source: Caselaw Access Project

author:
Taíiarereo, 37 Hyman, C. J.
      Howell, J. Tt.ht.hv, J.,

license: Public Domain

text:
    No. 1305.
    Thomas Wainwright, Administrator, v. Mrs. Alice F. Bridges, et als.
    Oil MB. JUSTICE TAMAFEBBO’S OPINION.
    The Emancipation Act of the sovereign power necessarily annulled the laws under which contracts relating to the ownership of slaves were previously enforced.
    The status or condition of slavery derived its existence from the laws which sanctioned it. Tho change of the status involved the abrogation of the law which gave it; for emancipation and the existence of law tolerating that condition are incompatible.
    Whilst contraots relating to the condition of slavery had the sanction of law, they could be judicially enforced; but the abrogation of the law, giving effect to those contracts, leaves the Courts without authority to enforce them.
    The sovereign power, the paramount law, puts an end to the ownership of slaves; but its effect is not limited to that result. It necessarily pervades the entire contract relating to such ownershin, and annuls it throughout.
    The maxim, res peril domino, does nob apply where the thing, which is the object of the contract, is not destroyed, bub its character only changed by paramount authority.
    The prohibition against the enactment of expost facto taws, or laws impairing the obligations of contracts, has no application to the sovereign power.
    Slavery seems never to have been established on tho continent of America by positive law. Its origin appears rather to have been accidental. In the United States it was simply permitted by the con, stitution, to continue as it had existed in the colonial state of the country, and clearly without extending to it, even an indirect sanction, The framers of that instrument abolished the African slave-trade after the year 1803, and, looking forward to general emancipation at an early day, left the institution of slavery as they found it.
    The province of Louisiana, when transferred to the Unitod States, r'otainod African slavery by the conditions of tho transfer, to the extent only that it was tolerated by the Constitution of the United States, and, consequently, it was imbued with that caducity and proneness to extinction which, from the genius and spirit of this government, has characterized tho condition of slavery in this country over since the American revolution.
    Freedom, it has been properly held, was a pre-existing right; slavery, a violation of that right. Titles to slavesj would, therefore, seem to be vitiated ah initio.

      ok MR. CHIEF JUSTICE HYMAN’S OPINION, CONCURRING IN THE DECREE.
    1. The amendment of the Constitution, emancipating slaves, destroyed, in some instances, liens granted to secure the enforcements of contracts relative to slaves; but the language of the amendment does not show that the sovereign designed and intended the extraordinary deed of destroying valid contracts. The amendment only freed the servant from his master, and destroyed 1 lens granted on him. It did not change or destroy the master's obligations under his contract.

    2. Plaintiff warranted defendant against eviction of the slaves, by any right existing previous to the sale, The right of tho sovereign to evict tho subject of his property, is nob to be disputed. That right existed before the sale of the slaves, and was since enfoi ced. Plaintiff is, therefore, concluded by his warranty. Had there been no warranty in the sale, he would have been entitled to recover.
    ON MR. JUSTICE HOWELL’S OPINION, CONCURRING.
    This is not a case in which the thing has perished; but the right of property in all slaves is forbidden • by tho supreme law and public policy, and no obligation exists. That which is forbidden, is impossible and void. The fact that the contract was made prior to the prohibition; and was then legal, does notreliove it from the effect of the prohibition; and if it be forbidden by public policy and tho sovereign will to make a contract, it is equally forbidden to enforce such a contract whenever made. .
    ON MR. JUSTICE ILSLEY’S OPINION, (WITH WHOM MR. JUSTICE LAUAUVE CONCURRED) DISSENTING.
    1. It matters not whether slavery was introduced by express law or otherwise, if it have the authnity of law, and by our law slaves, eo nomine, were classed as things with every other species of corporeal objects. They were property in the strictest sensé of the term. They were deemed so to be by the Constitution of the United States, up to the timo when, by an amendment to that instrument, slavery was abolished. They were introduced into Louisiana as projterly, by the treaty of cession of 1803, and the laws of the United States and of the State of Louisiana recogn iced slaves as property, until the time of the rebellion. Hence, it cannot be controverted, that when tho sale by plaintiff to defendant was passed, itembraced every element of a legal contract. The question, therefore, is purely one of warranty.
    2. Warranty, under our law, in contracts of sale, exists in all cases where the loss of, or eviction from, the thing sold is imputable to the vendor, or to theimperfection, of his title, and not where the loss or eviction proceeds from some unforeseen, fortuitous event, beyond the control of the vendor.
    3. Tho title to the slaves transferred by tho plaintiff to tho defendant was an incontrovertible one, sanctioned by tho laws of the United States and of the State of Louisiana. There was no preex’sling right in the sovereign to annul the title for any anterior vice in it. Whatever right the sovereign had in advance to annihilate all title to slaves, proceeded from his uill or cap» ire.

      4. The maxim of the Roman law, “ res peril domino," applies not only to oases where thore is an actual pet ishing-of the physical thing or entity, but to those cases also where the inaJlerably permanent change in the status of the object of a sale, destroys and annihilates it as pi operty.

    5. The abolition of slavery is an inalienably permanent withdrawal of that species of property from commerce. Therefore, by the abolition of slavery, slavoshave perished as property, as completely and to all intents and purposes, as if they had been overcome by death.
    0, The act of the sovereign. inhibiting slavery was, therefore, a fortuitous event or vis major, for which the vendor is not responsible, and the fact that the property sold was an “African slave'’does nqt make the case an exceptional one, so as to exeludo it from tho rules of warranty applicable to sales of property generally.
    A PPEAL from tho Sixth District Court, Parish oí St. Helena, Ellis, J.

      T. G. _¡Y Ellis, for plaintiff and appellee.

      Duncan If. Ilennm, for defendants and appellants.
   Taíiarereo, 37

The plaintiff, as administrator of the estate of Isaac Dykes, deceased, instituted this suit against the defendants as obligors on three several promissory notes, each for tho sum of §895 50, dated December 8th, 1860, payable respectively in twelve, twenty-four and and thirty-six months after date, drawn to the order of plaintiff as administrator, and stipulating interest at the rate of eight per cent, per annum from maturity until final payment.

He specifies several small amounts to be credited on the notes, and prays judgment for the remainder, principal and interest. These notes were executed for the payment of the price of certain slaves purchased by Mrs. Bridges at the probate sale of the succession of Isaac Dykes, deceased, and, as was heretofore the custom, a mortgage was retained upon the slaves to secure the payment of the sum at which they were purchased. The plaintiff avers the loss of hi's mortgage right by the emancipation of the slaves, and asks against the defendants'a personal judgment.

At the November term of the Court, 1865, the case was assigned for trial at the succeeding April term. In the meanwhile certain parties alleging themselves to be heirs of Isaac Dykes, appeared and prayed to be made parties plaintiffs, averring that they have an interest in the notes sued on, and refer to an act of partition made among the heirs before the parish recorder. The defendants objected to this proceeding, but the Court ordered that due and legal service be made upon the parties as prayed for by the new plaintiffs. The defendants, thereupon, “ with reservation of all rights against the proceedings,” waived citation and the usual delays, and filed an answer. They reserved a bill of exceptions to the ruling of the Court, and refer to the answer, in which they specially deny the capacity and rights set up by the new plaintiffs, as heirs of Isaac Dykes.

We do not deem it important, in the decision of this case, to pass upon the regularity of the proceedings in the District Court, and omit an examination of the bill of exceptions. Judgment was rendered in the Court below in favor of the administrator, and the defendants have appealed. The defence is, that there is a failure of consideration arising from the emancipation of the slaves by the act of the government; that the warranty expressed in the act of sale, referred to in plaintiff’s petition has failed, and that defendants are released from all obligation, to pay the notes sued on. On the part of those seeking to enforce obligations of' this sort, it is contended that the vendor’s warranty does not extend to fortuitous events that happen after the contracts have been entered into; that in regard to such fortuitous events the vendor has nothing todo; that he did not warrant against the acts of the government; and that he cannot be held liable for events, the occurrence of which it cannot be supposed were contemplated by him at the time of the sale. They roly on the maxim, res peril domino.

On the other hand, it is contended that it is not consonant with law and equity, after the loss by the act of the government, of the property which was the object of the contract, that the obligor should be required to pay for that property, the right to which would equally have been lost-by the obligee had it remained his; that the maxim, res peril domino applies only to cases where the thing which was the object of the contract perishes in the ordinary course of nature, or by fortuitous events beyond the control of man, and which are produoed by mere physical agency. That in the case of the emancipation of slaves by authority of the government the object of the contract does not perish, but that its status or condition is changed. That the law, making this change of condition, having ceased to secure to the buyer the rights he acquired by the purchase, no longer requires him to comply with his obligation to give the equivalent stipulated for those rights.

This important question has given a wide range for discussion. The subj ects of warranty and eviction have been thoroughly examined by counsel, and numerous authorities have been introduced from the Roman and the French jurisprudence. But these tend rather to confuse than to enlighten.

They present conflicting opinions, which it is not easy to reconcile, and from them we are unable to deduce satisfactory conclusions. We must resort then for a solution of the question to the equitable rules that govern contracts in general, and apply them with reference to the effect which the laws abolishing slavery have upon contracts, made in regard to the ownership of slaves.

In entering into the consideration of this subject, we will premise, that in our view of tho question, shivery was never, strictly speaking, established in this country by positivo law. Its original introduction upon the continent of America and the adjacent islands was accidental, arising from the boldness and cupidity of the early European adventurers into South America. Its continuance, when thus introduced, was the result of circumstances, and grew out of considerations of expediency. The system of colonizing in America and the West Indies opened the door for the introduction of slavery, and it was instituted by the greed of speculators and fortune hunters, the government from which they emanated, tolerating tho injustice rather than confirming it by positive laws. Its first form on the American continent was that of tho Indian slavery in South America, in the fifteenth century.

