author: Idsi/ey, J.

text:
    No. 1229.
    A. J. Fry v. Dudley & Nelson.
    Where words in a written, instrument may convey two different meanings, the one in harmony with, and the other antagonistic to, the law, that construction should always be given to them which will harmonize with the law.
    The words “in currency ” in a bill of exchange means legal currency.
    Where a party received for collection drafts on a bank m New Orleans, payable in currency, he cannot receive payment in any other than legal currency. His receiving payment in Confederate treasury notes,current at the time, will not release him from liability, because they were not legal currency.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      John McKee, for plaintiff and appellee.

      Bradford, Lea <& Finney, for defendants and appellants.

      Brief for plaintiff and appellee.

    * * * The only question presented for the consideration of the Court in this case is: Is the defence set up, that Confederate currency was the consideration given for the obligation sued on sufficient?
    The defence is not sufficient, and cannot be maintained.
    The letter of plaintiff, addressed to the defendants, dated 19th January, 1862, in which the two drafts or checks for $1,000 and $500 were inclosed, contain no instructions, and is silent as to the kind of money in which the drafts were to he paid; and although offered in evidence by the defendants, it contains nothing which can, by any possibility, exonerate them from liability to pay the plaintiff in current funds of the United States. The obligation remains unpaid, except to the extent of $130 70, for which credit is given; and the sum of $1,362 10 is still due, and must be paid in current funds.
    The defendants allege that the sum of $130 70 was paid in Confederate currency, and was accepted by the plaintiff. There is no proof of that fact in the record, and rests solely on their allegation in the answer. If such were the fact the Court would not grant us any relief, nor do we seek relief from any part of the contract which has been executed, even if that part had been liquidated by a payment in Confederate currency, which is not shown to have been the case.
    The attempt made on the part of the defendants to show by the testimony of Mr. Ereret, that the two drafts in question were paid in Confederate currency, is not admissible on the question involved in the obligation sued on. The plaintiff has nothing to do with the kind of currency in which the bank paid the defendants.
    If the defendants took Confederate currency, they done so at their own risk and on their own responsibility, and their act cannot bind the plaintiff Besides their letter to the plaintiff, which is the obligation sued oh, acknowledging the receipt of the two drafts, and apprising him that the sum of $1,500 was placed to his credit, is silent as to the kind of icurrency in which the drafts were paid.
    It is a pure, simple and unconditional obligation, that they held the sum of $1,500 of plaintiff’s money, and subject to his draft. And when called on for the amount of their indebtedness they refused payment, eicept in the currency of the so-called Confederate States of America, issued by a government not known to the law, but formed in direct violation of law, which has never been recognized as a legal currency, and is worthless paper.
    The letter of the defendants, written to the plaintiff, was their voluntary act, and contains neither condition nor any restrictive stipulation, as to the kind of currency which they had received for the drafts and which they would hold subject to his order, and they cannot now be permitted to allege and prove anything which would tend to modify their written obligation. It is on its face unconditional, and they are bound. Therefore, the bill of exception taken to the admissibility of Mr. Ereret’s testimony was well taken. Even if admissible, it has no bearing on the question involved in this suit; and relates to matters which took place between the witness and the defendants; and the plaintiff, not having been a party to that transaction, and never, in the most distant manner, having ratified the act of the defendants, he is not bound. Williams’, administrator v. Boozeman, et al., 18 A. 532.
    The fact sought to be established by the testimony of Mr. Ereret is, that as the defendants received Confederate currency for the two drafts, that is a sufficient reason why the defendants should not pay their obligation in current funds. The law says, that “parol evidence is inadmissible to prove a modification of a written agreement, or to establish a subsequent parol agreement inconsistent with the written one.” Barthel v. Estibene, 5 A. 315.
    In the case of Garthmaiie, Wheeler <& Go. v. Wentz, et als. This was a suit brought to annul and set aside satisfaction of judgment, and the reinscription of a mortgage, on the ground that the attorney had no authority to receive payment in satisfaction of judgment in Confederate currency. The Court held, that “the mode of payment in treasury notes of the Confederate States of America was clearly proven, and the attorney had no right to receive such.papers in payment of his clients’ judgment without their consent.” 19 A. 196.
    In the case just referred to the payment was declared a nullity, and the judicial mortgage ordered to be reinscribed, as the attorney was without the special authorization of his clients to receive Confederate currency in satisfaction of the judgment.
    In this case, if the defendants took Confederate currency, without special instruction from the plaintiff as to the kind of currency in which the drafts were to be paid, which on their face did not specify that they were to be paid in Confederate currency, they assumed the responsibility in taking such, and are bound to the plaintiff for current funds of the United States.
    ; This Court has often held that it will not lend its aid to settle disputes relating to contracts reprobated by law. It will notice their illegality ex officio, and allow it without any plea at any stage of the pleadings. Parties cannot be heard who ask relief from a violation of law. The law leaves them where their conduct has placed them.” Schmidt v. Barker, 17 A. 261.
    The defendants, in their defence, seek to relieve themselves from liability on their obligation by showing that, because they received Confederate currency for the drafts, the plaintiff necessarily was a party, thereby confessing their receipt of and circulation of this currency.
    They cannot be heard in such a demand, and relieved from their illegal act, and the odium and loss imposed on the plaintiff, who is an utter stranger to any complicity in the receipt of Confederate funds.
    The obligation sued is on its face unconditional, and does not show that it had Confederate currency as a basis. McG-uigin v. Oehiglevich, 18 A. 96.
    In the case of Emerson v. Lee, 18 A. 135, a case in which the plaintiff tvas compelled by imprisonment to receive Confederate notes in payment jf a mortgage, and this action was brought to recover the amount of the nortgage. The Court held, “that in order to recover, it was essential ’or him not only to allege and prove that he retained and tendered the dentical notes received by him, but he has failed to make the necessary >roof, which it appears he might have done, as the payment was made o or in presence of his broker.”
    “ What a party receives and uses as money, whatever kind of paper it is, must be paid iu currency. Confederate notes are not monies, withii the meaning of the law.”
    “By receiving and using the amount of the drafts, they became th< debtors to plaintiff; they must pay in currency, unless they show, whicl they have not done, that plaintiff ratified their act.” Strauss v. Bloon & Co., 18 A. 48.
    In the case of Thomas v. Thompson & Barnes, decided on the 18tl November, 1867, and not yet published, it was held that the defendants having admitted the receipt of Confederate notes for the goods sold they are bound to pay the claim of plaintiff in legal tender notes.
    In the case at bar, the defendants admitted the receipt of Confederate notes for the two drafts, and they are bound to pay in United State, currency.
    Wherefore, we pray that the judgment of the lower court be affirmed

      Brief for defendants and appellants.

    On the 2S)tb of January, 1862, tin plaintiff, by letter, transmitted to the defendants two drafts, one fo $1,000 and the other for $500, drawn on the 14th of the same month b the Branch of the Planters’ Bank of Tennessee, at Clarksville, on th Union Bank of New Orleans, with instructions to place the same to hi credit. See letter, p. 15.
    The drafts on their face are payable in currency, (pp. 14, 15.) The; were actually paid in Confederate money, which, at that time, was th only currency paid by the banks in New Orleans. The Planters’ Bank by which the drafts were drawn, and the Union Bank, upon which the; were drawn, were at that time dealing in Confederate money, and tlies drafts represented that kind of currency.
    The defendants collected these drafts in the only currency-in whic they were collectable, and in which, according to their terms, they wer payable. For it is proved, and there is no contradictory evidence, tin the dealings in exchange between the bank by which the drafts wei drawn, and the bank upon which they were drawn, represented onl Confederate money; that “ currency ” meant Confederate money, an was so understood by the drawer and drawee; and that gold and silve and bank-notes did not, at that time, circulate as currency, but were sol at a premium. See testimony of Freret, p. 11; Froh. pp. 13, 14.
    ■ On the 12th of February, 1862, fourteen days after the drafts ha been mailed at Seguin, Texas, the defendants advised the plaintiff ths they had collected the amount of the drafts and placed it to his credit ¡ he had instructed. This is what the plaintiff sues upon as a note < receipt. See letter, p. 3.
    It does not appear that any demand was made by the plaintiff upo the defendants for the amount thus collected for over three years.
    Nor does it appear that the defendants were aware of the plaintiff intention to entrust them with this collection, or that they agreed undertake it prior to the reception of the letter enclosing the drafts; < that they charged or received, or were ever tendered the slightest cor pensation for their agency in this business. It seems, however, th they did gratuitously, from motives of kindness, or some other motiv perform the mandate imposed on them by the plaintiff, and collected f his account a certain amount of currency, then known to be precarioi and now to be illegal. It seems the plaintiff’s game was to induce tl defendants to collect this precarious currency for his account, and th leave them to keep it at their risk during all the chances of the war, aj when it has proved worthless, to demand the same amount in the b( currency afloat. We submit that this demand is as destitute of equi as unfounded in law.
    In their answer, the defendants denied generally the allegations of t petition, but admitted that they received certain drafts for collecti (the drafts B and O at p. 14) which upon their face were payable in ci rency; that by the term “ currency ” was meant “ Confederate monej that according to the tenor, they did collect the amount of said drafts lonfederate money, placed it to the credit of the plaintiff, and promptly dvised him thereof; that they had paid him $137 92 on account in Confedrate money, leaving in tli.eir hands a balance of $1,362 10, always in the urrency aforesaid, which they have always been, and are still ready to ay, and which they tendered and deposited to the credit of the plaintiff, iee answer, p. 5.
    The amount in Confederate money is admitted to have been on hand, n deposit in the cash-box of the clerk. See Rec., p. 13.
    We submit that the evidence sustains the allegations of the answer, nd that even if the plaintiff had an equitable claim, which we deny, he annot recover; because his demand is for an amount of Confederate íoney collected for his- account, in- pursuance of his mandate. It was a randate to collect Confederate money, and no other kind of money ould have been collected.
    We do not deem'it necessary to cite authorities to show that such q, ause of action cannot be .maintain ed. ’’
    Nor can it avail the plaintiff to pretend that he was ignorant that the arm “ currency ” -in the drafts meant Confederate money. He was ound to understand the import of the terms and the usages in vogue in is own business; .and even if he was ignorant, the tenor of the drafts emained the same, and'could only be collected in Confederate money, nd no action can be maintained for such a cause.
    We pray that the judgment be reversed, and for judgment in favor of efendants.
   Idsi/ey, J.

