author: Ludeling, C. J. Taliaferro, J.,

text:
    No. 2890.
    Augustus Bohn v. Captain Cleaver and Lindsey, Master and Owner of British steamship Robert Lowe.
    If it be conceded that a contract was violated willfully, or through carelessness, still the measure of damages would be the injury inflicted upon the plaintiff, where there is no penal clause in the contract.
    Damages arising from the presumable profits of a speculation that was never made, are too uncertain for a court of justice to award.
    APPEAL from the Sixth District Court, parish of Orleans. Gooley, J.

      Howe <& Prentiss, Randolph, Singleton & Browne, for defendants and appellants. P>. O. Lahatt, for plaintiff and appellee.
   Ludeling, C. J.

This suit is for damages for the violation of a contract of affreightment. The conclusion we have come to. on the question of damages, after a careful examination of the evidence, renders it unnecessary for us to decide any other question discussed by counsel. If it be conceded that the contract was violated willfully, or through carelessness, still the measure of damages would be the injury inflicted upon the plaintiff, for there is no penal clause in the contract. It is as follows :

“ August Bohn, Esq.:
“We offer you the British auxiliary steamship Robert Lowe, about twelve hundred and seventy-seven tons register, for a full cargo of cotton, privilege Liverpool or Havre, at three-quarters pence three farthing's for the former, or seven-eighths pence latter, with five per cent, primage, invoice weight, steamer free of commissions, here or in Liverpool or Havre j thirty days to he allowed for loading at the port, and steamship to be ready to receive cargo not later than the fifteenth of October. “HUNTER & CO.
“Accepted.
“P. p-. AUG. BOHN.
“ K. W. SIMPSON.”

It appears that the Robert Lowe arrived at the bar at the mouth of the Mississippi river on the thirtieth September, but she did not reach New Orleans until about the twentieth of October, four or five days after the time when she should have -been there, in accordance with the terms of the contract. Freights declined from the fifteenth of October, 1869, steadily, until the end of November. So far as shipping the plaintiff’s own cotton was concerned, this was a gain to him, and not a loss. So far as sub-letting the ship to other shippers was concerned, he did not make any such contract. He testified that he did not like to take the risk of making contracts, because he was apprehensive that the vessel would not be here in time. And for these speculations, which he thinks he might have made, but which he did not dare to make, he wishes the defendants to pay him $16,000.

Damages arising from the presumable profits of a speculation that was never made are too uncertain for a court of justice to award.

The evidence shows that the Robert Lowe was at the bar on the thirtieth of September ; that efforts were being made to get her over the bar, that these facts were known to the plaintiff; and that the Lowe actually reached the city only a few days after the time she was to be ready to load. It is further proved that she could have discharged her cargo and received her load in ten or twelve days. We are at a loss to see how the plaintiff has been injured. But he stands upon his bond, and demands his pound of flesh. We award him everything that is in the bond, but nothing that is not therein written.

It is therefore ordered and adjudged that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendants, rejecting the plaintiff’s demand, with costs of both courts.

Taliaferro, J.,

dissenting. I think judgment should be rendered for plaintiff. This suit is brought on a charter party, drawn up as follows:

“ Office of William Creevy, broker, steamship agent and commission merchant, 33 Carondelet street, New Orleans, September 25, 1869.

“Augustus Bohn, Esq.:

“Dear Sir — We offer you the British auxiliary steamship Robert Lowe, about 1277 tons register, for a full cargo of cotton, privilege Liverpool or Havre, at three-fourths pence three farthings for the former or seven-eighths pence latter, with five per cent, primage, invoice weight; steamer free of commission here or in Liverpool or Havre; thirty days to be allowed for loading at this port, and the steamer to be ready to receive cargo not later than the fifteenth day of October.
(Signed) “HUNTER & CO.
“Accepted: Aug. Bohn.
(Signed) “P. p. R. W. SIMPSON.
“Witness: (Signed) Oliver P. Rezean.”
Internal revenue stamp $10 affixed.

The plaintiff alleges that the defendants failed to have the steamer ready in port to receive cargo on the fifteenth of October, according to their contract, and in consequence thereof he has suffered damages to the extent of $16,049 37, which he alleges arise from the loss to him from being unable to load the ship at the stipulated time, when freights on cotton were ruling high in New Orleans, there being offered for Liverpool one penny and one-eighth sterling per pound, and none obtained; that that price was paid at that time for freight to Havre. He alleges that the difference between the rate agreed upon by the charter party and the prevailing rates in New Orleans on the fifteenth of October was three-eighths penny sterling per pound, which at the rate of exchange makes the sum claimed as damages.

The defendants deny that plaintiff has suffered loss from the unavoidable failure on their part to have the ship in the port of New Orleans on the fifteenth of October, which failure occurred from the low stage of water that rendered it impossible for the vessel to pass over the bar at the mouth of the Mississippi, and they plead vis major. They further allege that the steamship did reach the port of New Orleans and was ready to receive cargo on the twentieth of October, of which they gave plaintiff notice, but that he refused to accept and load her; that defendants had previously, on finding it impossible to get the ship in port by the fifteenth of October', offered to pay all extra expenses incurred in keeping the cotton until it could be received on the vessel, and guaranteed that the vessel would load and be ready to sail within the thirty days allowed for loading.

There was judgment in the court below in favor of the plaintiff for $8024 67, with interest at five per cont. from judicial demand.

The defendants have appealed.

The defendants’ counsel holds that the contract between the parties isa Louisiana contract; that it was made in Louisiana; was to be performed in Louisiana as to all matters at issue, and that both the jurisprudence and the statutes agree in laying down the rule that such a contract is controlled in every respect by the laws of Louisiana. The contract was entered into in Louisiana, but it seems its accomplishment was to take place in a foreign country. The undertaking of the owners of the vessel was to bring her to New Orleans by the fifteenth of October, to be loaded with cotton by th’e plaintiff, and she was thence to proceed to the port of delivery (Liverpool or Havre at the option of the shipper), the owners to be paid for their services at a fixed price per pound for the freight of the cotton. The inception of the contract took place in New Orleans, but the parties looked to its fulfillment in Europe, where the delivery of the cargo was to take place.

“ An instrument as no its form and the formalities attending its execution must be tested by the laws of the place where it is made ; but the laws and usages of the place where the obligation of whieh.it is the evidence, is to be fulfilled, must regulate the performance.” 11 Martin 25, 8N. S. 34, Civil Code, article 10, 2 An. 774.

The commercial and maritime law should therefore govern as to the fulfillment of this contract of affreightment.

The plea of vis major, or overpowering force, alleged by defendants as releasing them from the performance of the obligation they entered into to have the vessel ready in the port of New Orleans on the fifteenth of October, fo receive cargo, I think should not avail them. Tnat the. impediment of the bar at the mouth of the river and the low stage of water at the time, did not present a.n obstacle absolutely impossible to be overcome by defendants, seems apparent from the fact that on the nineteenth or twentieth of the month they did surmount the obstacle by resorting to lighterage and the additional motive power of several steam tugs. By this means the vessel was taken over the bar and she came at once into port. It is in proof that the Robert Lowe arrived at the bar on the thirtieth of September, and there remained until after the fifteenth of October, the day she was to be at New Orleans to receive cargo. During all this time no attempt was made to put in requisition the appliances by which she finally came over the bar and reached the city. The difficulties in the way of entei'ing the Mississippi arising from that opprobrium soientiae, the bar lying at its entrance into the gulf, are well known, and the defendants in their contract made no exception on account of those difficulties. They obligated themselves unconditionally to bring their steamer to New Orleans and be ready to receive cargo not later than the fifteenth of October. The untoward state of things which they found on arriving at the mouth of the river forms no ground for relief against their absolute and unqualified undertaking that their vessel should arrive at New Orleans at the time fixed. The rule is one of common acceptation that in general a chai ter party oi>erates as a contract of insurance as well as of affreightment where no exception is introduced.

In the case of the Ilarriman, 9 Wallace, p. 172, the facts were, that a vessel was chartered in San Francisco to carry coal to the Spanish fleet, supposed to be then operating against Valparaiso; and the chartered vessel sailed from San Francisco on May 22, and it turned out that two days afterward the Spanish fleet left the coast of Chili and went to parts unknown, and did not return there. The chartered ship proceeded to the Chinea Islands, where it was ascertained that all was quiet at Valparaiso, and that nothing was known of the Spanish fleet. The ship returned to San Francisco, without going beyond the Chinea Islands. The Supreme Court of the United States, in regard to the main issue in that ease, said: The owner made no provision against ■any contingency. His engagement was simple, direct, and unconditional, that the vessel should proceed to Yalparaiso. The presence or absence of the consignee was immaterial. If absent, it was the right and duty of the master to place the cargo in store. The contract was not fulfilled. For this the shipper is in no wise responsible. Such are the relations of the parties. The contract of affreightment is governed by the same principles as other special contracts. There are none to which these principles are more stringently applied. The contract is an entirety; and where there has been no complete fulfillment on one -side and no fault or waiver on the other, no freight money can be recovered. Mr. Justice Story says this is the result of all the cases.” The court further said: “The principle deducible from the authorities is, that if what is agreed to be done is possible and lawful, it must be done. Difficulty or impossibility of accomplishing the undertaking will not avail the defendant. It must be shown that the thing can not by any means be effected. Nothing short of this will excuse non-performance. The answer to the objection of hardship is, that it might have been guarded against by a proper stipulation. It is the province ■ of courts to enforce contracts, not to make or modify them. When there is neither fraud, accident, nor mistake, the exercise of dispensing power is not a judicial function.”