The Spaniards, soon after their occupation of portions of that country, subjected the Indian tribes around them to servitude, needing labor in the first instance in their mining operations. Tho savage, from his native state of freedom and his habits of indolence and ease, being plunged suddenly into a condition of abject bondage, sunk under tho fatigue and exhaustion of his ceaseless toils. The raco began rapidly to disappear. Their miserable fate excited tho sympathies of Las Casas, the Spanish philanthropist, who, after strenuous but vain efforts to procure relief for these wretched victims of his countrymen’s violation of right, fell upon the singular expedient of substituting African slavery in place of Indian servitude. The scheme was successful, and the African slave-trade was commenced.

African slavery, having this origin and character, in progress of time, reached the province of Louisiana. That province, when transferred to the United States, retained African slavery by the conditions of the transfer, to the extent only that it was tolerated by the constitution of the United States, and, consequently, it was imbued with that caducity and proneness to extinction, which, from tho genius and spirit of this government, has characterized the condition of slavery in this country ever since the American revolution. The word -slave is not found in tho constitution of tho United States. Neither is the word slavery. It is a well known fact that the framers of that instrument, in constructing it, purposely avoidedthense of either of these words. They expressly terminated at a fixed period the importation of Africans to this country, to bo subjected to slavery. It is a matter of history, that at tho period of tho formation of tho constitution, and for years afterwards, the groat statesmen of the time had prospective emancipation in view, and never entertained the idea of tho perpetuity of slavery. They viewed it as an entailed evil upon the country, which it was their desire to be rid of as soon as that object could be effected by a safe and practicable emancipation. It was reserved for a later if not a wiser school of politicians in tliis country, to perceive the blessings of slavery, to discover'its divine ordination, and to adopt measures to perpetuate it, pending which, it came to a speedy and final termination. Among the barbarous nations of antiquity, captivos in war were subject to death or slavery at the will of the conqueror. This was the prevailing rule. It was acted upon, and recognized among uncivilized men as a right belonging to the victor, and became the basis of slavery among them. This doctrine was asserted by Ariovistus, a king of ancient Germany, in his conference with Julius Caesar, touching the political condition of certain tribes of Gaul, which the former had subdued. “Ad hsec, Ariovistus, respondit: “Jus esse belli, ut, qui vicissent, iis, quos vicissent, quemadmodum vellent, imperarent: itemPopulum Romanum victis non ad alterius prcosoriptum, sed ad suurn arbitrium, imperare consuesse. ” Caesar’s Commentaries De Bellico Gallico, Book 1st, chapter 36. Slavery, under the Roman government, had undoubtedly its origin in this principle, and according to this recognized rule. But five centuries after the days of Ariovistus, when the softening influences of Christianity began to prevail, Justinian conceded that slavery existed in violation of natural right. He said: ‘ ‘Bella etenim orta sunt et captivitates secutas, et servitutes, quae sunt naturali jure contrarias: jure enim naturali omnes homines ab initio, liberi nascebantur. L. I., T. II.

“Servitus autem est constitutio juris gentium, qua quis dominio alieno contra natnram subjicitur.” L. I., T. III.

In the barbarous ages of the world, when Pagan doctrines and Pagan thought predominated, slavery existed upon the principle that might makes right. Upon the dawning of better days, when civilization and Christianity appeared, the unreasonable dogma failed, and the moral conscience of men no longer permitted them to sustain slavery as a thing of right, and to justify its prolongation, they resorted to the plea of expediency. Such, we infer, has been the unstable foundation of the institution among Christian people ever since the time of Justinian. That it existed in this country without the positive authority or sanction of the paramount organic law of this nation, is indisputable. It was simply permitted at the time of the formation of the government, because it was a peculiar evil that could not, with propriety, be suddenly abated. Its existence was only suspensive, and under the implied understanding that it was to be temporary. The laws, therefore, which existed until recently irpon our statute books, on the subject of African slavery, were merely regulations in regard to that relation which existed only by the will of the sovereign power. Shall we, then, announce that the emancipating act of that power is violative of law, and thence deduce the immunity of the seller from loss, and fix it upon the buyer ? Shall we say that the seller has been deprived of vested rights by the mere arbitrary will or caprice of that power, when those rights, such as they were, never existed otherwise than by its mere sufferance ?

Freedom, it has been properly held, was a preexisting right; slavery, a violation of that right. Titles to slaves would, therefore, seem to be vitiated ab initio.

With these preliminary views of the character of the slavery that lately existed among us, we.shall proceed to consider the effects of emancipation upon contracts arising from the traffic in slaves. When contracts of that character were entered into they had the sanction of law. They might then be judicially enforced. These conditions were necessary to constitute the sale of a slave a valid contract. Under these conditions the vendor and the vendee contracted; the one that he would pay the price stipulated; the other, that the purchaser should have the labor and services of the slave during his life. The sanction of the law and its authority to enforce both these reciprocal undertakings, being necessary to constitute them a valid eontaact, it follows that, when these essential requisites to a perfect obligation ceased to exist, the contract ceased also. True, the vendor complied with his part of the agreement by transfer of the title and delivery of the slave; but surely the vendee’s consent was given under the assurance that he was to be maintained in the possession of the slave, and to receive his labor and services during life. To force him to a compliance with his part of the contract, would, therefore, be to compel him to fulfil a condition to which he never assented. The sovereign power, the paramount law, puts an end to the ownership. The effect of the act which terminates the owner’s right to the slave is not limited merely to that result. It necessarily involves the entire contract, and annuls it throughout. A mortgage of the slave, to secure the payment of the price at which he was purchased, is part of the same transaction. It is a contract made in aid of, and to fulfil an important condition of the contract of sale.

That the mortgage becomes extinct by emancipation is clear. It is evident, then, that the contract of mortgage is annulled by the same cause. If an important item in the agreement by which the vendor consented to sell, and without which, perhaps, he would not have sold, is rendered void, does not the annulment of the mortgage make a damaging inroad into the coutract of sale ? If so, shall we say that emancipation destroyed the contract of mortgage in its entirety, and destroyed the contract of sale only in part ? This we think not tenable. The contract by which ownership existed is inevitably demolished, and with it all its surroundings. The prohibition against the enactment of laws impairing the obligations of contracts has no application to the sovereign power. It gives vitality and force to the laws which regulate contracts. But the power and efficacy extended to these laws are granted, and exist only by the will of the sovereign. When, therefore, the sovereign will of this nation declared that African slavery should no longer exist within its borders, an unavoidable result was, that the laws which had theretofore sustained the institution of slavery and given their sanction to and enforced contracts, the objects of which were the sale of slaves, ceased to exist.

We do not consider the position maintainable, that the effect of emancipation was merely to produce a change in the status of the slave, and not to render void contracts relating to slaves. The status of the slave could only be changed by annulling the law that gave him that status. Emancipation, and the existence of laws upholding slavery, are incompatible. They cannot exist together. But it was the law which sanctioned and enforced slave contracts that established the status. Slavery existed in this country by no other law. Is that law now in force ? If so, the former slave-owner may assert Ms right to the services and labor of the person whom that law once made his slave. If not in force, how can .it be invoked to enforce contracts made in j relation to slaves ? The declaration of emancipation was, in substance, a declaration annulling the laws that sanctioned the dealing in slaves, the enforcement of slave contracts, and, which in fact, created the status of slavery. The fiat of the sovereign is potent to release the contracting parties, as well as potent to sot the bondman free. Its sweep is general, and its wisdom does justice to all. With the ownership perished the obligation to pay the price which was the consideration stipulated for that ownership. The buyer is no longer bound to pay the consideration. The seller is no longer bound in warranty. Thebuyer, the seller, and tho bought and sold, are all absolved. The action of the supreme law leaves the courts without power to enforce obligations of the kind sued upon in this case.

It is therefore ordered, adjudged and decreed, that tho judgment of the District Court be annulled, avoided and reversed.

It is further ordered and decreed, that judgment be and is hereby rendered in favor of tho defendants, releasing them from tho obligations sued upon, tho plaintiff and appellee paying .costs in both courts.

Justices Latsauve and Insnsr dissenting.

Hyman, C. J.

Plaintiff sold defendant certain slaves, and now sues Mm to recover their price.

Plaintiff warranted defendant against eviction of tlio slaves by any right existing previous to tho sale. See Civil Code, 2478.

The right of tho sovereign to evict tho subject of his property is not to be disputed.

This right existed before the sale of the slaves, and has since been enforced.

Although the amendment of the constitution, emancipating slaves, did, by the effects of its provisions, destroy, in some instances, liens granted to secure tho enforcement of contracts relative to slaves, tho conclusion is not rational that therefore it destroyed the obligations of tho parties to such contracts.

The language of the amendment does not show such intendment, and we are not to disregard its words, to find intention different from tho words.

I do not find from the words of the amendment that the sovereign designed and intended the extraordinary deed of destroying valid contracts.

The amendment only freed tho servant from his, master, and destroyed liens granted on him; it did not change or destroy tho master’s obligations, under his contract.

Plaintiff, in my opinion, would be entitled to recover if there was no warranty in tho sale.

Without admitting Judge Taliaferro’s premises, I concur in and adopt the decree written by him as the judgment of this Court.

Howell, J.

Slavery, being the violation of natural right, and sustained only by the constantly operating power of the government, founded upon the popular will, when that power was withdrawn and reversed in its operation, equally by the popular will, all legislation touching slavery became void. Property in slaves being prohibited, all contracts based lipón such property are, necessarily, stricken with nullity.

Courts, which act only upon and under the law, cannot give vitality to laws which have become not merely inoperative, but in conflict with constitutional provisions.

To enforce such contracts would be to recognize the consideration as valid.

