text:
    J. McHugh v. Mrs. Mary Stewart—W. Bragg et al., Opponents, S. Stewart, Appellant.
    The tacit mortgage of the minor on the property of his tutor can only be enforced for the balance which will appear to be due him, upon an account of tutorship rendered or ascertained by a judgment obtained against his tutor in default 'of rendition of account.
    The tutor himself cannot assert this tacit mortgage upon property which was affected by it in his hands, and which he has alienated or incumbered in favor of third persons: non constat, that at the termination of the tutorship he will owe the minor anything, and even if this should be the case, the latter would have to proceed first against such property as his tutor might then be possessed of, the law reserving to the third possessors of property sold by the tutor the right of discussion.
    ,4 PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      F Haynes and Collins & Wooldridge, for plaintiff.

      Singleton and Ciado, for S. Stewart, appellant.
   Buchanan, J.

Defendant, a married woman, mortgaged a house and lot to Samuel Stewart, for the security of money borrowed by her from said Stewart, after being thereto authorized by a judgment of the Fourth District Court of New Orleans, in conformity to the Act of 1855, No. 200, page 254 of the Session Acts. In her petition, presented to the Fourth District Court, she alleged that the proposed loan was “ for her entire benefit, and to finish a valuable building on said lot, and is in no way for the use or benefit of her husband or children, who have no claim on her, but is truly for the purposes above stated.” In the act of mortgage, to which her husband, James Stewart, was a party, the defendant declared that “under the authorization of the honorable M. M. Reynolds, Judge of the Fourth District Court of New Orleans, whose certificate to that effect is hereunto annexed, she has borrowed the sum of twelve hundred dollars from Samuel Stewart, of this city, for the uses and purposes set forth in said certificate.” The act of mortgage also recites an annexed certificate of the Recorder of Mortgages of New Orleans, of even date, certifying that there existed no mortgages in the name of the mortgagor, and recorded against the property mortgaged, except one in favor of her vendor, John McHugh, and one in favor of the mortgagee, Samuel Stewart; which latter the mortgagor bound herself to have cancelled immediately.

The present suit was instituted by the vendor of the property, by executory process, upon a protested note, being one of those given by defendant for the price. At the Sheriff’s sale under this executory process, on the 7th October, 1856, Samuel Stewart became the purchaser of the property, for seventeen hundred dollars cash; out of which, after satisfying the execution of the vendor and other privileges on the property, he retained in his hands, as appears by the Sheriff’s return, five hundred and eighty-seven dollars and seventy-six cents, in part satisfaction of his mortgage debt.

The defendant now appears in court in the capacity of natural tutrix of her four minor children, issue of her first marriage, with Patricio Fitzpatrich, and claims, by way of third opposition, to take the proceeds of the Sheriff’s sale, in preference to the said Samuel Stewart, upon the following allegations :

“ That said lot, with the improvements thereon, was the only immovable owned by petitioner, and is subject to the tacit mortgage existing in favor of petitioner’^ said minor children, and which amounts to the sum of six hundred and fifty-nine dollars and eighty-seven cents, which sum was received for said minors from the Succession of John J. Fitzpatrick, by petitioner in her said capacity, and was in fact used in the purchase and improvement of said property. That petitioner in her said capacity is entitled to receive the said amount of $659 87 out of the preceeds of said property, in satisfaction of such mortgage, in preference to said Samuel Stewart, who alleges a bettor right, but who is not entitled to receive said surplus.”

In support of these allegations the defendant and third opponent has offered in evidence letters of natural tutorship, granted to her as widow of Patrick Fitzpatrick, on the 5th December, 1848; also the following document extracted from the mort/ua/ria of John J. Fitzpafo'ick, in the Fourth District Court of New Orleans:

“Received, New Orleans, March 7th, 1854, from Mrs. Mcary McHugh, administratrix of the estate of John J. Fitzpatrick, the sum of six hundred and fifly-nine 87-100 dollars, in full of the claim of and portion inherited by Dató?, Theresa, FdwardwA John Fitzpatriek, as per judgment of court in above succession in Fourth District.
[Signed] Maby Fitzpatbick, tutrix.”

Apart from the palpable bad faith on the part of the defendant and third opponent, involved in the assertion of this claim, it is evident that it cannot be listened to, because it inverts the legal position of parties, and anticipates an account of tutorship. In substance, we have here the spectacle of the debtor claiming to be the recipient of a fund, as if she were the creditor. Minors certainly have, by law, a tacit mortgage upon the property of their tutors from the day of the appointment of such tutors, for the security of their faithful administration ; C. C. 354, 3282. But this tacit mortgage, like other mortgages, is to be enforced by the mortgagee, not by the mortgagor. It can only be enforced by the minor, and for the balance which will appear to be due him upon an account of tutorship rendered or ascertained by a judgment obtained against his tutor in default of rendition of account; Holmes v. Hemkin, 6 Rob. 51. Now, it may very well happen that when the four minors Fitzgoatrick shall have attained the age of majority their tutrix shall owe them nothing; that the expenses of their education, and the other legal charges against them, or the payment of the debts of their father, may have consumed the whole of the not very large sum received by their tutrix for their account, on the 7th March, 1854. Indeed, it is proved by defendant’s own oath that she expended one hundred and seventy dollars in lawyers’ fees, in the litigation in the Fourth District Court, which resulted in the judgment mentioned in her receipt.

Or it may be that the minors Fitzpatriek, or some of them, may die before attaining the age of majority, and that the whole or a portion of the indebtedness of their mother and tutrix, by reason of the receipt in question, may be thus extinguished by confusion. No account of tutorship has yet been rendered, nor could any have been rendered, and in the absence of such account it is impossible to assume that the whole amount received by the tutrix as aforesaid, is due to her children without any deduction whatever. And suppose it were paid at this time to the tutrix, would this property, in the hands of the purchaser, be thereby relieved from the minors’ tacit mortgage ? That would be very doubtful, to say the least. For the payment to the tutrix would amount to nothing more than a second receipt by her of the same sum, for account of her minor children, and for which she would clearly be still liable to them. This last consideration alone seems to demonstrate the inadmissibility of this claim at this time, and in this form. When the minors shall have attained the age of majority, or shall be emancipated by marriage, or when the tutrix shall be from any other cause compelled to account, or when a judgment shall have been obtained against her, or against her succession, in default of an account; and the' claims of her children against her shall have been liquidated, and the balance in their favor ascertained, the recourse of the children will be, first, against the property then in possession of their mother and tutrix; and it may be that she will then have property sufficient to satisfy their claims. But if not, then the minors will have their recourse against the third possessors of property alienated by their mother since the date of her appointment as tutrix; the right of discussion being reserved by law to those third possessors, as against the tutrix, (C. O. 336C, O. P. 715,) a right which seems entirely irreconcilable with the pretensions now set up bjr that tutrix to make a third possessor relieve her of an anticipated responsibility.

We understand the argument of the appellant, Samuel Stewart, in this court, as conceding the right of priority of the appellees, Aitkins, Moodie, Dorand, Bragg and Pike, for the amounts allowed them respectively, by the judgment appealed from.

It is, therefore, adjudged and decreed, that the judgment of the District Court, as to the appellee, Mary Stewart, tutrix, be reversed; that the third opposition of the said Mary Stewart herein be dismissed without prejudice to the rights of the minors, if any they have, in the premises, to be exercised at the proper time; that as to the appellees, Aitkens, Moodie, Dorand, Bragg and Pike, the judgment be affirmed; that the costs of the opposition of Mrs. Mary Stewart, tutrix, in the District Court, be paid by the said Mrs. Stewa/rt; and that the costs of appeal be paid, one-half by Mrs. Stewart, .and one-half by the appellant, Samuel Stewart.


source: Caselaw Access Project

author: Spoeíobd, J.

license: Public Domain

text:
    The State v. LeBlond et al.
    The Supreme Court is without jurisdiction when an indictment is quashed in Unvtne^ and consequently no fine has been actually imposed, and the offence charged is not punishable with death or imprisonment at hard labor.
    APPEAL from the District Court of the parish of St. James, Duffel, J.

      S. M. Berault, for defendant.
   Spoeíobd, J.

This appeal was taken by the District Attorney, on behalf of the State, from a judgment quashing an indictment against the defendants for the offence of selling spirituous liquors to a slave without the consent in writing of the owner, overseer or employer of the said slave.

No fine was actually imposed, as the indictment was quashed in limine; and the offence charged has never been punishable with death or imprisonment at hard labor.

We are without jurisdiction in the case. Constitution, Art. 62.

Appeal dismissed.


author: Spoeeord, J.

text:
    New Orleans Canal and Navigation Company v. The City of New Orleans.
    The plaintiffs were not subrogated, either by law or covenant, to the rights and privileges of the “ Orleans Navigation Company,” which corporation was dissolved by decree of this court in 1852. It is for the party only whose rights have been invaded to plead the nullity of a law as impairing the obligation of a contract.
    APPEAL from the Third District Court of Now Orleans, Kennedy J.

      E. 3. Eurell and G. Morel, for plaintiffs and appellants.

      J. Livingston, for defendant.
   Spoeeord, J.

The plaintiffs seek to enjoin the city of New Orleans from draining its streets, squares, &c., through artificial canals and by the aid of machines, into the Bayou St. John, on the ground that such a system of drainage has the effect to render the bayou unfit for navigation by filling up its bed, defiling its waters, and generating pestilential gases and noisome odors.