I think the plaintiff has made out clearly a loss to the amount of the sum awarded him by the judgment of the lower court. The defendants had chartered their ship to carry cotton to Liverpool for seven-eighths pence per pound. The plaintiff had the right on paying that rate to load the ship at a higher rate if lie could get it. Early in October, Deean & Zerega, ship brokers, offered to the plaintiff for the Lowe two thousand bales at fifteen-sixteenths pence per pound, which he declined, under the apprehension that the Lowe would not arrive on ' the fifteenth. The plaintiff, about the same time he was offered the two thousand bales by Decan & Zerega, endeavored through those brokers to ship a thousand bales of his own cottcSn on the Alhambra at two cents per pound, but could not effect the shipment because the Alhambra was loading at two and a-half cents per pound. I am satisfied that the evidence is conclusive that the Lowe could have been readily loaded at fifteen-sixteenths pence per pound had she been in port at the stipulated time.

It is shown that freights just at that time were ruling high, even a penny or more, it seems, had been offered in some instances. When the plaintiff offered a thousand bales to the Alhambra, she was the ■only steamship in port. The number of bales the Lowe was capable of carrying is shown, and I think the estimate made by the court a ■qua of the difference between the contract price by the charter party .and what is assumed as the average rate of freights on the fifteenth of October, viz., a penny and one-sixteenth, correct. To this is added five per cent, primage, the whole reduced to United States currency at the rate of exchange at New Orleans on England on the fifteenth of October, 1869, making $8024 67. For this sum, with five per cent, interest from judicial demand, the judgment was rendered, and, I think, correctly.

iJIokgan, J. I concur with Mr. Justice Taliaferro in his dissenting jinion.

Rehearing refused.


source: Caselaw Access Project

author: Taliaferro, J.

license: Public Domain

text:
    No. 4522.
    Amos T. Dwight v. R. R. Barrow.
    The motion to dismiss the appeal must prevail, where the appellant has lost his right to thesuspensive appeal by failing to furnish the required bond within the time prescribed by law, and where the amount of bond not having been fixed by the judge, he cannot avail1 himself of a devolutive appeal.
    APPEAL from the Third (now Fifteenth) Judicial District Court, parish of Terrebonne. Bouis West, judge ad hoe., in place of the district judge recused.

      N. IT. Eightor, for plaintiff and appellee.

      B. D. Jordan, for defendant and appellant.
    On Motion to Dismiss.
   Taliaferro, J.

The ground taken for the dismissal of this appeal is, that the appeal bond was not given until the twenty-eighth day of January, 1873, the day on which the appeal was by law returnable, being the fourth Monday of that month, the appeal having been granted on motion in open court on the twentieth of November, 1872. The transcript was filed in this court on the fifth of February, 1873, the appellant, upon the certificate of the clerk of the lower court of liis inability to complete the transcript within the time required by law, obtained, on the twenty-third of January, an extension of ten days to complete it, and on the thirty-first of that month, on motion,, a further extension of five days was granted. The motion must prevail. The appellant clearly lost his right to the suspensive appeal by failing to furnish the required bond within the time required by law. The amount of bond not having been fixed by the judge, he can, not, avail himself of a devolutive appeal. C. P. article 578.

It is ordered that the appeal be dismissed at appellant’s cost.


author: Morgan, J.

text:
    No. 4536.
    Frances Desobry et als. v. Roman Schlater et als.
    Parties to a marriage contract in Louisiana can agree therein, that the property they may acquire by succession or donation during marriage, shall fall into the community of acquets and gains, and the father and mother of the parties to the marriage can give, for the benefit of said parties, the whole or a part of the property they may have on the day of their decease.
    Parties may stipulate as they like, provided the thing stipulated is not in contravention of a prohibitory law. Any stipulation, therefore, in a marriage contract, which is not¿n violation of a prohibitory law, is binding upon the contracting parties, as long as' the contract lasts.
    All stipulations which the law permits to be made in marriage contracts may be altered by the husband and wife jointly before the celebration of the marriage, but not afterwards. As they bind themselves at the time of the marriage, so they remain bound so long as the marriage lasts.
    ■Whether the stipulations of a marriage contract can be subsequently changed or not, it is clear that the changing of said contract would be, in reality, a new one, and that, as such, it would have to be entered into by all those who were parties to the first contract, and that the stipulations to that effect should be positively stated.
    The fruits of community property belong to the community and are liable to seizure in payment of a community debt.
    Plaintiffs having pleaded the prescription of one year against the defendants’ answer and pretensions;
    Held — That it does not appear that this case is governed by any of the provisions of the article of the code regulating said prescription.

      APPEAL from the Fifth Judicial District Court, parish of Iberville. Posey, J.

      A. & B. P. Talbot, David B. Barrow, O. Boselius and Alf. Philips, for plaintiffs and appellees. Samuel Matthews, GeorgeWailes and William B. Bunt, for defendants and appellants.
   Morgan, J.

On the sixteenth December, 1846, Jean Arvillien Dardenne and Frances Desobry, entered into a marriage contract, by which it was stipulated that the future husband brought into marriage property valued at $18,000, and the future wife $7500 in cash, which sum was advanced by her father and mother out of the share which might fall to her in their succession after their death. This sum of $7500 was acknowledged to have been received by the future husband.. Besides the cash, the tature wife also brought into marriage a slave,, aged about eighteen years, which was also advanced by her father and', mother upon the same terms. The parties to this contract were Dar-denne and Frances Desobry, and her father and mother, Lewis and! Minerva Desobry.

By this contract it was further agreed that all the property brought by the future husband and wife in marriage, or which might' fall to them or either of them by succession or donation during their mar-; riage, should be held in common between them under a title similar to that of acquets and gains, made during the existence ot the marriage •, and it was expressly agreed between the parties to the contract, that the future wife had not, and should never exercise any dotal or paraphernal rights. This portion of the contract is as follows:

“Article third — The parties to this contract, that is to say, the said Jean Arvillien Dardenne and the said Frances Desobry and her said father and mother, Louis Desobry and Minerva, his wife, convenant and agree that all the property brought by them in marriage, or which may fall to them, or either of them, by succession or donation, during their marriage, shall be held by them in common, on a title similar to that of acquets and gains, made during the existence of the marriage, it being expressly understood by and between the parties to this contract that the said future wife has not, and can never exercise any dotad- or paraphernal rights.

Dardenne and Frances Desobry were married under this contract.

At various times after the marriage the father and mother of Mrs. Dardenne gave to Dardenne sums of money. They also gave him a slave. He receipted for the amounts received, and it was stated in the receipts that the money and the slave given were received as donations to Mrs. Dardenne, to be deducted out of any interest which she might •eventually have in the succession of her father and mother.

On the twenty-fourth March, 1856, Louis Desobry, Mrs. Dardenne’s father, sold to Dardenne certain pieces of property for $10,150, of which $2000 were paid in cash, and for the balance the vendor made a donation thereof to his daughter, Mrs. Dardenne, as an advance of her ■share of inheritance, which sum, so advanced, was to be considered as the paraphernal property of Mrs. Dardenne. On the fifth September, 1866, Mrs. Dardenne'instituted suit against her husband, in which she sets up the marriage contract referred to, and the payments made therein and thereunder, all of which payments she avers were received by her husband, and were by him converted to his own use and benefit. She alleges further that the stipulations therein contained, with reference to the community which it was agreed should exist between her husband and herself, are contrary to law, and are therefore null and void; that the derangement of her husband’s affairs and his pecuniary embarrassments induce her to fear that she may lose her rights and claims for the sums of money and the property received by him for hex; and she prayed for a separation of property, and for a judgment for the amount of her claims, with interest, and with a legal mortgage to secure the payment thereof upon her husband’s property. The husband made default, which was duly confirmed, and on the twenty-eighth September, 1866, judgment was rendered in her favor, declaring that portion of their marriage contract regarding the community which was to exist between them null; decreeing, further, a separation of property between her husband and herself, and giving her a judgment for $19,641, amount of her separate and paraphernal funds and moneys received by her husband for her account, with legal interest from judicial demand until paid, and granting her a legal mortgage on the property of her husband to secure the payment of the $19,641, to date from the dates upon which the several sums making up this aggregate were received by him. This judgment was published according to law.

On the first March, 1867, by public act passed before the recorder of the parish in which they reside, Dardenne, in full satisfaction of the .'judgment above recited, gave to his wife, who accepted the same under his authorization, a certain plantation known as the Crescent plantation, together with the mules, horses, sheep, and agricultural implements thereon, and another tract of land. This elation en paiement was recorded on the twenty-first March, 1867. On the thirteenth February, 1867, Mrs. Dardenne gave to her husband a power of attorney, to manage all the matters regarding her property, and he has been administering it ever since. The Crescent plantation has been cultivated by him, and in the year 1871 a crop of sugar and molasses was made thereon.

On the twenty-eighth September, 1866, Roman Schlater obtained a judgment against Brusle and Dardenne, in solido, for $9504, with four per cent, interest thereon per annum, from first April, 1862. On the seventh December, 1871, he issued execution thereon. On the eighth December, the sheriff seized six hogsheads sugar, and on the fifteenth he seized twenty-six and two-thirds hogsheads and three thousand seven hundred and forty-five gallons molasses, more or less, of which he sub•sequently released one-third of the sugar and two thousand eight hundred gallons of molasses, under instructions from Schlater, which ■sugar and molasses was produced on the Crescent plantation.

This execution was injoined by the plaintiff herein. In her petition she sets up her judgment, the payment thereof by the transfer of property above set forth, amongst which was the Crescent plantation, of which she alleges continual possession since the transfer thereof; and she claims that the property seized belongs to her, and that it is not liable for her husband’s debts. She asks for a judgment decreeing the seizure illegal.