The Civil Code is a collection of statutory laws, adopted under and deriving authority from the fundamental law, and its rules on the subject of sale relate and apply only to what is property, and cannot bo applied to what that fundamental law declares is not and shall not be property.

The right of the people, in their sovereign capacity, to abolish and prohibit slavery, and as a logical as well as legitimate consequence, destroy all legal rights growing out of the institution, is unquestioned and unquestionable. All parties to such contracts are left as they were when such a fundemental change was effected, and stand as if no such property ever existed; all rights, privileges and obligations, growing out of or incident to the ownership of such property, are extinguished. The seller cannot enforce the payment of the price, nor the buyer the obligations of warranty. Each of the parties is equally participant, and consenting in the abolition and prohibition of slavery. One cannot, in equity, retain and exercise his rights, while the other is divested of all rights. The action of the people in their sovereign capacity, is equal, uniform and universal; and, in its effect, is paramount to the ordinary rules regulating private rights.

This is not a case in which the thing has perished, but the right of property in all slaves is forbidden by the supreme law and public policy, and no obligation exists. That which is forbidden is impossible and void. Civil Code 1757, 1885, 1886. The fact that the contract was made prior to the prohibition, and was then legal, does not relieve it from the effect pf the prohibition,

If it be forbidden by public policy and the sovereign will, to make .a contract, it is equally forbidden to enforce such a contract, whenever made. Eor these reasons I concur in the conclusions of Mr. Justice Taliaferro, whose views, as expressed by him, command my concurrence.

Tt.ht.hv, J.,

dissenting. I cannot concur with the majority of the Court in their opinion just announced; and, as no question of graver import has ever been presented for solution to any tribunal, I deem it proper to state the reasons which have brought me to a conclusion, differing totoccelo from the one reached by three of the other judges.

The plaintiff’s action against the defendant was to recover the price of slaves, sold with full legal warranty on the 8th day of December, 1860, and it is resisted by the defendant, whose answer and grounds of defence amount to this :

1. That by the act of the sovereign authority, which is oqualfy binding on the plaintiff and defendant, and for which the said plaintiff is equally responsible with the defendant, the consideration for which the note sued on was given has been destroyed; and that the plaintiff is estopped' and restrained from obtaining, and the Court from granting, a judicial remedy to enforce the performance of a contract based upon African slavery.

2. That the said contract, having been entered into on the part of both plaintiff and defendant, with reference to and under guarantees and protection contained in the laws and constitution of the Federal and State Governments upon the subject of African slavery, and those guarantees and protection which entered into the consideration for which the note sued on was given, having been revoked, annulled and abolished by the sovereign authority of the Federal and State Governments, the plaintiff is estopped and restrained from obtaining and the Court from granting, a judicial remedy to enforce the performance of the said contract.

3. That by the acts of the sovereign authority as aforesaid, the judicial remedy can be no longer invoked to enforce the rights acquired by this vendor under the contract sued upon, and that the said plaintiff is estopped and restrained by equity and good conscience from obtaining and the Court from granting, a judicial remedy to enforce the performance of the said contract in favor of the other contracting party only.

4. That by the acts of the sovereign authority as aforesaid, African slavery has ceased to be the subject of conventional obligations and of judicial actions, and it is contrary to equity, to good conscience, to good morals, and public policy, to enforce the performance of obligations, which have no longer the sanction of the laws of the land, and under which the reciprocal rights and responsibilities of parties created by such .contracts, can no longer be enforced by judicial authority.

This defence, which takes a wide range, is opposed by the plaintiff, whose theory amounts to this :

1. That his legal right and remedy under the law of his contract, which he stands upon, are in no wise affected by the change in the status or condition of the slave sold by him.

2. That the clauses in the Federal and State constitutions, inhibiting slavery, had no retroactive bearing or effect whatever upon contracts previously entered into in relation to that species of property, blit merely eo instanti dissolved the relations between masters and slaves, and terminated the rights of the former.

3. That the emancipation of a slave by the sovereign power is equivalent in law to his perishing by death, as in either event the property, res, ceases to exist, and the maxim of the Roman law, res peril domino, is as applicable to the one case as to the other.

The loss falls upon.the owner who has no recourse in warranty against his vendor.

The questions which arise in this case involve vast interests, and it is therefore not surprising that great talent has been enlisted, and much ingenuity displayed by both parties to sustain their antagonistic theorems.

The defandants’ position, in my opinion, embrace the whole subject of inquiry.

1. Did the vendor acquire by the sale of his slaves as soon as it was consummated, any vested legal rights ?

2. Have those rights been legally divested or destroyed, so as to deprive him of his legal remedy to enforce them ?

It is the province of the Courts to solve these queries. The defendants urge that the vendor covenanted with the vendee, under the title which he conveyed to him, to maintain the latter in the peaceable possession of the slaves in perpetuity—a possession without limitation, at least so far as the contract, the lex contractus or the lex temporis was concerned. The only condition to this warranty of perpetual and peaceable possession being, that the right of the person evicting should have existed before the sale.

The question, as I understand it, is purely one of warranty—for it is not controverted that when the sale of the slaves was made it embraced every element of a legal contract. I shall, therefore, proceed to ascertain whether by the contract of sale or the law which entered into and controlled it—the emancipation of the slaves sold, by the general abolition of slavery, long after the sale, amounted to a loss or eviction which was covered by the general warranty.

Warranty, under our law in contracts of sale, exists in all cases where the loss of, or eviction from, the thing sold is imputable to the vendor or to the imperfection of his title, and not where the loss or eviction proceeds from some unforeseen, fortuitous event beyond the control of the vendor.

Article 3522, $ 7, of the Oivil Code, defines a fortuitous event to be that which happens by a force which we cannot resist. In casos of redhibition the rule is, “if the thing sold has perished by a fortuitous event before the purchaser has instituted his redhibitory action, the loss must be borne by him. Civil Code, Article 2511. Was the act of the sovereign inhibiting slavery, a fortuitous event or vis major; and, if so, does the fact that the property sold was aa. “ African” slow, make the case an exceptional one, so as to exclude it from the rule of warranty applicable to the sales of property generally ?

The first of these queries, in my opinion, should be answered affirmatively, the last negatively. It is entirely unnecessary and supererogatory, as I conceive, to enter in the present instance into any elaborate dissertation upon the subject of African slavery, to trace its origin and progress in the United States—for as was said by Mr. Justice McLean, who gave a dissenting opinion in the Bred Scott case, and who should therefore be deemed good authority: “It is immaterial whether a system of slavery was introduced by express law, or otherwise, if it have the authority of law. ” And by our law, slaves eo nomine, were classed as things with every other species of corporeal objects. Civil Code, Articles 439, 450, 452, 461, 3422, 3256, l 3.

Slaves were property in the strictest sense of the term. They were deemed so to be by the constitution of the United States, up to the time when, by an amendment to that instrument, slavery was abolished. See the case of Scott v. Sanford, 19 Howard, page 411; and also by the law of nations. (See Wheaton's Law of Nations, 724.) They were introduced into Louisiana as property by the treaty of cession of 1803, and the laws of the United States and of the State of Louisiana, recognized slaves as property until the time of the rebellion.

Whether the traffic in slaves was in conflict with natural law, or violated any canon of ethics, is an abstract question which it is unnecessary to discuss. For all the purposes of the present inquiry, it suffices that in every age of the world, from the earliest times, slaves, both male and female, have been bought with money, (Lev. xxv, 1 and 44, 45 and 46; Gen. xvii, 9. 10, 11, 12 and 13,)'and have been treated as an ordinary article of merchandise.

In Louisiana, and the other Southern States, ‘ ‘no one” (to use the language of Mr. Chief Justice Taney) “questioned the opinion that slavery and the traffic in slaves was morally right. It was regarded as an axiom in morals as well as in jaolitics, which no one thought of disputing, or supposed to be open to dispute, and men in every grade of society, daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.”

What, in the course of time, would have been the ultimate condition of slaves in Louisiana, is a mere matter of conjecture; but one thing is certain, that but for the rebellion, the day was distant when the change would have been wrought; and, indeed, the change in the status of slaves was, even with that cause, more attributable to policy and expediency than to any consideration of philanthrophy or humanity.

The principle that general warranty in contracts of sale, does not contemplate nor extend to losses of, or the evictions from, the thing sold by force mqjeure, which the act of the sovereign, “ Fait du souverain,” is deemed to be, seems to be fully recognized by eminent jurists, and by the tribunals of France, whose laws, like our own, are based upon the Roman civil law. It finds place in the maxim: Futuros eviciionis casus post contraclam vendiiionem ad vendiloremnon periinere. The doctrine receives unqualified supjiort in the following authorities: Oass. 27, plur. un 11, et 20 Mars, 1850; T. 2, 51, dans les motifs. Bordeaux, 23 Janv., 1826; Troplong, vente T, 4, No. 423; Duvergier, T. 1, No. 35; Marcadé, sur Particle 1826, No. 2, page 253, 5th edition; Zacharia, et ses annotateurs; Massé et Dugué, T. 4, 685, page 295; Texte et note 8; Aubré et Rey d’aprés Zacharia, T. 3, 355, et la note Rep. Gen. Pal. Fait du Prince, No. 5, 11 suivantes; Meme Rep. et Sup. Yerbe Yente 937, 1113; Tarard, faits du souverain; Pother, No. 935; Domat liv. 1, § 10.

This Court has recognized the same principle in two cases, in one of which, Ollie v. Ogilvie, 13 La. 475, the Court deemed a loss, or eviction from such a cause, a damnum absque injuria; and in the other case, Bourg v. Niles, 6 An. 77, the Court observed, “it is an eviction by the act of the sovereign, and the sovereign alone is to make indemnity where indemnity is due,” i. e., to the owner.

