. 40 ; Succession of Walker, 14 An.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; that the four suits aforesaid of appellants and the third opposition of Thomas Claycomb be cumulated with the proceedings of the concurso, in the court where the insolvent proceedings against R. W. McRae are being conducted, and that these suits and the opposition of Claycomb be remanded to the lower court, to be proceeded with according to law; that the costs of appeal be paid by appellee, and those of the lower court shall abide the final decision upon the rights of the parties.

Merrick, C. <L,

dissenting'. Sundry judgment creditors of R. W. McRae, caused to be seized under execution fifty-five hogshsheads of sugar of the crop of 1857. The seizure and sale of the sugar appear to have been both made prior to the surrender of R. W. McRae. Claycomb, one month previous to the surrender, filed an opposition wherein he claimed a privilege upon the sugar for barrels and hogsheads furnished to take off the same.

The creditors excepted to the opposition, alleging that it disclosed no cause of action. The syndic opposed the trial of the opposition and claimed the money in the Sheriff’s hands as belonging to the assets surrendered.

The District Judge considered the opposition and rendered judgment in favor of the opponent, Claycomb, and the other parties appealed.

By the sale of the property, to-wit: the sugar, previous to the surrender, McRae’s title to it had been divested. The money made by the sale was no longer under the control of McRae, but the judgment creditors had the right to demand the same from the Sheriff, saving the right of the privilege creditors who had set up their claim previous to the sale. The syndic had no greater right to the proceeds than McRae himself had, and the proceeds could not be carried into the surrender and become subject to the commissions of the syndic, and the costs and charges of the surrender as well as those of the Sheriff in making the sale.

The surrender is but a mode of execution, and the creditor who has completed the one process and made his debt, cannot be compelled to resort to the other.

See the case of the succession of J. Walker, 14 An. Campbell v. Slidell, 5 An. 274.

The authorities cited in support of the opposite doctrine do not appear to me applicable. In none of those cases had the money been made on execution prior to the surrender as in the present case. Those cases appear to me to be correctly decided, and in no manner conflicting with the recent decision of this court in the case of the succession of T. Walker. Op. Book 30, p. 253.

In the case of Canez v. Schooner James McKinley, the sale was made under an order of court, and the property being held in common, the only question was whether the syndics of one of the joint owners of the ship could take into their possession the whole proceeds when one-half belonged to another, and it was held they could not, and they were ordered to pay said one-half into the hands of the Sheriff. 2 N. S. 310, 311.

I can see no reason why a creditor who by his diligence has made his debt upon execution should be deprived of his funds by the surrender. The day that the money has been made by the creditor, on execution, he is entitled to be paid by the Sheriff. This is a right which tho law gives him. If he has this right to immediate payment the day the money is made, it is difficult to see in what manner he forfeits the right by any reasonable delay. The right must exist, and the accident of a subsequent surrender cannot deprive the creditor of such right.

The testimony in this case was received without objection, and I think‘the judgment ought to be affirmed.

Land, J., concurred in this opinion.


author: Oole, J.

text:
    Charles A. Gilbert v. Adam C. Hollinger—Joseph Krebs v. the same.
    Whore the Federal Court was resorted to on a false allegation of tho citizenship of the parties, in order to obtain possession of property by attachment, and tho proceedings were then dismissed and simultaneously process of attachment sued out from a State Court, on the affidavit that the defendant in the attachment, who was represented in the Federal Court to be a citizen of Louisiana, was a non-resident — Held: That the allegation of the non-residence of the defendant being at direct variance with the allegation previously made by the same party in the Federal Court, the attachment could notbe maintained.
    from the Second District Court of New Orleans, Morgan, J.

      Clark <& Bayne, for plaintiff. R. <& Ii. Marr, for defendant.
   Oole, J.

These two cases were tried together in the court below. Two appeals have been taken from the judgments rendered, which have come up in separate transcripta; those numbered 4735, being an appeal of an intervenor and third opponent, Perrin, who claims the slaves attached in this case, as his property, and not that of defendant; and the case numbered 4825, being an appeal of the defendant.

Both these suits were commenced by attachment; tho affidavit and petition in each ease, alledging the defendant to be a non-resident of this State. No personal service of citation was made upon defendant in either case. A curator ad hoe was appointed to represent him He is, therefore, only in court by his property attached; and, as a rule lias been taken by the curator ad hoc in each case, to dissolve the attachment, it is incumbent upon us, first, to examine the issue made by the rule. Por if the attachment be dissolved, the suit with its accessory, the third opposition, must fall.

The rules to dissolve the attachment are based upon several grounds, of which tho second has alone been insisted upon in argument in this court. It is identical in both rules, and is as follows :

“ Because the negroes attached were illegally and tortiously brought within the jurisdiction of this honorable court, at the instance of the said Charles A. Gilbert, and by his contrivance and procurement for the purpose of being attached in the present suit, or in a suit to be instituted in some one of the district courts of New Orleans, by the said Charles A. Gilbert, for the same cause. That said negroes were at or near Pass Manchac, in the parish of St. John the Baptist, on the New Orleans, Jackson and Great Western Railroad, where they had been hired for several months past, and where they were attached and seized, and whence they were brought to the city of New Orleans, by a Deputy Marshal of the United States, in virtue of a writ of attachment issued on the 6th day of June, 1854, from the Clerk’s office of the Circuit Court of the United States, holding sessions at the city of New Orleans, which said writ was issued at the suit of Charles A. Gilbert v. Adam C. Hollinger, in said Circuit Court, filed on the 6th day of June, 1854, and was served at night, at or near Pass Manchac, between the Tth and the 8th day of June, 1854. That said Circuit Court was entirely without jurisdiction in said suit, and had no authority to grant said writ. That said Circuit Court can take jurisdiction in civil matters only where the suit is between citizens of different States, one of them being a citizen of the State in which said Circuit Court is held ; and that said Hollinger and said Gilbert were, at the time said suit was brought in said Circuit Court, and are now citizens of the State of Alabama, residing in Mobile county in said State, which fact was well known to the said Charles A. Gilbert audio James 0. Bolling, who, acting as agent for said Gilbert, caused said suit to be instituted, and upon whose affidavit the said attachment was issued. That in Ms petition, in said suit, it was charged that said Charles A. Gilbert was a citizen of the State of Alabama, and that Adam C. Hollinger was a citizen of Louisiana, which latter allegation was untrue, and was made for the purpose of giving colorable jurisdiction to said Circuit Court. That the writ of attachment issued from said Circuit Court, on the affidivit that said Hollinger concealed himself to avoid being cited and forced to answer said suit, which was also untrue ; that all said proceedings in said Circuit Court wore illegal and void, for want of truth of the material allegations, and for want of jurisdiction ; and that the seizure of said negroes, and the bringing of them to the city of New Orleans, was a trespass.”