The defendant answers that plaintiffs’ judgment and the proceedings thereunder, are mere simulations, intended to place the property of her husband beyond the pursuit of his creditors, who had obtained and recorded judgments against him prior to her judgment, and the transfer thereunder. He sets up the marriage contract between the parties, on the faith of which, he alleges, he and others, transacted business with her husband and became his creditors, and he claims that her judgment as against him is an absolute nullity. Upon these issues the parties wentto trial. There was judgment perpetuating the injunction, and the defendant has appealed. The whole case turns upon the validity of the marria,ge -contract, about the existence and confection of which there is no dispute; and the question propounded to us for answer is : Can parties, in Louisiana, by their marriage contract, agree that the property which they may acquire by succession, or donation, during marriage, shall fall into the community of acquets and gains? And herein (in this case) can the father and mother of the parties to the marriage, give the whole or a part of the property they may leave on the day of their decease for the benefit of the parties ?

If they can, the judgment appealed from is wrong. If they can not, it is right.

Our law considers marriage in no other view than as a civil contract. C. C. 86. Parties may stipulate as they like, provided the thing stipulated is not in contravention of a prohibitory law. Any stipulation, therefore, in a marriage contract, which is not in violation of a prohibitory law, is binding upon the contracting parties, so long as the contract lasts.

Every marriage contracted in this State superinduces, of right, partnership, or community of acquets and gains, if there be no stipulation, to the contrary. C. C. 2399.

Parties may, by their marriage contracts, modify the legal community as they think fit, either by agreeing that the parties shall be unequal, or if specifying the property belonging to either of them, of which the fruits shall not enter into the partnership. C. C. 2424:

They may stipulate that there shall be no community whatever. C.. C. 2332. In other words, in our opinion, as we have before stated, they may make any stipulation in their contract which is not reprobated by law.

And “ fathers and mothers, the other ascendants, the collateral relations of either parties to the marriage, and even strangers, may give the whole or a part of the property they shall leave on the day of their decease, both for the benefit of the parties and for that of the children to be born of their marriage, in case the donor survives the donee.” C. C. 1735.

These are all stipulations which the law permits to be made in marriage contracts, which agreements may be altered by the husband and '*rife jointly before the celebration of marriage, but not afterward. Article 2329 declares, “Every matrimonial agreement can be altered; by the husband and wife jointly, before the celebration of marriage,, but it cannot be altered after the celebration.” As they bind themselves at the time of their marriage, so they remain bound so long as-the marriage lasts.

These are the textual provisions of our Code, and we do not see how those who follow them can successfully assert that they have been acting in conflict with the law, or that a contract made under them is null and of no effect. This question has, we think, already heen re viewed by this court. In the case of Eabre v. Sparks, 12 R. 31, it was stipulated in the marriage contract that “there shall be a community between them, the said parties, which shall comprehend all their estate, real and personal and to come.” The court gave effect to the contract; and so it did in the succession of Mossy, 4 An. p. 339, where the same doctrine was recognized.

It was contended that, notwithstanding the stipulation to the contrary in the marriage contract, donations may be made to the wife which will be her separate property. And it was pressed upon us that inasmuch as the donations in this case were made by the father and mother, on account of the plaintiff’s interest in his and his wife’s succession, which appears by the testimony of the father, by-the receipts of the husband, and by the act of sale and donation of certain landed property, in which it is stated that the amount of the purchase money advanced is to be considered as the paraphernal property of the plaintiff, these advances must be held to be her paraphernal property, subject to restitution by her husband.

We do not consider the question whether, notwithstanding the stipulation to the contrary in a marriage contract, the wife may receive donations which will be her separate property before us. Such a stipulation may have been a condition precedent to the marriage. It is a condition which the law does not prohibit parties from making. It is a stipulation which the law expressly allows fathers, mothers, col-laterals and even strangers to make in favor of their children, relatives or friends, so far at least as relates to the property which the donors may leave at their death.

Whether this contract, once made, can be annulled by the parties who made it, in spite of the article of the code, or whether one of the parties, without the assent of the other may destroy it, is not for us now to determine. We are clear, however, upon this point, that the changing of such a contract would be, in reality, a new contract, and that, as such, it would have to be entered into by all those who were parties to the first contract, and that the stipulations to that effect should be positively stated. We do not discover that this has been done here. The husband, the wife aud her father and mother, before the marriage, agreed amongst themselves that all property received by donation by either of the parties contracting marriage, during the marriage, should be community property.

Plaintiffs’ father was, as we have seen, a party to that contract, and when he made the donations to her, giving the same to her husband, without referring in any manner to the stipulations in the marriage contract, he must, we think, be considered as having done so, with reference to that contract, by which he knew his donation would form part of the community between his daughter and her husband. We think we must take his deeds to be a compliance with his words, and’ that when he declared the donations made by him to his daughter’s-husband should be considered as her paraphernal rights, his only object was to provide that the amounts should be deducted from his succession when it should come to be divided amongst his co-heirs. Otherwise, we think, he should have stated it, and the husband should have so accepted it, that the donations were to be her separate property,, notwithstanding the marriage contract. At all events, we think it should have been in some way shown that it was their intention to destroy or modify the marriage contract. This was not done. On the contrary, to us, the donations seem to have been made in conformity therewith.

The marriage contract not having been abrogated when the donations and sale were made, the property conveyed formed part of the community of acquets and gains, and was liable for the community debts. The judgment under which the execution herein injoined issued, was to force the payment of a community debt, which existed when the judgment under which the plaintiff now claims, was rendered'. The property being community property, the fruits thereof belong to> tho community, and are liable to seizure in payment of a community debt, and the injunction which restrains the execution under which it was seized therefor, improperly issued.

Plaintiff has plead the prescription of one year against the defendants’ answer and pretensions. We do not see that the case is governed by any of the provisions of the article of the code regulating the prescription of one year.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that the injunction herein issued be dismissed, plaintiffs to pay costs in both courts.

Rehearing refussed.


text:
    No. 4352.
    Succession of Henry J. Forstall, on Opposition of Oscar Forstall to Application of Widow Forstall for Letters of Tutorship.
    Nothing is to be found in the statutes of this State relative to adoption, which, being construed! with the various articles of the Civil Code on the subject of tutorship, inclines this court to believe that the Legislature, in permitting the adoption of children, had any intention to abridge tho right of a natural tutor to the personal care and control of his minor child! or to the administration of the child’s property.
    APPEAL from the Second District Court, parish of Orleans. Duvigneaud, J.

      O. T. Bemiss & Bercmlt, for Oscar Forstall, opponent and appellant. Saucier & Michinard, for Widow Forstall, appellee.
   Taliaferro, J.

Henry J. Forstall died in August, 1862, leaving: one child, issue of his marriage with Mathilde Ranche, who in this suit petitions to qualify as natural tutrix of that child, Marie Emma For-stall; that an undertutor be appointed, and an inventory be taken of the property of the estate of her deceased husband.

She is opposed in these proceedings by Oscar Forstall, a brother of the deceased, on the ground that in compliance with all the requirements of law in such cases, and with the full consent of Mrs. Mathilde Forstall, widow of his deceased brother and mother of his surviving child, the said Marie Emma, he did by notarial act on the twenty-fourth of March, 1866, and in pursuance of a decree of the Fourth District Court of New Orleans, rendered on the tenth of March, 1866, adopt the said child Emma as his own. He prays to be recognized and confirmed as the adopted father of the child and entitled to the administration of her property, and that the application of Mrs. Forstall to qualify as natural tutrix of the minor be rejected.

The opposition was overruled, and an order rendered for the making of an inventory as prayed for by Mrs. Forstall, and she was recognized as natural tutrix of her minor child and allowed to qualify as such.

From this judgment the opponent has appealed.

We find nothing in the statutes of this State relative to adoption, constiued with the various articles of the Civil Code on the subject of tutorship that inclines us to believe that the Legislature, in permitting the adoption of children, had any intention to abridge the right of a natural tutor to the personal care and control of his minor child, or to the administration of the child’s property.

The judgment appealed from we think was correctly rendered, and it is therefore ordered that it be affirmed with costs.


text:
    No. 4585.
    Succession of Jean Bouvet, Opposition to Account of Tutrix.
    The vendor’s privilege attaches to the improvements put upon lots by the vendor, where the ’ vendor is not opposed by any one entitled to or claiming a special privilege upon the buildings.
    The objection that a widow claiming the benefit of the one thousand dollar reservation has lost her right to it by failing to register her claim as a privilege is without force. This provision for destitute widows and orphans is not to be regarded strictly as a privilege, and the recording of it is not necessary for its preservation.
    This claim must be paid in preference to all other debts, except for the vendor’s privilege and expenses incurred in selling the property, and where it conflicts with the lessor’s privilege the latter must yield.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Judien Michel and A. J-. Villere, for Mrs. Bouvet, tutrix and appellee. JS. Bermudez and A. Viavant, for Mrs. Van Rooten, opponent and appellee. G. Schmidt, for Mrs. Gallier, opponent and appellant.
   Taliaferro, J.

The widow of Jean Bouvet and natural tutrix of her minor children, having filed an account and tableau of distribution of the proceeds of the insolvent estate of the decedent, it was opposed ■by various creditors, and a contest arose among them in regard to the rank that should be assigned to the claims of the contestants against ■the succession.

The funds to be distributed were proceeds of real estate amounting to $1340 and $1079 20, arising from sale of contents of a store leased -by Mrs. G-allier to Bouvet ($806 05), and $273 15, amount of bills collected by the tutrix.