The authority referred to by the Court, for its opinion on that point, is the doctrine laid down in Merlin, Faits du Souverain, Répertoire, which, after giving a clear exposition of what constitutes the Fait du Prince, ou du Souverain, says : “ Le fait du Prince est considéré a Regard des par-» ticuliers, comme un cas fortuit et une force majeure que personne n’en est garant cle droit; la garantie n’en est due que quand elle est expressément stipulée,” even if such stipulation, being contrary to public order, would be binding upon the vendor. Journal du Palais, vol. 5, page 147.

A case, however, is referred to by one of the counsel, whose argument in behalf of the defendant’s position is very able and ingenious—which he confidently asserts, holds a doctrine very different from that enounced by the authorities I have quoted; but upon a careful examination of that case, I am satisfied that, so far from militating against the doctrine now advanced, it tends to sustain it. It is the case of Furstenstein, C. Bouchepoin, Dalloz, 1830, page 207, Sirey, 1830,[page 285.

The facts presented therein to the Cour Royale d’Orleans, whose judgment to which I shall allude, was affirmed by the Court of Cass, were these:

Jeróme, King of Westphalia, had, in his sovereign capacity, granted gratuitously to Count Furstenstein the estate of Immochenhain. On the 11th August, 1809, the grantee sold this property, with full legal warranty “ á iouie garantie de droit et de fait,” to Baron Bouchepoin.

In 1813, Jerome having been expelled from his kingdom, the elector of Hesse Cassel, in whose domain the land granted lay, annulled all the gratuitous grants made by Jerome.

To avoid the effect of this ordinance, the Baron Bouchepoin first applied to the Germanic Diet for relief, but in vain, and he was therefore compelled to abandon the premises.

In this state of things, he instituted in the French tribunals an action of warranty against his vendor, the Count Furstenstein, and his action was maintained throughout.

It was contended by the Count, that warranty in sales applies only to evictions imputable to the vendor or to the vices of his title, and not to extraordinary events, which could not have been foreseen, and which the vendor could not control. That the act of the prince, considered as a cause of eviction, should be assimilated to the destruction of a thing by force majeure, and could be no more a ground of warranty than would be the destruction of a thing sold, by fire.

The decision in that case was, that there was a preexisting cause for the eviction—which was, that the grant made by Jerome was in palpable violation of the laws of Hesse.

The warranty was maintained, because the dispositions of the ordinance of the elector of 11th January, 1814, were but the declaration of a preexisting right; that, therefore, the eviction—the result of that ordinance, took its source in a preexisting legislation, and had a cause anterior to the contract of sale; that it could not be considered an act of unqualified sovereignty [de pleine puissance) which originated in the will or caprice of the prince, and that, therefore, it could not be deemed an act of force majeure, or overpowering force.

How does that case compare with the one at bar ?

In the Bouchepoin case, there was an inherent vice in Furstenstein’s title which he warranted, and which had to yield to a better legal title. Why better ? Because Jerome’s gratuitous grant was, when it was madej in violation of the laws of Hesse, and those laws could not be disregarded by any sovereign; and as the Court, in the language of the opinion, said:

‘ ‘ La dépossession qui esl le rcsultal de cede ordonnance, prend sa source dans une legislation pré-éxistante, qu’elle a une cause anlérieure au contrat de vente, qu’elle ne peul elre considérée comme un acte de pleine puissance quirCa sa source que dans la volonté ou le caprice d'un prince el qu’ainsi elle ne peid elre considérée comme un fail de force majeure.

' The title to the slaves transferred by the plaintiff to the defendant was an incontrovertible one, sanctioned by the laws of the United States and of the State of Louisiana.

There was not, as in the case of Bouchepoin, any preexisting right in the sovereign to annul the title for any anterior vice in it. Whatever right the sovereign had in advance, to annihilate all title to slaves, proceeded from its will or caprice, and this is the ^reat feature and distinguishing characteristic of all the authorities to which I have referred, and which harmonize with the Bouchepoin case, wherein I repeat the warranty was sustained, because Furstenstein’s title was inherently vicious, the germ of the vice being that Jerome’s grant to him violated preexisting legislation, and that the act of the elector of Hesse, in annulling it, was not one of sovereign will or caprice.

In a late decision of the Court of Cassation, that august tribunal said :

‘ Bien que des terrains vendus par une vijlle et destinés k former un quartier, n’avaient été achetés que sur la foi de l’établissement de voies publiques devant les traverser d’apres les plaps annexés, la ville ne saurait étre déclarée responsable envers les acquéreqrs de la non exécution ou de la suppression de ces voies publiques, par suite de l’expropriation pour cause d’utilité publique du sol sur lequel elles étaient et devaient étre établies, cette expropriation constitue un fait de force majeure exclusif de toute garantie.”

The destruction of feudal rights in the Regime Féodal, gave rise to much litigation in France; and analogy is supposed to be found in the decisions of the French tribunals, which sustain the doctrine advanced for the defence in this case, but the resemblance between those cases and this one is very faint, because the abolition of the Droits Féodaux et Censeuls, was accompanied with so many specifications and exceptions in the law itself—that each case, being sui generis, no decision in any one case would be authority in another.

One general principle, however, governed the whole jurisprudence on that subject, and it is broadly stated in Cass. 14 Fructidor an 10 Bull., civ. IV,. 507, liv. 1, 37: Que la vente de droits féodaux supprimés postérieurement, est aux risques de Vacquéreur, bien que la chose n’ait pas été livréo ni le prix payé.

In questions growing out of the abolition of slavery, our attention is naturally directed to the action of the tribunals of our sister States, to ascertain what solution they give to such questions, particularly the momentous one which, for several weeks past, has engaged the earnest consideration of this Court, and in which a decision has just been rendered.

' At the July term of 1866, the Supreme Court of Missouri rendered a decision, which states the principle so broadly, that the covenant did not warrant against the action of the State in abolishing the status of slavery, and that there was no failure in the consideration of the note representing the price, that I deem it advisible to make a copious extract from tho opinion of the Court. The Court, after preliminary remarks, said: “ The counsel for the appellant assumes that the agreement or undertaking to warrant the title of the girl Clara forever, and that she was a slave for life, amounted to a full covenant, and that she should always continue a slave, and that any act, from whatever source, destroying property in her, constituted such a breach as would make the respondent liable, even on his warranty.

“ All warranties, however expressed; are open to such construction from surrounding circumstances, and the general character of the transaction, and the established usages in similar cases, as will make the engagement of warranty conform to the intention and understanding of the parties. 1 Pars. Contr., 576, 5 ed.

“Words of warranty should neither be extended nor contracted in their significance, but should be construed according to their fair and rational meaning. The true rule governing in the construction of covenants of warranty, is undoubtedly to look into, and ascertain the meaning and intention of the parties, if possible, by an examination of the extent of the whole instrument.

“A party may, however bind himself by covenant, where the law would absolve him from liability on the contract, were it not for his express undertaking.

“ The question to be decided here, must depend upon the meaning of the parties, after considering the surrounding circumstances. The vendor sold the slave, and covenanted with the vendee that she was a slave for life, and that he would warrant and defend the title to her forever. It is not denied that she was a slave for life, at the time the sale was made, and the covenant entered into.

“ The state of slavery was her status at that time, made so by the laws of the land, and there is no pretence that there was anything existing which tended to render the title defective, or to entitle her to freedom. The usual clause inserted in a bill of sale, in the conveyance of that peculiar species of property, was, the person sold was a slave for life; that is, that the person was made a slave by the existing law of the land, and the contract must be presumed to have been entered into with reference to that fact.

“It is the very nature of the institution of slavery, that it can only exist in a civilized nation by the force of positive law. When the vendor sold his slave, with a covenant that she was a slave for life, he intended nothing more than that the law at that time made her a slave for life.

“ The covenant extended to all defects in the title, and was intended to protect the purchaser against them. But it cannot be presumed that the sovereign act or authority of the government, by which all title or property in slaves was totally annihilated, was in the contemplation of the parties.

“ The emancipation of the slaves by the sovereign act of the people, was neither anticipated nor thought of, when the slave was sold in this case.

“ It was not in the minds of the parties, nor embraced within the purview of the warranty. In case of a sale and conveyance of real estate, when the vendor warrants the title and covenants for peaceable and quiet enjoyment, should the property be swallowed up or destroyed by an earthquake, it will not be contended that such destruction would work a breach of the covenant, rendering the seller responsible. We are unable to distinguish the case supposed, from the one presented here at bar.

‘ ‘ The ordinance of emancipation caused a complete annihalation or destruction of all property in slaves. It could not be controlled by the parties, nor was it contemplated by them; and, clearly, the covenant to warrant and defend the title to the negro, and that she was a slave for life, cannot, by any just construction, be made to apply to such an ocouiv rence.” Philips v. Evans, et als, Mo. Rep. 38, p. 315. (See also Lafrance v. Martin, 17 An. p. 77.)

This reasoning of the Missouri Court is so clear as to bring conviction to the mind, and here I may ask, if warranty is due in such cases as is now, and in the Phillips’ case presented, where would be the stopping piace for the exercise of this kind of action.

The starting point for prescription would be the date of the eviction, and vendors and warrantors of slaves, however far removed from the last title, would, in contracts for slaves, executed as well as executory, through a chain of subrogations, be at last overwhelmed in a vortex of vexatious and ruinous litigation.

I consider the abolition of slavery by the sovereign people, as the mere enunciation of one great fact, that the status of. slavery was. extinct, and that slaves became, on the instant libertini or freedmen.

It had no retroactive bearing whatever on contracts which had been entered into, in relation to that speoies of property. It was an act of sovereignty, which affected only the owner of slaves, and was in contemplation of law to them, damnum absque injuria.