The plaintiffs base their right to interfere upon the assumption that this system of drainage by the city is a violation of the absolute right of the “ New Orleans Canal and Navigation Company.”

The New Orleans Draining Company was incorporated on the 19th March, 1835, with a view to the establishment of the present system of drainage to facilitate the passing off of the waters “into the lake, Bayou St. John, or elsewhere.” (Acts 1839, p. T9, sec. 21.) Three draining machines have been erected at the junction of canals with the bayou, which create or increase the current from the drains into the bayou by means of splash wheels propelled by steam. One of these machines was erected in 183T, a second in 1840, and a third in 1845, and they have been in operation ever since.

In pursuance of the amended charter of the Draining Company, approved on the 20th March, 1839, (sec. 13,) the machinery, levees, &c., erected by the company, have been delivered over to the city, which has assumed the obligation imposed upon it by that law, of keeping the works in operation.

But the company which now sues came into existence on the 18th October, 1852. It is a voluntary corporation, organized under the general law of March 12th, 1852, “for the purpose of improving the Oanal Oarondelet and the navigation of the Bayou St. John.”

It is obvious that a voluntary company, organized in 1852 for the purpose of improving the navigation of the Bayou St. John, unless it is endowed with or subrogated to the anterior rights of some other company or party, cannot complain of a system of drainage which has constantly been pursued under the authority of the sovereign power, as manifested by a legislative grant in 1S35. To meet this difficulty, the plaintiffs’ counsel contends that the Now Orleans Oanal and Navigation Company, created in 1852, is the successor of the Orleans Navigation Company, incorporated in 1805, and fully subrogated to all the rights, privileges and franchises of that company.

In 1852, by a final decree of this court, it was “ ordered, adjudged and decreed, that the corporation of the Orleans Navigation Company has forfeited its charter; that it be dissolved and henceforth extinct, for the violations of the conditions of the 4.ct of incorporation.” See Tth An. 6T9.

The appellants elaim to succeed to all the franchises and rights of action of the extinct company, by virtue of an Act approved March 18th, 1852, entitled, “ An Act relative to the Orleans Navigation Company, the Bayou St. John and Oanal Oarondelet,” and by virtue of a sale of the property of the Orleans Navigation Company, made under the provisions of said Act, at which they became the purchasers.

The Act itself confers upon them no such universal succession. The fourth section is explicit in defining the right bestowed and the conditions of its bestowal. Referring to the sale of the property of the extinct company, it declares “that it shall be a condition of said sale, that if the purchasers shall organize themselves into a corporation under the laws of this State, for a term of twenty-five years, for the purpose of carrying out and effecting all the improvements detailed and described in the reports and plans known as Harrison’s reports and plans, including the construction of a new basin at the- junction of Canal Oarondelet and Bayou St. John, of the depth and dimensions set forth in said reports, and shall actually complete and effect all said improvements within the term of three years from the date of their charter, then the said corporation shall be entitled to receive and exact all such tolls and revenues for the use of said canal, bayou and road, as the Orleans Navigation Company was entitled to receive under its charter ; provided, that at the end of said term of twenty-five years, the State of Louisiana shall have the option either of granting to said corporation a renewal of the right of receiving said tolls for a second term of twenty-five years, or of purchasing for itself the property and improvements of the company at the appraised value thereof; and provided further, that if said second term of twenty-five years be granted, the whole property shall revert to the State of Louisiana, at the end of said second term, without any payment or compensation made to said company.”

It will here be seen that the old company is only alluded to in order to fix the rate of toll which this company shall be permitted to charge by the grant of the Legislature, and not by virtue of its purchase of the property of the old company.

If the sale of the “ property ” included a sale of all the rights and franchises of the former company, it was superfluous for the Legislature to say anything about the rate of toll to be charged by the new company.

Hence, the “entire property of said company, real and personal, movable and immovable,” of which the liquidator was to take possession, and sell at auction, according to the first section of this Act, only embraced corporeal things owned by and moneys due to the company. This property did not embrace the chartered rights of the company which, before the sale, had been extinguished beyond recall.

We conclude that all the plaintiffs’ rights accrued in 1852, and that the New Orleans Oanal and Navigation Company has never been subrogated, either by law' or by covenant, to the rights, franchises and privileges in general of the Orleans Navigation Company. It is, therefore, unnecessary to inquire whether the legislation of 1835 and 1839, and the action of the Draining Company and the city under it, infringed the privileges of the Orleans Navigation Company, and might have been enjoined by it. Whatever right of action that company had in this behalf has not been transferred to the present plaintiffs ; it perished with the old company.

Nor can the present company be heard to plead that the legislation of 1835 and 1839 was unconstitutional in impairing the vested rights of the old company; that was a matter entirely between the State and the old company, in which this company has no interest, because it is not the universal successor of the other; that legislation certainly impaired no vested rights of a company which came into being ten years afterwards ; and it is only for the party whose rights are invaded to plead the nullity of a law impairing the obligation of a contract.

The plaintiffs entered upon an arduous undertaking with their eyes open; they assumed to dredge and keep in navigable order the Bayou St. John in spite of the draining machines ; and the evidence shows it can be done. The fact that it is expensive does not give the new corporation a legal right to drive the city to abandon its ancient system of drainage into the Bayou St. John, which is naturally subject to a servitude of drain, and to open at a heavy cost new channels from the river to the lake shore. It is probable that such a system must ultimately be adopted. But this is an important question of police, with which we cannot interfere under the showing made by the plaintiffs in injunction. As we do not find that the city has done or is doing anything in violation of the vested rights of the New Orleans Canal and Navigation Company, it is ordered that the judgment appealed from be affirmed, with costs.


author: Spoitobd, J.

text:
    D. Augustin v. H. B. Eggleston.
    The statute under which plaintiff contests the election of defendant as Judge of the Fifth District of New Orleans, required him to set forth specially all the grounds of contest; if on account of the alleged violation of a particular law, he ought to have specified what provisions of such law were violated.
    The mere position of the ballot-box will not make an election null and void without any resulting injury.
    Elections are to be determined by the majority of the ballots cast, and are not to be set aside on account of the meagreness of the vote, without distinct and circumstantial allegations of error, fraud, violence, or illegality affectmg the result.

    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      James Augustin, for plaintiff and appellant.

      Randall Hunt, for defendant.
   Spoitobd, J.

Considering that the first Monday of April, 1867, was the day fixed by law for electing a Judge of the Fifth District Court of New Orleans; that a writ of election duly issued and proclamation thereof was duly made; that an election for said officer was actually held on that day, both plaintiff and defendant being candidates ; that the returns as made are conceded to indicate the election of the defendant; that the plaintiff has suggested no error in the returns; that the statute under which the proceeding was instituted required the plaintiff to specially set forth all the grounds of contest; that the first ground set forth is vague and insufficient, because if the election law of March 19th, 1857, were valid, (upon which we intimate no opinion,) the plaintiff has not specified what provisions of the said law might have been observed and were not, or what was done which ought not to have been done; that the second ground of contest assigned is untenable, because no law has been referred to which makes an election null and void simply on account of the position of the ballot-boxes, without any resulting injury being alleged; that the third ground assigned by the plaintiff was abandoned by him during the oral argument in this court; and considering, finally, that the fourth and last ground of contest is immaterial, since elections are determined by the majority of the ballots cast, and are not to be sot aside on account of the meagreness of the vote, without distinct and circumstantial allegations of error, fraud, violence or illegality affecting the result; it is ordered and decreed that the judgment appealed from be affirmed, with costs.

Mr. Justice Cole took no part in this case.


author: Merbick, C. J.

text:
    Frances Babin and Husband v. M. C. Le Blanc, Tutor.
    The doctrine in the case of Maillefer v. Saillot, 4 An. 8T5, that the marriage of a minor in another State, when contracted in violation of our own laws, does not operate the emancipation of the minor, recognized and reaffirmed.
    APPEAL from the District Court of West Baton Rouge, Robertson, J.

      E. W. Robertson and J. D. Stua/rt, for plaintiff.

      J). N. Barrow, for defendant and appellant.
   Merbick, C. J.

The plaintiff, a minor, who claimed to have been emancipated by her marriage with Lafayette Galdwell, brings this suit for the partition of the property held in common with her minor co-heirs against the defendant, their'tutor.

The defendant excepted to plaintiff’s right to institute the action.

The proof on the exception shows that the father and mother of the plaintiff died in September and October, 1853 ; that the defendant applied to the proper court to ho appointed tutor to the plaintiff and her eo-heirs ; that the plaintiff and Lafayette Galdwell, after the death of her parents, both of them being residents of the parish of West Baton Rouge and no tutor having yet been appointed, went to Natchez, in the State of Mississippi, for the purpose of being married, and were there married and returned to West Baton Rouge, where they have since resided. /

Wo think the exception ought to have been sustained.