“ That on the 22d of June, 1854, the said Gilbert voluntarily discontinued said suit, and dismissed said attachment in said Circuit Court, and immediately brought the present suit in this honorable court, and caused the writ of attachment to issue herein, by virtue of which the said negroes were seized by the Sheriff of the parish of Orleans, while they were still in the custody of the Marshal; all which actings and doings were and are illegal and tortious, and were done for the purpose of giving to this court a jurisdiction which it had not, either by reason of the residence of the said Hollinger, or of the situs of the said negroes previous to the said illegal attachment and seizure by the said Marshal.”

The facts stated in the above ground, separate from what may be considered as argumentative, or declamatory, are proved by documentary and record evidence, by the testimony of witnesses, and by admissions of parties on the trial of the rule.

On the 6th of June, 1854, the plaintiffs, Charles A. Gilbert and Joseph Krebs, filed their petitions separately in the Circuit Court of the United States for the Eastern District of Louisiana, for attachments of the property of defendant, Adam C. Hollinger, for the recovery of the same debts which are the object of the present actions. In the petitions to the United States Court, the plaintiffs allege themselves to be citizens of Alabama, and defendant to be a citizen of the Slate of Louisiana, and a resident of the said State, and within the jurisdiction of the said United States Court. They further allege, that Hollinger conceals himself to avoid being cited, and has property within the jurisdiction of the court. The affidavits at the foot of these petitions are made by James C. Bolling, as agent of the plaintiffs, who swears to the debt, in each instance, and also that Adam, C. Hollinger conceals himself to avoid being cited, and forced to answer the suit intended to be brought against him.

Writs of attachments issued in both cases, which were executed by levying upon certain slaves. These suits were both discontinued on the 22d of June, 1854, on motion of the council of plaintiffs.

On the same day (22d of June, 1854,) the present suits were commenced by the filing of affidavits for attachments in the Second District Court of New Orleans.

The affidavit in Gilbert’s case is made by the plaintiff himself; and in Kreb’s case, by James C. Bolling, as the agent of Krebs. Both affiants swear to the amount of the debt in their respective suits claimed ; and that Adam C. Hollin-ger resides out of the State of Louisiana.

The petitions filed the next day in each case also set forth that Hollinger resides out of the State of Louisiana.

It is proved that Hollinger has been a resident of Mobile county, Alabama, for twenty-two years past; that James C. Bolling was the specially authorized agent of Gilbert d Krebs, for prosecuting their claims, with power to sign attachment and other bonds; that Bolling’s father and Hollinger are neighbors; that Bolling has been raised in Mobile; that Gilbert cl Krebs, the plaintiffs, were also residents of Mobile county; that the slaves were seized by a Deputy Marshal of the United States in the parish of St. John the Baptist, and brought to New Orleans by that officer.

The following are admissions made upon the trial:

“ ft is admitted, attachments issued in these cases from the United States Court, under order of Hon. Judge McCaleb ; that attachments were executed, and negroes taken into possession of the Marshal; that.petition was served on A. C. Hollinger; that Messrs. Marr, as counsel for Hollinger, moved to have the attachments set aside on the grounds that the bonds was insufficient; that J. C. Bolling had no authority as agent to sign the bonds for attachment, that the Circuit Court had no jurisdiction.

“ There was annexed an affidavit of A. B. Hollinger to plea of jurisdiction, that ho was a citizen of the State of Alabama.

“ That the rule was tried before the court and submitted. A day or two after-wards the suit was discontinued.

“ The court refused to try on rule any thing but the question of formality of attachment; that the question of jurisdiction, and all other questions, were reserved for trial on the merits.

“ That the Marshal had ordered his keeper to release the negroes immediately after the discontinuance ; that after the receipt of the order, before actual delivery to defendant, the negroes were seized by the Sheriff, on the attachment issued from the court.”

The evidence, in our opinion, establishes that the slaves attached in these suits, were wrongfully brought within reach of the process of the Second District Court of New Orleans.

The Circuit Courts of the United States, by the Judiciary Act, sec. 11, have a jurisdiction limited to cases, where either the United States are plaintiff, or an alien is a parly, or the suit is between a citizen of the State, where the suit is brought, and a citizen of another State.

That court was, therefore, without jurisdiction of a suit brought by a citizen of Alabama against another citizen of Alabama. • To give it jurisdiction, it was incorrectly alleged in plaintiff’s petitions, addressed to the Circuit Court of the United States, that Hollinger was a citizen of Louisiana.

The process of that court ran into the parish of St. John the Baptist, where Hollinger’s negroes were.

By means of that process, they were levied upon in that parish, and removed to New Orleans, the place where the court is held.

Once there, the suit in the United States Court is discontinued, and simultaneously process issues from the State Court, based upon the truthful allegation of Hollinger being a non-resident of Louisiana, but which allegation is at direct variance with the allegations made previously by the same party in the Federal Court.

Seizures of property brought about like those in the present controversy, cannot be maintained by this court. Vide Powell v. McKee, 4 An. 108 ; McKee v. Amonett, 6 An. 207; Paradise v. Farmers’ and Merchants’ Bank, 5 An. 710 ; Myers v. Myers, 8 An. 369.

Neither arc they maintained in our sister States. Vide 4th Humpreys’ Tenn. Rep. 149 ; 24th Wendall’s N. Y. Rep. 369 ; 12th Pickering’s Mass. Rep. 270.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, in the suits of Charles A. Gilbert v. Adam C. Hollinger, and Joseph Krebs v. Adam C. Hollinger, be reversed; that the writs of attachment issued in those suits be dissolved, and the suits be dismissed at the costs of plaintiffs and appellees in both courts. And it is lastly ordered, that the Clerk of this court certify this, the decree of this court, in each of the two causes of Charles A. Gilbert v. Adam C. Hollinger, No. 7925 of the docket of the Second District Court of New Orleans; and Joseph Krebs v. Adam C. Hollinger, No. 7927 of the docket of said court, upon the appeals severally taken from the final judgments in those cases by the defendant and by the intervenor, which appeals are docketed numbers 4735 and 4825 in this court.


author: Merrick, C. J.

text:
    Charles Parlange v. Jean Emile Faurès.
    Where a broker or agent sells a note, with a forged endorsement upon it, without disclosing the fact of his agency, or tho name of his principal, ho is responsible for the amount, with legal interest, which was paid for the note.
    from the Second District Court of New Orleans, Morgan, J.

      W. II. Hunt and L. Costera, for plaintiff. II. Griffon, for defendant and appellant.
   Merrick, C. J.

The defendant, a broker, sold to the plaintiff a note for twelve hundred dollars in amount, signed by H. A. Lee, containing the forged endorsement of a responsible party, without disclosing the name of his principal, on whose account he procured the discount of the paper. The proceeds were eleven hundred dollars.

The plaintiff, having discovered the forgery after the drawer of the note had absconded and the note had matured, brought this suit against the defendant to recover the amount of the same, with costs of protest and interest.

It is not pretended that defendant had any knowledge of the forgery, or acted otherwise than in good faith.

The defendant cited one John T. Clay, from whom he alleged he received the note in warranty, said Clay also being, as defendant alleged, a broker, and acting for parties unknown to defendant.