It had no more effect upon contracts for slaves than would have a legislative enactment passed after their date, making some act committed by slaves not malum in se, an offence punishable with death or perpetual imprisonment; and it would not be seriously contended that a loss of a slave from such a cause, would be deemed a breach of warranty. If, in such a case, any indemnity was due by the State, the owner would be entitled to it, and it would be paid to him, as was the indemnity by Great Britain and France to the owners of slaves emancipated in their West India colonies.

The rule laid down in Article 1892 of the Civil Code, is, I think, conclusive against the purchaser; it provides: “That where the consideration of, or the cause of the contract really exists at the time of making it, but afterwards fails, it will not affect the contract, if all that was intended by the parties was carried into effect at the time. The destruction of the property after the sale is perfected,, * * * * is a case governed by this rule.”

The maxim of the Roman law, res peril 'domino, so pertinently applied in the Missouri case', is noj; always to be taken in its strictly literal sense, that there must be a perishing of the physical thing or entity. The irrevocable change in the status of the object sold, which destroys and annihilates it as property, comes upon every consideration of reason and common sense, clearly within the maxim. The abolition of slavery was not a mere temporary withdrawal of that species of property from commerce, which, at a future period, could, by legislative will, be again ranked as properly.

A slave, by the abolition of slavery, has perished as properly as completely, and to all intents and purposes, as if he had been overcome by death.

See Troplong de la Yente, vol. 1, No. 359, p. 476, sur l’article 1624, C, N. et No. 359, p. 477, L. 23 Dig., de seg. juris.

I am satisfied that the right of the plaintiff to recover the price of the slaves sold by him to the defandanfs, is founded in law, notwithstanding the ingenious and plausible theories submitted to us to sustain the pretensions of the defendants. They soar too high for the judicial mind to • contemplate.

The solemn expression of legislative will, cannot be made to yield to every change of circumstances or events, and it is the sacred duty of judicial tribunals to carry out and apply recognized principles of law, upon all occasions and to all cases.

By our system, equity only speaks when the law is silent, (Article 21, Civil Code,) and in the present case the rules of law are, in my opinion, too plain to be misapprehended or misapplied.

I am, therefore, of opinion that the judgment of the District Court should be affirmed.

Justice Labauve concurred.


author: Labauve, J.

text:
    No. 279.
    City Insurance Company v. Steamboat Lizzie Simmons, Master and Owners.
    TJie partnership, or community of acquests and gains, is presumed to exist between the husband and Wife, when nothing is shown to the contrary, and all property acquired during the marriage belpugs to that community of which the husband is the head and master. O. O. 2371, 2374.
    rphe ordinary commercial partnership cannot exist between the husband and wife; nor can the wife Jlind herself for the debts of her husband contracted before or during the marriage. O. O. 2412.
    A PPEAL from the Fourth District Court of New Orleans, Price. J.

      Singleton & Olack, for plaintiffs and appellees.

      Hunlon & Miller, for defendants and appellants.
   Labauve, J.

The defendants, George H. Kirk and Julia A. Kirk, husband and wife, are sued as owners of steamboat Lizzie Simmons, to be made to pay in solido, a note of the following tenor :

“1518 12. Cincinnati, June 26, 1860.”

“Four months after date, we promise to pay to the City Insurance Co. of Cincinnati, or order, five hundred and eighteen dollars and twelve cents, value received, at the office of Brown, Johnston & Co., New Orleans.”

Steamboat Lizzie Simmons,

(Signed) By George H. Kibe:, Captain.”

The District Court rendered judgment in favor of the plaintiffs against the defendants, and the wife alone appealed; and the husband is not before us.

The wife first excepted to the petition on the grounds that plaintiffs liave no capacity to stand in judgment, the petition not alleging that plaintiffs are a corporate body.

That said petition discloses no cause of action against respondent, and does'not allege that said wife is separated in property from her husband, nor that the debt inured to her separate benefit.

The Court overruled the exception.

We believe that the Court ruled correctly. The, note acknowledged ,tha capacity of plaintiffs, who are alleged in the petition to be a corporate body, and to whom the defendants promised to pay. The balance of the exception belonged more properly to the merits.

The wife then filed a general denial of all the facts and,allegations set forth in the petition, and she specially denied that she ever derived any advantage from the transaction set forth in the petition.

The only evidence in the case is the note sued upon, together with the protest; therefore there is no proof of separation of property in the record.

We are clearly of opinion that plaintiffs have failed to make out their case against the wife.

The said George H. Kirk, and his wife, are presumed to be in partner, ship or community of acquests and gains; nothing showing the oontrary, C. C. Art. 2369.

The steamer Lizzie Simmons is presumed to belong to that legal com. munity, (C. C. Arts. 2371, 2374, 11 L. 537,) and the husband may dispose of the same. C. C. Art. 2373. The debt sued upon is presumed to be an obligation of the husband, and the wife cannot be made liable to pay the same under the testimony. C. C. Art. 2412. 4 A. 146. 10 A. 30, 303,

But the plaintiffs contend that the wife, not having denied ownership in the steamboat, admitted that she was part owner, and bound as a commercial partner, and they rely for this admission on the case of Lacoste v. Sellick, et als, 1 A. 336. That case presents several individuals, who owned a steamer, and it seems to us it cannot apply to husband and wife, who are presumed to be partners in community, as regulated by our laws on that subject, and under which the husband alone is the owner of the boat, and the wife cannot be his commercial partner. Squire v. Beldon, 2 L. 269. In that case this Court said: “ The community, or legal partnership, is so inconsistent with the ordinary commercial partnership, that both cannot exist together, and the legal supersedes the commercial.”

. It is therefore ordered, adjudged and decreed, that the judgment of the' District Court be annulled and avoided, as regards the defendant and appellant, Mrs. Julia A. Kirk, and that plaintiffs’ demand against her be rejected with'costs, and that the appellees pay the costs of this appeal.


author: Labatjve, J.

text:
    No. 914
    Joseph H. Delaney v. Isaac Levi.
    Defendant, "being indebted to plaintiff, gave several orders on different parties for sugar and molasses, as security for the paymenfof the indebtedness, which, if not redeemed in twenty days, were to become his property: Plaintiff placed the orders in the hands of his agent, with instructions to recover the amount of the indebtedness within the twenty days.
    After the expiration of the twenty days, the agent accepts payment on the orders, at different times, in small amounts, with the knowledge and consent of the principal: JTdd-That this is a ratification of the acts of the agent, binding on the principal.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Sheldon & Pardee, for plaintiff and appellee.

      Sullivan, Billings c5 Hughes, for defendant and appellant.

      Brief of Sheldon & Pardee, for plaintiff and appellee.
    Unless the defence of payment, set up in the answer of defendant is sustained by the testimony, the judgment of the lower Court must be affirmed, for there is no other defence interposed.
    The allegation is of 'payment to the plaintiff himself, but no effort was made to prove this as laid. There is some evidence tending to show payment to one Adolphe Hebert, as agent of the plaintiff. He is the only witness, and was an agent, his powers being stated, and were to this extent: About the middle of May, appellant gave appellee the orders sued upon for sugar and molasses, as security for the payment of the balance due, to wit: $1,123 65, which orders were delivered to Hebert, with instructions to take the sugar and molasses, unless the balance so found due was fully paid in twenty days.
    The sum due Delaney was not paid in twenty days, nor was any part thereof, therefore Hébert had simply the authority to take the sugar and molasses mentioned in the orders, and hold the same for the plaintiff as his property. In advance then, Hebert had no authority to receive payment, except it was made within twenty days, or if not then made, to obtain payment by taking the sugar and molasses. He did neither of these thing?. But afterwards it seems he did take some current and some uncurrent money,'and a watch and chain at a stated value. If this' was payment it cannot be from any authority previously given, but must be from a subsequent ratification. ■
    The defendant did not consider this payment unless ratified by Delaney, for he did not take up the orders, but left them in the hands of Hébert. The latter :refused -to give them up, because he did not consider the matter settled. The,receiving'of the money, etc., he further considered a deposit, until Delaney would accept it.
    Further on, this witness says: “I thought the matter was settled, if Delaney had accepted the money. Delaney at once, and all the .time, refused to ratify the settlement.”
    Where an agent has transcended his authority, persons dealing with him are bound to look to him to find out whether there has been a ratification by the principal or not. Implied or tacit ratification is most frequently found as 'between principal and agent, and in some cases courts go far in extending the doctrine upon this subject. The principle is probably correct, although broadly laid down in 7 N. S. 143; 16 L. 51; 18 L. 517; 3 A. 468. In these cases, the controversies were wholly between principals and agents, and the law declared only applies to parties thus related. In conclusion, upon this point, it is submitted that the settlement relied on by the defendant was wholly unauthorized, and has never been ratified, directly or by implication, but on the contrary, has been at all times pointedly disapproved and repudiated.
    There is another question. Did the lower Court err in overruling the motion for a new trial ? When the application for a new trial is found upon the ground of newly discovered evidence, the affidavit must showtliat the evidence is material to the suit, and has been discovered since the judgment was rendered, although affiant had used every effort and diligence in his power to procure the necessary testimony. C. P. 561.
    ■ The affidavit should show what efforts had been made, that the Court may judge whether proper efforts have been put forth. 3 N. S. 170; 19 L. 475; 18 L. 531.
    If it appear that the party has neglected his means of defence, the new trial will be denied. 2 L. 306. 1 R. 92. 9 R. 177. It must be conclusively shown that this evidence could not have been obtained before by the use of due diligence. 18 L. 531. 2 A. 583.
    Applications for new trials upon the ground of newly discovered evidence, must be received with great caution. 4 A. 406.
    The affidavit must be strictly construed, because the party is presumed to set forth his whole ground, and to have sworn to as much as his conscience would permit. 7 L. 84.
    By the common law, new trials are never granted where the newly discovered evidence is cumulative merely. The Courts of this State have gone much further, and hold that the new evidence must be sufficient, if established, to authorize or defeat a recovery. 2 A. 225.
    The affidavit is defective, because : 1st. The testimony of Leon Levy Would not change the result of the suit. 2d. It does not show what acts of diligence were used. 3d. It does not show that any diligence was used, for the language employed by affiant is, “he has discovered evidence important to said cause, which he could not, with due. diligence, have obtained before,” or in direct meaning it is this, that if he had used due diligence he could not have obtained the testimony.
    The affidavit is loose, defective in many particulars, and is surrounded with many circumstances which excite suspicion of neglect of means of defence. Levi lived in New Orleans; the suit had been pending many months; and Leon Levy is described as living in New Orleans also; it is very singular that so soon after th e trial this witness was so fortunately discovered.