The judge a quo, after hearing the parties, made an alteration of the ■tableau as presented, and adjusted the distribution as follows : After deducting from the gross sum of proceeds of the real estate the taxes, and the various expenses of the sale, amounting in the whole to $220, the remainder, $1120, was given to Mrs. Van Rooten, holding mortgage and vendor’s privilege on the property sold by her to Bouvet; ■to Mrs. Bouvet, claiming a thousand dollars under the law granting this right to a widow left in necessitous circumstances, after deducting from a thousand dollars the value of the household furniture retained by the widow, $354. He directed the remainder, $646, to be paid out of the $1079 20, leaving a balance of $433 to Mrs. Gallier, in right of her lessor’s privilege.

Prom this judgment she appeals. In this court the widow Bouvet and several others, claiming to be privileged creditors, appear and join Mrs. Gallier in the appeal, and pray a reversal of the judgment and for the homologation of the two accounts as originally presented in the lower court.

The real estate belonging to the succession of the insolvent consisted ■ of two vacant or unimproved lots in New Orleans, purchased by Bouvet from Mrs. Van Rooten, on a credit. A note was given for the price, and the vendor’s privilege and special mortgage retained to secure the payment. Bouvet, after purchasing these lots, placed buildings and improvements upon them. An order of court was obtained for the appraisement o~f the lots and the improvements put upon tin m, separately, which was accordingly done, and the separate value of each ascertained, the value of the lots being $600, that of the improvements $900. The whole property sold together for $1350. It is contended on the part of Mrs. Bouvet that the vendor’s privilege does not extend to the improvements placed upon the lots; that as to the improvements, the vendor of the lots can have only a right of mortgage, and that under the homestead law her right is superior to the vendor’s mortgage, as the law declares its precedence over all claims, except the vendor’s privilege. We see no sufficient reasons for altering the judgment of the court below. We think the vendor’s privilege attaches to the improvements put upon the lots by the vendee. The vendor in this case is not opposed by any one entitled to or ■claiming a special privilege upon the buildings. The objection that the widow claiming the benefit of the thousand dollar reservation has ■lost her right to it by failing to register her claim as a privilege, we think without force. We concur in opinion with the judge a quo that this provision made for tho benefit of the destitute widow'and helpless ■orphan is not to be regarded strictly as a privilege, and the recording ■of it is not necessary for its preservation. The terms used in conferring the right are very clear and distinct in declaring that the “amount shall be paid in preference to all other debts except those for the -vendor’s privilege and expenses incurred in selling the' property.” When, therefore, a case occurs like the present, where this claim coniflicts with the lessor’s privilege, the latter must yield. On the part of Mrs. Gallier, insisting upon her privilege as lessor, and those who .joined her in this court in praying an alteration of the judgment, we find nothing to entitle them to it.

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

Rehearing refused.


author: Wyly, J.

text:
    No. 4660.
    State of Louisiana ex rel. J. O. Nixon v. James Graham, Auditor. State of Louisiana, intervenor.
    This court does not recognize tlie right of the Attorney General, whose term of office is about expiring*, to make an agreement so as to preclude his successor from taking an appeal and otherwise discharging his duty to tho State.
    An Attorney General who palpably neglects his duty, and who abandons the interest of the State which ho was charged to protect and to defend, has no authority to make contracts binding on his successor for a like dereliction of duty.
    The Attorney General is not the State, but only its counsel. His agreement to acquiesce in a judgment is not the acquiescence of the State, nor does it bind a succeeding Attorney General not to take an appeal where the time for appealing has not elapsed.
    The appellee is not entitled to notice of the order of appeal, where it was granted on the mandamus of this court, and relates back to the time the appeal was denied on the trial of the rule, contradictorily with tho parties to the suit.
    A statement of facts signed by the relator, “ to facilitate the trial and to be used on the trial in the Supremo Court,” would be sufficient to dispense with a. citation of appeal on said relator.
    ‘The question on the merits presented in this suit is identical with the one decided in the case of the State ex rel. Salomon & Simpson against the same defendant, 23 An. 402.
    ‘The State debt exceeded the constitutional limitation of $25,000,000 at the time the act for the relief of tho relator was passed, and created a debt in his favor. His claim therefore cannot be enforced.
    APPEAL from the Eighth District Court, parish of Orleans. Oooley, J., acting in the absence of 3. O. Dibble, judge of said court.

      J. B. Howard and John Bay, for relator and appellee. Mays <& New, J. Q. A. Bellows and A. F. Field, Attorney General, for respondents and ■appellants.
   Wyly, J.

The plaintiff moves to dismiss this appeal:

First — Because the judgment herein has been acquiesced in by S.Belden, Attorney General.

Second — Because the appellee has not been cited, the appeal being, granted by motion on fifteenth March, 1873, at á term different from that at which the judgment was rendered, which was on eighteenth. September, 1872.

Third — Because the State of Louisiana is neither a defendant nor an intervenor, and the Auditor has not given bond.

We do not recognize the right of the Attorney General, whose term, of office is about expiring, to make an agreement not to take an appeal in a case, so as to preclude his successor from taking an appeal and otherwise discharging his duty to the State.

An Attorney General who palpably neglects his duty and who abandons the interest of the State, which he was charged to protect and to defend, has no authority to make contracts binding on his successor for a like dereliction of duty to the State.

The Attorney General is not the State; but only the counsel for the State. His agreement to acquiesce in a judgment is not the acquiescence of the State; nor does it bind a succeeding Attorney General not to take an appeal where he believes it the interest of the State to do so,, and the time for appealing has not elapsed.

The rule for an appeal was tried contradictorily with the appellee, on second October, 1872, and the right to appeal was denied. The appellants applied for a mandamus and prohibition, and on tenth March, 1873, these writs were made peremptory and perpetual by this-court, and the appeal has been brought up in pursuance thereof. We do" not consider the appellee entitled to notice of the order of appeal, because it was granted on the mandamus of this court; and it relates back to the time the appeal was denied on the trial of the rule contradictorily with the parties to the suit. This court has only compelled the order which should have issued then.

Besides, the statement of facts signed by the relator and “to facilitate the trial and to be used on the trial in the Supreme Court,” would be sufficient to dispense with a citation of appeal. It is inconsistent and absurd for the relator to contend that he has no notice of this appeal, and at the same time to file a document signed by himself, for the purpose of facilitating the trial and to be used at the trial in the Supreme Court. A document of that character, voluntarily filed in the-lower court, would be considered as a voluntary appearance, and would, obviate the necessity for citation.

The third ground, that the State of Louisiana is neither a defendant, nor an intervenor, was probably made in error. Because from the-record it is positively untrue.

The Attorney General, in the same document, filed an answer for-

the Auditor and an intervention for the State; and the court entered the following order: “ The intervention in this is case is allowed by the court to be filed.” And at the trial the minutes of the court show that the State by the Attorney General, appeared as an intervenor.

The motion is therefore denied.

On the Merits.

The question presented is the same as that presented in The State ex rel. Salomon & Simpson against the same defendant, 23 An. 402. Indeed, it is the same claim, now in the hands of the original party, J. O. Nixon; it was then in the hands of Salomon & Simpson, the transferrees of Nixon. How the claim can be stronger in the hands of the obligee or the beneficiary of the act No. 32 of the acts of 1871, than it was in the hands of his transferrees, we can not imagine.

It is proved that the State debt exceeded $25,000,000 at the time act No. 32, for the relief of J. O. Nixon, was passed. That act created a debt of over §50,000 in favor of Nixon when the constitution prohibited the State from creating it, because the limit of $25,000,000 had already been reached.

Eor the reasons stated and those given in State ex rel. Salomon & Simpson v. James Graham, Auditor, 23 An. 402, the judgment herein in favor of the relator must be reversed.

It is therefore ordered that the judgment appealed from be annulled; and it is further ordered that there be judgment for the intervenor, and that the mandamus herein be disallowed and the suit be dismissed at the costs of the relator in both courts.

Rehearing refused.


text:
    No. 2919.
    Ellison, Creevy & Emley, liquidators of The Firemen’s Insurance Company, E. E. Norton, assignee in bankruptcy (subrogated No. 23,616) v. Jules Schneider and Edward Schnegans.
    Where the question was as to the validity of the transfer of stock, on the ground that it was not made in accordance with the formalities required by the charter of the company;
    Held — That if the consent of the directors to the transfer was not obtained in a formal convocation of the board, yet the assent of a majority of the directors appeared to have been given and in the manner that transfers of stock were frequently made. This is sufficient.
    APPEAL from the Fourth District Court, parish of Orleans. Thérn'd, J.

      Aug. Be B. Hughes, Bentínele Bgan, Ji. H. Marr, Cotton & Bevy, for plaintiff and appellee. Hornor á Benedict, for defendants and appellants.
   Taliaferro, J.

The plaintiffs, in their capacity of liquidators of the Firemen’s Insurance Company, sue the defendants as stockholders in the company for the amount of two calls made on assessments according to the charter of the company; one of these assessments was made on the twenty-eighth of May, 1867, for twenty dollars per share; the other in July, 1869. After the company went into liquidation the liquidators made a call for twenty dollars per share to pay the debts of the company. After the call of the twenty-eighth of May, 1867, and before the one last made, Jules Schneider, one of the defendants, transferred his stock to Schnegans, the other defendant. The plaintiffs allege that this transfer to Schnegans was a mere scheme of Schneider to avoid his liability for the debts of the company as a stockholder; that the transfer was made to Schnegans without the formalities required by the charter to render valid the transfer Of stock; and therefore the act purporting to transfer the stock of Schneider to Schnegans is null and void.