It is evident that the parties were married in Natchez in order to evade our laws, which required the consent pf.a, tutor to the marriage of a minor. In the case of Maillefer v. Saillot, (4 An. 375,) it was held in substance,/that emancipation is a consequence of the marriage which the law authorizes, and not of that made in fraud of our laws; that the courts of another State cannot emancipate minors whose domicil is in Louisiana, and that a marriage there in opposition to our laws, cannot produce anj' greater effect towards the emancipation of the minor./'

We are satisfied with the decision in the case of Maillefer v. Saillot, and as the marriage in Mississippi did not have the effect of emancipating the minor, it is clear she was not authorized to bring this suit.

It is, therefore, ordered, adjudged and decreed by the court, that the decree of the lower court he avoided and reversed,, and that the exception filed by the defendant be sustained ; and the plaintiff’s suit he dismissed, ■ she and her said husband paying the costs of both courts.


author: Merrick, C. J.

text:
    Succession of Fritz—On rule taken by S. H. Davis.
    The terms of sale of the property of a succession accepted with benefit of inventory were for cash. The property, an immovable, did not bring the appraisement. Held: That there was no sale which the purchaser could compel the tutrix to complete, although the property was ordered to be sold to pay debts. It should have been re-advertised and sold on terms of credit of not less than twelve months. C. 3?. 930, 991, 992.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Cutler S Ellison and Semines & Labatt, for plaintiff in rule and appellant.

      T. W. Collins, for tutrix.
   Merrick, C. J.

The judgment of the District Court must be affirmed.

The terms of sale of the property of the succession, accepted with the benefit of inventory, were for cash. The property, cm immovable, did, not bring the appraisement. There was, therefore, no sale which the purchaser could compel the tutrix to complete, although the property was sold to pay debts. It should have been re-advertised and sold on terms of credit of not less than twelve months.

The case is governed by Articles 990, 991 and 992 of the Code of Practice, which are in these words, viz:

Art. 990. It shall he the duty of the several Judges of probates, on the application of the creditors or any of the creditors of a vacant estate, to cause, on the requisite advertisements being made, so much of' the property of said estate as is necessary to pay the debts of the same, which may be due, to be •offered for sale and sold at public auction to the highest bidder, for cash if the creditors require it ; and if, on thus offering said property for sale, the appraised value shall not be bid and obtained, then the same shall, in not less than fifteen, nor more than twenty-five days from the time it is thus offered, be sold at public auction, after public advertisement, to the highest bidder, for what it will bring, on a credit of twelve months; provided, however, that in all sales of effects belonging to a vacant estate on a credit, the purchaser shall give bond and security to the satisfaction of the Probate Judge and curator, and a mortgage on the real estate so purchased.

Art. 991. It shall be the duty of the Judge of probates, in all cases of vacant estates, on the application of the creditors, or any creditor thereof whose debt shall not then be due, to sell, after the usual advertisements, upon the conditions contained in the preceding Article, so much of the estate as will be sufficient to pay the claim or claims of the creditors who shall make the application, and on such terms of credit as will correspond with the falling due of the several claims of the creditors.

Art. 992. The principles contained in the two preceding Articles, shall apply to all successions accepted with the benefit of inventory, whether the heirs are minors or of age, and to all successions administered by administrators.

Judgment affirmed.


author: Merrick, O. J.

text:
    Wm. Mure v. Wm. S. Donnell.
    Where a charge of false packing is made, in reference to cotton of various planters, in different sections of the country, under circumstances rendering the charge improbable, and the plaintiff' urges a reclamation against the factor who sold him the cotton in lots, and without any particular representations as to quality, the cotton having been sampled by the seller and re-sampled by the purchaser, the latter must furnish clea/r, consistent and cogent proof to enable him to recover. Nor is it sufficient for the plaintiff to show that the cotton, or a portion of it, was mimed; it must also be proved that it was mixed to the prejudice of the buyer, and be made legally certain that the cotton was inferior to the samples by which it was sold. An unreasonable custom will not be enforced. But whether the cotton was fraudulently packed of mixed qualities, or was mixed by carelessness or accident, if it was inferior to the samples, by which it was sold, the buyer is entitled to relief, provided it was so packed that its defects could not have been discovered on simple inspection.
    The sampling of the cotton by plaintiff’s brokers in Liverpool, and want of correspondence between the cotton he sold there and his samples taken there, cannot affect the defendant. The contract sued on, having been made here, must be governed by our laws.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      W. D. Hennen, for plaintiff and appellant.

      T. J. Bemmes and Robert Mott, for defendant.
   Merrick, O. J.

The plaintiff alleges in substance that on the 24th day of May, 1854, he bought, in this city, of the defendant, 320 bales of cotton, consisting of four parcels, whereof theyfi’si consisted of 130 bales (O. H. shipping mark) of a quality represented by said Donnell to be middling; the second lot, of 48 bales, with a different shipping mark, also by said Donnell represented to be of the same quality; the third lot, of 90 bales, also of a different shipping mark, and represented to be of a quality termed good ordinary to low middling; and tli<i fourth of a lot of fifty-two bales, of still a different shipping mark, and by said Donnell represented to be of a quality termed ordinary; that petitioner paid, in consideration of the different qualities of said cotton, a gross sum for the aggregate number of pounds of said cotton at the rate of 7i cents per pound, amounting to $10,390 84; that said Donnell represented that said first lot, which was sold by the sample, was all good and merchantable cotton, of a quality called middling; that if he had known the actual quality of 53 bales of said first lot, he would not have given more than five cents per pound for said 53 bales; that said cotton was bought to ship to Liverpool, as said Donnell knew; that it was so shipped, and said first lot was there sold in market for 5Jd. per pound; that the purchasers thereof discovered that 53 bales thereof were falsely and fraudulently packed, the interior being altogether different from the exterior; that said interior was trashy, unsound and unmerchantable, and that he was compelled to take back the cotton and pay fifty dollars expenses to the purchasers; that he has incurred, for storage, insurance, and other expenses in the preservation of said cotton, $300; that said 53 bales contain 23,300 pounds, and that the difference between the price he would have paid had he known the quality and the price he actually paid was $000. The petition concludes with a prayer for judgment for $900 damages.

The answer admits that the defendant sold the 320 hales of cotton at 7J cents by sample, according to the custom of the trade in New Orleans, and avers that the plaintiff having re-sampled the same through his broker, aceording to usage, received the lot without objection, and paid the price thereof. He denies that the said lot of cotton was falsely packed, and that the fifty-three bales mentioned in the petition were his cotton, and denies that he made any representations whatsoever respecting- the cotton, or that he had any knowledge of its destination or the object for which it was purchased.

The proof shows that the cotton was sold in New Orleans by sample, in the usual manner, and that the lot consisted of at least three qualities, viz: middling, good ordinary and ordinary; the broker who acted for the plaintiff says there were four grades, thus contradicting his classification made at the time. The price agreed upon was, as admitted by the answer, a round price for the whole 320 bales. The only representation made by the vendor was that there were about so many bales middling cotton in the lot, the witness does not remember how many bales. It was an inducement to make the purchase. Middling cotton at that time was worth 8J cents, and the lowest quality of the lot six cents, in New Orleans.

After the .purchase, the. plaintiff’s broker marked 130 bales O. II. and 48 hales J. J. for shipment as middling, 90 bales as good ordinary and 52 bales as ordinary.

The record does not inform us what became of the forty-eight bales of cotton marked J. J. The proof shows that the 130 bales marked O. H. were sold at Liverpool to Messrs. Woods & Go., on account of the plaintiff, at 5J pence per pound by samples, without reference to the classification, but the samples were classed by the Liverpool broker as good middling.

The plaintiff further shows that fifty-three of the hales contained mixed cotton, the exterior of the bales being good middling cotton, worth 5-|- pence, and the interior being ordinary, and not worth more than 4J pence, and that the average value of the whole bale being worth only four pence three farthings per pound.

The 320 bales were from nineteen planters from various quarters and different rivers. The 130 bales were from thirteen different planters, and, what is surprising, the 53 hales out of the ISO were from the same number of planters.

The proof shows, as just observed, that the cotton was mixed. One witness, the Liverpool purchaser, Thomas Foods, swears “most certainly that the cotton was fraudulently packed for the purpose of deceiving.” The certificate of the Liverpool brokers who examined the cotton state that the cotton was unmerchantable, in consequence of being irregularly packed, having two qualities of cotton in the same bale, and not worth more than 4£ pence per pound.

In applying the testimony to the allegations in the petition, it is incumbent upon the plaintiff to make out his case by clear, consistent and cogent proof, for the case he states is deprived of probability from the fact that it convicts thirteen different planters from different parts of the cotton region tributary to the commerce of this city with falsely and fraudulently packing five out of every thirteen in a small lot of one hundred and thirty bales of cotton. Were it pretended that one or two planters had been guilty of a fraud of this kind, it would more readily command our belief.

But it is shown in the testimony of witnesses resident here that the cleanest and finest portion of the cotton, in ginning, falls at a distance from the gin, and that the more common portion, from its gravity, falls next to the gin. Hence, without any design to defraud on the part of the planter the bale may present a mixed appearance, although it is really the same cotton, but taken from different parts of the lint-room. The mixed appearance of the cotton examined in Liverpool may, therefore, he accounted for without supposing that it was fraudulently packed.

But whether the cotton was falsely packed or mixed hy carelessness or accident, if it did not correspond with and was inferior to the samples by which it was sold, the purchaser is entitled to relief, provided it was so packed that its defects could not be discovered on simple inspection.