      Brief of Sullivan, Billings and Hughes, for defendant.and appellant.
    —The substance of the testimony is that in October, more than two months after the defendant had made the last payment to Hébert, the plaintiff, having for a long time known of these payments, goes to Hébert and proposes to him to treat the money and property so paid into his hands as collateral security for the payment of the price of goods, which he was about to purchase ; and does make two purchases; Hébert, upon his suggestion, and at his request, holding what defendant had paid into his hands as collateral security for the goods bought by plaintiff. Now, plaintiff could not make this money and property security for his debts, unless he appropriated it, assented to its being his, and adopted and confirmed the act of Hébert in receiving it in payment. He could only pledge this money and property by treating it as his own, and it could only become his own according to the terms which defendant had, by placing it in Hébert’s hands, offered, namely, by making it payment for the alleged balance of the claim. Raley on Agency, 171, note (o.)
    “ It is evidefit that there can be no stronger ratification of the act of an agent than the principal’s availing himself of the benefit of such act, although unauthorized; and that in like manner a person, by availing himself of the act of one whom he had not originally appointed his agent, must be deemed, retrospectively, to have created the agency from which he derives a profit. In either ease, the presumed ratification subjects the principal to the same liabilities to third persons or to the agent, as if the latter had in one case acted within the scope of his powers, or in the other, been a duly constituted agent.” See also Pitts v. Shubert, 11 La. 288; Thomas v. Scott, 3 Rob. 256; Chesneau’s Heirs v. Sadler, 10 M. (O. S.) 726, 735.
    Again : The plaintiff could not separate the payments. His ratification was a confirmation in toto of Hébert’s acts for him, from which all his verbal protests cannot relieve him, and from which he cannot recede. Story on Agency, 4th ed., p. 315, § 250.
    “Another consideration, very important in cases of this sort, is, that the principal cannot, of his own mere authority, ratify a transaction in part, and repudiate it as to the rest. He must either adopt the whole, or none. And hence the general rule is deduced, that where a ratification is established as to a part it operates as a confirmation of the whole of that particular transaction of the agent. It may be added, that a ratification, once deliberately made, upon full knowledge of all the material circumstances, become eo instanti, obligatory, and cannot afterwards be revoked or recalled. See also Elam v. Garruth, 2 An. 275, and C. C. Arts. 1884 and 1896.
   Labatjve, J.

In March, 1863, plaintiff sold defendant twelve bales of cotton for $3,143. The plaintiff admitting payment in part, claims a balance of $2,000, with interest, from May 11th, 1863.

The defendant, in his answer, admits that he was indebted to the plaintiff in the sum of $1,743, and that as security for the payment of the same, he gave to the plaintiff certain orders for sugar and molasses, as set forth in plaintiff’s petition. That subsequently to the delivery of said orders, and before the removal of the sugar and molasses, and the commencement of this suit, he paid to plaintiff said sum, and removed said sugar and molasses in his own right.

The District Court, after hearing the testimony, gave judgment for plaintiff for $1,123 60, with interest from May 11th, 1863. The defendant appealed.

Defendant’s counsel have presented to us but one question: “Whether payment was made, is the only question in this case.”

The testimony shows that on the 20th April, 1863, the parties had a settlement, and the defendant owed a balance to plaintiff amounting to $1,123 65. That about one month thereafter, the defendant was asked to pay; he then gave to the plaintiff as security for said debt, several orders upon planters and others, for sugar and molasses; there were three orders; the defendant was to pay this balance in twenty days, which being done, the orders were to be returned to him; and, if not paid within twenty days, the plaintiff was to take the sugar and molasses mentioned in the orders which were left in the possession of'one Adolphe Hébert for safety. This Adolphe Hébert, depositary of said orders, was authorized by plaintiff to receive the money, if paid within the said delay of twenty days. About a month after these orders had been deposited with Hébert, the defendant went to said Hébert’s store, and said to him that the plaintiff had offered him (the defendant) $200 for a gold watch and chain, which he left with Hébert, and also $125 in bills of Bank of Louisiana. From that time to August 18th, 1863, the defendant paid at different times to Hébert, the said balance due the plaintiff; this payment was made in bank-bills of Bank of New Orleans, Louisiana State Bank, and United States treasury notes and New Orleans city notes.

The defendant, and A. Hébert and Brother, were in account current, and on the 18th August, 1863, they had a settlement, and the balance $1,123 65, due by defendant to plaintiff, was charged in this settlement in favor of A. Hébert and Brother, against the defendant. It is evident that after the expiration of the twenty days allowed the defendant tp pay plaintiff, said Hébert, who had been authorized to receive, had no authority to receive money from the defendant for plaintiff, and the question is whether or not the plaintiff ratified the acts of said Hébert.

It is contended by the defendant that this ratification results from .the following testimony of A. Hébert, who states:

“In October, 1863, Mr. Delaney and myself had a talk about trading together, and I said to him I could not sell goods except for cash; his answer was to me: ‘ You must have money enough in your hands to satisfy what I would like to purchase from you. ’ I had frequently said to him that I had in my hands money from Levi, the defendant, and when he came this time to buy goods, he said: ‘Have you not money from Levi, enough to secure you?’ I sold him two different lots, at different dates, to the amount of $367 73. I made the remark that, besides the selling of goods, he must settle with me for collecting that debt of Levi; he said that is all right, and he would see me justified in the case. I sold the goods in October, to Mr. Delaney at his suggestion, that I had sufficient money in my hands belonging to him collected of Levi, which money was ample security for what he wanted to buy, He then said he had a great notion of taking the" $498. 65 in treasury notes and city notes. When I received the money from Levi, I considered it current money, and received it as such * * * * * * *

On cross-examination, he says:

“When I sold him the goods, in reference tó the matter of security, I alluded to the whole amount in my hands, the watch and all. I did not specify the watch. At this time bank-bills of New Orleans were at a discount, except Louisiana State Bank, which were wortli par. Two or three months prior to this, and always, Delaney refused the watch and uncurrent money. In selling Delaney th'e'goods, I trusted him on the Lovi claim, and did not limit him to the treasury and city notes. When I told Mr. Delaney that I wanted him to pay me for collecting that debt, I alluded to that part of it paid before April 20th, and had no allusion to the rest of it.

“I thought the matter was settled, if Delaney had accepted of the money. Delaney at once, and all the time, refused to ratify the settlement. He had authorized me to collect the debt of Levi, if paid in twenty days; if not, to get the sugar and molasses. No portion of the debt was paid within twenty days after the orders were given for the sugar and molasses, that is, no portion of the $1,123 65, balance due May 11th, but a portion was paid a few days after the twenty days had expired. When I received the money from Levi, I considered it more as a deposit than anything; I thought it was for the debt due to Delaney, if he would accept it. ”

We are of opinion that this testimony establishes a ratification of the payment made by the defendant to A. Hébert. It is evident that the plaintiff obtained goods upon the faith and credit of the money thus paid to, and in the hands of Hébert, who -sold him the goods. If he regarded this money as belonging to the defendant, and not to him, he had no right to tell Hébert, in asking goods on credit: “Have you not money from Levi, enough to secure you ?” It was upon this suggestion that Hébert sold him goods to the amount of §367 73. It is evident that he looked upon, and treated the money in the hands of Hébert, as his own money.

It is therefore, ordered adjudged and decreed, that the judgment appealed from be annulled and reversed, and it is further ordered and decreed, that the plaintiff’s demand be rejected, and that he pay costs in both courts.


author: Tadiaeerro, J.

text:
    No. 800.
    A. Brown & Co. v. J. T. McFarland.
    In a suit on an open account, the dofence is the prescription of three years, and the evidence shows an acknowledgment and promise to pay several months after the account became due: 2Zcld—tThat this promise works an interruption of prescription from the date of the account to the date of the promise, and it only begins to run again from the date of the promise.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Geo. L. Bright, for plaintiffs and appellees.

      J. IS. Van Balsón, for defendant and appellant.
   Tadiaeerro, J.

The plaintiffs sue the defendant for $765 18, with interest from April 8th, 1862, at five per cent, per annum, the value, as they allege, of labor performed for his benefit, in sawing up a lot of timber into staves. This claim is presented in the form of a running account from early in February, 1862, to the 8th of April of tho same year. The answer contains a general denial. Defendant pleads in bar of this claim the prescription of three years. Judgment was rendered in the Court below in favor of the plaintiffs, and the defendant has appealed. -It is in proof that defendant, when called on near the end of the year 1862, to pay the account, made no objection to it, but promised to pay it as soon as he got money from a customer for making cisterns. This would seem to bar the prescription of three years, as the last item of the account is dated 8th of April, 1862, and suit was filed 29th of May, 1865, and citation served on the 31st of the same month and year. But the prescription of three years does not apply in the present case. By reference to the account in the record, it is seen that the charges are for certain specific work performed at different periods. There was no continuity in the services supplied. 13 An. 160. 11 An. 653.

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


author: Hyman, C. J.

text:
    No. 829.
    Mrs. Fanny Asher v. John Fredenstein—Louis E. Martin, Third Opponent.
    ■Where an intervenor by third opposition asserts in his petition that the sheriff has seized property under a writ of fieri facias, in the suit in which he intervenes, it is a judicial admission of the judgment and execution.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont, J.
    . Roselius & Philips, for plaintiff and appellee.