The defendants answer by general denial. The plaintiffs had judgment in their favor and the defendants have appealed.

We see no reasons for disturbing the judgment. The transfer complained of seems to have been regularly made upon the books of the company in the usual form of such transactions. Schnegans was recognized by the directors of the company as a stockholder, and by their consent became the trausferree of the stock held by Schneider. This consent, if not obtained from the directors in a formal convocation of the board, yet the assent of a .majority of the directors appears to have been given, and in the manner that transfers of stock were frequently made.

It is therefore ordered that the judgment of the District Court be annulled, avoided and reversed; it is further ordered that there be judgment in favor of the defendants, the plaintiffs paying costs in both court.

Rehearing refused.


text:
    No. 2920.
    Ellison, Creevy & Emley, liquidators of Firemen’s Insurance Company, No. 23,617, E. E. Norton, assignee, (subrogated) v. Louis Schneider, Lydia Maria Schneider and Edward Schnegans.
    The syllabus of the preceding case, 2sfo. 2919, applies to this one, which is identical.
    APPEAL from the Fourth District Court, parish of Orleans. Théard, J.

      Aug. Be B. Hughes, Bentinch JSga/n, Cotton & Levy, for plaintiffs and appellees. Hornor <& Benedict, for defendants and appellants.
   Taliaferro, J.

This suit is founded on the same basis with that of the same plaintiffs against Jules Schneider and Edward Schnegans, No. 23,616, the judgment in which has just been pronounced. For the reasons therein assigned, it is ordered that the judgment of the district court rendered in favor of the plaintiff’s in this case (No. 23,617), be annulled, avoided and reversed. It is further ordered, that there be judgment in favor of the defendants, the plaintiffs paying costs in both courts.

Rehearing refused.


author: Howell, J. Howell, J.

text:
    No. 3764.
    Daniel S. Vinson v. Succession of Jackson B. Tompkins.
    Where, on the admission of the tutrix of a minor child, judgment was rendered declaring the sale of a certain piece of property to the minor's father, now deceased, to be simulated, and reconveying the title to the plaintiff, and condemning him to refund whatever taxes the widow paid, and to pay costs, reserving the rights of the minor, whatever they may be;
    Held — That, although it is true the tutrix could mate no admission which could bind the minor, yet that, as the law allows such suits and the proof of simulation by a particulm' kind of evidence, which, it seems, might have been, but was not adduced by plaintiff, he should be allowed an opportunity to furnish it, and not to rest under a cloud upon his title, which, it is probable irom the facts in the record, could be removed, wherefore the portion of the judgment which “reserves the rights of the minor, whatever they may be,” is reversed, and the case remanded for the purpose of allowing the plaintiff to introduce legal evidence as against said minor’s rights, if any there be, to the property in. question.
    APPEAL from the thirteenth Judicial District Court, parish of Carroll. Sough, J.

      M. Du Bose, for plaintiff and appellant. Ed. F. Newman, for defendant and appellee.
   Howell, J.

The plaintiff alleges that having become embarrassed in his pecuniary affairs, and having had, for his own safety, to foreclose-several mortgages held by him, among others one against A. M. Wad-dill, he caused the land of said Waddill, when sold by the sheriff, to be hid off by, and the title thereto, to put in the name of his nephew, Jackson B. Tompkins, with the understanding that so scon as the petitioner became unembarrassed, the said land should be reconveyed to him by the said Tompkins, who had no means and was merely interposed for the protection of the plaintiff. But before this was accomplished Tompkins died, and he now sues the widow and tutrix to have said title conveyed to him. The widow and tutrix answers that of her own knowledge she knows nothing- of the alleged facts, except that her husband never had the amount of money for which the said land was hid off by him, and that he would have rendered any reasonable service to his uncle, the plaintiff, to help him through his temporary embarrassment, and so she admits the facts and offers no objections to-the court rendering the judgment prayed for, but asked that plaintiff he ordered to refund the taxes paid by her.

Judgment was rendered declaring the sale to Tompkins to be simulated and reconveying the title to plaintiff, and condemning him to refund whatever taxes the widow paid and to pay costs, reserving the rights of the minor, whatever they may be. The plaintiff appealed from that part of the judgment which reserved the rights of the minor.

It is true the tutrix could make no admission which could bind the minor, but as the law allows such suits, and the proof of simulation by a particular kind of evidence, which it seems may be, but was not adduced by the plaintiff, we have concluded to allow him an opportunity to furnish it, and not to force him to rest under a cloud upon his title, which it is probable from the facts in the record should be removed.

It is therefore ordered that the portion of the judgment herein which “reserves the rights of the minor Susie May, whatever they may be,” be reversed, and this cause remanded to the lower court for the purpose of allowing the plaintiff to introduce legal evidence as against the said minor’s rights, if any she have, to the property in question. Costs of appeal to be paid by the tutrix.

On Rehearing.

Howell, J.

Upon a re-examination of this case we see no reason for changing our views.

It is therefore ordered that the decree heretofore rendered by us remain undisturbed.


author: Morgan, J. Taliaferro, J.,

text:
    No. 4661.
    John M. Hoyle v. A. Cazabat. Jacob, intervenor.
    Where a note was paid by anticipation, the payment extinguished the mortgage which was given to secure it. It was an accessory to the contract, and fell when the debt was paid..
    ■Where it appeared that A borrowed a certain sum of money from B, with the avowed intention of discharging notes given to C, and with subrogation of C’s rights of mortgage, but C was not a party to this act;
    Held — That A had no authority in law to subrogate B to C’s rights without C’s knowledge or consent.
    from the Fourth District Court, parish of Orleans. TMard, J.

      O. T. Bemiss, for plaintiff and appellee. Julien A. Seghers, for intervenor.
   Morgan, J.

On the twenty-fourth August, 1869, the plaintiff sold to the defendant, Cazabat, a certain piece of real estate. The price of the property was $4500, of which $1500 was cash, and for the balance .of $3000 the defendant gave his three promissory notes, each for $1000, payable one, two and three years from date, at the Mechanics’ and Traders’ Bank, in this city. The notes bore interest at the fate of eight per cent, from the day of sale, and the vendor reserved a mortgage and the vendor’s privilege upon the property sold, to secure their ■payment. The notes were deposited for collection in the Mechanics’ ■and Traders’ Bank. The first note was paid about a month before it was due, although by whom it was paid does not appear, and the proceeds placed to the credit of the plaintiff, Hoyle.

The second note not having been paid at maturity, the plaintiff caused the property mortgaged to be seized and sold. Hoyle purchased it for $3400. Being the vendor, he paid the costs and taxes upon the property in cash, and retained the balance in payment of the note upon which the order of seizure and sale issued, and to pay the -note to become due; all of which, with the interest, costs, etc., more than consumed the amount of his bid.

After the sale, Jacob intervened, and, alleging himself to be the owner of the first note given by Cazabat, claimed to be paid his pro rata thereon from the price of the sale.

There was judgment against him and he has appealed.

The judgment is correct. The note he holds was paid — by anticipation, it is true — but it was paid, and payment of the note extinguished the mortgage which was given to secure it. It was an accessory to the -contract, and fell when the debt was paid.

There is an act in the record by which it appears that Cazabat borrowed a certain sum of money from Jacob, with the avowed intention ■<of discharging the notes given to Hoyle, and with subrogation to Hoyle’s rights of mortgage, but Hoyle was not a party to this act, and •we do not understand that Cazabat had any authority in law to subroígate Jacob to Hoyle’s rights without Hoyle’s knowledge or consent, -y

Judgment affirmed.

Taliaferro, J.,

dissenting. In my opinion there is presented in "this case an instance of the correctness of the rule which declares that •where one of two innocent parties must sustain a loss it should fall upon the one by whose negligence or want of prudence the loss arose.

The bank was the agent of the plaintiff to collect the note. A person ¡unknown to the teller of the bank presented himself one month before the note was due, and paid it in full, principal and interest, up to the vfcime of its maturity. The teller, on receiving payment, delivered the note to this unknown person without placing upon it any cancel mark ¡receipt or indication of any kind showing that it was paid. There was nothing upon the note in any manner calculated to cast suspicion upon its genuineness as a negotiable instrument. It was negotiated very ,soon after it was paid. Jacob, finding it to be a mortgage note, having nearly a month to run before it became due, and there being no circumstance that could have given rise in his mind to suspicion, or that was calculated to put a prudent man on his guard when he took it, advanced ,his money upon the faith of receiving a valid and sufficient security. Hoyle was the holder of this note of Cazabat’s and of two other mortgage notes given to him by the wife of Cazabat for the price of property purchased by her. These two notes, with the one in relation to-which this controversy has arisen, were transferred by Hoyle to Jacob with subrogation of mortgage rights. No attempt was made on the trial of the case in the court below to ascertain how Hoyle come by the note in question, or to show anything at all impugning his good faith,, much less that of Jacob. The plaintiff seems to have rested satisfied that the note having been paid to him it was necessarily paid as to-everybody else, acting upon the elementary principle that a debt is extinguished by payment. But, although this is true as between the maker and a bona fide holder, it is not always so as to others. And I think the authorities are to this effect.

Mr. Story, in his work on promissory notes, section 384, says: ‘‘ Although as between the real bona fide holder and the maker the payment, whenever or however made, will be a conclusive discharge from the obligation of the note, yet as to third persons it may be far otherwise, for payment means payment in due course and not by anticipation. If, therefore, a promissory note is paid before it is due to any holder, and afterwards, and before its maturity, the same is passed to any subsequent bona fide holder the latter is still entitled to full payment thereof at its maturity, for payment of the note before it becomes due is no payment or extinguishment of the debt as to such persons.”' Parsons on Bills and Notes, volume 1, pp. 279, 280.