On the 29th January, 1862, the plaintiff, by letter, translitted to the defendants twq drafts; one for one thousand dollars and íe other for five hundred dollars, both drawn on the 14th of the same tonth by the Branch of the Planters’ Bank of Tennessee, at Clarkesville, n the Union Bank of New Orleans, with instructions to place them to is credit. Those drafts, upon their face, are payable “in currency."

On the 12th February, 1862, the defendants addressed and forwarded > the plaintiff the following letter:

“A. J. Fbv, Esq., Seguin Texas.

Bear Sh — Your favor of the 29th ult. is received, enclosing two checks lanters’ Bank of Tennessee, on Union Bank of Louisiana; one for one loúsand dollars and one for five hundred dollars, making fifteen hundred filars, which we have placed to your credit, etc. ”

It is to recover the amount of these drafts, standing with the defentnts to the credit of the plaintiff, that the present suit is brought. It is proved that the collection of these bills was made by the defends in the treasury notes of the then so-called Confederate States; Ld these identical notes they have always retained, and they tender them the plaintiff as the proceeds of the bills.

The plaintiff demands legal currency.

The result of the present controversy depends upon the construction be placed on the words “in currency ” used in the bills, for if the fendants’ are correct in their interpretation of the words, the plaintiff mid have no standing in court.

When words in instruments may convey two different meanings, the e in harmony with, and the other antagonistic to the law, the former raid always, upon principle, be adopted; because, in that sense legal ect can be given to the instrument, whilst the other would render it gatofy. ' O. C. 1946,

The words in currency in the bills which the defendants undertook to collect for the plaintiff, means current money, in the legal sense. If the parties intended to attach a different meaning to them, the instruments themselves should show it, which they do not.

It was so ruled, and correctly, in Dugan v. Campbell, 1 Hammond, Ohio Rep., p. 115. The defendants were not authorized to receive in payment of the drafts anything but legal currency.

They accepted the mandate, and although it was gratuitous they are nevertheless responsible, under the facts of this case, for their fault or neglect. C. C. 2971, 2972, § 2. 4 La. 28. 11 La. 81. Imboden v. Richardson, 15 A. 534.

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


source: Caselaw Access Project

author: Labauve, J.

license: Public Domain

text:
    No. 1350.
    J. S. & E. A. Abott v. Frank Borge.—J. C. Whipple, appellant.
    Proof of notice of dishonor is indispensable to hold the endorser on a bill of exchange or promisso*. tj note.
    PPEAL from the Third District Court ‘of New Orleans, Fellowes, J.

      John MeKee and E. C. Mix, for appellees.

      Clarice <S¡ Bayne, for J. C. Whipple, appellant.
   Labauve, J.

This appeal is taken by J. C. Whipple from a, judgment by default rendered and made final against him as endorser on two promissory notes.

The certificate of the clerk is full and complete, showing that the tran-' script contains “ all the proceedings had, evidence adduced and documents filed against J. C. Whipple in this case. ”

Such a certificate puts us in possession of all the matters argued or contested below, and enables us to examine whether or not the Court was authorized by proof to give judgment against the appellant as endorser. C. B. Arts. 895, 896.

We have looked in vain in the record, for proof of notice, or something equivalent, to the appellant as endorser, so as to make him liable as such; and, under the certificate of the clerk, we cannot presume that any such proof was offered. 8 L. 552; 7 R. 451; 11 R. 213; 9 A. 235. It seems, on the contrary, that there was no evidence of that kind, from the following entry in the record, and this is all:

“Testimony as against J. C. Whipple. Counsel for plaintiffs, offers in evidence, two notes of $1,000 each.”

This evidence was taken, and the judgment rendered, on motion of plaintiffs’ counsel, on the same day, 9th November, 1866.

It is therefore ordered and decreed that the judgment rendered against J. C. Wipple, the appellant, be annulled and reversed, and it is further adjudged and decreed that judgment be rendered in favor of J. C. Whipple and against the plaintiffs as in case of nonsuit. The appellees to pay the costs of- this appeal and those below, so far as concerns the’ said appellant.


author: Hyman, C. J.

text:
    No. 1500.
    Parish of Orleans, (Right Bank,) v. A. F. Cochran.
    The law authorizing the imposition of a lioense tax, on professions, trades, occupations and callings;1 is constitutional.
    An ordinance of the Police Jury levying a tax on trades, professions, etc,, must be uniform.
    An ordinance imposing a license on all persons in the Parish keeping a powder-magazine with more than fifty pounds therin, is not uniform, because others, keeping a less Quantity, may follow the same occupation without obtaining a license, or paying the taxes.
    APPEAL from the Third Justice’s Court, Parish of Orleans, Collens, J.

      T. P. Sherburne, Parish Attorney, for Police Jury Parish of Orleans, Right Bank,, appellees.

      G. E. Reynes, for defendant and appellant.
   Hyman, C. J.

On the 29th December, 1866, the Police Jury of the Parish of Orleans, on the right bank of the river Mississippi, passed an ordinance styled “An ordinance to establish a uniform rate of taxes and licenses, on trades, professions, callings, and other business, and on hacks, drays, and other vehicles, for the year 1867, Parish of Orleans, Right Bank. ”

The ordinance declares “ that from and after the 1st day of January, 1867, taxes and licenses for professions, trades, callings, and other business throughout that portion of the Parish falling under the jurisdiction of the Jury, shall be defined, assessed and collected at the rates and sums specially set forth in the following sections:

The 14th. section of the ordinance imposes a tax of $400, payable quarterly and in advance, on every powder-magazine or place where powder is kept in quantity more than fifty pounds.

The 26th section of „the ordinance declares that for “all the.above taxes, commonly known as licenses, laid by the Jury as aforesaid and which are made payable quarterly and in advance, the first quarter shall be due and payable from the 1st of January, 1867; the second quarter shall be due and payable from the 1st of April; the third quarter shall be due and payable from the 1st of July; the fourth quarter shall be due and payable from the 1st October.”

The Police Jury brought suit against A. E. Cochran, a keeper of a' powder-magazine in the parish of Orleans, on the right bank of the Mississppi river, to recover from him that part of the tax, imposed on him by the 14th section, which became due in April, 1867, according to tlie: requirements of the 26th section. The Justice of the Peace before whom the suit was brought, rendered judgment against Cochran, and he has appealed.

Cochran in answer to the suit denied that the tax was constitutional. The tax imposed by the ordinance is on the occupation and calling of Cochran, and not on his property.

It is not unconstitutional to impose a tax on occupations and callings. The Constitution does not prohibit such tax, but it requires that taxation shall be equal and uniform.

There cannot be uniformity of taxation on callings where a tax is imposed on some persons for pursuing a certain calling, while others are exempted from the tax who pursue the same calling.

The Jury, by its ordinance, has imposed a tax on every person whose calling is the keeping of a powder-magazine, and who keeps in the piagazine more than fifty pounds of powder, while every person who pursues the same calling, but keeps a less quantity, is exempted from taxation on his calling.

The. tax imposed on defendant is unconstitutional.

It is decreed that the judgment of the Justice of the Peace be annulled: and reversed. It is further decreed that there be judgment in favor of defendant, with costs in both courts.


author: Taliaeebro, J.

text:
    No. 1328.
    J. U. Lavillebeuvre & J. A. Merle D’aubigne v. Heirs of Adam Frederic & Marie Louise Cosse, Tutrix and widow in community.
    A party, having a mortgage importing a oonfession of judgment, may proceed via executiva, although the mortgagor may have died subsequently, and his succession have been accepted with benefit of inventory.
    The act of 1865 exempting property from seizure and sale, does not apply to property mortgaged ; before the passage of the act. ,
    Where a mortgage was executed on land and slaves, while the relation of slavery was recognized by law, the subsequent abolition of slavery and the destruction of property in slaves did not annul the mortgage; it is still in force on the land.
    PPE AL from the District Court, Parish of Placquemines, Cazabat, J.

      Alfred Qrima, for plaintiffs and appellants.

      E. H. McCaleb and T. W. Gollens, and J. Foulhouze, for appellees.
   Taliaeebro, J.

The succession of Adam Frederic, opened in the parish of Placquemines in April, 1866. Soon after, the plaintiffs and appellants, mortgage creditors of the deceased for the sum of $32,000, with interest, obtained an order of seizure and sale against the mortgaged property, a plantation situated in that parish, together with the appurtenances, cattle, etc., belonging to the community which had existed between Mistress Frederic and her husband.

The legal notices were served on Mrs. Frederic in her capacity of tutrix and widow in community, and, also, on all the heirs of age. The notice for appointment of appraisers was served upon her as administratrix, she having in the interim assumed that office.

The property was advertised for sale early in June; the sale to take place on the 7th July ensuing.

On the 20th June, Mrs. Frederic filed two oppositions to the sale; one in her individual name as surviving widow, the other in her capacity of administratrix. In the first-named opposition she alleges herself to be in indigent circumstances, prays • for a partition in kind, and claims and designates to be reserved to her for a homestead, four certain arpents of land fronting on the Mississippi, with the depth of forty arpents, and that the’.sale, if made as advertised, be declared null and void.

The other opposition was made in character of administratrix. She therein alleges that at the time of the seizure and advertisements, the succession was not represented, and that no legal notices or other process or proceedings could be had contradictorily with the said succession, in order to legally effect a judicial sale; that the heirs are only beneficiary heirs, and could not stand in judgment; alleges the insolvency of the succession; that there are privileged debts to the amount of $2,164, which are to be paid out of the proceeds of the property seized; that the succession having been accepted, with benefit of inventory for the two minors, executory process could not legally issue, and that the mortgage creditors could only be paid in due course of administration. She prays finally that the sale be enjoined, or if maintained, that the proceeds be paid over to her for distribution.