The contract under which this action is brought was made here, and is therefore to be governed by our laws. The sampling of the cotton by plaintiff’s brokers in Liverpool, and the want of correspondence between the cotton he sold there and his samples taken there, must be without influence on the present case, for the defendant was no party to that contract. The question is, was there error or fraud in the sale of 320 bales of cotton made in this city on the 24th day of May, 1854, which will enable the plaintiff to claim a diminution of the price ?

We have already seen that the sale was made of three hundred and twenty bales sold by sample, and the only representation made by defendant was that the lot contained about so many hales of middling cotton, the number not being recollected by the witness.

The plaintiff alleges in his petition that the representation was that the lot contained one hundred and seventy-eight bales of middling cotton. The District Judge has demonstrated by a calculation that this cannot he true because, at the price alleged to have been given for the different grades, the gross sum paid would have been $10,896 90 instead of $10,390 84, the amount actually paid, there having been 143,322 pounds sold.

He further shows, that at the prices alleged by the plaintiff, in his petition, to have been given, as well as the classification there stated and actually made by the plaintiff’s broker, either of the following combinations will produce (within a fraction) the gross sum paid by plaintiff, viz: 128 bales middling, 90 bales good ordinary and 102 ordinary, or 65 bales middling, 52 bales ordinary and 203 good ordinary.

As there is no proof on the subject, the defendant is at liberty to assume any combination which will sustain the contract, and if it appear reasonable, the court ought to adopt it. If the plaintiff would recover under a contract not proved with certainty, he should show that his contract has been violated under any reasonable construction which can be placed upon it as proved.

It is next to he considered whether there is sufficient proof in the record to enable the plaintiff to recover aside from the representations of the plaintiff? The plaintiff’s main witness, as we have seen, swears that there were four qualities of cotton sold by the defendant to plaintiff as middling, low middling, good ordinary and ordinary, but his actual classification made but three. How many bales there were of each kind is a matter of pure conjecture. Now it is shown that the lowest grade contained in the fifty-three bales complained of was, with a trifling exception, ordinary cotton, and corresponded with the lowest grade sold by defendant to plaintiff.

These fifty-three bales were not compared- with the samples taken in New Orleans, and there is nothing to show with legal certainty that they may not have been classed as ordinary cotton. If so, the plaintiff has no reason to complain, for he has not been injured if a part or the principal portion of the cotton was of a better quality than its sample.

Courts sit to redress real and not immaginary injuries, and any custom, therefore, which would authorize the buyer, after delivery and payment of the price, to throw back the cotton upon the hands of the vendor, and rescind the sale because cotton of a finer quality than the sample had been mixed in the bale in packing would be an unreasonable custom, and could not be enforced in a court of justice. The proof, therefore, which the plaintiff has adduced to show that fifty-three bales of this cotton was mixed is insufficient to enable him to recover. He should have rendered it legally certain that it was inferior to the samples by which it was sold to him.

Judgment affirmed.


author: Spoffoed, J.

text:
    William Barry v. William Kimball et als.
    The presumption created by the Act of 1840 that slaves found on ships, steamboats,- or other vessels, without the consent in writing of the owner, were received on board with the intention of depriving their masters of them, is liable to be destroyed by the testimony of at least two witnesses, not employed on board, and corroborating circumstances. '
    APPEAL from the Sixth District Court of New Orleans, Cotton,. J.

      A. P. Field and J. Henderson, jr., for plaintiff.

      J. Van Maitre, for defendants and appellants.
   Spoffoed, J.

This case was formerly before the court (see 10 An. 787) and was remanded for a new trial.

The defendants have again appealed from a judgment against them, for the value of the plaintiff’s slave, lost by being drowned after falling from their boat into the Mississippi river.

No negligence in the matter of the drowning is attributed to the defendants. The plaintiff relies entirely upon the rigorous provisions of the Act of 1840, (page 89,) concerning slaves found on ships, steamboats, or other vessels, without the consent in writing of the owner.

The presumption created by that statute that slaves so found were received on board with the intention of depriving their masters of them, is liable to be destroyed “on the testimony of at least two witnesses, not employed on board of said vessel, and on corroborating circumstances.”

We have in this case the testimony of two competent witnesses, and corroborating circumstances, establishing to our satisfaction facts which are utterly irreconcilable with the hypothesis that the defendants carried away the plaintiff’s slave on their boat without his master’s consent, and with intent to deprive the owner of him.

■ It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment for the defendants, with costs in both courts.


author: Buchanan, J.

text:
    M. S. Hedrick v. Thomas and Charlotte Bannister.
    Same case, 10th Annual, pages 208 and 792.
    The circumstance of plaintiff having suffered more than four years to elapse from the maturity of the due-bill held by him before he put it in suit, combined with the fact of a settlement made in the mean time between the parties, which purported to be in full of all demands, is sufficient to throw upon the plaintiff the onus of proving that the consideration of the due-bill was something distinct from the credit allowed him in the settlement in question.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Collins & Wooldridge, for plaintiff and appellant.

      Dwrant & Hornor, for defendants.
   Buchanan, J.

The plaintiff has suffered two nonsuits upon the same cause of action stated in his petition in this case. See the facts detailed in the opinions of this court, reported in 10 An. 208 and 792.

The circumstance of plaintiff having suffered more than four years to elapse from the maturity of Mrs. Bannister's due-hill held by him before he put it in suit, combined with the fact of a settlement made in the mean time between plaintiff and Mrs. Bannistw, which purported to be in full of all demands, appeared to us sufficient to throw upon plaintiff the onus of proving that the consideration of the due-bill was something distinct from the credit allowed him in the settlement in question. That settlement is in the form of an account current, with a receipt of plaintiff at bottom for the balance therein shown to be due him “in full.”

The only evidence offered by plaintiff in the present suit, to make out an existing indebtedness on the part of defendants, notwithstanding his receipt in full, is the testimony of two witnesses, named Beachbard and Mrs. Warner, of acknowledgments made in their presence by Mrs. Bannister, after the decision of the case reported in 10 An. 792, to the effect that she had resisted Hedrick's claim in that suit “out of revenge;” that she would have paid Hedrick the thousand dollars which she borrowed of him “had he behaved himself.”

We agree with the District Judge in considering the testimony of these two witnesses unreliable, even were they not contradicted, as one of them is, by another witness.

In the cross-examination of Beachbard and of Mrs. Warner, it appeal’s that they were strangers to Mrs. Bcmnister, and were never in her store but twice. These visits having reference to the purchase of a lady’s bonnet, were, according to Beaahbard, in January, 1856, and according toi¥i’& Warner, in January or February, 1856.

The decision of this court in the former suit was rendered in December, 1855, and the present suit was instituted January 24th, 1856. If we are to believe these witnesses, Mrs. Bannister was very busily engaged in the interval between the decision of one suit and the commencement of the other in making out a case for her adversary under the decision of this court by boasting to chance customers that she had got an unjust advantage of Hedriek; and those customers must have lost no time in conveying those indiscreet avowals to Hedrick, although one of them (Beachbard) was a stranger to Hedrick, and the other (Mrs. Warner) considers him, to use her own language, as “very mean.”

The judgment of the court below was a nonsuit. The appellees pray that this judgment be amended by awarding a final judgment in their favor. We think them entitled to that amendment of the judgment. Plaintiff has had abundant notice and opportunity to show that the loan, which was the consideration of the due-bill sued on, was not the same as that which figures to his credit in the account current and settlement made eight months after the maturity of that due-bill. The difference of fifty dollars in the amount of the due-bill and of the credit in the account current (the latter being $1050 and the former $1000) would be but the interest, at seven and one-half per cent, of the amount of the due-bill from its maturity until the settlement.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, and that there be judgment for defendants, with costs in both courts.


author: Vookiiies, J.

text:
    John M. Bell, Sheriff, v. Thomas Keefe et al.
    The Sheriff may sue upon and enforce the payment of a bond given by the defendants for property seized and sold by him in course of judicial proceedings, otherwise in cases of protracted litigation the rights of parties might be impaired or lost by insolvency or prescription.
    The Articles 708, 716, 717 and 718 of the Code of Practice apply to cases where the rights of parties are fixed and determined.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      O. A. Taylor and Benjamin, Bradford & Finney, for plaintiff.

      Mott & Fraser, for defendants and appellants.
   Vookiiies, J.

This is an action to enforce the payment of a bond given by the defendants as part payment of the price of the steamer “S. F. J. Trabue,” seized and sold by the Sheriff in the course of judicial proceedings in the suit of R. W. Adams against the owners of said boat.

The defence rests solely on the ground that the plaintiff has no authority to bring the action, and has no interest in the subject matter in dispute.

“The depositary is bound to use the same interest in preserving the deposit that he uses in preserving his own property.” O. O. 2908.

In the case of Parish v. Hozey, Sheriff, 17 L. R. 580, the defendant was held liable for the amount of a bill of exchange, on the ground that he had neglected to have it protested whilst in his hands as judicial depositary, whereby the endorser was discharged. The object of the sequestration was not, as observed by the court, the preservation of a mere worthless piece of paper. Had he taken the necessary steps to collect it, and brought the amount into court, it would have been in accordance with the obligations which the law imposed upon him, in other words, the same diligence, it is to be presumed, he would have used in the preservation of his own property.