I think the judgment of the lower court should be reversed, and a judgment rendered in favor of the intervenor.


text:
    No. 4096.
    State of Louisiana ex rel. Board of Trustees of Straight University v. James Graham, Auditor.
    Tlio Straight University is not a; public institution of learning in contemplation of article 140 of the Stato constitution.
    A public institution of learning would, be one which is controlled by the Stato through its agents, and in which the Stato would have a paramount interest and right of property, and which would depend upon the State for its existence.
    The Straight University was incorporated under the general statutes of the State as a private corporation. It is controlled by a board of trustees, who are only responsible for their management to certain private individuals. The State, through its officers or otherwise, exercises no control or direction over the university, nor has it any voice as to the manner in which it shall be conducted. It is not therefore a public institution of learning, and the constitutional objection to the appropriation made by the Legislature in its favor-must prevail.
    APPEAL from the Eighth District Court, parish of Orleans. Dibble,, J.

      John B. Howard, Boselius & Philips, for relators. 8. Belden, Attorney General, and Hornor & Benedict, for respondent.
   Taliaferro, J.

The relators applied to the Eighth District Court for a mandamus against the State Auditor, to compel him to issue to them warrants to the amount of $35,000, that sum having been appropriated by the State in aid of the institution represented by them, but they allege that through the refusal of the Auditor to issue to them warrants upon the Treasurer for its payment they have been unable to-obtain it. A rule nisi was granted, and the Auditor answered that the act of the Legislature appropriating $35,000 to the Straight University is in violation of that article of the State constitution which forbids-the Legislature to make appropriations for the support of any private school or any private institution of learning whatever, and he alleges the Straight University is a private institution of learning.

The rule was made absolute and a peremptory order rendered commanding the Auditor to issue the warrants as required by the relators. From this order an appeal was taken.

By the seventh section of the act of the G-eneral Assembly, approved on the ninth of March, 1870, numbered eighty-one, it is provided “that the sum of thirty-five thousand dollars be and the same is hereby-appropriated to the ‘ Straight University ’ for the use of the medical department, to construct suitable buildings, and secure illustrations of medical science; and that the said sum be paid to the order of the Board of Trustees on the warrant of the Auditor of Public Accounts from the-treasury of the State; provided [that in consideration of the] State aid rendered this department the faculty shall receive one indigent student from each parish free from charge for tuition, which obligation shalk continue for ten years, said students to be nominated by the trustees of the university.”

The relators aver that this appropriation was made in consideration of the agreement on their part to receive one indigent student from each parish of the State and furnish their tuition free; that they have received about thirty students of that class, and are willing and prepared to carry out the agreement on their part.

The President of the Board of Trustees was examined as a witness. He stated that the number of students in the university was over six. hundred; that not more than thirty or thirty-five of these were indigent students; that all of them except the indigent ones pay their own - expenses; that he regards the institution as self-sustaining ; that donations have been made to it by individuals; that the appropriation made by the State was not intended to aid in founding the institution,, but to aid it in erecting buildings and in procuring the needed philosophical apparatus.

The only question to be examined is one of fact. Is the Straight University a public institution of learning in contemplation of article one hundred and forty of the State constitution 9 A public institution of learning, it appears to us, would be one which is controlled by the State through its agents, and in which the State would have the paramount interest and right of property and which would depend for its ■existence upon the State.

In the celebrated case of Dartmouth College v. Woodward, 4 Wheaton’s Reports, pages 635 to 638, Chief Justice Marshall said, in discussing the character of Dartmouth College: “Are the trustees and professors invested with any portion of political power, partaking in -any degree in the administration of civil government and performing duties which flow from the sovereign authority ? That education is an object of national concern and a proper spirit of legislation, all admit. That there may be an institution founded by government and ■placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny. But is Dartmouth College such an institution 9 Is education altogether •in the hands of government? Does every teacher of youth become a public officer? And do donations for the purpose of education necessarily become public property, so far as the will of the Legislature, not the will of the donor, becomes the law of the donation? These -questions are of serious moment to society, and deserve to be well ■considered.”

After a review of the charter of Dartmouth College, Judge Marshall ¡proceeds:

“Dartmouth College is an eleemosynary institution, incorporated for ■the purpose of perpetuating the application of the bounty of the donors ■to the specified object of that bounty; that its trustees or governors were originally named by the founder and invested with the power of perpetuating themselves; that they are not public officers, nor is it a ■civil institution, participating in the administration of government, ■but a charity school, or a summary of education, incorporated for the preservation of its property and the perpetual application of that property to the objects of its creatiou.”

We conclude that the constitutional objection named in this case must prevail. The Straight University was incorporated under the general statutes of the State as a private corporation. It is controlled by a board of trustees who are only responsible for their management to certain private individuals. The State, through its officers or otherwise, exercises no control or direction over the university, nor has it any voice as to the manner in which it shall be conducted. It is not bound to accept any indigent students unless the State extends aid to ■the institution. We see no force in the argument of the relators that, because the Legislature in the act making the appropriation, designated the various departments of which the university shall be •composed; it is therefore a public institution of learning and capable -of receiving the appropriation.

It is therefore ordered and adjudged that the decree of the District Court making the mandamus peremptory, he annulled, avoided and reversed. It is further ordered that there he judgment in favor of -defendant discharging the rule at relators’ costs.

Rehearing refused.


author: Taliaferro, J. Wyly, J.

text:
    No. 4087.
    Ellen Fitzpatrick and Husband v. The Mutual and Benevolent Life Insurance Association of Louisiana.
    As the forfeiture of legal rights is not favored by the courts, the terms or conditions upon which a forfeiture shall happen must be strictly complied with.
    Where an insurance company notified the insured that a forfeiture would not be claimed for non-payment of assessments, till thirty days after the publication of a notice of the call, for eight consecutive days, the said company should have made the publication and • given the delay, because the insured had the right to expect it, and is presumed to have acted upon it.
    4 APPEAL from the Seventh District Court, parish of Orleans. Col-lens, J.

      Gilmore & Sons, for plaintiff and appellant. Ogden & JIill> for defendant and appellee.
   Taliaferro, J.

The plaintiff sues as the holder and beneficiary under a policy issued by the defendants upon the life of her father, P. II. Cummings, who died first of December, 1870.

The defense is, that the policy, and all the payments made on it, were forfeited by the non-payment by the deceased of several assessments due upon the death of members of the Association. There was judgment as of non-suit against the plaintiff, and she has appealed;

But one question is presented — that of forfeiture. The notices to members of the Association to pay assessments as they arise, are made to persons residing in New Orleans, by publication in a daily newspaper in the English, German and French languages for five consecutive days. Notices of several assessments due by the plaintiff’s father, it seems, were given in this manner; and it also appears that payment was not made within the time prescribed. But on the part of the •plaintiff, it is contended that the mode of giving notice had been waived and modified by the custom of making personal service of notices partly in writing and partly in .print, and by changing the mode and manner of publication ; that Mr. Cummings was not, in this .mode, notified of the calls made in the case in which the company .allege the forfeiture arose ; and it is shown that, in previous instances these written and printed instruments were served upon him. We incline to the opinion of the judge a quo, that these instruments, relied upon by the plaintiff, presented before payment, are, in reality, only copies of the newspaper notices included in a receipt prepared beforehand, but delivered only on payment of the assessment. Besides, it is shown that, within the time allotted for payment, a demand was-made on Cummings, and he refused to make payment, declaring that it was a swindling concern, and that he would have no more to do. with it.

Judgment affirmed.

On Rehearing.

Wyly, J.

On further examination we have come to the conclusion-that the policy in this case wa-s not forfeited.

By a clause of the policy the forfeiture would be authorized if a member failed to pay an assessment called for, within thirty days after-a publication of five consecutive days of the notice.

Subsequently, to wit: on the eighth of August, 1870, the defendants addressed a notice of a call to the insured, Patrick Henry Cummings, on which the following indorsement is found :

“Members residing in the city of New Orleans are hereby notified that the notices of assessments due by them on death of a member-are only given through newspaper publication — in special notice-column — for eight consecutive days; being always published on the-first Sunday of the month and continued through the week, including, the second Sunday. Payment is required at the office within thirty days from date of publication; the failure to make payment within, thirty days operates a forfeiture of his or her policy, and the name of such delinquent will be erased from the books of said association-Notices of assessments are published in the New Orleans Times, New Orleans Bee, the Daily Picayune and German Gazette. Special notices-will not be sent to residence or business location.”

Under this agreement the forfeiture would not occur unless there-was a failure to pay the assessment called for, after thirty days from the publication of notice for eight consecutive days in certain papers.

It appears from the evidence that the notice under which the forfeiture is claimed was only published for seven days, and also that the-forfeiture was declared before thirty days thereafter had elapsed. - While this indorsement remained unrecalled, it must be regarded as a voluntary extension of the time of the publication, in order to effect a forfeiture as agreed to in the contract of insurance.

As the forfeiture of legal rights is not favored by the courts, the terms or conditions upon which a forfeiture shall happen must be strictly complied with.

Having notified the insured that a forfeiture would not be claimed* for non-payment of assessments till thirty days after the publication of a notice of the call, for eight consecutive days,, the defendants. should have made the publication and given the delay, because the insured had the right to expect it, and he is presumed to have acted upon it.