Upon these issues the parties went to trial in the court below. Judgment was rendered, declaring the proceedings taken by the mortgage creditors to be valid, allowing to the widow one thousand dollars, under the Homestead Act of 1852, and admitting all the privileged claims set out in the opposition of the administration, amounting to ©2,164, the whole to be paid with privilege and preference out of the proceeds of the sale of the property. The plaintiffs appeal; and the widow joins in the appeal.

It is settled by frequent decisions of this court, that a party, having a mortgage importing a confession of judgment, may proceed via executiva, although the mortgagor may have died subsequently, and his succession have been accepted with benefit of inventory. 1 An. 205; 2 An. 145, 209, 509; 12 An. 551.

All the proceedings in relation to the seizure seem to have been regular. The widow cannot avail herself of the provisions of the liberal act of the Legislature, passed in December, 1865. The obligations sued upon where contracted before the enactment of that law. She is entitled to the benefit of the Homestead law of 1852, which was in force prior to execution of the original notes by the decedent. The counsel of the administratrix argues in his brief, that the mortgage when executed comprised slaves as well as land, and that the mortgage, being indivisible, was vitiated throughout, and rendered null and void. We think the position untenable.

At the time the mortgage was executed, contracts of that kind were tolerated by the then existing laws. When slaves ceased to be regarded as property, the security afforded previously by the mortgage on both land and slaves, underwent a reduction by resting only upon the land. The question raised in argument is not presented in the pleadings.

The plea of prescription, we think not available. The renewal of the obligations acts as a bar to prescription.

In regard to the question of privileges, we think the opposition should be sustained, as to the items ©96, wages of cook; ©240, wages of nurses, and ©400, bill of groceries. These several accounts were paid by several of the relatives of the mortgagor a short time before his decease. No subrogation took place, and the obligations, being extinguished at' the opening of the succession, cannot be considered as debts against it. The item ©300, “ salary of teacher of the minors,” does not come within the provisions of article 3179 of the Civil Code, and should have been rejected.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be amended, so as to reduce the amount thereby awarded for privileged debt to the sum of eleven hundred and twenty, eight dollars; and it is ordered that as herein amended, the said judgment be affirmed; the costs in both courts to be borne by the succession.

Rehearing refused.


author: -Hyman, C. J.

text:
    No. 607.
    William Mithoff v. L. Weiss.
    Damages will be allowed as for frivolous appeal, where the record discloses the fact that the appeal, was taken solely for delay.
    APPEAL from the Sixth District Court of New Orleans, Leaumont, J.

      Roselius & Philips, for plaintiff and appellee.

      E. Gambray, for; defendant and appellant.
   -Hyman, C. J.

Defendant has taken a suspensive appeal from a final judgment rendered against him, after judgment by default, for the sum of $388, with five per cent, interest thereon, from 15th June, 1861, $2 50 cost of protest and costs of suit.

■ The action of plaintiff is brought on a note of hand, made by defendant for $388, payable 15th June, 1861, to order of plaintiff. At its maturity it was protested for non-payment.'

There appears to have been no motive for taking the appeal, but to delay payment.

Plaintiff has asked, in his answer to the appeal, that the judgment be affirmed, with damages, for the frivolous appeal.

It is decreed that the judgment appealed from be affirmed, and that plaintiff recover of defendant twenty-five dollars as damages, defendant to pay costs of appeal.


author: Taliaeebbo, J.

text:
    No. 1520.
    Succession of Mrs. Louisa Rohlfing, deceased.—On Opposition to the Account of the Administrator and Tutor of the Minors.
    Where a particular item in a tutor’s account and tableau is not sustained by evidence in the record, the judgment homologating the tableau will be annulled, so far as that item is concerned, and the case will be remanded to enable the parties to introduce the proofs.
    PPEAL from the District Court, Parish of Jefferson, Cazabat, J.

      JL. Commandeur, for appellant.

      D. G. Labalt, for appellee.
   Taliaeebbo, J.

Rohlfing, in 1856, upon the decease of his wife, Louisa, who had been previously married to Greiner, became administrator of her estate and tutor to her three surviving children, all of whom were then minors. One of these minors was the issue of her last marriage, the other two of her first marriage.

In April, 1867, Charles and Louisa, the minors Greiner, the former having attained the age of majority, and the latter being emancipated by judicial proceedings, took legal measures against their former tutor to require from him an account of their tutorship and of his administration of the estate, which being rendered under an order of court were strenuously opposed throughout.

After undergoing many alterations in the court a qua, the accounts were homologated by a judgment of the court, and from that judgment the administrator and tutor appealed.

The only question it seems presented to this Court is, as to the charge of the tutor against Louisa, (one of his wards) of $1,440 for boarding and education for eight years. This item was reduced to seven hundred and twenty dollars by the judgment of the court below.

It appears from the record, that in regard to most of the items of the administrator’s account, a kind of agreement was entered into by the counsel of the parties, and signed by them, specifying such as were to be stricken out, reduced in amount or admitted as charged. In this list is the charge of $1,440 for board and education of Louisa Greiner, reduced to half the amount. In relation to this item, neither party seems satisfied with the adjustment made of it.

Seeing no regular account of the tutorship of these minors, and no vouchers or evidence of any kind supporting the account presented, we are induced to think that equity requires that the case should be reopened in the court below, in order that the parties may adduce their proofs, and a full investigation of their rights be made.

It is therefore ordered, adjudged and decreed, that that part of the judgment of the District Court, which decrees the sum of $720 in favor of the tutor against his ward, Louisa Greiner, be annulled, avoided and reversed; that in all other respects the judgment be confirmed.

It is further ordered and decreed that the case be remanded, in order that the settlement of the affairs of the tutorship of the minor, Louisa Greiner, be strictly made according to law.

It is further ordered, that the appellant pay the costs of this appeal.


author: Tadiaeerro, J.

text:
    No. 1358.
    George Merz v. Joseph Kaiser and J. Madison Wells.
    Where a party has his domicil in. one town or city and his office in another, notice of protest may be served on him at either.
    The holder of a promissory note, endorsed by himself, is not bound to show a transfer of the note back to him.
    PPEAL from the District Court, Parish of Jefferson, Gazabat, J.

      A. JDerbes and J. M. Dir/'hammer, for plaintiff and appellee.

      W, Baer, for Kaiser. It. Preston and D. O. Labatl, for Wells.
   Tadiaeerro, J.

The plaintiff snes on a promissory note, drawn payable to the order of J. J. McKever by Kaiser, and endorsed by the payee, and also-by J. M. Wells and the plaintiff himself.

The note is for $3,000, dated December 26th, 1865, ánd payable thirty days after date. It was duly protested at maturity for non-payment, and notices served upon the endorsers.

. The defence is, want of proper notice of protest, and a denial of the right of plaintiff to sue, as his endorsement upon the note shows that he had transferred it.

The plaintiff had judgment in the court below, and the defendant, Wells, appealed.

We think there was no error in the judgment appealed from.

It is well settled that the holder of a negotiable note or bill, even at the trial, may strike out any endorsements which are not stated in the declaration. Bayley on Bills, p. 106. ■ 12 L. 98. 16 L. 217. 9 R. 155. 5 A. 120.

The plaintiff’s action is only against the drawer, and the defendant, Wells, as endorser. The plaintiff, under the authorities cited, was npt bound to show a transfer of the note back to him.

Tlie notice to the defendant, Wells, as endorser, was properly served at his public office, by delivery to his private secretary.

It was not necessary to serve it at his domicil. Story on Promissory Notes, sec. 312; Story on Bills, sec. 297. 14 L. 494. 15 L. 51, 113, 115.

It is therefore 'ordered, adjudged and decreed that the judgment of the District Court be affirmed, the defendant and appellant paying costs of this appeal.


text:
    No. 1599.
    The State of Louisiana v. George M. Dole and R. J. Ball, in solido.

    Thé impediments contemplated by Art. 1115 of the Civil Code, are those that would render the marriage a nullity. *
    Failure to obtain the consent of the parent to the marriage of a minor is only good cause to disinherit • the minor. C. C. 114.
    The bond given, conditioned that no legal impediment exists to the marriage wili not be forfeited, because one of the parties, a minor, failed to obtain the consent of the parent.
    APPEAL from the Fifth District Court of New Orleans, Lecmmont, J.

      B. L. Lynch, Attorney General, for State, appellant.

      Roselius & Philips, for appellees.
   Labauve, J.

The State of Louisiana claims of the defendants in solido the sum of $1,000, as a forfeiture of a bond of the following tenor:

‘ “ Be it remembered that George M. Dole, as principal, and E. J. Ball, as surety, acknowledge themselves indebted unto the State of Louisiana in the sum of one thousand dollars.

“Whereas, the above bounded George M. Dole has applied to the undersigned, Third Justice of the Peace for the parish of Orleans, and has obtained from him a license to marry Miss A. Petrie.

“Now, the condition of the above bond is such, that in case within two years from this date it should appear that there existed any legal impediment to said marriage, then, and in that case the above obligation shall be null and void, or else it shall remain in full force and virtue.

“ Signed at New Orleans, 8th November, 1866, by the parties and the Justice of the Peace.”

The defendants pleaded the general issue.

The oourt below gave judgment for the defendants.

’ The alleged forfeiture of the bond is stated in the petition, to consist in this:

“ That at the time of the execution of said bond, there did exist a legal impediment to said marriage, to-wit: the minority of Miss A. Petrie, said marriage being contracted without the consent of the only surviving parent of said minor. ”

We are of opinion that the impediments contemplated by Art. 105 of the Civil Code, under which this bond was given, are those that would cause the nullity of the marriage. ,

The want of consent of a parent, to a minor child to marry, has not that effect; it is only a good cause to disinherit the child. C. C. Art. 114.

Judgment affirmed.


author: Howell, J.

text:
    No. 1356.
    Nusbaum & Brother v. J. Marks & Co.
    Whore evidence has been admitted» without objection in the lower court, the Supreme Court wHlconsider it, though it might have been excluded on legal grounds.
    Where a merchant in New Orleans purchased a lot of cotton, at a fixed price, which was in a ware* house in Texas, and took the receipt of the warehouse for the number of bales purchased, all the risk falls on the purchaser from, that moment, and the vendor is not responsible for the loss of the cotton, from the date at which the purchaser came in possession of the warehouse receipts.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      JDalsheimer <& Bucle,, for plaintiffs and appellees.