In the case at bar, as the legal agent of the parties litigant, for whose benefit, we assume, the bond was taken in that suit, we are unable to discover any good reason why the plaintiff should not maintain the action. Were it otherwise, in cases where the litigation was procrastinated, the rights of parties might be seriously impaired, and even lost, by insolvency or prescription.

The speedy collection of the bond is certainly the safest or surest means of preserving the rights of the parties. 17 L. R. 24; see Bell, Sheriff, v. Keefe & Maillot, recently decided. The Articles of the Code of Practice (703, 710, 717, 718,) to which we have been referred, we do not think apply to the present case, but to cases where the respective rights of parties are fixed and determined.

Judgment affirmed.


author: Voorhies, J.

text:
    H. H. & S. F. Slatter v. C. Tiernan et al.—Thomas Penney, Garnishee.
    Judgment was rendered upon a rule against a gernishee, who was ordered to deliver the assets in his possession to the Sheriff, within a delay fixed, to satisfy plaintiff’s judgment against defendant, otherwise to be held liable therefor Ifeld: That after his appearance and joinder of issue on the rule the garnishee was bound without further notice to comply with the order, or assign sufficient reasons for hisnon-conpliance.
    The property and effects of the defendant are considered as levied upon by the Sheriff from the date of the service of the interrogatories upon the garnishee.
    In tendering a compliance with the order, the garnishee would have the right to require a copy of the order, otherwise when he refuses to comply with the order.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      J. J. Henderson, for plaintiffs.

      Benjamin, Bradford & Finney, for garnishee and appellant.
   Voorhies, J.

The commercial firm of Tiernan, Cuddy & Co. was dissolved by a decree of the late First District Court of New Orleans, on the 18th of April, 1839, and Cha/rles Tiernan, one of the partners, was appointed liquidator of its concerns.

On the 27th of May, 1841, the plaintiffs, H. H. & S. F. Slatter, obtained a judgment against Charles Tiernan, individually, and as surviving partner of the late firm of Tiernan, Cuddy & Co., for the sum of §13,150, with interest, cost of protest, and costs of suit. On a writ offieri facias issued on this judgment on the 27th of March, 1854, the plaintiffs engrafted under the Act of 1839, proceedings in garnishment against Thomas Penney. The District Court considered Penny liable, and accordingly gave judgment against him in favor of the plaintiffs. On appeal taken by Penney, the judgment thus rendered against him was reversed by our predecessors, and the case remanded for further proceeding. See 6 An. 567.

On the remanding of the case, Penney filed a supplemental answer, to which he annexed the deed of trust together with a schedule of the assets mentioned in the same, and his account with Tiernan, Cuddy & Co. On a rule taken by the plaintiffs, the supplemental answer was ordered to be stricken from the record, except the deed of trust and account. A rule was then taken by the plaintiffs upon Penney to make him liable, on the ground that his answers to the interrogatories propounded to him were evasive and insufficient. On the trial of this rule, the judge a quo considered it essential, under the decision of our predecessors, that Penney should have been put in default by some other proceeding, and thereupon discharged the rule; leaving to the plaintiffs the right to proceed in any other manner they might think proper. On the 18th of May, 1852, the plaintiffs tendered and filed a traverse to Penney's answers to the interrogatories propounded to him, and also took a rule upon him to show cause why he should not deliver to the Sheriff within thirty days the assets in his possession, as evidenced by the deed of trust and account annexed to his answers. Penney pleaded a general denial to the traverse, and prayed for a trial by jury. As no further steps appear to have been taken on this issue, we think it may be fairly inferred from the subsequent proceedings in the cause, that it was waived by the parties. In relation to the rule, John M. Grymes, appointed curator ad hoe to represent Penney, filed an exception to it, on the ground that the matters and things therein set forth could not be enquired into and decided in this state of the proceedings. An answer was also filed by him, in which he denied that Penney had ever taken possession of any of the documents, titles, or evidences of debts set forth in the rule, or that he was in any manner liable to the plaintiffs. On the trial of the rule, the only evidence offered by Penney, was the record of a suit of F. Beaumont v. Charles Tiernan, et al, in the Chancery Court of Mississippi. As nothing shows that Penney ever insisted upon the decision of the exception or a trial by jury in the court below, we are bound to presume that he must have waived both. Under these circumstances, .the rule was made absolute, and Penney, the garnishee, ordered to deliver to the Sheriff, within ninety days, the assets thus held by him for the purpose of satisfying the plaintiffs’ judgment against the defendant; otherwise, to be held liable therefor. Penney having failed and neglected to comply with this order, a final judgment was accordingly rendered against him in favor of the plaintiffs. He has appealed from both these judgments.

In this court, Penney seeks the reversal of the judgments thus rendered against him on various grounds, among others, that the interlocutory judgment was never legally served upon him, nor was the Sheriff authorized by any legal warrant or process either to require or to receive from him said assets, as the writ of fieri facias issued at the time of the garnishment had been returned.

After his appearance and joinder of issue on the rule, we think Penney was bound, without any further notice, either to comply with the order or to assign sufficient reason for his non-compliance. The return on the writ of fieri facias, the basis of the garnishment, shows that all the assets of the defendant in Penney's possession was seized by the Sheriff, and notice thereof given to all the parties concerned. This was all that could be effected in the execution of the writ during the pendency of the controversy between the plaintiffs and Penney, the garnishee. We do not think the garnishee could question the authority of the Sheriff under the interlocutory judgment. Hence it was immaterial, as to him, whether the writ had been returned or not. But we do not think that such return could have the effect of prejudicing the plaintiffs’ rights. Under the Act of 1839, the property and effects of the defendant are deemed as levied upon by the Sheriff from the date of the service of the interrogatories on the garnishee. Such constructive seizure, therefore, exists in the present case. But it is insisted, that Penney was not in default, inasmuch as it is not shown that a copy of the order was in the hands of the Sheriff. It may be true, in tendering a compliance, the garnishee had a right to require such copy, but as such tender was not made, we do not think he has any reason to complain. It is also objected, that the garnishee in his answer distinctly denied that he had in his possession any of the assets embraced in the schedule, with the exception of certain claims or debts due Tiernan, Guddy & Go., which were in the hands of lawyers in the whole south west, and in suit in many different courts. A careful examination of the answers of the garnishee, in connection with the deed of trust, schedule and account, has led us to the conclusion that he had at the time of the garnishment in his possession sufficient funds, property and effects belonging to the late firm of Tiernan, Guddy & Go., to satisfy the plaintiffs’ claim. But the right to apply these assets to the payment of the plaintiffs’ judgment against Glia/rles Tiernan is denied, on the ground that the latter had no authority to stand in judgment for the succession of his deceased partners. This may be conceded, but we do not think the garnishee can, under the circumstances, avail himself of it as a defence or shield for his refusal to comply with the order of the court below. Whether those assets may be legally sold under, or applied to the payment of the plaintiffs’ judgment or not, is a question which we think the garnishee cannot be permitted to raise in this case. It is perfectly clear, under the decree of the late First District Court of New Orleans, Tim'nan, as liquidator, was invested with authority to apply the funds of the partnership to the payment of its debts. It is not denied, that the plaintiffs’ debt was a debt due by the partnership, and, consequently, entitled to be paid out of its assets. In relation to the deed of trust, it is clear that it cannot affect the rights of creditors in this State. 13 L. 554 ; 3 An. 394; 17 L. 590.

Judgment affirmed.

Lea, J., dissenting.


text:
    Mackey & Morris v. C. DeBlanc—Egaña et al., Warrantors.
    Persons owning or chartering a steamboat, are bound by the acts of the Captain employed by them. in matters appertaining to the regular business of the boat.
    So also a planter for engagements entered into for him by his overseer acting strictly in the line of his employment.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Michel & Gilmore, for plaintiff. G. Dxifour, for defendant and appellant.

      G. Legw'deur and St. Paul & Boxmy, for the warrantors.
   Buchanan, J.

Plaintiffs sold Juan Y. De Egaña, a merchant residing in New Orleans, a flatboat load of coal, deliverable at the Fanny plantation, belonging to Egaña, on the left bank of the river, thirty or forty miles below town. The plaintiffs sent the flatboat down the river in charge of an agent, who being driven to the right bank, when opposite the Fanny plantation, by a strong north east wind, tied up the boat to the bank in a position of safety, and the next morning crossed the river and informed the overseer and manager of the plantation of the arrival of the coal, and of the reason which detained it at the opposite side of the river, namely, the violence of the wind, which, by this time, had increased to a gale. The overseer expressed great anxiety to have the coal, as they were out of fuel for the making of the crop of sugar, it being the 24th of December, and the grinding of the cane not completed. Contrary to the opinion of the plaintiffs’ agent, who thought it advisable to wait until the wind should subside, before attempting to bring the flatboat across the river, the overseer engaged the steamboat Red River, (then chartered by defendant and running for his account,) to tow the flatboat and her cargo of coal to the Fanny plantation, across the river, in the teeth of the gale of wind then blowing.