Clay answered the call in warranty, and averred that he was a note broker, and that at the time he delivered the note to defendant, the latter was informed and well knew that the warrantor was not the owner of the note, but was trying to sell the same as broker.

The defendant discharged Clay as warrantor, and placed him on the stand as a witness at the conclusion of the trial. It appears from his testimony, that he handed the note to Faitrés to discount, and divided the brokerage with him; that he received the proceeds of the note from defendant, and paid the same over to Lee. It thus appears, that it was only after the call in warranty was dismissed, and the last witness examined, on the trial of this cause, that it was disclosed who was the principal of these brokers.

Judgment havmg been rendered against the defendant, for the note and eight per cent, interest, he prosecutes the appeal.

The defendant relies upon the authority of a case decided in Maine, to the effect that one dealing with a person whom he knows to be a broker, may be presumed to know, from the nature of a broker’s business, that he is acting as agent for a third person ; and upon Article 2985 of the Code, as decisive of this case. See 29 Maine, (16 Shep.) p. 434.

Plaintiff contends, that inasmuch as defendant did not disclose the name of his principal at the time of the transaction, he is himself bound as principal.

This court, in the case of Bedford, Breedlove & Robeson v. Jacobs, (a case against a broker), stated the law in these words, “ An agent cannot discharge himself from responsibility, on the ground that he acted for another in making the contract, unless he shows that he communicated to the party with whom he contracts, his situation as agent, and that he acted so as to give a remedy over against his principal.” 4 N. S. 530.

In the case of Nott & Co. v. Papet, this court made this remark, “Wo do not. mean, however, to say, that at the time of the sale the broker must name the owner of the paper, but it is his duty to make known to the purchaser that he does not sell on his own account.” 15 La. 310.

Mr. Parsons says, an agent makes himself liable, by concealing his character as agent. Parsons’ More. Law, p. 14V.

Mr. Justice Story lays down the doctrine as follows : “ A person contracting as agent will be personally responsible where, at the time of the contract, he does not disclose the fact of his agency, but he treats with the other party as being principal; for in such case it follows irresistibly, that credit is given to him on account of the contract. Thus, a factor, or broker, or other agent, buying goods in his own name for his principal, will be responsible to the seller therefor iu every case where his agency is not disclosed.” Story on Agency, §266 and 267.

In the case before us, the defendant did not disclose, at the time of the s le, the fact that he acted as agent for any one ; and, until the last witness was examined in this case, it does not appear that the plaintiff was notified of any other person against whom be could direct his action. It is, therefore,'quite clear, without going further than this court went in the two cases cited from our reports, that the defendant is personally responsible.

"We do not find that the Article cited from the Civil Code affects the case. Sec. 2981 C. 0.

The District Court has fallen into an error in signing the judgment for the price of the note, and eight per cent, interest thereon. It should have been for the amount paid for the note, and legal interest thereon.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that the plaintiff do recover and have judgment against the defendant, Jean Emile Fames, for the sum of eleven hundred dollars, with five per cent, interest thereon per annum, from the sixth day of October, 1857, until paid ; the defendant paying the costs of the lower court, and the plaintiff those of appeal.


author: Cole, J. Mebbick, C. J., Land, J.,

text:
    State v. W. Wilson alias Red Bill—Benjamin Mason, Surety.
    Where the condition of the "bond in a criminal case was that the accused “ should personally bo and appear before the District Court at its next term to answer certain charges brought against him, and should not depart without the leave of the court until the final trial and conviction or acquittal of the accused; the responsibility of the security on the bond is at an end when a verdict of guilty is found against his principal.
    The accused being then present in court is, after the conviction, in the custody of the Sheriff, and the security cannot be made liable on such a bond because the accused afterwards made his escape.
    from the District Court of the Parish of Jefferson, Burthe, J.

      W. T. Scott, District Attorney, for plaintiff. A. N. Ogden & Stansbury, for defendant and appellant.
   Cole, J.

The following is the statement of facts agreed upon by the District Attorney and the counsel for defendant:

“ On the loth Juno, 1858, two indictments were filed against Red Bill, — one for assault and battery, and the second for violence, &c., at the polls on election day. He was arrested, and on the 13th June was, by order of the court, admitted to bail in the sum of four hundred dollars in each case, and the Sheriff of the parish was authorized to take the bond.”

“ The Sheriff took one bond for the sum of eight hundred dollars, conditioned for the appearance of the accused for trial on both charges, assault and battery and for violence, &c., at election.”

“Both cases were assigned for trial on the 23d of June, 1858, Wm. Wilson alias Red Bill, was tried upon the indictment for violence at elections, &c., and was found guilty by the jury. The other case against the same party was continued over to the next term of the court.”

“ Shortly after his conviction, the same day, and while the court was engaged in the trial of another case, the convicted party, Wilson alias Red Bill, made his escape from the court room and left the parish of Jefferson.”

“ A capias was issued for his apprehension, and the bonds regularly forfeited. He has been since arrested and was sentenced August 21st, 1858.”

If the duty of the Sheriff was not to have taken two bonds, the taking of only one for the aggregate sum of the two cannot augment the responsibility of the security in either of the cases. If the accused complied with the bond in one of the cases in making his appearance, and did not in the other, the amount of the forfeiture could only be four hundred dollars. The Distinct Court gave judgment for the whole amount of the Dond, and Benjamin Mason the surety, has alone appealed.

The judgment of forfeiture of the bond is as follows: “ Saturday, 26th June, 1858, the court this day ordered the Sheriff to produce into court the accused Wm. Wilson alias Red Bill, to receive the sentence of the law on the verdict of the jury, finding him guilty of threats and violence at the polls. The Sheriff informed the court that the said accused, Wm. Wilson, could not be found, he being a fugitive from justice. Whereupon, on motion of the District Attorney, the bond of Wm. Wilson alias Red Bill, made returnable on the 23d day of June, 1858, was this day called, when it appearing that the said Win. Wilson has not answered and has failed to appear according to the conditions of his bond, his security Benjamin Mason, was thereupon called and ordered to produce mstanter, in open court, the body of Wm. Wilson, as he has bound himself to do, and the said security having failed to comply with this the condition of his bond, it is ordered, adjudged and decreed, that judgment be entered in solido against Wm. Wilson alias Red Bill as principal, and Benjamin Mason as surety, in the sum of eight hundred dollars and costs, full amount of the bond entered into by them in conformity with an Act of the Legislature of the State of Louisiana, entitled an Act relative to crimes and offences, and criminal proceedings, approved 14th March, 1855.”

It is evident that the object of the court in ordering the accused to be called was to pass sentence upon him in the case in which he had been convicted, and not to take any action in the other case, for that had been continued over to the next term of court on the 23d of June, three days previous to the calling- of the security upon the bond. After the continuance the accused was not bound to stay for the case which had been continued. If two separate bonds had been taken by the Sheriff, as one of the cases had been continued until the next term of court, it is clear that the court would have ordered the parties to the bond to be called only upon the bond which had been given for the appearance of the accused in the case in which he had been found guilty.