      Phillips & Levy, for defendants and appellants.
   Howell, J.

The plaintiffs, residents of Texas, in 1862, transferred to the defendants, merchants in New Orleans, several warehouse receipts for twenty-one bales of cotton, with the marks and weights of the bales, and stored in a warehouse in Jefferson, Texas, weighing 10,780 lbs., and amounting at 10 cents to $1,078, in settlement of a note of theirs held by the defendants, which, on receipt of said warehouse receipts, they requested to be sent to them. On the 7th March, 1862, the defendants acknowledged the letter containing said “receipts for twenty-one bales of cotton, inpayment of your account with us;” and on 26th same month, wrote: “ We enclose your note due of §908 16, settled by cotton deposited at J. & J. C. Murphy’s warehouse, on storage for our account.” On the 4th of April following, they again wrote, enclosing a statement of plaintiff’s account with them, showing an error in favor of the latter of §337 64, which they said was only discovered on balancing the account on the 1st of April, informing plaintiffs that they only wanted as much cotton as would cover the amount due them, as they could buy for less than ten cents in New Orleans, and proposing to buy the balance of cotton overpaid to them in error at 7J^ cents, and authorizing plaintiffs to draw on them for the difference, if the proposition is accepted; saying, that about 15 bales would cover their claim, but retaining the warehouse receipts.

■ To this letter no reply was received; but on the 28th March, a'few days prior to its date, the plaintiffs wrote to defendants, informing them of a mistake of §340 57 overpaid, “ which,” they say, “ you will please settle Messrs. Kaiser & Joseph’s note for us and credit us with the balance, and when one of us will be down we will settle with you. ”

This letter, we presume, from the tenor of defendant’s letter of 4th of April, was received before the latter was written. No further communication passed until June, 1865, when defendants sent an agent with said receipts, and an order for the twenty-one bales “ belonging ” to them, as per receipts. When this agent arrived at Jefferson, Texas, he was informed by the warehouse keepers, that thirteen bales of said cotton had been impressed by the so-called Confederate Government, leaving eight bales, two of which were claimed by the said Murphys for storage. He paid all the charges, and shipped the eight bales to defendants, retaining the receipts for the 13 bales. Some days after, he met at said warehouse one of the plaintiffs, who set up no claim to any of the cotton, but congratulated him (the agent) on having been able to save six bales for defendants.

At a subsequent interview the said plaintiff informed the agent that a mistake had occurred in the settlement with defendants, and asked the agent to pay the difference in money to rectify the mistake, which was declined, as the agent was unauthorized, and said plaintiff was referred to defendants, who were perfectly able to pay. The eight bales of cotton were shipped by the defendants to Liverpool, and sold.

Upon this state of facts the lower court gave judgment in favor of plaintiffs for one thousand five hundred and fifty dollars and twenty-one cents, with interest from judicial demand, as the value of six bales claimed by them, as not having been sold to defendants, and allowed the latter three hundred and eighty-six dollars and thirty-two cents, on their reconventional demand, for charges, etc., on the cotton; from which judgment the defendants have appealed.

They contend that in the form of action adopted by plaintiffs, the latter ean recover nothing. As the evidence is admitted without legal objection, we can determine the rights of the parties.

We think it clear from all the facts, that the twenty-one bales of cotton were at the risk of the defendants, and that all that the plaintiffs are entitled to recover from the defendants is the excess over the amount of the indebtedness of the former to the latter. This is the view which the plaintiffs took of the matter at the time of the transaction, and which they held after the cotton had been shipped by defendants’ agent in 1865, as shown by what passed at their interview with said agent.

The defendants seemed to have entertained a different view, when they discovered the error in the amount due them in 1862, and made a proposition to take any excess in the quantity of cotton, at a smaller price, but their subsequent conduct was in harmony with the plaintiffs’ view, and they, in accordance therewith, sent the receipts and an order for the whole twenty-one bales, and accepted and sold the eight.

Whatever may have been the respective rights and obligations of the parties, prior to this action on the part of the defendants and acquiescence of the plaintiffs, we think it then resulted that the defendants were considered the owners of and responsible for the whole twenty-one bales, which were delivered to them in March, 1862, by the delivery of ‘the warehouse receipts, containing the marks and weights, and plaintiffs’ letter fixing the price and total amount.

The defendants at that time reported to the plaintiffs the amount actually due by the latter, showing the sum then in their hands belonging to plaintiffs, which sum we consider correct, differing only a few dollars from the amount claimed by plaintiffs in their letter of 28th March, 1862.

We do not see how, under the fads, the plaintiffs could select any six bales as not having been sold, and require the defendants to pay the value thereof at the date of instituting suit. The possession of the warehouse receipts, in this particular case, was the possession of the property. We must decide this case on the evidence before us.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiffs recover of defendants the sum of three hundred and thirty-seven dollars and sixty-four cents, with legal interest, from the 10th March, 1862, and costs in the lower court; and that defendants’ reconventional demand be dismissed, plaintiffs and appellees to pay costs of appeal


author: Ilsley, J. Howehii, J.

text:
    No. 1094.
    Mrs. Widow de St. Romes v. Levee Steam Cotton Press.
    Payment of dividends of stock to a person not authorized to receive it, will not protect the com* pauy from again paying it to the owner.
    Prescription only begins to run against a dividend, declared by a company in favor of a stockholder, from the period at which he became aware of his right to claim it. , -y
    APPEAL from the Fifth District Court of New Orleans, Beaumont, J.
    C. Roselius & A. Philips, and L. E. de Si. Romes, for plaintiff and appellant.

      Baaey, Maries & Butler, for defendant and appellee.

      Brief of plaintiff and appellant.

    The plaintiff and appellant avers that she is the owner of sixty-six shares of the capital stock of the Levee Steam Cotton Press Company, and as such entitled to $2,376, dividends declared on the same during the years 1848, 1849, 1852 and 1853. »
    The defendant admits that the plaintiff was the owner of the stock, and that the dividends were declared as stated; but set up the, special defence that the dividends were paid to, and the stock sold by Pierre Deverges as the agent of the plaintiff. 1 : ’
    From these pleadings it is evident that the burden of proof devolves on the defendant. . . ,-
    There is no evidence of the agency of Devergés, so far as these transactions are concerned. On the contrary, it appears that on the 18th of January, 1845, two years before the first of the dividends claimed in this case was declared, a special power to collect a dividend of three hundred and forty-four dollars ($344) was given to Devergés. Yet in the absence of all proof on this subject, j'udgment was rendered for the defendent.
    This decision, we respectfully submit ought to be reversed, and judgment rendered in favor of the plaintiff, as prayed for in her petition.

      Brief of defendant and appellee.

    * * * It is not denied that the diyidends sued for by plaintiff were paid to Devergés, claiming to be agent, nor is it denied that he, pretending to act as agent of plaintiff, transferred the sixtv-six shares to Cohen. It is however asserted, that Devergés was not the agent of Widow de St. Romes, or authorized to receive payments of dividends, and to make transfer of stock. This case, then, presents a simple question of fact. Was Devergés the agent of plaintiff, .or authorized by her to receive payment, or make transfer? If he was, then the judgment of the lower court must be affirmed; if not, that judgment must be reversed, and a decree rendered protective of plaintiff’s rights. We proceed to show:
    That Devergés at the time he received payment of dividends, and made transfer of stock in the capacity of agent of Widow de St. Romes, was really and truly such. !
    Had it have been in the power of defendants, to have produced upon the trial a written power of attorney, this question of fact would soon have been put to rest; but that document having been destroyed, as we may well presume, by the conflagration of the cotton press, in the year 1858 or 1859, (Record, p. 19) or by the military authorities in 1862, “ at which time they took possession of the press, the office, safes, books, armoirs, and everything else, and destroyed the most part of the company’s records,” the defendants are driven to secondary evidence to prove the fact of agency. And here, we hope, the Court will bear in mind that this secondary evidence is adduced, not to establish a general agency, but for the purpose of showing such intimate and extended relations between Devergés and plaintiff, as to preclude any other presumption, than that he had the special power to receive the payments of dividends, and to make the transfer of stocks in controversy. *

      * * * Devergés, as shown by general reputation, having been , the agent of Mde. de St. Romes for many years immediately previous to his death; this agency, having been admitted in the insolvent proceedings pf Devergés, to which plaintiff was a party; his power to represent, her having been recognized by the banks; a special power of attorney to collect dividends from the New Orleans Insurance Company having been given; Mde. de St. Romes, by a special power, having authorized Devergfes to collect dividends, not only from the New Orleans Insurance Company, but also the dividend of Í845 from the defendant; it having been the invariable custom of defendants not to pay dividends to an agent, nor through him to transfer stock, without the production of a power of attorney; and the original certificates of stock held by Mde. de St. Romes, being in the hands of defendants and cancelled; how can Your Honors, under such circumstances, come to any other conclusion, than that Pierre Devergfes was specially authorized to receive and receipt for the dividends belonging to plaintiff, and to transfer the sixtyTsix shares of stock, which she formerly owned and held?
    The attempt to collect the dividends and the value of the stock, is evidently an after-thought on the part of plaintiff. The dividends became due in the years 1848, 1849, 1852 and 1853, respectively, and in the last mentioned year, the transfer of the stock was made; and yet it was not until 1861 that plaintiff set up a reclamation for the dividend and stock. Why this long delay? Your Honors’ will find an answer to this question, in the fact that Devergfes became insolvent, and went into court in 1858 or 1859. Up to that time plaintiff considered Devergfes good, and therefore presented no claim against the company. Then she discovered his insolvency, and attempted to make up her losses through him by the present suit.
    The defence made is conclusive, but another may be found in the prescription pleaded by defendants. This point is too clear to require an argument. It speaks for itself.
   Ilsley, J.