On being applied to for this purpose by Norman, the overseer of Egaña, the captain of the steamboat at first positively refused, on account of the great risk of sinking the flatboat; but was finally pursuaded to undertake the job, by a formal guaranty given him by the overseer in the name of Egaña, the owner of the plantation, to be responsible for the value of the coal boat in case of accident, the overseer adding his individual guaranty to the same effect. The result was what had been anticipated by many persons who have given their evidence, and feared by the captain of the steamboat himself. Notwithstanding every precaution used in approaching the flatboat to take her in tow, the contact between the steamboat and the flatboat, in the violent agitation of the elements at the time, was fatal to the latter, which was stove and sunk in a very few minutes, in deep water, being a total loss. Plaintiffs claim of defendant in this action the value of the coal, for what is termed in the petition, “the gross imprudence and carelessness of the commander of the steamboat in attempting to take the flatboat and tow her across the river.” The answer was a general denial.

By an amended answer, the defendant specially pleads:

1. That he is not personally liable for the acts and doing of OaptoÁn Louallier, the commander of the steamboat Red River, in the premises.

2d. That if liable for the loss of the flatboat and coal in question, he is entitled to call in warranty Ju,an Y. Egaña and Thomas 3. Norman, upon the special warranty given by the latter in his own name and as agent of the former, to Gaptain Louallier, against all risk and responsibility by reason of the attempt to tow the flatboat.

Defendant accordingly calls said Egaña and Norman in warranty of this demand, and prays for such judgment over against them, as may be rendered against himself in favor of plaintiffs.

Egaña pleads the general issue; admits that Norman was his overseer; but denies that he had authority to bind him in the manner alleged in the call in warranty. Lastly, he avers that the steamboat Red River was engaged by plaintiffs’ agent to tow the flatboat to the landing of the Fanny plantation, where the coal was to be delivered, and consequently the loss should be borne by plaintiffs.

Norma/iis representative (ho having died in the mean time) pleads an exception, which it is unnecessary to notice, and the general issue.

The facts of the case we assume to bo as we have stated them, having duly considered the conflict which certainly exists in the depositions of some of the witnesses, with the view thus taken.

That conflict principally exists in relation to the very material fact of the agency of Bwrfield, in the employment of the steamboat Red River to tow the flatboat. Three witnesses, Tollman, Schexnaidm' and Duncan, have been examined for Norman, in relation to the conversation which took place between Bwrfield and Norman when the former came to the Fanny plantation and gave notice of the arrival of the coal. The testimony of these witnesses is irreconcilable with that of Buofield in some respects. But Duncan, the only one of the three who was cross-examined, corroborates, on his cross-examination, the statement of Burfield, that Norman had given to Bmfield a paper or note for Captain Louallier, requesting him to take the flatboat in tow. And what corroborates still further the testimony of Burfield is the fact, stated by no less than six witnesses, to wit, the captain, mate, two clerks, and two passengers of the steamboat Red River, that Norman came on board of the boat and engaged her to tow the flatboat, by solicitations urged against the objections of the captain, and finally successful, through the proffer of a guaranty against responsibility.

The circumstances of the hiring of the steamboat are abundantly proved by those witnesses, and the tacit participation or assent which would be implied from the conveyance by Burfield of Norman's letter to Captain Louallier, is wanting; for it is proved that letter was never delivered.

Two questions of law arise in the case in relation to the capacity of Louallier to bind defendant, and of Norman to bind Egaña, in relation to the matters involved in this litigation.

We solve both those questions in the affirmative.

It is admitted by the pleadings, that the steamboat Red River was chartered by the defendant for a coasting trade in the parish of Plaquemines. It is proved that she was running under this charter-party for account of defendant, and that the captain of the steamboat was employed (that is to say paid) by him at the time of this occurrence. Two witnesses, captains of boats in the same trade, show that the towing from one side of the river to the other, or down the river, of vessels conveying goods, &c., for planters, was a part of the regular business of the Red River as a coasting packet in the parish of Plaque-mines.

The other question of law, namely, the capacity of Norman to bind Egaña in the premises, is equally clear. The pleadings admit that Norman was the overseer of Egaña's plantation. It is in proof that Norman had the entire control and management of this plantation. Egxña, the owner, was never seen there by witnesses who constantly visited it for years on business. On other occasions similar contracts to this had been made by Norman for this plantation. Besides, it is plain from the evidence, that Norman was acting strictly in the line of his employment, in making a contract for the transportation of this coal from the other side of the river. It is proved that the coal was urgently needed for the use of the plantation. It is not for us to say what injury Norman may have anticipated to the crop confided to his care, from a delay of a fe^ days in the delivery of this fuel. This consideration might, in his eyes, acting with an intelligent view of the interests of his employer, have been well worth the risk of the value of the flatboat load of coal. Norman was Egaña's agent for receiving and delivering of the coal. He was without authority to receive it any other place than at the plantation ; and in fact, his witnesses swear that he refused to accept delivery of it elsewhere. But it is not the less certain, that he engaged the steamboat to facilitate its delivery at the plantation, and that, as the only means of engaging the steamboat, he pledged the guarantee of his employer Egaña against any reclamation on the part of the owners of the coal, in the case of its loss. Under the circumstances we consider Eg ana bound by this guarantee. It is admitted, as well as proved, that Norman was the manager of Fycma’splantation. That plantation was cultivated in sugar cane and Norman was then engaged in taking off the crop. The supply of fuel indispensable for that purpose was an essential part of his administration. The Civil Code, Article 2969, says: “Powers granted to persons who exercise a profession, or fulfil certain functions of doing any business in the ordinary course of affairs to which they are devoted, need not he specified, hut are inferred from the functions which these mandataries exercise.”

It does not appear that plaintiffs were hound to make delivery of the coal at any specified time. The coal boat was moored in perfect safety, when plaintiffs’ agent, Burjield, reported himself to Norman ; and Bv/tjield was disposed to have kept his boat so moored, until the wind should have lulled, before attempting to make the delivery, which he could then have done without risk. As we have seen, the agent of plaintiffs in no manner authorized and sanctioned the attempt to tow the flatboat across the river. Indeed that fact, which is disputed in argument, clearly results from the demand of a guarantee by Captain Louallier from Norman. Why this guarantee, if the agent of the owners of the flatboat authorized her being taken in tow by the steamboat ?

We are of opinion that plaintiffs have made out a case against defendant, as temporary owner of the steamboat Red River. The attempt to tow the flatboat was an act confessedly of groat imprudence and unauthorized by plaintiffs. O. O. 2295.

We are likewise of opinion, that a contract of guarantee is proved against Mr. Egana,, which obliges him to indemnify defendant for the consequences of the imprudent act which was the cause of plaintiffs’ action.

It is, therefore, adjudged and decreed, that the judgment of the District Oonrt, in favor of plaintiffs against defendant, be affirmed; that the judgment dismissing the call in warranty to Juan Y. De Egana, be reversed; that defendant, Oliarles DeBlane have judgment against said Juan Y. De Egana for the sum of $2,579, and costs of the District Court; aud that the costs of appeal he paid, one-half by defendant, and one-half by the warrantor, Egana.

Voorhies, J., dissenting. The plaintiffs seek to make the defendant liable for the loss of a flatboat load of coal, which was sunk by the steamboat Red River on the 24th of December, 1853. It is alleged in their petition, that this coal was sent down by them to he delivered, apart at the Fanny plantation and the remainder at other plantations ; that on arriving in the neighborhood of the Fanny plantation, the flatboat was compelled, by a strong wind then prevailing, to stop on the opposite shore; that the steamer Red River came towards the flatboat on the 24th of December, 1853, whilst the same wind continued to prevail, with the alleged intention of towing the same across the river to the Fanny plantation; and in doing so, came in collision with and instantly sunk the flatboat; that under the circumstances it was dangerous and hazardous for the steamer to approach the flatboat, and that, in attempting to take and tow her across the river, the captain acted with gross imprudence and carelessness, and was warned of the danger of approaching the flatboat, as he would inevitably sink her. *

The defendant, after pleading the general issue, avers, among other things, that when the steamer Red River stopped to land some freight at the Fanny plantation, on the 24th of December, 1853, Thomas N. Norman, the overseer and special agent of Juan Y. De Egana, in the exercise of his agency, told the captain that there was a coal boat on the other side of the river which he urgently required, as it contained coal for the use of the plantation, representing that he would hold the steamer harmless in case of any accident; that this request was the result of an understanding between Norman and the plaintiffs’ agent, who had charge of the flatboat. He also avers, that if he should be considered liable under the circumstances, that then Egana and Norman are bound to him in warranty, and therefore prays that they be accordingly cited.

The testimony of Burfield, the plaintiffs’ agent, shows that he was compelled by the force of the wind to land the flatboat opposite to the Fanny plantation on the night of the 23d of December; that in the morning at sun-rise he crossed over to the Fanny plantation, where he remained about an hour. The wind was then blowing lightly, but greatly increased until 1 o’clock v. h. Mr. Norman told him that he would get the flatboat towed across, and directed him to go to Mr. Duncan, the carpenter, and get an order from him upon the steamboat Red River, authorizing him to toio the flatboat over, which he did; and with this order in his pocket, he went back to his flatboat, where he remained until she was sunk. They also gave him a flag to hail the steamer, but did, not use it because the wind was too high.

Theodore Dietz testifies, that at the time the steamboat was approaching, he saw the men on the flatboat preparing for receiving the steamer; they were hauling ropes.