Even then, if the accused did not comply with the part of the bond which related to his appearance in the case in which a conviction had been obtained, the bond ought only to have been forfeited for one-half thereof.

We are, however, of opinion, that the accused complied with his bond even in the prosecution in which he has been convicted, and that the judgment must be reversed so far as the security is concerned, for the accused cannot bo benefited by our judgment, as he has not appealed.

The bond sets forth that Wilson alias Red Bill, as principal, and Benj. Mason as surety, are indebted in solido unto the Governor of the State in eight hundred dollars, “ upon condition, nevertheless, if the said Wm. Wilson shall personally be and appear before the Third Judicial District Court of the State of Louisiana, to be held at the town of Carrollton, on Wednesday, the 23d day of June, A. D. 1858, or if the said court should not be held on the day last aforesaid, then on the first day thereafter that the said court shall be held, then and there to answer unto two charges brought against him for assault and battery, and threats and violence at the polls, and shall not depart without the leave of the court, until the final trial and conviction or acquittal of the said Wm. Wilson, and shall keep the peace in the mean time; then this recognisance to be void, otherwise to remain in full force and effect.”

The accused was in the custody of his security according to this bond until the verdict of the jury pronounced him guilty, but after that his responsibility ended. The accused was in the court room when he was convicted and did not depart therefrom until a short time after his conviction.

Blackstone says, if the jury find the accused guilty, he is then said to be convicted of the crime whereof he stands indicted, which conviction may accrue two ways, either by his confessing the offence and pleading guilty, or by his being found so by the verdict of his country. Blackstone, Book IT, p. 3C2. After trial and conviction, the judgment of the court regularly follows, unless suspended or arrested by some intervening circumstance. Blackstone, Book IT, p. 3(55.

Chitty declares, that in order to urge the disability against a witness with effect, it is necessary to prove the record of th§ judgment, as well as conviction, lest any objection should have defeated it in arrest of judgment; and the admission of the witness himself will not suffice, without a copy both of the judgment and conviction. OhittyonCriminalLaw,vol.l,p. 601. When the prisoner is convicted by the jury, he is put aside from the bar, to await the delivery of his sentence. Chitty vol. 1, p. 648. When the defendant has been found guilty in the court of King’s Bench, it is necessary that four days should elapse between the conviction and judgment. Chitty vol. 1, p. 653.

It is evident from the authorities, that the conviction was perfectly accomplished, when the jury rendered the verdict of guilty. The obligation of the bond was that the accused should be then present in court. He was there present and did- not depart until a short time afterwards. The security is not, therefore, liable upon his bond.

It is, therefore, ordered, adjudged and decreed, that the part of the judgment which condems Benjamin Mason as surety to pay eight hundred dollars and costs in solido with Wm. Wilson alias Bed Bill as principal, be avoided and reversed, so far as said Mason is concerned, reserving to the State the right of action, if any such she have, for one-half of the bond in the case which was continued, in the event of the default of the accused to comply with the conditions thereof.

Mebbick, C. J.,

concurring. Without expressing an opinion upon the bond, under the admissions in the record, I prefer to put my concurrence on the case of the State v. Hammill, 6 An. 257.

Land, J.,

concurring. In my opinion, the judgment of the lower court should have been for four hundred dollars instead of eight hundred.

Upon the grounds of the arrest, sentence, and punishment of the accused, suhse-sequently to his escape, I concur in the judgment.


text:
    Mrs. Lucinda Pendarvis v. Iverson J. Wall.
    At a sale of succession property, a creditor of the succession cannot tender, in payment of the price of property adjudicated to him, the claims which he may have against the succession.
    PPE AL from the District Court of the Parish of Livingston, Beale, J.

      G. W. Watterson and H. Duncan, for plaintiff and appellant. C. J. Bradley, for defendant.
   Cole, J.

This is an action brought by plaintiff against the administrator of Samuel Patterson’s estate and the Sheriff of the parish of Livingston, to injoin them from selling certain property, consisting of a parcel of land and slaves, on the ground that she is the owner of the same under a former adjudication.

After the usual formalities, the administrator obtained an order directing the Sheriff of Livingston to sell certain property of the succession for cash. On the day of sale, the plaintiff was the last and highest bidder for the said land and slaves, and on the same day she tendered to the Sheriff and to the administrator claims against the estate to the amount of eleven hundred and fifty dollars, in part payment of the purchase price of said land and negroes, reserving to herself the right to retain in her hands the balance, one hundred and fifty dollars, until a full and final settlement of the estate of said Patterson, her deceased husband, and until her rights were adjudicated upon.

Her claims consisted of three items.

1. One thousand dollars under the homestead law.

2. One hundred dollars, the amount of a donation in cash made to her child, Samuel, by one McLaughlin, and received by Patterson in his lifetime for the use and benefit of said child.

3. Fifty dollars, being the expenses caused by the funeral of Patterson.

The Sheriff and administrator refused to receive these claims in payment as cash, and to allow her to retain any part of the price as a creditor of the estate. The Sheriff proceeded to advertise, on a twelve months credit, the property which had been adjudicated to plaintiff, and was about to sell the same, when his further action was arrested by an injunction.

Upon the trial, the District Judge considered the grounds for this injunction insufficient, and dissolved it.

Plaintiff has appealed.

It appears to us immaterial, whether the sale was one to pay debts of the succession, or for any other purpose, so far as the tender of these claims is concerned. Plaintiff had never been recognised as a creditor of the estate, and her rights and those of her children, under the homestead law, had never been adjudicated upon. Even if she had been recognised as a creditor, we are unaware of any law which permits a mere creditor, and not an heir, to retain any portion of the price at a cash sale, to satisfy the claims such creditor may hold against the estate. If, in this case, as was probably the fact, the administrator was proceeding to sell the property, under an order which was given, for the purpose of procuring funds to pay the debts of the estate, plaintiff, even if she had been an heir, could not have tendered these claims in payment, but would have been obliged to pay cash for her purchases. If creditors of an estate had the right of tendering their claims in payment, in a sale like the present, it would be almost impossible to settle an estate without the greatest delay and cost. The administrator would be obliged, on the day of sale, to determine upon the validity of every claim, where the claims had not been previously presented, and often sales would be obliged to be deferred to enable the administrator to obtain information as to the rights of the creditors.

It is also insisted, that the Sheriff should have tendered-plaintiff a title and made a demand upon her for the price of the adjudication.

Such demand and tender were, under the circumstances of this case, unnecessary. The plaintiff did not wait for the Sheriff to demand of her the price, but she herself tendered payment, but not as the law directed. She offered claims that could not be received, and proffered to accept the property on impossible conditions.

After the refusal of the Sheriff to accept her tender of payment in the claims, she did not offer to pay him in cash.