Mrs. de St. Romes was the owner of sixiy-six shares of the capital stock of the Levee Steam Colton Press, a duly incorporated company, located in the city of New Orleans, and as such was entitled to dividends on her stock, declared in the years 1848, 1849,1852 and 1853. Her original right to these dividends is not denied, but it is urged by way of defence, that these dividends were duly paid to her agent, Pierre Devergfes, who was authorized by her to receive them, and also to sell the stock, which he did to O. A. Cohen, sometime in the year 1853, and that the original certificates were surrendered and cancelled.

The prescription of three, five and ten years is also pleaded.

On the merits, the case presents a simple question of fact: Was Pierre Devergfes the duly constituted agent of the plaintiff, to receive payment of and to grant a valid acquittance for these dividends, and to sell her stock?

A careful perusal of the testimonyin the record, the fact of the destruction of the company’s papers being borne in mind, has failed to satisfy iis that Devergfes was clothed by the plaintiff with authority either to receive her dividends for the years in which they are now claimed or to sell her stock in the company.

■ There is a special power in the record to Devergfes from the plaintiff, to receive her dividends for the year 1845, two years previous to the year in which the first dividend is now claimed, but we cannot infer from that that similar powers were given for subsequent years.

The plea of prescription is untenable.

The defendant’s charter is not in the record, so that we cannot ascertain from that, what, if any, regulation was therein made in regard to dividends, the company might from time to time declare.

The possession by the company of the dividends declared by it, being that of a mandatary is a precarious one, unless it shows some initial point at which its possession was one, animo domini.

It is discretionary with incorporated companies to declare dividends whenever they think proper, and it is only from the period at which a stockholder becomes aware of his right to claim dividends declared in his favor, that the vice of preeariousness is purged, that the nature of the possessor beeomes changed, and the initial point for prescription is determined.

There is nothing in the record to show that the defendant’s possession of the plaintiff’s dividend was ever any other than a precarious one.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed; and it is further ordered, adjudged and decreed that the plaintiff, Mrs. Widow de St. Romes, have judgment against, and do recover from the defendant, the Levee Steam Cotton Press, for the sum of two thousand three hundred and seventy-six dollars, ($2,376) with legal interest from judicial demand, and the costs of suit in both courts.

On Rehearing.

Howehii, J.

A rehearing has been granted in this case for the purpose of amending the decree on the prayer of the appellant, to the effect that she be recognized as the legal owner of the stock claimed, or her right to claim it be reserved.

As the alleged transferree of the stock was not a party to this suit, the plaintiff could not justly be recognized as owner of the stock in question; but we think a legitimate sequence to our opinion heretofore expressed, is a reservation of her right to claim said stock in a proper proceeding.

It is therefore ordered, that the decree rendered herein by us be amended by adding the words, and that plaintiff’s right to claim in a direct action the stock in controversy herein be reserved.”


author: HoweiiI, J.

text:
    No. 1759.
    Succession of Daniel Christie.
    The domicil of the husband controls that of the wife.
    Where the husband, domiciled in Louisiana, dies, leaving property in the State, the surviving wife is entitled to the benefit of the Homestead law, notwithstanding she has never resided in the State.
    APPEAL from the Second District Court of New Orleans, Thomas, J.

      Miller & Huntington, for appellant.

      Hornor & Benedict, for appellee.
   HoweiiI, J.

The widow of the deceased has appealed from a judgment dismissing her opposition to the account of the administrator, claiming one thousand dollars, under the Homestead law of 1852. Ses. Acts, 171.

The facts are, that the deceased was married, in 1815, to the opponent, in New York, where they both resided. After the birth of two children, he left for California, and subsequently (the date not being fixed) came to this city, where he was residing at the date of his death, and where his succession is now under administration; his wife and children remaining all the time in New York, and never having been in Louisiana.

The widow is shown to be in necessitous Circumstances; one of the children, a daughter, is married, and the other is about twenty-one years old, and contributes in part to the support of his mother.

The question is, are they entitled to the benefit of the Homestead Act? This is denied by the administrator, on the authority of the case of the S ' <ion of Cooper, 18 A. 36, and that of Stewart v. His Creditors, 12 A. 89. in the former, such a demand was refused, on the ground that the residence of both husband and wife, at the death ot’ tne former, was in Mississippi, and the Homestead law was enacted for the benefit of those domiciled in this State at the time of the death.

■ In this case it is admitted that the domicil of the husband was in Louisiana at the time of his death, and, as by our law the domicil of the wife is the domicil of the husband, the case of Cooper is not precisely in point. The other is not applicable.

We think the domicil of the husband must control in this matter, and regulate the rights of the wife and children under this act, with the same propriety that half of the community property is given k a wife who has never been in the State. See 7 N. S. 42, and 4 L. 191.

The evidence shows that the widow is in possession of property worth one hundred dollars,'and under the provisions of the statute, she is 'entitled to the usufruct of nine hundred dollars out of this succession .during her widowhood, when it vests in the children of the deceased.

It is therefore ordered that the judgment appealed from be reversed, ■and that the opposition of Eleanor Christie, widow of Daniel Christie, deceased, be sustained, so far as to amend the account filed by John Christie, administrator, by placing her thereon as surviving widow and usufructuary for the sum of nine hundred dollars, to be paid by privilege and preference under the provisions of “ An act to provide a homestead for the widow and children of deceased persons,” approved March 17th, 1852. Costs of opposition and of appeal to be borne by the succession.


text:
    No. 1330.
    Andrew Robinson v. John Clark.
    A made a contract with B to make a cotton press, and paid him the price agreed upon in advance; B made the press and pointed it out to A in hi«* foundery as his property; A afterwards sent for the press, and was informed that B h-ifl sold and delivered it to a third party; A then brought suit for ; the price be'had paid, which B re-ihied, on the ground that it was a suit bo rescind the contract, and he had not been put in deiault according to Art. 1905 of the O. 0: Held — 'That B, by his own act, having put it out of liis power to deliver the press, could not avail himself of the plea of default; Held — further, that B was bound to return the price which he had received, with . interest, to A.
    APPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Miles and Thomas Taylor, for plaintiff and appellee.

      Buchanan Gilmore, for defendant and appellant.
   Hyman, C. J.

Defendant contracted to make a screw baling cotton press for plaintiff, and for its price plaintiff gave him $750.

Defendant made the press, placed it in his foundery and pointed it oul as plaintiff’s property. Plaintiff did not take it away at the time, bm afterwards wont to defendant to get it, .

Defendant had not then the press; had sold it to a third person, and could not deliver it to plaintiff.

Plaintiff brought suit to recover from defendant the money paid for the press, with interest.

Defendant regards this suit as an action to rescind the contract of sale, and to recover the price paid thereon, and his defence is, that he was not put in default in the mode prescribed by Art. 1905 of the Civil Code, and that he has always been willing to deliver the press.

We do not think it necessary for plaintiff to make demand of defendant as required by the article cited.

Defendant, by his own act, put it out of his power to deliver the press, and it would have availed nothing in making the most formal demand on him. Lex neminem cogit ad vana seu inutilia peragenda. The judgment appealed from is in favor of plaintiff. We perceive no reason why it should be reversed. It is affirmed at defendant’s costs.


author: Taliaeebeo, J.

text:
    No. 1585.
    Samuel Batey et al. v. Widow Emily Woolfolk et al.
    The mere recital of a primarily existing mortgage is insufficient to supply the want of reinscription ■ of such mortgage.
    One of the essential requisites of an act of reinscription of a mortgage is, that the reciting act must contain a clear and definite description of the property mortgaged.
    The reinscription of a mortgage must be made before the expiration of ten years, reckoning from its date as between the parties, and from the time of inscription as to third persons. O. 0.3333.
    Tbe reinscription of a mortgage dispenses with the examination beyond the period of ten years preceding.
    The renewal of the registry of a mortgage, after the lapse of ten years from the date of first inscrip* tion, will not affect an ordinary third possessor or subsequent mortgagee, but its omission cannot avail a subsequent purchaser who has assumed the mortgages in the act of sale.
    APPEAL from the District Court, Parish of Iberville, Posey, J.

      A. N. á H. W. Ogden, for Samuel Batey et al.

      Barrow & Pope, for N. Hobson, appellant.
   Taliaeebeo, J.

The plaintiffs, holders of two promissory notes, each for $13,489 58, with a large accumulation of interest, and secured by mortgage on a plantation in the parish of Iberville, took out an order of seizure and sale against the property, now owned by and in possession of the defendant. This proceeding was commenced in January, 1866.

In the latter part of March of the same year, Hobson, representing himself as the owner and holder of various promissory notes for large amounts, also secured by mortgage on the same property, came in by way of third opposition, and obtained an injunction to restrain the sale of the mortgaged premises, alleging that the obligations upon which the plaintiffs were proceeding were prescribed, and especially averring that the mortgage which had been given to secure their payment, was lost for want of the reinscription within ten years of the time of its inscription. He prayed that in the event of a sale, the proceeds of the property should be applied to the payment of his mortgage debt, claiming for himself priority of mortgage.

The proceeding via exeouiiva was, at the plaintiffs’ instance, changed to the via ordinaria.

After trial had, judgment was rendered recognizing the plaintiffs’ pretensions to the right of first mortgage, and directing the proceeds, or a sufficient amount thereof, to be applied first, to discharge the two notes of plaintiff'and interest thereon, and the residue to be applied to the payment of a judgment obtained by the opponent and plaintiff in injunction against Mrs. Emily Woolfolk on the 11th of May, 1866.

From this judgment of the lower court, the plaintiff in injunction appeals.

The facts we find to be these:

The plaintiffs, heirs of lessee Batey, deceased, by their attorney in fact, Robert McBeth, on the 18th of January, 1853, sold to Washington Barrow and John S. Barrow, a plantation and a number of slaves located thereon for $112,500, of which the sum of $20,000 was paid in cash, and for the remainder the purchasers executed seven promissory notes, falling due respectively on the 1st day of January, in the years 1855-6-7-8-9, ’60 and 1861.

The note, falling due 1st January, 1855, being drawn for $11,562 50, the others for $13,489 58 each.

These notes were all paid except the two last, viz: the note falling due 1st January, 1860, and the one falling due 1st January, 1861; all the interest on these two notes was paid up to 2d February, 1862. The order of seizure and sale was issued on the 31st January, 1866. The payment of the interest at the time entered upon the notes is fully proved, establishing clearly that the notes are not prescribed.