Taking the testimony of these witnesses in connection with all the other circumstances, it would be unreasonable to come to any other conclusion than that suggested by the defendant’s answer, that the request of Norman was the result of an understanding between him and the plaintiffs’ agent. If such had not been the case, why did Bmfield take the order and flag from the plantation ? On approaching the flatboat, why the preparation for receiving the steamer by hauling ropes, &c. ? There is not a title of evidence which shows that Burfield ever made any resistance or objection to the act. On the contrary, it is evident that he stood on the flatboat awaiting the steamer to tow her across the river to the Fanny plantation, according to his understanding with Norman. Hence, as the act was done with the permission of the plaintiffs’ agent, it is clear that the defendant cannot be considered as a trespasser.

But it is insisted by the plaintiffs that the defendant is liable, because the loss was occasioned by the gross imprudence and carelessness of the captain.

The evidence shows conclusively, that the captain declined at first to accept the proposition of Norman on account of the peril, but afterwards assented on the grounds stated in the defendant’s answer. It is clear, according to the maxim u volenti non fit injm'ia,” that the defendant cannot be held liable to the plaintiffs for the loss of their boat load of coal.

In regard to the question as to the liability of Egana to the plaintiffs, it is clearly a matter which cannot be considered under the pleadings. A judgment in favor of the defendant in the present suit, must necessarily operate as a discharge to him on the claim in warranty.

I am, therefore, of opinion that the judgment of the court below ought to be reversed and given in favor of the defendant.


text:
    State v. John Rohfrischt and Mrs. John Rohfrischt, alias Catharine Dobler.
    Where testimony had been given without objection, as shown by the bill of exceptions, and its exclusion had, therefore, become impossible, the Jury being already in possession of i\r-Ueld: That a motion to exclude such testimony was unmeaning and was properly overruled.
    In providing against the crime of arson, the statute makes no distinction in reference to the ownership of the house, whether belonging to the accused or to a third person.
    The Judge a quo did not err in admitting evidence that another and different firing of the premises had taken place three or four weeks previously to the firing charged in the indictment, and under circumstances tending to throw suspicion on the defendants of the same crime they are now charged with, and of which testimony had already been offered to the Jury.
    It is competent for the State to prove by a witness that the defendant had offered such witness a bribe to swear falsely that certain other witnesses, who had testified on the part of the State, had threatened to burn defendants’ house the day before the fire testified to by them. It is not a sufficient objection to such evidence, that the defendant had not introduced any testimony. The evidence objected to did not purport to rebut or discredit any evidence which it was anticipated the accused were about to offer.
    A verdict in a capital case of “ guilty without capital punishment,” is justified by the 25th section of the Act of 1855, relative to criminal proceedings.
    The endorsement of the name of the offence on the indictment, is no part of the finding of the Grand Jury.
    The ruling of the late Court of Errors and Appeals, that the term felony is unknown to the laws of Louisiana, was an unadvised dictum, and is not concurred in by this court.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      E. W. Mo'ise, Attorney General, for the State.

      E. Abell and Q. Schmidt, for defendants and appellants.
   Buchanan, J.

The defendants were indicted and convicted under the 46th section of the Act of 1855, (Session Acts, p. 137,) Mrs. Rohfrischt of “feloniously, wilfully and maliciously ” setting fire to a mansion-house, and John Rohfrischt of counselling, procuring and commanding the said Mrs. Rohfrischt “ the said felony in manner and form aforesaid to commit.”

The case comes up upon six bills of exceptions and a motion in arrest of judgment.

The first bill of exceptions states that a witness testified he was clerk of an insurance company in which John Rohfrischt, the accused, insured the coffeehouse No. 8 Poydras street, called the Live-Oak Coffee-house, and that said contract was in writing. Whereupon defendants, through their counsel, moved the court to exclude this testimony from the Jury then and there sworn and empannelled to try the cause; which motion was overruled.

This motion was unmeaning. The bill shows that the testimony had already been given without objection, and its exclusion had therefore become impossible, the Jury being already in possession of it.

The second exception is to the refusal of the Judge to charge the Jury “if they believed, from the testimony, the house burnt was the house of the defendant John Rohfrischt, or that of his wife, the accused could not be convicted of the offence charged.”

The Judge properly refused to give this charge. The statute under which the defendants were prosecuted makes no such distinction as is here presented.

The third bill of exceptions, as it appears in the transcript, is unintelligible.

The fourth bill is to the admission of evidence that another and different firing of the premises of defendants had taken place three or four weeks previously to the firing charged in the indictment, and under “ circumstances tending to throw suspicion on defendants of having committed the same crime for which they were here and at this time indicted and charged, and of which testimony had already been offered to the Jury.” The ruling of the court was correct, upon the authority of State v. Patza, 3d An. 512.

The fifth bill of exceptions is to the admission of a witness to prove that he, the witness, had been offered by the defendant John Bohfriseht a bribe to falsely swear that certain other witnesses of the State, who had testified on the trial, had threatened to burn the house of defendant the day before the fire testified to by them; to which the defendants objected, “because they had as yet introduced no testimony.”

No authority has been quoted in support of this objection, and no good reason is perceived why the State might not prove this fact as a part of its case, before the accused offered their testimony. The evidence objected to did not purport to discredit or rebut any evidence which it was anticipated the accused were about to offer.

The sixth bill of exceptions is imperfect and unintelligible in the transcript.

Defendants moved to arrest the judgment on the ground that the verdict “ guilty without capital punishment,” is equivalent to a verdict of not guilty of the offence charged in the indictment, because the statute in such cas.e made and provided, declares that any person who shall be convicted of such offence shall suffer death.

The law is as stated. But the verdict is justified by the 25th section of the Act of 1855, relative to criminal proceedings (page 154 Session Acts).

\rarious other objections have been made in argument by the counsel of the accused to the regularity and legality of the proceedings in the nature of assignments of error, which we next proceed to notice.

The indictment is endorsed “Arson”' — “A true bill,” and it is said that it results from such endorsement that the common law definition of “ arson ” must govern this case. The endorsement of the name of the offence of which the prisoner is charged on the back of the indictment, is no part of the finding of the Grand Jury. 1 M. R. 221 ; 2 An. 924; 3 An. 154.

The averments of the indictment “before the committing of the said felony," and “ did counsel, &c., the said felony " are objected to; it being argued for defendants, on the authority of Chariot's case, in 8th Robinson, that the term felony is unknown to the laws of Louisiana. Although the late Court of Errors and Appeals did hold that language in the case quoted, yet it was an unadvised dietum. The term felony occurs in many of our statutes, antecedent to that opinion. It is only necessary to cite the territorial statute of crimes and misdemeanors of 1805 and the supplementary statute of 1818. (Bullard & Ourry, 245, 260, 261.) See also the Acts of 1855, p. 172, section 2, which prescribes the use of the word “ feloniously ” in an indictment for the offence therein spoken of.

It is also objected in argument, that it appears from the face of the indictment, that the defendant, Mrs. John Bohfriseht, alias Catha/rine Ddbler, committed the offence by order of her husband. AYithout going any further into the argument on this head, it suffices to say that the indictment does not charge or allege that the two defendants are husband and wife. The designation of the female defendant as Mrs. John Rohfriseht does not amount to such an averment, even if it stood by itself. But it is coupled with an alias.

Judgment affirmed, with costs.


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    Succession of Thorame—Opposition of Mylne Asylum, appellant.
    In interpreting a will, the intention of the testator must be ascertained as far as practicable, and regard will be had to all the facts and circumstances under which the will was made.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      J. & E. Bermudez, for Mylne Asylum, appellant.

      3. Griffon, for the executors.

      J. & A. Pitot and A. Roberts, for St. Mary’s Catholic Orphan Asylum.
   Buchanan, J.

Jean Pierre Thorcmie, by his will made in Paris, and duly admitted to probate and execution in New Orleans, devised and bequeathed one-third of the net total of his estate to the asylum for male orphans established in the Third District of the city of New Orleans.

There are two charitable corporations answering the description of this clause of the will of Thorame, both being located or established within the corporate limits of the Third District of New Orleans. Each of these institutions claims, to the exclusion of the other, to have the benefit of this legacy.

The corporate appellation of one of these claimants is “ The Mylne Asylum for Destitute Orphan Boys.”

That of the other is “ The St. Mary’s Catholic Orphan Boys Asylum.”

In interpreting this will, our first duty is to ascertain, as far as practicable, the intention of the testator. C. O. 1705.

And in thfe outset of this investigation we are satisfied that the intention of Thora/me was to make one orphan asylum, and no more, the object of his bounty; the singular number of the substantives “hospice” and “asyle” being the grammatical form of an olographic will, whose every sentence bespeaks its author to have been a man of education and of high intelligence. The clause of the will which is the subject of consideration, is, indeed, a model of diction as well as of sentiment; a noble thought finely expressed. It reads as follows:

“ Je donne et légue le tiers du total net de ma succession á l’hospice ou asyle des orphelins dont l’institution est établie dans le Troisieme District de la Nouvelle-Orléans, en témoignage de ma reconnaissance pour la terre hospitaliére qui, aprés l’année 1815, dont les événements politiques d’Europe avaient brisé une carriére pleine d’espérances, est venue m’offrir les moyens d’en créer une nouvelle et d’acquérir honorablement les biens que je laisse aprés moi.”