It is therefore ordered that the judgment of this court, rendered on the thirteenth of January, 1873, be set aside, and it is now ordered that the plaintiff recover judgment against the defendants for twenty-seven hundred dollars, with legal interest thereon from first of February, 1871, and costs of both courts.


author: Howell, J.

text:
    No. 4507.
    Victor Maurin et als. v. Charles F. Smith, Tax Collector and als.
    Unless tlie property within an incorporated town is expressly exempted by law from a parish tax, the general power conferred on the police jury of the parish to assess a tax on all ordinary objects of taxation in the parish will reach such property.
    APPEAL from the Fourth Judicial District Court, parish of Ascension. Beauvais, J.

      B. N. Sims, for plaintiffs and appellants.

      Frederick Duffel-, District Attorney, pro tern., for defendants and appellees.
   Howell, J.

The question presented in this suit is, whether or not parish taxes can be collected from owners of property situated in an incorporated town, when such property is not expressly exempted by law from such tax, and the police jury of the parish is vested with power to assess taxes upon the ordinary objects of taxation within the parish.

We consider this not an open question. See 13 An. 420; 19 An. 99. Unless the property within an incorporated town is expressly exempted by law from a parish tax, the general power conferred on the police jury of the parish to assess a tax on all ordinary objects of taxation in the parish, will reach such property. In this case there is no such exemption.

Judgment affirmed.

Rehearing refused.


text:
    No. 2964.
    Felix Larue, Administrator of the Succession of Lorenzo D. Hillerman v. J. B. Van Horn, Michael Farrel and James Hill.
    Tlie Second District Court lias only probate jurisdiction. Tliis suit against tlie defendants, sureties of one McPhelin, the former administrator of the succession of Lorenzo Hillerman, and now deceased, should not have boen brought in the Second District Court, because said suit is not probate in its character, but is simply one to enforce an obligation contracted by defendants.
    from the Second District Court, parish of Orleans. Du-J.

      Dea, Finney <& Miller for plaintiff and appellant. B. Flgan for defendants and appellees.
   Wyly, J.

C. McPhelin, the former administrator of the succession of IlillermaD, died, and his legal representative, was called on by plaintiff to render an account. On the trial of an opposition thereto,, the plaintiff, the present administrator of the succession of Hillerman, recovered judgment for $474 14, with legal interest from the sixth-day of August, .1867.

Alleging the insolvency of McPhelin’s succession, the plaintiff, brought this suit against the defendants, the sureties on the bond which McPhelin had given as administrator of Hillerman’s succession.

The court dismissed the suit for want of jurisdiction, and the plaintiff appeals.

We think the court did not err. The Second District Court liasonly probate jurisdiction. The suit against the defendants, the sureties of McPhelin, should not have been brought in the Second District. District Court, because it is not probate in its character. It is simply, an effort to enforce the obligation contracted by the defendants.

Judgment affirmed.


author: Wily, J.

text:
    No. 4477.
    Succession of Milton Taylor. Opposition of Thomas J. Thorp et als.
    Where the plaintiff was not a party to any of the judgments complained of, and this is the first suit he has brought to have them annulled and to get the relief he prays for, an exception founded on the plea of res judicata is inapplicable.
    Where the exception is that the petition discloses no cause of action;
    Held — That for the purpose of trying this exception, all the allegations being taken as true, show ample cause of action.
    The argument that a testamentary disposition in favor of Mason county court, Kentucky, is immoral, and therefore null, because the legacy is to be applied to the support of indigent illegitimate children under seven years, and their indigent mothers, is not considered, worthy of serious consideration.
    APPEAL from the Second District Court, parish of Orleans. Fuvig-neaud, J.

      F. K. Forman, for appellants. W. W. HandUn, F. O. Ldbatt & Aroni, F. Morel, for appellees.
   Wily, J.

Thomas J. Thorp, “as administrator, with the will-annexed,” reprc senting the estate of the deceased by appointment of the probate court of Mason county, Kentucky, and as attorney in fact for one of the legatees, brings this suit against the public administrator, and against Mary Ann Rodgers, and Phoebe Ann Taylor, and John ,

James Taylor, claiming to be heirs at law of the deceased; and he prays that the decree of the thirtieth March, 1870, ordering the execution of Milton Taylor’s will, be carried into effect; that the judgments recognizing said pretended heirs at law, and ordering them to be put in possession of the succession, be set aside and annulled; that the public administrator be dismissed from office for failing to file annual accounts, and for failing to deposit the funds of the succession in bank according to law, and that he be condemned to pay ten per cent, interest and twenty per cent, damages on the amount of the funds not so-deposited ; that petitioner be appointed dative executor, and be put in possession of the succession; and if from any cause this relief be-refused, that petitioner have judgment against the succession for the-amount of the legacy to the Mason county court, represented herein, by petitioner.

In bar of this suit the defendants pleaded res judicata, and the-exception that the petition discloses no cause of action. The court maintained the peremptory exceptions, and dismissed the suit. The plaintiff appeals. The plaintiff was not a party to any of the judgments complained of, and this is the first suit he has brought to have them annulled, and to get the relief he prays for; therefore the plea of res judicata is inapplicable. For the purpose of trying the other exception, all the allegations are taken for true.

The petitioner alleges that he is “ administrator with the will annexed,” of the succession, at the domicile of the deceased in Kentucky, and that the succession in this State is ancillary to that, and by the laws of Kentucky his power as administrator is the same as th it of' executor, with seizin; that the judgments he seeks to annul were obtained by fraud and false testimony; that these pretended heirs were adulterous bastards of the deceased, and that their mothers were-slaves; and by the laws of Kentucky and Louisiana they are incapable of inheriting from the deceased; that the property in Kentucky is insufficient to pay the special legacies in the will, especially the-legacy due the Mason county court (which is capable of inheriting by the laws of Kentucky); that the public administrator should be dismissed, and compelled to pay the interest and damages claimed, for failing to file his annual accounts and to deposit the funds of the estate according to law; that petitioner is entitled to be appointed dative executor, and that if from any cause this relief be denied, he is entitled to recover the legacy due the Mason county court.

Taking these averments to be true, there is ample cause of action set up in the petition.

The argument that the disposition in favor of the Mason county court is immoral, and therefore null, because it is to be applied to the support of indigent illegitimate children under seven years of age and their indigent mothers, we do not consider worthy of serious consideration. If relief to such indigent and unfortunate persons be immoral, then charity, one of the noblest Christian virtues, is itself immoral.

It is therefore ordered that the judgment herein be annulled and reversed; and it is further ordered that the exceptions be overruled, and that this cause be remanded for trial according to law, appellees paying costs of appeal.

Rehearing refused.


author: Morgan, J. Wyly, J,

text:
    No. 2813.
    Mary Malady v. William Malady and Mary B. Caldwell.
    The circumstance that a woman is tlie concubine of her male partner, does not deprive lier of an action for the settlement of affairs and a participation in profits derived from capital and labor which she contributed, though much of the property claimed is real estate standing in the copartner’s name alone, and had never stood in her’s.
    'If this is good law in favor of the concubine, it is certainly good law against her, particularly when it is invoked to undo a fraud, vindicate the rights of a lawful wife, and enforce laws made to protect the marriage tie and public morals.
    ’ The fact of the social relations which Mary B. Caldwell, one of the defendants in this case, has chosen to assume, cannot deprive her oí what justly belongs to her. She should be allowed to place her capital and industry against the capital and industry of William Malady, her paramour and copartner, and the property purchased during the time they have been living and working together, should be declared property in which they have a joint interest; one half of it should be decreed to be the property of William Malady, and said half to belong to the community which existed between himself and his lawful wife, Mary Malady.
    APPEAL from the Seventh District Court, parish of Orleans. Oollens, J.

      Sogers & Blame, for plaintiff and appellee. Sace, Foster • <& Merrick, for defendants and appellants.
   Morgan, J.

Plaintiff institutes this suit to obtain a separation from bed and board from her husband, and for a settlement of the community which existed between them; and she brings Mary B. Caldwell in the litigation in order to claim certain property, now standing in her name, and described in the petition as the property of the community, averring that it was purchased with the funds of the community, although placed in Mary Caldwell’s name.

This case is one of those episodes which occasionally occur to startle • our ideas of the proprieties of life, which involves the actors therein in trouble, and which renders the- doing of absolute justice delicate ■ and difficult duties on the part of the judge.

Mary Malady, the plaintiff, was married to William Malady, the defendant, in May, 1834, in Dublin. Almost immediately after their marriage they came to this country. They landed in Massachusetts.

• Shortly after their arrival she commenced to work for herself, and she continued to do so for several years, her husband, as she alleges, being most of that time away from her. In 1838 he announced to her his intention of going to New Orleans, whither he did go, and finally wrote to her to forget him, as he intended to forget her. Subsequently he married here, and had a child. This wife died, and he then lived with Mary Caldwell, whose interests he had in charge, he having been the administrator of her father’s estate. With Mary Caldwell he has been living ever since. In 1861 Mary Malady came to this city; she was weak from sickness and in want. She called upon her husband for assistance. He promised it to her, but required of her that she ¡should live with her brother and sister, whom she has accompanied to ■ St. Louis, San Francisco and Boston. He did furnish her from time to time with about $270, but these pittances finally ceased. And this .amount seems to be everything he has contributed to the support of the woman who followed him across the seas as his wife during all the long years of their marriage. So far as this record discloses she has led an irreproachable life; in her now advancing years she is alone, helpless and destitute.

In the meanwhile, her husband has been guilty of desertion of her, -of bigamy, of adulterous connection with a woman who was in some sort his ward, and with whom he has been living in open and bold concubinage.