The mortgage was by authentic act, and contains the pact de non alienando. The act of sale and mortgage was recorded in the parish of Iberville, on the 18th February, 1853. This mortgage has never been reinscribed.

On the 12th of February, 1856, Washington Barrow sold his undivided half of the property to William Patrick and Joseph B. Woolfolk at the price of $75,000 — $10,000 of which was paid in cash; and for the credit portion three notes, falling due as follows: one for $6,255 21 on the 1st February, 1862; the next for the like sum, and the third for $18,765 63, the last two becoming due on the 1st February, 1866.

Ten notes, of smaller amounts, were executed also by the purchasers for the payment of the annually accruing interest on the larger notes. Patrick' and Woolfolk, in this act of sale, mortgaged the property to secure the payment of the notes, and assumed in part payment of the price, “to pay the one-half of the mortgage debt due by Washington and John S. Barrow, on the property above sold, as por accouut of sale and mortgage passed before Louis Petit, late recorder of this parish, on the 18th of January, 1853, being in principal on this day the sum of $33,723 95, which mortgage debt up to the said sum the said purchasers assume to pay in the same manner and form, as the vendor was bound to pay the same, under the act of the 18th of January, 1853, above cited, and to which reference is here specially made.”

The other undivided half, part of the property purchased by W. and and J. S. Barrow from the heirs of Batey, was afterwards, on the 27th of March, 1856, purchased by Patrick and Woolfolk at the probate sale of the succession of John S. Barrow, deceased; thus becoming owners of the entire property.

This purchase was made at the sum and price of $98,012 48 — $10,000 in cash, and on a credit of several years for the remainder; for the payment of which he executed thirteen promissory notes of various amounts, and made payable at various intervals.

In conformity with the conditions of the sale, they executed a 'mortgage in favor of the succession to secure the payment of the notes, and assumed “ to pay the one-half of the mortgage debt due by Washington and John S. Barrow on the said property, as by act of sale and mortgage passed before said Petit, late recorder of this parish, on the 18th day of January, 1853; said mortgage debt consisting in five hypothecary notes of $13,489 58, each, amounting in all in principal to $67,447 90, the undivided half being then in principal the sum of $33,723 95. They contracted “ to pay the said sum of $33,723 95 in the same manner and on the same terms as the said Washington and JohnS. Barrow bound themselves, to pay by act of sale to them under date of the 18th of January, 1853, above referred to.”

On the 16th July, 1859, Joseph B. Woolfolk and William Patrick sold the entire property to Mrs. Emily Woolfolk, the present owner, for the price of $225,000. The sum of $71,363 38 was paid down in money or its equivalent. For the remainder, this purchaser assumed to pay:

1. A mortgage debt due the heirs of Jesse Batey, deceased, amounting in principal and interest on the 1st of February, 1859, the day the present contract was entered into, all previous interests being paid to the sum of thirty-eight thousand six hundred and twenty-six dollars and ninety cents.

2. A mortgage debt due Washington Barrow, amounting te the sum of $31,276 65.

3. A mortgage debt due the estate of John S. Barrow by the vendors for the sum of $31,276 65, as the whole is fully stated and specified in the proces-verbnl of the adjudication and sale of the said property by the sheriff, on the 27th March, 1856.

In addition to these assumpsits the purchaser gave three promissory notes, amounting together to $42,457; one of them to Patrick for. his interest in the property, and two others to Woolfolk for his, and executed a mortgage on the property purchased to secure their payment.

The opponent, Hobson, averring himself to be the owner and holder of twelve promissory notes, six of them the notes of Patrick and Wool-folk, to Washington Barrow, and six, the notes of the same makers, to the estate of John S. Barrow, the whole amounting to $66,041 61, with interest, secured by mortgage on the property spoken of, caused the mortgage of Washington Barrow and John S. Barrow, given to the heirs of Batey, to be erased from the books of the mortgage office, more than ten years having elapsed since its inscription on the record, and no reinscription having been made. He cites various parties in interest, prays judgmeut against them in solido, with recognition of his right of mortgage as being superior to any other, that the heirs of Batey be decreed to have no mortgage on the property, and that the proceeds of sale of the mortgaged premises be first appropriated to the payment of his debt, and if any residue that it be distributed to the other creditors according to law.

On the part of Batey’s heirs, it is argued that the assumpsits of the sev* eral vendees of the property to pay the original mortgage of W. and J. S. Barrow to their vendors, operated to preserve and continue in force the original mortgage, although it was not reinscribed within the ten years required by Article 3333 of the Civil Code. They hold that their rights and obligations existed independent of the writings which evidenced them; that the act of sale, notes executed for the price, the assumpsits to pay the original mortgage, etc., at each successive sale, the evidence was renewed, but the rights and obligations remained the same; that at each successive sale the rights of the Batey heirs upon the property have been distinctly recognized, and the obligations to them distinctly assumed by the purchaser, and the act of sale placed upon record in the mortgage office as required by law; that there was at each sale a change in the form of indebtedness, but the original obligations and the supporting liens always remained the same, and that the evidence of the mortgage and lien of the original vendors, which the law requires to be reinscribed, was successively altered, and reinscribed at each succeeding sale.

The only question of importance presented in this case is, whether, by having failed to reinscribe their mortgage of 18th January, 1853, within ten years of its date, the original vendors oan now avail themselves of it against the mortgage notes held by the opponent, Hobson, and which were executed by the several vendees subsequent to the Barrows, whose notes are held and now sued upon by the original vendors. The rule established in the case of Shepherd v. The Orleans Cotton Press. Company, 2 A. p. 100, and also in cases since (McElrath, Administrator, v. Dupuy, Curator, 2 A. 520; Hyde v. Bennett, 2 A. 799; Succession of Gremillion, 4 A. 411) rejects in an act of sale the mere recital of a previously existing mortgage, as insufficient to supply the want of reinscription of such mortgage.

The authority of these and other cases, requires also clear and definite descriptions of the mortgaged property to be given in the reciting act. The language of the Court in Shepherd v. The Orleans Cotton Press Company, is:

“Whatever be the form of the reinscription, the description of the property is one of its essential requisites. The reference to previous mortgages does not cure that defect. ”

“ The inscription is exclusively in the power of the party having an interest to make it. If he does not reinscribe, he cannot complain of losses sustained through his own neglect.”

It may be considered as a settled rule, that the reinscription of a mortgage is to be made strictly in conformity with the provisions of Art. 3333 of the Civil Code; that is, that the inscriptions are to be renewed, before the expiration of ten years, reckoning from their date as between the parties, and from the time of inscription as to third persons, in the manner in which they were first made. ”

The requirements of our law on the subject of the inscription of mortgages are founded upon the importance — in a commercial business community, where frequent changes in the ownership of property occur — >f having general publicity given in as plain, simple and effectual a manner as possible, to all the existing encumbrances upon property subject to mortgage. This object is more easily attained by spreading the entire act upon the records in the reinscription than by any other mode:It would be hazardous to the rights of parties buying, selling and mortgaging property to recognize as equivalent to reinscription a mere brief mention, in a written instrument, of existing liens and encumbrances-upon the property conveyed or mortgaged. Such a course might lead to difficult complications and interminable confusion. The reinscription, according to Article 3333, dispenses with the examination beyond the' period of ten years preceding.

In the case now before us, whatever might be the effect of the failure to reinscribe as to third parties, the opponent, we think, cannot avail himself of that neglect. He stands in the same position that the parties do, who transferred to him the notes he interposes as entitled to priority of mortgage. They expressly undertook, as part of the consideration they gave for the property, to discharge the unpaid remainder of the price still due to the heirs of Batey, the original vendors. A special mortgage and the vendor’s privilege attached to the property in their favor. In each successive sale after the first, to Washington and John S. Barrow, these rights were respectively recognized by the different purchasers, and they assumed, quoad hoc, the attitude of mortgagors which the Barrows occupied.

Then it results, that although the notes held by the opponent are secured by mortgage upon the property in question, yet this mortgage stands now as it stood at first, postponed in favor of the one executed by the first purchasers.

This Court declared, in the case of Dupuy v. Doshiel, 17 L. R., p. 60: “That the renewal of the registry, after the ten years, will not affect an ordinary third possessor or subsequent mortgagee; but its omission cannot avail a subsequent purchaser assuming the mortgages. ” See also 6 N. S. 716 and 7 Rob. 44; 6 Rob. 419, ib 522.

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


text:
    No. 1483.
    The State of Louisiana v. Thomas Behan.
    The appellate jurisdiction of the Supreme Court, in criminal cases, is limited to questions of law alone, and must be presented by bill of exceptions or assignment of errors.
    APPEAL from the First District Court of New Orleans, Abell, J.

      B.L. Lynch, Attorney General, for State.

      A. P. Field, for defendant and-appellant.
   Labauve, J.

The defendant was convicted of manslaughter, and sentenced by the lower court to fifteen years’ imprisonment at hard labor, in the State Penitentiary.

He took this appeal.

The record contains neither bill of exceptions, nor assignment of errors apparent on the face of the record.

Our appellate jurisdiction, in criminal cases, is limited to questions of law alone. These questions must be presented by bill of exceptions or assignments of errors; or the errors be apparent on the face of the record.

No counsel has appeared in this court, on the part of the appellant, to suggest any error of law, and we have found none after a careful examination of the record.

Judgment affirmed, with costs.


author: Hyman, O. J.

text:
    No. 1809.
    The State of Louisiana—On Relation of Maury & Co., v. The Judge of the Fourth District Court of New Orleans.
    The right of inquiry into the sufficiency of the security, on an appeal bond after the bond is given, is within the province of the court from, which the appeal is taken.
    APPEAL from the Fourth District Court of New Orleans, Théard, J.

      Campbell, Spofford <& Campbell, for plaintiffs.

      Elmore & King, for Maury & Co.
   Hyman, O. J.