      J. Hawkins, for defendant and appellant.
   Hyman, C. J.

The plaintiff, Fanny Asher, obtained judgment against the defendant John Fredenstein; had execution issued thereon, caused to be seized under the execution by the sheriff four waggons, as belonging to the defendant, and was proceeding to have them sold by the sheriff to satisfy her judgment, when Louis E. Martin filed his petition, claiming therein to be the owner of the waggons, and obtained a writ of injunction prohibiting the plaintiff and the sheriff from selling them under the execution.

Plaintiff, in her answer to the opposition of Martin, prayed that his opposition and intervention might be dismissed, and that the injunction might be dissolved, with twenty per cent, damages, etc.

On the trial, the District Judge rendered judgment in favor of plaintiff, decreeing that the injunction be dissolved, with twenty per cent, damages.

Martin has appealed from this judgment.

The evidence adduced, does not prove that Martin had either title to or possession of the waggons seized; on the contrary, the evidence satisfies us that the defendant was both owner and possessor of them, when they were seized.

Martin contends that as there was no evidence adduced by the plaintiff of the execution, and the seizure of the waggons under execution, that the judgment of the District Judge was erroneous.

Martin, in his petition, alleged “that under and by virtue of a writ of fieri facias, issued in the case of Mrs. Fanny Asher v. John Fredenstein, the sheriff of the parish of Orleans had seized the waggons, and had advertised them for sale.”

This allegation admits that there is both an execution'and seizure of the waggons thereunder, and Martin cannot deny this judicial confession, but by proof that he made it through error of fact. See Civil Code 2270, No evidence has been adduced, showing that Martin was mistaken as to the facts stated in his allegation.

Let the judgment of the District Court be affirmed.

The appellant, Martin, to pay the costs of appeal.


author: Howell, J.

text:
    No. 947.
    Joanna Huck v. Haller & Brother.
    Whero the consideration of a promissory note is shown to be Confederate treasury notes, payment will not be enforoed by our Courts. The principle is now definitely settled in our jurisprudence, that the issue of Confederate treasury notes was illegal, and all obligations and contracts founded on them are absolutely null and void*
    A PPEAL from the Fourth District Court of New Orleans, Th&ard, J.

      Buchanan Gilmore, for plaintiff and appellee.

      Emerson & Grow, for defendant and appellant.
   Howell, J.

This is an action on a promissory note by the payer against the makers, the defence to which is that the note was given for a like sum in Confederate notes, deposited by plaintiff with one of defendants at their store. This defence is fully established by. the evidence; but plaintiff's counsel contend that there were two distinct contracts, having-different obligations and parties; first, a contract of deposit with one of the firm; second, a note or unconditional promise to pay a sum of money made by the firm in favor of plaintiff, and that the first was executed and merged in the second.

The evidence does not sustain this position; and even if there were the two contracts, as urged, we could not, under our jurisprudence as now definitely settled, enforce the second, because made with a knowledge of the illegal consideration, the knowledge of one partner being the knowledge of the copartners.

It is therefore ordered, that the judgment of the District Court be reversed, and that there be judgment in favor of defendants, yith costs in both courts,


author: IiiSLET, J.

text:
    No. 877.
    L. Bernard, Curator of Theophilus Thayer’s Succession, v. Jachonias Thayer.
    The jurisdiction of the Second District Court of New Orleans is restricted to probate proceedings. It has exclusive cognizance of suits against a succession, but has no jurisdiction where a succession is plaintiff.
    A PPEAL from the Second District Court of New Orleans, Thomas, J.

      O. Bufour, for plaintiff. J. N. Lea and J. Lavergne, for defendant.
   IiiSLET, J.

On the 15th February, 1861, the defendant, Jachonias Thayer, sold with full warranty to one F. Verret, certain lots of ground which a few days after Verret sold without warranty, but with a special subrogation of warranty against his vendor, Jachonias Thayer, the defendant, to Theophilus Thayer, who paid the purchase money to Verret.

When Jachonias sold the lots to Verret, he had no title whatever to them, having previously on the 25th March, 1857, transferred them to another person, and the present plaintiff deeming the sale to Verret fraudulent and a nullity, instituted the present attachment suit, to recover from the warrantor, Jachonias Thayer, the purchase money, by him paid therefore to Verret.

Jachonias Thayer, an absentee, represented by a curator ad hoc, filed an exception to the jurisdiction of the Second District Court, as being incompetent to take cognizance of the matter complained of in the plaintiff’s petition, which exception was overruled by the Court, because, as it held “the action was brought by the representative of a succession, and judgment was rendered in favor of the plaintiff.”

This Court has very lately held that the Second District Court of New Orleans is one of limited jurisdiction—which is restricted to probate proceedings only. Act of 1865, sec. 8. Art. 925 C. P.

It can take exclusive cognizance of claims for money, brought against and not for successions administered by curators, testamentary executors or administrators of successions. C. P. 924, § 13, and 925, Grubb v. Henderson, 6 La. 54.

It has no jurisdiction of a suit against the curator of an absentee. Soulie v. Soulie, 5 La. 27.

It is therefore'ordered, adjudged and decreed, that judgment of the District Court be annulled, avoided and reversed; and it is further ordered, that the plaintiffs’ suit be dismissed, at his costs.


author: Taliaeebro, J.

text:
    No. 280.
    Succession of John D. Fink—Opposition to Executor’s Account.
    ■Where the executor files an account of his'administration, andiplaoos the attorneys for the estate on the tableau for a certain amount, as the valuó of their services to the succession during its administration, and other creditors oppose the homologation of the items for attorneys’ fees, on the ground that the charges are excessive, and the evidence shows that the attorneys have received large amounts from the succession for professional services prior to the filing of the account, the amounts thus received must be deducted from the amount placed on the tableau to the credit of the attorneys.
    A PPEAL from tlie Second District Court of New Orleans, Morgan, J.

      J. J. Michel and H B. Ogden, for appellant.

      W. H. Hunt and C. Bufour, for appellees.
   Taliaeebro, J.

The executor of John D. Fink, deceased, placed Durant & Horno? on the final tableau of distribution of the succession as creditors for the sum of $8,935, being the amount of their claim for legal services rendered as attorneys of the succession. An opposition to this claim was filed by the city of New Orleans, as trustee and agent of the Asylum for Destitute Protestant Widows and Orphans, on the ground that the various charges of the attorneys are excessive,, illegal and not due. There were oppositions filed to other claims set down upon the tableau, but thepresent case involves only the opposition to the claim of Durant & Hornor. The Court below dismissed the opposition to this claim, ordered some amendments in regard to other items, and rendered judgment homologating the tableau as amended, and decreed a distribution of the funds accordingly.

From this judgment the opponent appealed.

It appears that long involved and intricate law suits grew out of the settlement of the succession. Two or three strenuous efforts were made to annul the will. These attacks, by much labor and legal ability of the counsel on the part of the succession, were successfully repelled. The interests involved were large and important, and witnesses attest the assiduity and skill with which they were protected. The amount placed upon the final tableau of the executor in round numbers at $8,935, as the attorneys’ fees, is made up of various items stated elsewhere in the record in an account, though not so explicitly as would be desirable. In this account there is one item of $5,000, specified as “services in Pellenz v. Bullerdieck to break the will, and also in Fink et al. v. Executor, to break the will both in Second District Court and Supreme Court.”

It seems that, upon a provisional tableau previously presented to the Court and approved, the attorneys of ihe estate had been allowed $5,700 for “ services to date.” There is some obscurity, in regard to what these services were, and as to the time when they were rendered; but it appears sufficiently clear that the $5,700 were received after the will cases had been carried through the District Court, and before they were disposed of by the Supreme Court. The evidence of several distinguished gentlemen of the bar was taken in regard to the value of the services. They seemed to concur in the opinion that if the amount received was intended as compensation for services in the more important case, in both Courts, the subsequent charge of $5,000 for the other two cases would be excessive and unreasonable. If the sum paid was only for conducting the defence in the principal litigation in the District Court, one should be inclined to think the fee ample, and the additional charge for ulterior services in the Supreme Court too large. Upon the whole, guided by the opinions of the witnesses as far as they were given upon the somewhat indefinite state of facts, and upon a review of the account, we are inclined to reject the item of $5,000.

Another item of the account specified as ‘1 services in advice and consultation with the executor, from filing tableau No. 1, up to 30th May, 1860, touching the business of the estate during the last four years, at $250 per annum, making $1,000,” we consider vague and unsustained by the evidence. This item should, in our opinion, be likewise disallowed. With these deductions the account is reduced to $2,935.

It is therefore ordered, adjudged and decreed, that the judment of the lower Court be annulled, so far as it rejects the opposition of the city of New Orleans; that that opposition be sustained as to the item of $5,000; and also, as to the item of $1,000, which items constitute part of the attorneys’account, and part of the aggregate sum of $8,935, objected to by the said opponent.

It is further ordered, that the tableau be amended accordingly, and that the judgment in all other respects be affirmed—the costs to be defrayed by the succession.


text:
    No. 741.
    Edward Schinkel v. Hermann Hanewinkel.
    Where one of a series of notes, secured by mortgage, delivered by the maker, has come again into his hands, the debt evidenced by it is extinguished by confusion. O. O. 2214.
    By reissuing such note, after maturity, he may bindhimself, but cannot revive the obligations of the other parties, nor the mortgage secui’ing it, which being only an accessory to the principal debt botwoen the maker and the payeo, is extinguished with the note, O. O. 3252, 3374.
    A . PPEAL from the Sixth District Court of New Orleans, Duplanlier, J.