It is apparent that the testator had a particular asylum in view. The District Judge concluded from the evidence that the contemplated object of the testator’s charity was the St. Mary’s Catholic Orphan Boys’ Asylum, and we think the balance of probabilities preponderates strongly in favor of that interpretation.

The testator was a resident of New Orleans from the year 1817 to the year 1835 or 1836. Having amassed a competency by the industrious exercise of an honorable profession, he left this city in 1835 or 1836, and spent the remainder of his days in. Paris, where he died on the 7th June, 1856. But, although Mr. Thorame was thus absent in person, yet his relations with this country and with the city of New Orleans were intimate and continuous to the end of his existence.

He describes himself in' his will as a naturalized citizen of the United States, and makes particular mention of the day of his naturalization and of the court in which he was naturalized. His fortune remained, to the day of his death, invested in real estate, bank stock and mortgages in the city of New Orleans, administered by agents with whom we must presume he was in constant correspondence, and besides whom we find mentioned in the will and in the testimony on trial the names of many respectable citizens of New Orleans, with whom the testator was on terms of intimacy.

It is thus perceived that Mr. Thorame had abundant opportunities of being well informed in relation to the charitable institutions existing in the Third District of the city of New Orleans at the time of making his will, which was the 15th October, 1854, nearly two years previous to his death.

We are next to enquire to which of the two institutions which claim to be the object of this charity, it is most likely, from the evidence, that Mr. Thorame's attention should have been directed, either by personal observation during his sojourn in New Orleans, or by his correspondents, after his departure ?

The Mylne Asylum for Destitute Orphan Boys certainly came into existence after Thorame's departure from Louisiana. It was founded by the last will of Alexander Mylne, whose succession was opened in October, 1888, and was incorporated by Act of the Legislature of February, 1839. This asylum is proved to have been first opened in June, 1839. It was discontinued a short time afterwards, and remained closed until the 15th August, 1854, when it was reopened, and from that time to the present, it has supported about thirty orphans at a time. This asylum was richly endowed by the will of its founder, and is now in the possession of property estimated at $24,000.

The St. Mary’s Catholic Male Orphan Asylum was incorporated by the Legislature of this State in March, 1886, under a different name, and may therefore have been in existence previous to Thorame's departure from Louisiana. It was founded by an association of charitable persons, has been in active operation from the date of its incorporation, without intermission, and has always depended solely upon contributions of its corporators and upon collections made for its benefit at religous ceremonies and elsewhere. It has also received assistance from the city, and is the institution to which the Mayor, as dispenser of the municipal charity, has been in the habit for many years of sending destitute male orphans for shelter and sustenance. With means thus .derived entirely from voluntary contributions, and under the superintendence of an aged and respectable citizen, Mr. Anthony Basch, who has for many years devoted himself to this work, this institution shelters and supports upwards of two hundred male orphans of all ages, from the earliest infancy to fourteen years.

Established at first on the Bayou St. John, within the Second District of this city, the St. Mary’s Catholic Boys’ Asylum was removed in April, 1840, to the Third District, where it has ever since remained.

With these faets before us, we cannot doubt that the St. Mary’s Asylum was that which was intended by the testator. In point of fact, the Mylne Asylum had no actual existence for the purposes of its foundation until within precisely two months of the period when Thorame penned his will on the other side of the Atlantic; and the insignificant scale of its operations, compared with those of its rival, at the end of the two years of its existence, (when the witnesses testified in this cause,) renders it more than improbable that it could have acquired a notoriety, at the end of the two months, which would have procured for it from Mr. Thorame the title of the asylum for male orphans established in the Third District.

Judgment affirmed, with costs.


author:
Spohfobd, J.
      Merrick, C. J.,

text:
    State v. Adam Scott and Theresa Smelser.
    Where> at request of prisoners' counsel, the Judge charged the jury that they were the judges of the law as well as of the facts, that this was the law of the case and of the State, as decided by the Supreme Court, but added, that in his opinion, it was “ bad law” — Held: That the accused was not prejudiced by the Judge’s expressing his personal opinion against the iaw.
    Xlis telling the jury that this was the law of the case "before them., was equivalent to telling them that his private opinion, in regard to the correctness or policy of the law, should not weigh with them, but they must take the law as expounded by the Supreme Court.
    But the charge as given, without qualification, conceded too much to the prisoner, and did not represent accurately the ruling heretofore made by this tribunal upon the point in question. The jury are not judges of the law and facts in the same sense. They are exclusively judges of the facts; but of the law only subordinate^. They may find a general verdict of guilty or not guilty, and on so doing must pass upon the law as well as the fact. But, while they are under no compulsion to take the instructions of the court as law, they are expected to apply the law as expounded by the court to the facts which they may find.
    The omission of the Judge to charge some matter which may occur to the counsel as favorable to the prisoner, but which the Judge was not asked to give in charge to the jury cannot be regarded as error.
    The Supreme court can only act in criminal cases upon matters which appear by bills of exceptions or assignments of error.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      E. W. Mo'ise, Attorney General, for the State.
    A. P. Field, R. Hunt and R. H. Browne, for the accused.
   Spohfobd, J.

The prisoner Scott, convicted of murder, and sentenced to the penitentiary for life, has appealed to this court.

His counsel asked the judge who precided at the trial to charge the jury, “ that they were judges of the law as well as of the facts,” when the Judge remarked, “I will charge you, gentlemen of the jury, that that is the law of this case, that it is the law of the State of Louisiana, as decided by the Supreme court; though, in my opinion, it is bad law.” To this a bill of exceptions was taken, and it is now contended that the verdict should be avoided on account of the remark of the Judge, that the law, as he understood it to have been decided by this court, was “bad law.”

Wo do not think so. Assuming, what is not strictly correct, that this court .has ever said that it would be right to tell a jury “ that they are judges of the law as well as of the fact in a criminal case,” without adding any explanation as to the relative provinces of the court and jury, we cannot perceive that the prisoner was prejudiced by the District Judge’s expression of his personal opinion that, this law was “ bad law,” for he at the same time told the jury that whether good or bad, it was the law of the case before them, which was as much as to tell them that his personal opinion of the correctness or policy of the law should not weigh with them, but they must take the law as expounded by this court.

But, we think the learned Judge misapprehended the opinion of this court, and, by the unqualified charge he gave, conceded more to the prisoner’s counsel than was necessary.

We have said that, “in criminal, as-in civil cases, the jury are judges of the law as well as of the facts ; but not in precisely the same sense.” They are the exclusive judges of the facts; they are, subordinatoly, judges of the law, because a general verdict of “ guilty” or “not guilty,” requires a decision upon both law and fact. But it would be absurd to require the Judge to instruct the jury in the law governing- the case, and then say they may pay no heed to it, if it suits their caprice to overrule it; it would be absurd to allow the prisoner to except to the charge of the Judge and ask this c'ourt to reverse a verdict of guilty merely because the Judge erred in his charge. If, under the theory of our law, a charge by the court was nothing more than an argument of counsel, to be heeded or not by the jury as it happened to strike their judgment. The jury should listen attentively and respectfully to the law, as expounded by the court, because they are expected to apply the law, as thus expounded, to the facts which they may find. They are not under a compulsion to take the instructions of the court as law; but they are expected to do so, and it must be an extraordinary case indeed where they would be justified in disregarding the instructions of the Judge, who sits indifferent between the State and the prisoner, the authorized expounder of the law. If the jury assume to interpret the law in opposition to the charge of the Judge, there is no remedy even if justice be outraged thereby; if they heed the instructions, and the instructions are right, justice is done; if they are wrong and prejudicial to the prisoner, he has his remedy by a bill of exceptions and an appeal. See State v. Ballerio, 11 An. 81; State v. Scott, 11 An. 429; Tresca v. Maddox, 11 An. 206; Bostwick v. Gasquet, 10 Rob. 81. We think some such explanation as this should be added when a court instructs the jury that they are judges of the law and the fact.

The prisoner excepted that the Judge in his charge (which comes up in writing), intimated his opinion that the accused was guilty of murder, and substantially urged a conviction. We are unable to gather these inferences from a careful perusal of the charge. The remarks are all of a general character, and are not objected to as being incorrect in any detail. If there were other remarks pertinent to the case and favorable to the prisoner which might have been made, the counsel of the prisoner had a right to suggest them to the court and ask the court to give them to the jury. The Attorney General is correct in asserting, that “the omission to charge some matter in the mind of tho prisoner’s counsel that might have been useful to tho prisoner, cannot be regarded as error, for the court can have no knowledge of the unexpressed views of counsel.”

We are without jurisdiction to reverse the action of the Judge upon the motion for a new trial, or to avoid the verdict, upon other grounds than those which appear by bills of exceptions or assiguments of error. No bill of exceptions was taken to the objectionable remark of the Judge, made before the trial was concluded, and we cannot notice it.

The judgment is, therefore, affirmed, with costs.

Merrick, C. J.,

dissenting. I am inclined to think the charge given was equivalent to an intimation to the jury that the decision of the Supreme Court was not law, in the opinion of the Judge of the lower court.

For the reason stated in my opinion in the Ballmo case, I think the jury ought to have been informed that they were judges of the law and the fact, without the qualification annexed by the Judge.