As she herself offered to pay, but only in a certain way, and as the Sheriff refused to take any thing but cash, which she declined giving, it would have been useless in him to have made an express demand upon her. The only effect of the demand on his part would have been, if she had not paid, to have put her in default, and to have authorized him to have proceeded with the sale. When, however, she herself offers to pay, there then is no necessity for a demand, for she then proposes to do voluntarily what is the object of the demand. Her offer showed that she was willing to pay the adjudication in one way and in no other, and an express demand of her of payment, after this, would have been without effect; for she had already shown that she would not pay cash, by declining to offer it when the Sheriff refused to accept anything but cash. Neither was the Sheriff obliged, under the circumstances of this case, to wait any particular time, to see if she would comply with the terms of the sale, for it would have been useless after her refusal upon the day of sale to pay cash.

Judgment affirmed, with costs of appeal.


author: Mebeick, 0. J.

text:
    The State of Louisiana v. George Forno.
    Where the defendeut was indicted for an assault with an attempt to commit a rape, and after having pleaded to the indictment, was released upon a bond, in which he and his securities hound themselves that he should appear and answer to the charge of rape. Held: That such a condition under the circumstances of this case vitiated the bond.
    from the District Court of the Parish of Livingston, Beale, J.

      M. F. Carter, District Attorney, for State. H. Duncan, for defendants and appellants.
   Mebeick, 0. J.

The defendant, Forno, was indicted for an assault with an attempt to commit a rape.

The District Judge ordered a capias to issue for the arrest of the accused. After the accused had pleaded to the indictment, the court ordered the case to be continued and the prisoner to be enlarged by the Sheriff on his giving bond conditioned according to law in the sum of fifteen hundred dollars. The Sheriff took a bond from the accused subscribed by two sureties, in which there was no reference to the indictment, and the offence is described as that of rape. The condition of the bond is in these words, viz: “Now the above obligation is such, that whereas the above bound G. W. Forno, has been arrested by virtue of an order from the honorable Eighth Judicial District Court, State of Louisiana, on the charge of committing a rape. Now, therefore, if the said G. W. Forno shall well and truly appear at the next term of the aforesaid court, to be held in the courthouse in the town of Spring-field, parish aforesaid, on the first Monday of May, 1858, and shall continue from time to time, and from day to day in term time, to answer said charge, and shall abide the decision of the court, then this obligation to be null and void, otherwise to stand in full force and virtue.”

At the May term 1858, the court was in session on Monday, the third day of May. On Thursday the accused and sureties having been called upon the bond, the case was laid over until the following day to enable the sureties to make their objection to the bond. On Friday, the seventh of May, the proof was administered and judgment rendered upon the bond against the principal and sureties in solido.

The same day, the jury having been discharged, the accused presented himself, demanded a trial, and that the judgment should be set aside, and that a jury should be summoned for the following week to try him. The motion being refused, the accused and his sureties appeal.

The first question presented by the appellants is, that the bond is void, because there was no such charge pending against the accused as that for which he was bound to appear and answer.

The objection would not be fatal if the bond contained any reference to the indictment, or if the bench warrant referred to in the bond had been produced, and it had there appeared that the accused had been arrested upon a bench warrant issued upon an indictment for an assault with an attempt to commit a rape. State v. Smith, 8 An. 411.

The bond would also have been sufficient if it had contained either of the usual conditions, “ and not to depart thence without leave of the court first obtained,” or “ and to answer such matters and things as shall be objected against him on behalf of the State.” State v. Cole, 12 An. 471. State v. Martel, 3 Rob. 22. 1 Chitty, Criminal Law, 105.

But the bond does not refer to the indictment and there is nothing in the record to which the bond refers, from which it can be inferred that the sureties had any reason to suppose that the accused was admitted to bail for any other offence than that specified.

The crime of rape, and an assault with intent to commit rape are essentially different, one is punishable with death, and the other by imprisonment at hard labor not to exceed two years.

The bond therefore, according to its terms, has not been forfeited. The accused has not been called upon to answer, nor the sureties to produce his body to answer a charge of rape. The offence upon which he was called to answer was one for which the sureties had not bound themselves. State v. Wooten, 4 An. 515.

It is with reluctance that we allow objections of this kind to prevail, but under authorities the present appears to be well taken.

It is, therefore, ordered, adjudged and decreed, by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants, as in case of non-suit.


text:
    Certain Inhabitants of Melpomene Street v. City of New Orleans.
    The city, as a corporation, has control over the public places and highways within its hounds, and it is the province of the corporation, and not of a judicial tribunal, to determine what improvements shall be made in the streets and canals of the city.
    from the Sixth District Court of New Orleans, Howell, J.
    ' C. Roselius, and T. H. Howard, for plaintiffs. /. G. Michel, for defendant and appellant.
   Cole, J.

The object of this suit is to procure the abatement of what the plaintiffs consider a nuisance, known as the Melpomene Canal, or drain, by condemning the corporation of New Orleans to construct such works as will secure a walled or cemented side and channel, and an unbroken paved surface.

There was judgment condemning the city to abate the nuisance within a reasonable time.

The city has appealed.

It appears that the Melpomene Canal is a draining canal, and not used fi.r any other purpose; it drains a large part of the upper portion of the First District. The city has it cleaned out every three or four years. The witnesses state, that the canal has existed, to their knowledge, for twenty or thirty years. Mr. Avery knew the canal thirty years ago, when its neighborhood was comparatively a field; he states that improvements began in the neighborhood about twenty years ago.

The evidence shows it would increase the value of property fifty per cent, on each side of the canal, if it were covered.

The witnesses consider the canal to be a nuisance.

¥e are of opinion that the relief demanded cannot be granted by this court. This canal has for over thirty years been a drain for a part of the city. Those who purchased property in its vicinity, knew that this drain existed. They paid less for the property on account of the existence of this canal, and it does not seem to be very equitable for them to force the city, at its own expense, to construct works for the covering of the canal and for its improvement, which will augment the value of their property fifty per cent.

The city, as a corporation, has control over the public places and highways within its bounds, and it is the province of the corporation, and not of a judicial tribunal, to determine what improvements shall be made in the streets and canals of the city.

If any works be constructed by the corporation at its own cost, it is the taxpayers who furnish the necessary amount of money, and it is not for courts of justice in a case like the present, to force the city to be at a great expense to cover a draining canal which has existed over thirty years, in order to benefit those who bought property near it, with a full knowledge of its existence and its offensive character, as a drain for a part of the city.

The improvement of the city is left to the wisdom and discretion of the municipal authorities, and courts have not the power to usurp their prerogatives and to do what the Legislature has imposed upon them.

If they neglect their obligations, others can be elected in their place, and thus it is in the power of the inhabitants of the city to abate the nuisance, if such it be.