On the complaint of Maury & Co., that the Judge of the Fourth District Court of New Orleans, had rendered judgment quashing a previous order of the court, granting them a suspensive appeal from a judgment rendered against them in the suit styled Sibley Guion & Co. v. Fernie Brothers & Co., and ordering execution to be issued against them on the judgment, a writ of prohibition was issued forbidding the Judge and Sibley Guión & Co. from proceeding further on the judgment against complainants, Maury & Co., until the further order of this court.

. The grounds alleged for obtaining the writ are, that the jurisdiction of the District Court over the case of Sibley Guion & Co. v. Fernie Brothers & Co., as far as complainants are concerned, was divested by the suspensive appeal taken from the judgment in the case against them, and that the court had no legal grounds for quashing the order.

The answer states, and the record discloses, that the Judge quashed the order for the suspensive appeal, because of the insufficiency of the securities given by Maury & Co., for a suspensive appeal from the judgment.

The right of inquiring into the sufficiency of the security on an appeal bond, after it is given, is within the province of the court from which the appeal is taken. 19 L. R. 174.

The order of the Judge, which was in conformity to law, was, that a suspensive appeal be allowed Maury & Co., from the judgment against them, on their furnishing bond with good and sufficient security in the sum of seven thousand dollars, conditioned as the law directs, etc.

In examining whether Maury & Co. had furnished such security on the bond, the Judge came to the conclusion that they had not, as the securities on the bond, had not property worth $7,000.

The evidence conflicts; one of the securities, who was a witness, estimated his property to be worth more than twice the estimate fixed on it, by an expert appointed by the Judge to ascertain its value.

The Judge gave credence to the expert’s valuation of the security’s property.

He had a better opportunity of judging of the credibility of the witnesses than we have; besides, the testimony of the security shows want of accuracy in him. For instance; he stated that he thought he could collect from debts owing him $3,000, yet the debts owing to him, according to a subsequent statement made by him, do not reach that amount.

The valuation of the expert of the property, shows that the securities given had not property equal in value to the amount of the bond.

The security given was insufficient, and the Judge had legal grounds for quashing the order for a suspensive appeal.

It is decreed that the writ of prohibition be set aside, and that these, proceedings be dismissed at the costs of the applicants.


author: Htman, O. J.

text:
    No. 1359.
    Charles D. Hamilton v. J. H. Eimer & Co.
    Where a party advertises for the purchase of cotton in the name of a well-known commercial firm, and proclaims himself a member thereof, the presumption is that all cotton purchased by him as suoh is for the benefit of the firm.
    Where a number of bales of cotton has been purchased, to be paid for at a fixed rate per pound on delivery, the risk falls on the purchaser from the moment of the delivery of the bales at the place agreed upon.
    APPEAL from the Third District Court of New Orleans, Fellowes, J.

      D. 8. Byron, for plaintiff and appellant.

      Roselius <& Philips, for defendants and appellees.

      Brief for plaintiff and appellant.

      * * * It is immaterial, so far as the liability of J. H. Eimer & Co. is concerned, whether Joseph Lang was their agent at Natchez or their partner; in either case they are liable to plaintiff. That he was one or the other is made as certain by the evidence as it ever can be in such cases, where there is not an instrument in writing, in which the functions and character of the party, as agent or partner, is clearly expressed.
    But we believe the evidence justifies beyond a doubt the conclusion, that so far as the business transacted at Natchez was concerned, Lang was a partner. It is true, Borhman says he never was a partner. We do not pretend that he was a general partner. Partnership, in a particular ease, is a question of law and evidence; and Mr. Borhman’s opinion is not of much value in such matters — for speaking of Wessel, he says: “Wesselwas sent up there to purchase cotton, and to ship it to New Orleans; whether this implies he was an agent, witness does not know.” Lang was to share in the net profits. This is one of the principal tests of partnership. It is made expressly so by the Civil Code. See Arts. 2772, 80, 82, 84, 85.
    Art. 2782 says: “It is of the essence of this contract that a profit is contemplated, ftnd that each of the parties is to partake therein.” With this doctrine of the Code agree all writers on commercial law. See Story on Partnership, paragraphs 54, 55, 56, 57 and 58; Kent’s Com., vol. 3, marginal pages 21 to 25 inclusive.
    Mr. Chancellor Kent says: “ To be a partner, one must have such an interest in the profits as will entitle him to an account, and give him a specific lien or preference in payment over other creditors.
    In the case of Robertson v. BeLazard, 4 Bob. 314, the Court says: “ The moment it is shown that for a limited period, and in relation to a particular branch of commerce they were to buy and sell on joint account, and participate in the profits, they become thereby, as to third person, partners in relation to that trade. There may be cases in which in point of fact the parties are not partners inter se, and yet are held liable as such toward third persons dealing with one of them.”
    This language is clear and specific, and pertinent to this case, for here the parties engaged for a limited period, in a particular branch of trade, and they were to share in the profits; and the plaintiff dealt with one of them.

      But there is another principle of law which makes parties partners, as to third persons, when they are not so inter se; and that is, when they hold themselves out to the world as such. This principle of law is elementary.
    Mr. justice Story says at $ 64, already quoted: “ This doctrine turns upon no peculiar principles of municipal jurisprudence, but is founded in the enlarged principles of natural law and justice ex equo ei bono; for wherever one of two innocent persons must suffer from a false confidence or trust reposed'in a third, he who has been the cause of that false confidence or trust, and is to be benefitted by it, ought to suffer rather than the other.”
    In the case of McDonald v. Millaudon, 5 La. 408, the Court says: “If parties hold themselves out to the world as partners, they are bound as partners by their acts, no matter what may be the agreement between themselves.”
    In this case, Lang held himself out as a partner, and was so considered at Natchez. Campbell Marsh, who was a clerk of the house at Natchez, says that he was introduced to Lang in the office of Wessel, as a member of the firm of J. H. Eimer & Co. The name of J. H. Eimer & Co. over the door, the notice in the Courier, brought to the knowledge of Mr. Eimer, shortly after its publication, and continued until after Lang had left the country, in which Mr. Lang is virtually announced as a partner, bind the house of J. H. Eimer & Co., as much as though each member of the house had joined personally in its publication.
    The same reasoning applies if Joseph Lang is to be regarded as the agent of J. H. Eimer & Co. See Story on Agency, 441 to 446 inclusive.
    As already stated, this is the only point raised in the case. The purchase and delivery of the cotton is not contested. The proof of it will be found at pages 30 and 33 inclusive. William Wells was in' the employment of Lang. The cotton, when delivered at Grand Gulf, was at Lang’s risk. William Ryker, at pages 41 and 42, says he was employed about the month of March or April, 1864, to purchase cotton; and he went to Grand Gulf and purchased some seventy bales of cotton, and had it delivered at Grand Gulf, when it was at Lang’s risk.
    The testimony discloses that Lang purchased of plaintiff other lots of cotton, which were paid for; and these eleven bales would also have been paid for, probably, had not Lang got into difficulty with the Federal authorities at Natchez; and after his release, deemed it prudent to leave the country; and now these defendants are disposed to take advantage of Lang’s absence, to avoid a just claim, which is equally binding upon all parties, both in law and equity.

      Brief for defendants and appellees.

      * * The first question to be considered is, did Lang purchase the cotton for account of J. H. Eimer & Go.?
    It is shown by. the testimony of William Wells, one of the plaintiffs’ own witnesses, p. 31, that the cotton in question was sold by Hamilton to Lang, individually. He says. “ On one occasion I was present when Mr. Lang and Mr. Hamilton were bargaining for cotton. Mr. Hamilton agreed to sell cotton to said Lang as much as he could deliver; Mr. Lang agreeing to take the risk of the cotton after being delivered on the river bank, at Grand Gulf, under the protection of the gunboats. Mr. Hamilton sold Mr. Lang eleven bales cotton, during the month of April, or thereabouts; the cotton was to be delivered as soon as possible, and it was delivered on the bank as agreed upon, the night following; the price of said cotton was fifty cents per pound.” He also states that Lang was to give the captain of the gunboat ¡¡¡>5 per bale to protect it; he further says: “ Some fifteen or twenty days after the eleven bales of cotton mentioned above as having been delivered on the bank of the river, Mr. Hamilton came down to Natchez to have a settlement with Mr. Lang; after they had a conference and came down stairs, I met Mr. Lang, and asked him if he had paid Mr. Hamilton for the eleven bales of cotton, and he answered that he had pnt that off until he could sea something more about what had become of them.”
    Thus it is seen that the transaction took place between Hamilton and Lang, and that the claim against J. H. Eimer <fc Co. is an after-thought.
    Nothing shows that the defendants had anything to do with this cotton; indeed it is not proved that it was delivered to Lang.
    II. — It is alleged that the cotton was sold at fifty cents a pound; there is no evidence that it was weighed; it was therefore at the risk of the plaintiff. C. C. 2-133.
   Htman, O. J.

Plaintiff sued to recover from defendants, a commercii partnership in New Orleans, the price of eleven bales of cotton, weighi, 3,905 pounds, which he alleged he sold and delivered to them in April. 1861, at 50 cents per pound. In his petition he claimed interest on price.

He alleged that the purchase of the cotton from him was effected by-Joseph Lang, acting therein on behalf of defendants.

Defendants put at issue, by a general denial, all the facts alleged by plaintiff.

Judgment was rendered in favor of defendants, and plaintiff has appealed.

The evidence shows that defendants had a house established in Natchez, Miss., for the purpose of purchasing cotton; that Charles Wessel was their agent at Natchez, and acted as such for them in the purchase of cotton till February, 1861, when Joseph Lang took charge of defendants’ business at that place.

On the 26th of that month, Lang advertised in a newspaper published at Natchez, styled “The Natchez Courier,” this notice:

“ Notice. — On and after this date, Mr. Charles W'essel is no longer onr agent; any business will in future be transacted in this city by our Mr. Joseph Lang. J. H. Etheb & Co.”

“Liberal cash advances on cotton consignments to my house, in New Orleans. Joseph Lang.”

That a copy of this notice was received by defendants shortly after its first publication, to which they made no objection; that Lang bought cotton, made various shipments of the same to defendants, drew drafts on them, and had a certain share of the net profits of his purchases of cotton as his compensation.