      G. Dufour, for plaintiff and appellee.

      JS. J. Wench and O. lioselius, for defendant and appellant.
   Labatjve, J.

On the 4th May, 1863, the defendant, Hermann Hanewinkel, executed three promissory notes to his own order, and endorsed by him; one for $5,000, another for $3,000, and a third one for $2,000, and to secure the xiayment of the same, executed a mortgage on certain city lots. The plaintiff having become the holder of the first named note for $5,000, and of the third named note for $2,000, obtained an order of seizure and sale, and had the mortgage property sold for cash, and the proceeds of sale amounting to $3,500, were retained by the purchaser after x>aying costs and charges.

Plaintiff’s counsel took a'rule upon Webber, who was the holder of the $3,000 note, to show cause why the whole proceeds of sale should not be applied to the payment of the two notes sued upon, on the ground that the said $3,000 note had been returned to the maker, and was extinguished.

Webber answered to the rule that the said note had been given to him as a collateral security by one Marchand, to secure the sum of about $1,800, and prayed that the rule be dismissed.

The testimony shows that this $3,000 note had been in the hands of Edward Sohinkel, and handed back by him to the maker, Hanewinkel, who it seems gave it to one Marchand, a note-broker, who passed it to George Merz to obtain money for the maker, Hanewinkel. George Merz was paid for the note by Marchand at its maturity. Marchand says:

“I became the owner of this note at its maturity on my paying it. Hanewinkel came to me, and, irpon hearing his troubles, I offered him this note, and Webber got it from him. This occurred a couple of months after the note had been paid by me at maturity.”

It apx>ears then that this note had come in the hands of the maker, who reissued it to Webber two months after maturity. Webber acquired, knowingly, an extinguished paper, and the mortgage was also extinguished, and could not be revived. C. C. Arts. 3374, 2214; 4 Rob. 416, Hill v. Hall

We are of opinion that our learned brother decided correctly, in making the rule absolute.

It is therefore ordered and decreed, that the judgment appealed from, b e affirmed with costs.


author: Labauye, J.

text:
    No. 350.
    The Mayor and Council of City of Carrollton v. J. M. Magee.—The Same v. D. M. Hollingsworth.—The Same v. Mrs. N. Settoon.
    Where the certificate of the clerk of the District Oourt does not show that the record contains all the evidence adduced, and the record contains no statement of facts, no exception to the opinion of the Judge, nor special verdict, and the appellant has not filed in the appellate Oourt an assignment of errors of law apparent on the face of the record, the ease cannot be examined on its merits, and the appeal will be dismissed.
    A
    PPEAL from the Second District Court, Parish of Jefferson, Burlhe, J.

      C. Boselius and B. L. Preston, for plaintiff and appellant.

      M. M. Beynolds, for defendants and appellees.
   Labauye, J.

These three cases are all contained in one single transcript, forming but one record, and one appeal, and the certificate of the clerk of the inferior Court, appended to said record, states and certifies:

“That the foregoing forty pages contain a full and complete transcript of the documents therein contained, offered and on file in the matter of Oily of Carrollton v. J. M. Magee, D. M. Hollingsworth and Mrs. Settoon, Nos. 1830, 1831 and 1832 of the docket of this Oourt.”

This certificate does not show that the record contains all the evidence adduced, and the record contains no statement of facts, no exception to the opinion of the Judge, nor special verdict, and the appellant has not filed in this Oourt an assignment of error of law apparent on the face of the record.

We cannot examine the case on its merits, and we must dismiss the appeal. C. P. Art. 897. 6 L. 144, 157, 209. 1 R. 460. 4R. 147.

The appeal is dismissed, at the costs of the appellant.


author: Taliaeebbo, J.

text:
    No. 586.
    Bridgeford & Co. v. Colton & Baldwin and J. S. Simmonds.
    Where plaintiff alleges that ho drew a draft on defendants for the value of goods sold them, which they accepted, and the draft is annexed to and made a part of the petition, but is not offered in evidence on the trial, nor does the evidence in the record show a sale and delivery of the goods, the suit will be dismissed as of nonsuit.
    A PPEAL from the Sixth District Court of New Orleans, Buplaniier, J.

      A. Saucier, for plaintiffs and appellees.

      B. Egan, for defendants and appellants.
   Taliaeebbo, J.

The plaintiffs, residents of Louisville, Kentucky, allege that about the 1st of February, 1861, they sold and delivered to Col-ton & Baldwin, of New Orleans, goods, wares and merchandise of the value of four hundred and thirty-nine dollars and thirty cents. They aver that at the time the goods were furnished, J. S.-Simmonds, one of the defendants, was in fact a copartner in the firm of Colton & Baldwin, or the sole owner of the stock of goods then in the store of Colton & Baldwin; that the pretended sale and transfer, some time previous of Simmonds’ interest in the firm of Colton & Baldwin, was a fraud and simulation; that the goods sold by plaintiffs to Colton & Baldwin inured to the use and benefit of Simmonds. The defendants filed separate, answers, containing a general denial. Judgment was rendered against the defendants in solido, and Simmonds alone has appealed.

The petition recites that plaintiffs drew a draft on Colton & Baldwin for the amount or value of the goods sold them, which they accepted, and that the draft is annexed to and made a part of the petition. We do not find such a draft copied in the record, nor do we find evidence of any kind, showing a sale and delivery of goods by plaintiffs to the defendants. Erom the transcript before us, it is clear that the plaintiffs have failed to make out their case.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that this ease be dismissed' as of nonsuit.


author: Hyman, O. J.

text:
    No. 925.
    John J. Adams & Co. v. Steamer Trent and Owners.
    The shipper of two bales of cotton transferred the bill of lading to plaintiff after the cotton had been discharged and delivered to the shipper: Held—*That the plaintiff cannot recover from the owner of the boat.
    A PPEAL from the Fourth District Court of New Orleans, TMard, J.

      Miles and Thomas Taylor, for plaintiffs and appellants.

      Clarice <£• Bayne, for defendants and appellees.

      Brief of Clarice & Bayne, for defendants and appellees.
    is a suit for -—This the value of two bales of cotton, alleged to have been shipped on the steamer Trent; that bill of lading was transferred to plaintiffs after arrival of the steamer and cotton at New Orleans, and that the cotton was not delivered to the transferrees of the bill of lading.
    The evidence shows that William Dunn, who shipped two bales of cotton, accompanied them on the steamer Trent; that the cotton was consigned to his order, and was received by him in New Orleans ; that being pressed by plaintiffs to pay a debt of about four hundred dollars due to them, he delivered to them the bill of lading after the cotton had been discharged and delivered to him. 1 The question presented is simply one of fact, and this has been decided in favor of the plaintiffs by the District Judge, who heard and saw the witnesses.
    This is a desperate effort to save a bad debt, and the evidence shows that plaintiffs are trying to cast on the defendants a loss already sustained by them. The defendants had oomplied with their obligation; by delivering the cotton on the levee, and pointing it out to Dunn, who accompanied it to New Orleans, and who had consigned it to his own order. Northern v. Williams, 6 An. Rep. 579. Gauche v. Slone, 14 An. Rep. 412.
   Hyman, O. J.

This suit is for the value of two bales of cotton, shipped by William Dunn on the steamboat Trent.

• The bill of lading given for the cotton toDtnin was transferred by him to plaintiffs, after he, as the evidence shows, had received the cotton from the boat.

The judgment of the District Court was in favor of the defendants, and the plaintiffs are appellants from the judgment.

Let the judgment be affirmed, at appellants’ cost.


author: Labaetve, J.

text:
    No. 919.
    James W. Fee v. James Gonegal.
    Plaintiff brought; suit for the price of salt purchased by defendant in 1862; defendant pleads that the salt was for the Confederacy, and that Courts of justice should not enforce the contract. There being a doubt of plaintiff’s knowledge of the unlawful purpose of defendant, the Court will presume him to be innocent.
    The defendant cannot take advantage of his own unlawful acts to annul his contract.
    A
    PPEAL from the Third District Court of New Orleans, Feilowes, J.

      C. B. Singleton, for plaintiff and appellee.

      Sullivan, Billings & Hughes, for defendant and appellant.
   Labaetve, J.

This suit is brought to recover $1,755 50, abalance of the price of 250 sacks of salt, alleged to have been bought from plaintiff by defendant through B .■ E. Smith, about 26th May, 1862, at the rate of $8 per sack.

The only defence in this Court, and none other has been urged by the defendant, is, that the contract of sale was for an unlawful purpose, which was participated in by the plaintiff, and that for its enforcement the plaintiff cannot invoke the aid of the Courts; and upon this the defendant rests his ease as established upon the merits.

The case turns entirely on a question of fact, which is this: Is it clearly proved and shown that the plaintiff knew that this salt was going into the Confederacy, as called by the witness ?

B. E. Smith, who bought the salt for the defendant, states :

“When he says he told Mr. Eee, that he was taking this salt over the lake, he cannot tell whether he said “Confederacy,” or “ over the lake;” but the usual expression then, was “over the lake”. What was meant by “over the lake?” Did this expression mean Confederacy, or any other place out of the Confederacy ? We know that the lake communicates with the gulf, which was in possession of the United States. We must give the plaintiff the benefit of the doubt, and presume that he did not intend to violate the laws of his country, unless a clear case be made out against him. So far as shown by the evidence, he is presumed to be innocent. It is not so with the defendant, who, through his able and learned counsel, has boldly urged and proved bis own turpitude, and attempted to bring in the plaintiff as participating in bis violation of the law, in-order to avoid the payment of a just debt, and to enrich himself at the expense of the plaintiff.

We are of opinion that the plaintiff has made out his casé, and that the defendant has failed to establish his defence, by showing that plaintiff was particeps criminis in the illegality of the transaction. The, District Court decided correctly in favor of plaintiff.

The judgment of the District Court is affirmed, with costs,