Tie canal does not, however, appear to be a nuisance in the legal sense of the word. It is intended for a drain, and it is necessary that canals should exist for the purposes of drainage. Offensive things may occasionally be thrown in, but this is inevitable, in a large city, in despite of the prohibitions of ordinances. If plaintiffs considered the canal a nuisance, they ought not to have purchased along its sides, for it has been in its present condition for twenty-one years and more.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed; that there be judgment in favor of defendant against the demand of plaintiffs, and that plaintiffs pay the costs of both courts.


text:
    Reuben Sleade et al. v. Payne & Harrison.
    In order to relieve tlie owners of vessels from responsibility, there must be a delivery an tire wharf to» some person authorized to receive the goods, or some act must he done, which is an equivalent to a delivery.
    In order to constitute a delivery, there must bo a notice given to the consignee, and a reasonable timo given him to make the usual and necessary preparations to receive the goods.
    The manner of delivering the goods, and Consequently the period at which the responsibility of the master and owners will cease, depend upon tho customs of particular places, and the usage of particular trades.
    from the Fifth District Court of New Orleans, J.

      Singleton <& Clack, for plaintiffs and appellants. P. E. Bonford, for defendants.
   Cole, J.

Plaintiffs instituted this suit for the recovery of freight on cotton consigned to the defendants, whereupon the latter reconvened, claiming the value of five bales of cotton, which, they allege, plaintiffs failed to deliver to them.

There was judgment in favor of plaintiff for the freight, and against him on the reconventional demand. He has appealed.

In order to relieve the owners of vessels from responsibility, there must be a delivery on the wharf to some person authorized to receive the goods, or some act which is equivalent to, or a substitute for it. 3 La. 226, Kohn & Bordier v. Packard; The Salmon Falls Manufacturing Company v. The Bark Tangier, American Law Reg., June number, 1858, p. 505 ; Parsons on Contracts, 1 vol., pp. 670, 671, Note C. and p. 673 ; Northern v. Williams, Phillips & Co., 6 An. 579.

In order to constitute the delivery, it is not sufficient to unload the vessel and place the goods upon the wharf; there must also be a reasonable notice to the consignee, giving him time to make the usual and necessary preparations to receive the goods. The manner of delivering the goods, and consequently the period at which the responsibility of the master and owners will cease, depend upon the custom of particular places, and the usage of particular trades. Abbott on Shipping, p. 378 ; Amer. Law Reg. p. 507.

There was not, in the present case, such a delivery as to relieve the boat from liability.

The only notice given, except so far as the consignees were aware of the consignment by the newspapers and their own bills of lading, was to Mike Iiynes, the receiving clerk of the press, where Payne & Harrison store their cotton. It is not shown that the latter saw the notice in the papers of the arrival of the boat and the names of the consignees, or that they received any bill of lading for the cotton now in contestation.

j Conceding that notice to Hynes would have sufficed, on the ground that he was /the agent for such purpose of the consignees, still a reasonably sufficient time did ■' not elapse between the notice and the disappearance of the five bales of cotton, .to liberate the common carrier from liability for their loss.

The consignee is not obliged to accept delivery of goods at the moment he is " informed they are ready for delivery, but is entitled to a reasonable time for preparing to carry them away. Particularly must such be case in a port like that of New Orleans, with reference to steamboats. Several of these often arrive at once, with large consignments to the same house. If all goods were at their risk at the moment they were informed they were ready for delivery, it would work a serious inconvenience.

On Saturday afternoon, about sundown, I-Iynes went and asked Hodgson, who was employed to discharge the steamboat, if he had any cotton for him. It thus appears that the boat had given him no direct notice, until he went to inquire personally.

Hodgson showed him the cotton of defendants, and asked him to take it away. He replied, that he had but four drays and could take only twenty bales that evening. Hynes took twenty bales’away at that time.

Prom the evidence of the plaintiff’s own witness, it was about sundown, when he informed Hynes the cotton was ready for delivery.

If Hynes had not taken away any of the cotton, the boat could not have complained, because he was notified at the time when the business of the day was about closing.

The next day was Sunday ; Hynes was not obliged to take them away on that day, for it is considered a day of rest. If this could be considered a delivery, then there would be no safety for the commercial community. The agent of a boat might notify the consignee in the night or on Sunday, that his goods were ready for delivery, but at such times it is almost impossible to procure laborers, and the goods would be exposed to be stolen and to be injured by the weather.

It is true that the boat binds itself to deliver the goods at the port of New Orleans to the consignee, but this contract, like every other, must be supposed to impose upon the boat the obligation of carrying out its contract in such a way, that the spirit of the contract may not be violated.

The obligation of delivering the goods to the consignee, carries with it that of delivering them at such time that the consignee can get laborers to haul them away, and not at midnight, on Sunday, or some other day of public rest. It is the duty of the boat to exercise a watch over the goods, after notice is given at a proper moment, for the time which is reasonably necessary for hauling them away.

After the expiration of this reasonable time, if sickness or any accident prevents the hauling away of the goods, the boat is no longer liable as a common carrier, but as a bailee on deposit.

At eleven o’clock on Monday morning the remainder of the cotton was still upon the wharf: Hodgson at that time saw Hynes taking away cotton that had arrived by another boat. Hodgson went to Hynes and asked him to give him a receipt for the cotton, if he did not intend to haul it. He answered, he would be down directly and haul it way. He declined giving a receipt. At two o’clock, upon the same day, (Monday,) Hynes was there to carry away the cotton, but could only find one bale, five being missing.

As notice was first given on Saturday night, and a day of rest intervened between them and Monday, the notice may be considered to have been given on early Monday morning, that the cotton was ready for delivery. Hodgson testifies, that it is a custom to keep a watch on cotton until it is hauled away. His asking for a receipt shows that he did not consider it as delivered. He says, that he put a watchman over the cotton on Sunday night “ as usual,” and that he always takes a receipt from the receiving clerk for cotton.

Hynes testifies it was 12 M., on Monday, when Hodgson told him he had the six bales, being the remainder of the shipment, ready for him. Hodgson wished him to give him a receipt for them and to take his word they were there ; this deponent declined to do, but told him as soon as the drays returned, he would receive them. As soon as the drays returned, deponent sent for the six bales. The discharging clerk, Hodgson, then told him there was but one bale to be found; deponent took that bale, and has never received the remaining five bales. At the time deponent received this last bale, there was considerable cotton on the levee, of the cargo of the Planter, which had not been delivered.

Deponent says, that the custom which prevails in discharging and delivering cotton in New Orleans, is this : The party to take and haul away the cotton, ascertains from the boat’s manifest on her arrival, the number of bales and their marks intended for Ms press. He commences to haul away the cotton when it is put upon the levee, as soon as practicable. Erom the numbers and different marks, it is impossible for the draymen to know positively whether he has all his cotton until toward the last.

His cotton very frequently gets mixed up with the piles for other presses : it is not, in consequence, the custom to give a receipt for the cotton, until the dray-man is satisfied that he has all which he has to take away. It is on this receipt that the freight is collected. No house would pay the freight without this receipt, unless under certain circumstances, and with the guaranty of the boat.