The evidence also shows that Lang bought from plaintiff eleven bales of cotton, weighing at least 3,905 pounds, for which he agreed to give 60 cents a pound; that plaintiff was to deliver them in April, 1861, at Grand Gulf, on the Mississippi river; that after their delivery they were to be at Lang’s risk, and that plaintiff delivered the same according to contract. What became of the cotton, after its delivery, the evidence does not satisfactorily show.

We are satisfied, from the evidence, that Lang had authority to buy the cotton for defendants, but they contend that it is not proved that he bought the cotton for them.

The business of Lang at Natchez, was to buy cotton for the partnership of O'. H. Eimer & Oo., of which he advertised himself as being a partner, and the presumption is that his purchases ox cotton Avere made for the firm,

Defendants further contend, that as there is not evidence that the cotton was weighed to them, it was at plaintiff’s risk.

We do not so hold. It is not essential to the contract of sale of produce by weight, that its risk should be on the vendor until it is weighed.

The risk may be assumed by the vendee, as the. law does not forbid him to assume it.

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

It is further decreed, that plaintiff recover of defendants, J. H. Eimer & Co., the sum of one thousand nine hundred and fifty-two dollars and fifty cents, with interest thereon, at the rate of five per cent, per annum, from the 30th day of April, 1804, till paid, and the costs of suit in both courts.


text:
    No. 1341.
    The State of Louisiana v. Pierre Bouchon, Principal, Dominique Boireau, Surety.
    An appeal only lies from a final judgment, siguedby the Judge, and such interlocutory judgments as may work an irreparable injury.
    A PPEAL from the District Court, Parish of St. Bernard, Gazabal, J. JA.

      J. E. Holland, for appellants.

      B. G. Elliott, District Attorney, for State, appellee.
   Hyman, C. J.

Two appeals are taken in this case, seeming to be from judgments forfeiting a recognizance, yet there is not in the transcript of appeal either a final judgment, signed by the Judge, or such interlocutory judgment as may work irreparable injury.

From such judgments only, does the law give the right of appeal. Code of Practice, 546, 565 and 566.

Decreed that appeal be rejected and dismissed, at the costs of appellants.


text:
    No. 1405.
    The City of New Orleans, Praying for a Jury of Freeholders, to determine the Line of Roads and Levees in the Third District.
    The city of New Orleans, having decided that it was to the public interest to become the oxoner of the soil necessary to construct a levee and establish a publio road, adopted the mode of expropriu* tion prescribed by law, by empaneling a jury of freeholders. The jury made their report of the quantity of ground necessary for the contemplated levee and roads, and estimated the value thereof: Meld — That the city, having eleoted this mode of proceeding, she is bound by the rules and regulations prescribed in such cases.
    A jury of freeholders have no authority to fix their own compensation for their services; they are governed by the rules regulating all other juries, in regard to their compensation,
    APPEAL from the Fourth District Court of New Orleans, Thíard, J.

      H. D. Ogden, City Attorney, for City, appellant.

      Buchanan <6 Gilmore, for Irwin, appellee.
   Howell, J.

This is a proceeding, instituted by the city of New Orleans, under the provisions of the Code, relating to “the compulsory transfer of property,” (Arts. 2604-2611) for the purpose of constructing a new levee and road in the Third District, to sedure the city from overflow and crevasses.

The main question is, whether or not those who are shown to be riparian proprietors are bound to give the land required, in this instance, for the road- and levee.-

They contend that the city, having elected to pursue the mode of proceeding for the compulsory transfer of their property, to be taken, as avowed by the city, for the public use, is bound thereby; and the verdict of the jury, fixing the price to be paid to them for the same, is conclusive, except on appeal as provided by Art. 2610.

To this the city replies that, “as some land was necessary for the general use, and it was not known how much and what land would be required, and whether the owners were riparian proprietors or otherwise, the city had to proceed under the provisions of' the Code for the compulsory transfer of property. The province of the jury was simply to ascertain the fair price of the land and improvement, that the same might be paid to such of the owners as were entitled to remuneration; who those owners were, was a question for the Court to decide.”

It is true, the jury could only ascertain the fair price of the property needed, but the other question was virtually settled by the city authorities as one of public policy, in declaring that the public safety required the improvement, and resorting to the proceedings prescribed by law for divesting the owners of their property needed for the purpose. And as the right of the city government to decide that it was to the public interest to become the owner of the soil necessary for the contemplated road and levee, and adopt the mode of proceeding in such a case, is not questioned, it is not our province to deny it. We think, as the city has elected this mode of proceeding, it must be held to the rules in the Code on the subject, and that it is unnecessary to decide whether the act of 1829, (p. 16) applies to the portion of the banks of the Mississippi, within the limits of this city.

The irregularities complained of, and which are glaring, are such as the owners and appellees might take advantage of, but they have waived them, and express themselves satisfied with the conclusion of' the jury. There is nothing in the record to enable us to say that the jury erred in fixing the value of the property, of which, however, the city does not seem to complain.

We wish it distinctly understood, that we do not consider this case a precedent, as to the mode to be pursued and the rights involved in the making of new levees in New Orleans. We decide it simply upon its peculiar pleadings, and do not think the questions of servitudes and of the rights and obligations of riparian proprietors are properly raised for decision.

As to the compensation of the jury, which is fixed by themselves at the sum of $1,800, and to which the city objects for that reason, as well as because it is excessive, we are of opinion that there is no law to authorize the mode or amount of the allowance. We think the jury is not unlike those, which are summoned in a particular occupation, profession or trade, an acquaintance with which is necessary in the decision of special causes, as a jury of merchants, and are to be compensated in like manner. We are referred to no law which provides special compensation for jurors in a case like this, or makes a distinction between them and ordinary jurors.

The judgment in this respect should be corrected.

It is therefore decreed, that so much of the judgment appealed from, as awards to the members of the jury, collectively, for their services herein, eighteen hundred dollars, be reversed, and that the said jurors be allowed the usual fee fixed by law, .to be taxed as costs, and that in other respects the judgment be affirmed, costs of appeal to be paid by the appellees.


text:
    No. 1368.
    William Wells v. James Coyle.
    Where the evidence stows that suit has been-brouglifc, and judgment rendered on the same instrument between other parties,, the plea oí res judicata will not be maintained.
    APPEAL from the Sixth District Court of New Orleans, Duplantier, J.
    D. N. Hennen and G. M. Goivrad & Son, for plaintiff and appellant.

      Buchanan <& Gilmore, for defendant and appellee.
   Labauve, J.

This suit is brought on the following instruments:

1 — “ $732. At Mr. Wm. Wells, April 14, 1863, I promise to pay on demand, to the order of Mr. or Mrs. Wells, seven hundred and thirty-two dollars, for value received.

(Signed) James Coybe.

Endorsed: James Coyle.

2 — “ $50. Due William Wells or Dearer fifty dollars, on demand.

(Signed) James Coybe.

Endorsed: Wm. Wells.”

The defendant answered by the peremptory exception of res judicata. “ That the matters alleged and demanded in the plaintiff’s petition, have been heretofore finally determined in favor of defendant by judgment of the said Sixth District Court, in the suit No. 11,152, entitled Alfred Marchand v. James Coyle, in which suit the same alleged indebtedness for the same cause was claimed from this defendant by said Marchand, the then holder of the note and due bill; that the judgment aforesaid is final as between the parties to this suit, and has in law the force of the thing adjudged. ”

The District Court sustained the plea, and gave judgment in favor of defendant, and the plaintiff appealed.

The plea of res judíenla must be tested by the pleadings and the judgment in the case of Marchand v. Coyle. There Marchand sued as- holder of said note and bill, under the endorsement of William Wells, and the said James Coyle pleaded the general issue, and admitted his signature; he averred that said note and due bill were void and of no effect in law, for this:

“Said pretended obligations were made and executed at Ponchatonla, in this State, then and now in the hostile possession of the enemies of the United States. That the same have been brought, contrary to law, within the jurisdiction of this Honorable Court, and that the payee thereof or his real or feigned assignee, the plaintiff, has no cause of action upon the same in this court, or any right to stand in judgment herein.” * * * The. balance net deemed important.

Upon that iReue, judgment was rendered dismissing the suit, at plaintiff’s costs. The only issne there was, whether or not Marchand could maintain the suit and stand in judgment, and the question in the case at bar is, whether or not Williams Wells, the payee, can claim of the defendant the performance of his contract.

The plaintiff herein sues as payee, and in the former case Marchand sued as endorsee.

The cases present two different persons acting in different capacities.

We are of opinion that this ease does not come within Art. 2265 of the Civil Code.

It is therefore ordered and decreed, that the judgment appealed from be annulled and reversed. It is further ordered, that the plea of res judicata he overruled, and the case remanded to be tried according to law, the defendant and appellee to pay costs of appeal.


author: Taliaferro. J.

text:
    No. 1490.
    State of Louisiana v. J. B. Young, Wm. McKenna and H. B. Green.
    A p8nal bond conditioned that tbe accused will appear before the First District Court of New Orleans, when called upon, cannot beforfeited, and the seourifcie» made liable thereon by a decree of tbe District Court of tbo parish of Jefferson.
    APPEAL from the District Court, Parish of Jefferson, Cazahai, J.

      B. C. Elliott, District Attorney, for State.

      Marr & Foute, for defendants and appellants.
   Taliaferro. J.

Upon information laid against them in the First District Court of New Orleans, the defendants severally entered into recognizances, to answer before that court a charge of assault and battery preferred against them. The Court afterwards, perceiving that the offence charged was committed in the parish of Jefferson, transferred the proceedings to the District Court of that parish. The accused parties, failing to appear in that court, the district attorney of that district caused them and their sureties to be called on their recognizances, and took judgments on the several bonds as forfeited. From one of these judgments, the one rendered against the defendant, Green, and E. H. Summers, his surety in solido, for the sum of five hundred dollars, Summers, the surety, has appealed.

The defence is, that no forfeiture of the bond has arisen; that the condition of the bond was for the appearance of the accused before tbe First District Court of New Orleans, and not for his appearance before the District Court of the parish of Jefferson.

The defence must prevail.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered, that judgment be rendered in favor of the defendant.