Hynes, in his cross-examination, testifies, that he did not go to the Planter early on Monday morning, because he had to go to get cotton from the steamboat Eclipse, which had arrived before the Planter. He did not put extra drays to haul away the six bales from the Planter, because the cotton had not been longer on the levee than usual. He considers the usual time for cotton to remain on the levee, to be forty-eight hours, after it is assorted and the parties notified, and if he does not call for it, he considers it the duty of the boat to have it stored or given to the wharf-master.

Hynes further testifies, “ I looked at the manifest of the boat, the day she arrived, and saw the cotton consigned to the defendants and took the marks, and asked the clerk if he could give me the cotton that day ; he said he could not, as it was not sorted, and on the next day, I hauled away the twenty bales.” He further testified, that it was too late on Saturday evening to get drays to haul away more than the twenty which he was enabled to haul away, because he had four drays to spare from the steamer Eclipse, for one load that afternoon.

Plaintiffs did not introduce any evidence to controvert the customs of the port New Orleans, as to the delivery of cotton. If it were possible so to have done, there would have been no difficulty in establishing the contrary.

¥e are, therefore, of opinion, that by the custom and usage of the port of New Orleans, the consignee was not guilty of any laches, and that the responsibility of the boat was not ended, when the cotton was demanded by the consignee.

Judgment affirmed, with costs.


text:
      W. C. Broadwell v. P. M. Kelly.
    An exception taken by a defendant to a petition, on the grounds that his name has been incorrectly stated, will be regarded as frivolous, when his true name is not disclosed.
    A frivolous exception cannot prevent a cause from being put at issue, when an answer has been filed! with the exception.
    from the Second District Oourt of New Orleans, Morgan, J.

      Clark & Bayne, for plaintiff Ilyams, Labatt & Jonas, for defendant and appellant.
   Cole, J.

The plaintiff is the payee of two promissory notes signed by the defendant, under the name of P. M. Kelly.

The defendant excepted to the petition, on the ground that his name is incorrectly given, and that he is not bound to answer until the same be correctly stated, and he further alleged, that in case the exception be overruled and not otherwise, then he pleads a general denial, &o.

The case was fixed for trial, and there was judgment overruling the exception and in favor of plaintiff’s demand.

Defendant has appealed, and insists that his exception ought to have been fixed for trial before the fixing of the cause upon its merits.

It appears that the cause was fixed for a certain day. The exception was frivolous, because defendant did not disclose his true name, if an erroneous one had been given by plaintiff.

The District Jndge had the right to order the exception to be tried upon the same day with the merits, if he considered it frivolous.

Besides, defendant did not object at the time it was fixed, or apply for a continuance, if he were not ready for trial. A frivolous exception cannot prevent a cause from being at issue, when an answer has been filed with the exception. The latter has no real existence, and may be overruled at the trial.

Judgment affirmed, with costs.


text:
    E. H. Dix v. A. J. Tully & Co.

      A 'bix.lior to whom a note was given to sell, being in lawful possession of it, lias the right to pledge it. The pledgee i©f llio noto lias the right to demand, and receive the money due on it, and to sue for it in his own name.
    from the Sixth District Court of New Orleans, Eggleston, J.

      Waples <& Eustis, for plaintiff and appellant, Simonis <& Fenner, for defendant.
   Land, J.

A promissory note drawn by the plaintiff for the sum of $400, payable to the order of Joseph Bruneau, and by him endorsed in blank, was plaeed in the hands of Galbraith, a broker, to be sold. The broker delivered the mote to the .defendants in pledge, for a loan of money. The note was paid at maturity by the plaintiff, who sues to recover back the amount paid, on the ground of error in law and in fact.

There was judgment for the defendants and the plaintiff has appealed.

Galbraith was in lawful possession of the note, and had the power of pledging it, as well as of selling it, so as to bind the rights of the owner. Story on Bail-ments, g 296.

The defendants, the pledgees of the note, had the right to recover and receive the money due on it, and to sue for it in their own name. Ib. 321. A payment of the note to defendants was, therefore, valid. 0. 0. Art. 2136.

The plaintiff was legally bound to pay the note to the defendants, and there consequently could have been no error in making payment to them.

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


author: Voorhies, J.

text:
    Succession of J. J. Kercheval.
    A draft taken in part payment of the price of property sold, does not novate the debt so as to cause tli seller to lose his privilege upon the property sold.
    Checks are assimilated to bills of exchange, and the same rules governboth ■with regard to the necessity of demand, protest, and notice of protest.
    from the Second District Court of New Orleans, Morgan, J.

      & Clack, for and Whittalcer <& Fellows, for defendants.
   Voorhies, J.

The administrator of the estate of J. J. Kercheval, is appellant, from a judgment of the District Court, maintaining the oppositions filed to his tableau of distribution by Thomas R. Smith and Joseph H. Harvey.

1. Thomas R. Smith, classed as an ordinary creditor, claims the vendor’s privilege over the proceeds of the steamer Selma, one undivided fourth of which he sold to the deceased, who, in part consideration or payment of the purchase, executed and delivered to his vendor a draft upon R. W. Adams & Co.

The administrator contends that the debt was novated, and the vendor’s privilege destroyed in consequence. The evidence, however, does not show on the part of the deceased and of the opponent, the least intention to extinguish one by another obligation; and, in fact, the draft was given in part consideration for the purchase of the steamer. The case of J. H. Gails v. Schooner Osceola, does not apply in this instance.

2. Joseph H. Harvey claims to be an ordinary creditor for the amount of a check drawn by the deceased, for the sum of $344 55, in favor of R. F. Nicholls <& Co., on the Exchange Bank of Horace Bean <fo Co.; and he alleges that he became the purchaser of the check at the Sheriff’s sale of the effects of the insolvent estate of R. F. Nicholls & Co.

There is no evidence that the check was presented for payment and protested ; nor that the drawer had funds in the hands of the drawee. It was the duty of the holder of the check to prove these facts in order to save his recourse upon the drawer and the indorser.

Greenleaf says: “ But in the case of a banker’s check, the drawer is treated as in some sort the principal debtor ; and he is not discharged by any laches of the holder, in not making due presentment, or in not giving due notice of the dishonor, unless he has suffered some injury or loss thereby; and then only pro tanto. And the burden of proof is upon the holder to show, as part of his case, that no damage has accrued or can accrue to the drawer by his omission of any earlier demand or notice; or, in other words, that his situation, as regarded the drawer, remains as it was at the time of the dishonor.” Vide Story on Promissory Notes, $¡492, 498 ; 3 Kent Com.

Checks are assimilated to bills of exchange, and the same rules govern both with regard to the necessity of demand, protest, and notice of protest. 5 An. 304, Barlour v. Bagon. The claim of Joseph H. Harvey was, therefore, erroneously allowed by the court.

It is, therefore, ordered and decreed, that the judgment of the. District Court be amended in this respect; that the claim of Joseph H. Harvey be disallowed and rejected, as in case of non-suit; that the said Harvey pay one-half of the costs of appeal, and the costs of his opposition in the District Court; that the administrator of the estate of J. J. Kercheval, deceased, pay the other half of the costs of appeal; and that in all other respects the judgment of the District Court be affirmed.


text:
    McKleroy & Bradford v. Southern Bank of Kentucky.
    The acceptance of a bill of exchange admits tlie genuineness of the drawer’s signature, and where an acceptor has paid to a bona fide holder of a forged draft or hill, having no notice of the forgery, ho cannot recover back the money paid.
    But where a party becomes the holder of such a draft, before it has been accepted, and when the loss had already attached, it was accepted, and paid, and the acceptors, immediately jupón, ascertaining the fact of the forgery, gave notice of this fact to the holders — Held: That such a case is an exception to the general rule, and the acceptors are not estopped from proving the forgery, and recovering the money they had paid through error.
    from the Fourth District Court of New Orleans, Price, J.

      Clark <& Bayne, for plaintiffs and appellants. Thomas Ilunton, for defendants.
   Land, J.

The evidence in this case establishes the following facts, viz :

The plaintiffs were the factors of James Smith, a cotton planter, residing in the State of Arkansas. One John Zimmer, who had for a few months been a private tutor in Smith’s family, assuming the name of John Belmont, forged a draft on the plaintiffs, in the name of Smith, as follows :

$986. “ Homestead,1 November 5th, 1857.

On the 15th December, 1857, pay to the order of John Belmont nine hundred and eighty-six dollars, value received, and charge the same to the account of ' Jas. Smith.

To Messrs. McKleroy <& Bradford, New Orleans, La.”

Zimmer also forged a letter of introduction, in the name of Smith, to Shotwell & Son, of Louisville, Kentucky, as follows :

“ Homestead, Nov. 5th, 1857.

Messrs. Shotwell & Son.

Gentlemen:

I introduce to you Mr. John Belmont, a gentleman who resided in my family as our tutor. Having been sick, he is now travelling to improve his health. I gave him a draft on Mclileroy & Bradford, my commission house in New Orleans, which ho is desirous to get cashed in your city. If you can give Mr. Belmont any assistance, by perhaps recommending my draft, as Mr. Belmont is a stranger in your city, and not yet fully recovered, you will greatly oblige me.

I am, gentlemen, yours respectfully,

Jambs Smith.”

The house of Shotwell & Son had been in correspondence with James Smith for about twelve years; and being deceived by the forger, endorsed the draft for the purpose of enabling the holder to negotiate it. The draft bearing the endorsements of John Belmont and of Shotwell & Son, was presented for discount at the Branch of the Southern Bank of Kentucky, and being considered good, was purchased by the bank. The draft was remitted to the Louisiana State Bank, with the following additional endorsement upon it — “ Pay to R. J. Palfrey, cashier, J. B. Alexander, cashier.” The draft thus endorsed, was presented to plaintiffs for acceptance by the Louisiana State Bank, and was accepted on the last of November, or first of December, and was paid at maturity, on the eighteenth of December, 1857, by the plaintiffs to the agent of the Southern Bank of Kentucky. In January, 1858, James Smith, being in the city, made known to the plaintiffs, upon an examination of his account with them, that the draft was a forgery. Mr. Shotwell, of the house of Shotwell Son, was in this city at the time, and was immediately sent for, and the fact of forgery communicated to him. On the 9th of January, 1858, the plaintiffs gave formal notice by letter, of the forgery, to A. L. Shotwell S Son, to the Southern Bank of Kentucky, and also the Louisiana State Bank.

This suit was instituted by the plaintiffs to recover back the money paid on the draft, on the ground of payment in error.

There was judgment for the defendant, and the plaintiffs have appealed.

The District Judge held, that the acceptance of a bill of exchange admits the genuineness of the drawer’s signature, and that where an acceptor has paid to a bona fide holder of a forged draft or bill, having no notice of the forgery, he cannot recover back the money paid, although the forgery is established by the most conclusive evidence. And where one of two innocent persons must suffer, he who has misled the other, or has omitted his duty, must bear the loss.

Those principles of law are well established, and admit, perhaps, of neither doubt nor controversy, and if applicable to this case, must determine the rights of the parties.

The defendant became the holder of the draft, before it was accepted by the plaintiffs, and before they had any knowledge of its existence, and consequently, before the defendant had any right of action against them for its recovery. The plaintiffs, therefore, had done no act which induced the defendant to believe the signature of the drawer to be genuine, at the time the bill was purchased. How, then, can it be said that the defendant purchased the bill on the faith of the plaintiffs’ acceptance, or on their guarantee of the genuinenes of the drawer’s signature ? Or how can it be said that the plaintiffs misled the defendant at the time of the purchase of the bill, or was then guilty of the omission of any duty toward the defendant as the purchaser of the bill ?

If the defendant had purchased the bill on the faith of the acceptance of plaintiffs, or had sustained any loss in consequence of their negligence, we would have no difficulty in affirming the judgment of the lower court; but such are not the facts made known to us by the record.

The defendant purchased the bill on the faith of the endorsement of Sliotwell & Son, which was a warranty of the genuineness of the drawer’s signature to the bank ; and there is no good reason, why the accidental payment made by the plaintiffs should inure to the benefit of the defendant.

Mr. Ohitty says on this subject, “ if he (the holder) thought fit to roly on the bare representation of the party from whom he took it, (the bill), there is no reason that he should profit by the accidental payment, when the loss had already attached upon himself, and why he should be allowed to retain the money, when, by an immediate notice of the forgery, he is enabled to proceed against all other parties, precisely the same as if the payment had not been made, and consequently, the payment to him has not in the least altered his situation, or occasioned any delay or prejudice. It seems that, of late, upon questions of this nature, these latter considerations have influenced the court in determining whether, or not, the money shall be recoverable back; and it will be found, on examining the older cases, that there were facts affording a distinction, and that upon attempting to reconcile them, they are not so contradictory as might on first view have been supposed.” Chitty on Bills, 464.

The facts in this case afford the distinction to which Mr. Chitty refers, and takes the case out of the general rule, which prevents the acceptor of a bill of exchange from recovering back the money paid in cases of forgery of the drawer’s signature.

The loss had already attached, before the bill was either accepted or paid, and the acceptors gave immediate notice to the defendant, and Shotwell <& Son, after ascertaining for the first time, from James Smith, in whose name the bill was drawn; the fact of forgery.

The evidence shows, that plaintiffs accepted the bill, in the language of the witness, “ chiefly through the respectability of the channels through which it came." It is, therefore, difficult to conceive upon what principle of equity or right the defendant can be permitted to retain the money paid in error by the plaintiffs, upon the facts of this case. No authority applicable to the particular circumstances of this case has been cited by the defendant’s counsel, and we have no hesitation in reversing the judgment upon the authority of Mr. Chitty, above quoted.

In a case like the present, the acceptor is not estopped from proving the forgery of the bill.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed ; and it is now ordered, adjudged and decreed, that the plaintiffs do have and recover of the defendant the sum of nine hundred and eighty-six dollars, with five per cent, per annum interest, from the 18th day of December, 185V, with costs in both courts.