When Mary Caldwell went to live with Malady, he gave her, rent ■free, the use of a house on Bacchus street which belonged to him. She then had, according to her own account, some $500 which she had earned as a seamstress. She furnished the house. Malady was in the employ of Priestley & Bein, hardware merchants, doing a large business, where he was receiving $100 per month wages. He had four drays running, which were constantly employed. His contract was to give Mary Caldwell $100 per month board for himself, his four drivers and his child. This was all her source of revenue except what she may have derived from two nephews of his who boarded with her, not all the time, but as a general tiling, but who always slept in the house. What board these nephews paid is not shown.

In 1859 she moved to Euterpe street. Malady paid the rent of the house, and continued to give her $100 per month board.

This continued until June, 1862. Then Malady discontinued business. From June, 1862, he paid $40 per month board for himself and daughter until his daughter married. He has paid no board since 1865, because Mary Caldwell says she required some person to see to her business.

On the First of December, 1856', she sold her inheritance for $2800 cash.

As we have seen, when she first went to live with Malady she had $500. Her first purchase of property was made on the eighth of May, 1858, for cash — $1000.

Her second purchase was made on the ninth of January, 1858, for $3800, of which $1266 66$ was cash, and the balance in notes which have since been paid. . ..

Her third purchase was made on the twenty-ninth March, 1860, for $1800, $600 cash, balance in two notes of $600 each, which have been paid.

Her fourth purchase was made on the first of June, 1860, for $3250.

Her fifth purchase of property was made on the tenth of May, 1866, $4300 cash.

In little more than two years (eighth of May, 1858, to seventh of June, 1860), she had purchasfed $9850, on which she had paid $8650r and all of which is now paid for, and within nine years (first January,. 1858, to tenth May,' 1866), she had purchased and paid for property which cost $14,150. Where did she get this money? Prom the time she went to live with Malady she had no industry except that of keeping a boarding house. She had no capital save the $500 she commenced with and the $2800 which she received as her patrimony. Taking her own figures as the price she received for board, and allowing her a fair interest on her mono"., and she would not have received in all, within the time specified, $15,000.

But she says she furnished the house in which they lived. If this be true she could not have had a great deal of her $500 left when she •finished. And we must not forget that she only received $100 per month for the board of Malady, his four draymen and his child. Por these, as well as for herself and her servant, she was obliged to send to market. This would give her a family of eight persons to provide for every day, besides the wages of her servant and clothes for herself. Add to this the fuel, lights, and the many other things which are indispensable to housekeeping, how much could she have saved out of $100’ per month? If she gave her household meat to eat, she would in all probability have found herself at the end of every year in debt.

The only conclusion to which we can come in this matter is that. •Malady and Mary Caldwell lived together as man and wife, and that her thrift and economy, added to his industry, enabled them to acquire property, which he purchased in her name, for the purpose of placing it beyond the reach of any creditor he might have, and for the further purpose of putting it in such a shape as to pi event his wife from obtaining any of ic. This, we think, should not and can not be done.

In the case of Delamour v. Roger, 7 An. 152, it was declared that the circumstance that plaintiff is a concubine of her copartner does not deprive her of an action for the settlement of affairs, and a participation in profits derived by capital and labor which she contributed, though much of the property claimed was real estate standing in the copartner’s name aolne, and had never stood in her’s. If this is good •law in favor of the concubine, it is certainly good law against her, particularly, as is reasoned by the district judge, when it is invoked to undo a fraud, vindicate the rights of a lawful wife, and enforce laws-made to protect the marriage tie and public morals.

That Mary Caldwell should be entitled to keep the proceeds arising from the employment of her patrimony and resulting from her industry, we think is unquestionable. She has a right to it all. The fact of the social relations which she has chosen to assume, or of which she may have been the victim, can not deprive her of what justly belongs to her. What, then, is she entitled to? We think she should be allowed to place her capital and industry against the capital and industry of Malady, and that the property purchased during the time they have been living and working together, should be declared property in which they have a joint interest; that the one-half of it should be decreed to be the property of Malady, and his half thereof be decreed to belong to the community which existed between himself and his wife. We are fortified in this conclusion by the able opinion of our learned brother of the district court, who has given to this case a most careful consideration, and who, we think, has done justice between the parties.

The judgment is affirmed.

Wyly, J,

dissenting. The plaintiff, the wife of .the defendant, Malady, sues him for separation from bed and board on the grounds of abandonment and adultery, and she claims half of the community property. She also attacks the titles of the property held by his concubine, Mary Caldwell, on the grounds of fraud and simulation, alleging that her husband is the true owner, and that the titles were put in her name merely to defeat the community, rights of the petitioner.

Mary B. Caldwell pleaded the general issue; and William Malady, her co-defendant, besides the general denial, denies that there existed a community of property between him and the plaintiff, because she has never resided with him in Louisiana, but has, for the last thirty-five years, had her residence in Massachusetts; he also denies that he owns any real or personal property to be divided. The court gave judgment for separation from bed and board, ordered a settlement and partition of the community property, and deciding that the property standing in the name of Mary B. Caldwell belongs to a partnership existing between her and her co-defendant, Malady, decreed that one-half thereof belongs to the community; and that Mrs. Malady, the plaintiff, is entitled to one-half of said half, and for the purpose of effecting said settlement and partition referred the parties to a notary with suitable directions.

From this judgment both the defendants have appealed.

In this Court the controversy is confined to the property, the plaintiff’s right,to a separation from bed aud board not being disputed. Indeed, from the evidence, there is no doubt that the plantiff was shamefully abandoned by her husband some thirty years ago, and that most of the time since then, he has been living in open adultery with Mary B. Caldwell.

I think the court erred in holding that there was a partnership between William-Malady and Mary Caldwell, and that the property standing in the name of the latter belongs to that partnership; because in tlie record there is neither an allegation nor proof that a contract of partnership existed between these parties. A partnership arises alone from a contract; it can have its origin in no other source known to the law. The court could not, therefore, give a remedy to a contract that never existed. Outside of the property standing in the name of Mary Caldwell, we find that William Malady possessed nothing. Therefore, unless it is shown that he is the real owner of that property, there will be nothing to divide. This the plaintiff has attempted to do; and from a careful examination of the evidence, I am satisfied that the attempt is a failure. It is at best a mere suspicion.

The property was never owned by William Malady; it was acquired from other parties, and it is not shown that he ever advanced a dollar to help to pay for it.

On the other hand, it is shown that Mary Caldwell had $2800, the proceeds of property inherited from her ancestors; that for the last twenty years she has been remarkably industrious and economical, part of the time being occupied as a milliner, but most of the time being engaged in keeping boarders.

William Malady was never wealthy; the most he ever owned was property not worth more than $2000. He was by occupation a dray-man, owned several drays, and ought to have made money. Because it is not shown what disposition he made of his earnings and the small property he once possessed, shall we say that the recorded titles of Mary Caldwell shall be treated as simulated; that she shall be held to be merely a party interposed,.and that William Malady is really the owner of the property worth $14,000, which she purchased from various persons, and which never belonged to Malady?

By the jurisprudence of this, State all the presumptions of law are in favor of the owner of property. His possession and recorded titles stand to protect him against the claims of all persons setting up an adverse interest, and in order to refute them he is not required to prove how he got the money to buy the property.

If he stole the money, the property bought with it would be his. It devolves on the party alleging simulation and fraud to prove it. It devolves upon the party alleging the interposition of the holder of the legal title, and claiming himself the equitable or actual title, to prove these averments affirmatively. Has the plaintiff in this case done so?

Not a particle of proof on this important point is to be found in the record. There is no affirmative proof that Mary Caldwell was an interposed party ; there is not a particle of proof to show that William Malady ever paid one dollar for the property of which he is now claimed to be the equitable or actual owner. No fraud or simulation is shown as to Mary Caldwell. There is nothing to impeach the verity of her or her titles, except, perhaps, she has failed to satisfy the court how she honestly acquired the $14,000 with which to buy the property. This, in my judgment, is no reason to set aside her titles. If she acquired the money as the price of her prostitution, or if she stole it (of which there is not a particle of proof in the record), still her titles in law must stand. I regard the titles of Mary Caldwell as clear and valid as any I have ever seen, and the attempt to assail them is, in my judgment, an utter failure.

If the ownership of property rests upon no better foundation than the ability of the owner to prove, when assailed, where he got the money to pay for it, property rights would be of very little value. Nothing would be more insecure. How and when one makes money to buy property with, can not well be proved, because few persons disclose their transactions to witnesses, and besides, if they do, witnesses die.

If there was a partnership between Mary Caldwell and William Malady, of which there is neither an averment nor proof in this case, I do not see how the plaintiff, the wife of the latter, can claim any specific part of the property. All that could be done would be to sue for a settlement of the partnership. Let the debts be paid, and whatever funds each partner contributed be returned to him or her, and the profits of the partnership be equally divided.

It is proved that Mary Caldwell had $2800, the amount inherited from her parents, and it is proved that she earned $500 as a dressmaker, before she became the concubine of William Malady. Now, in all justice, she ought to have these sums returned before there is a partition of the partnership property. Besides, there is an heir by a putative marriage, who has some rights to William Malady’s community rights in the partnership assets. But the judgment decreeing a partnership where none was alleged or proved, and ordering the partition thereof, is, in my opinion, a grave error into which the court has fallen. I therefore dissent in this case.

Rehearing refused.


author: Ludeling, C. J.

text:
    No. 2994.
    Hanan & Richards v. R. H. Bowles.
    The attempt to make the seller and skipper responsible for tke loss of (be goods skipped must fail, wkere ke kad no instructions or authority to insure said goods, and tke evidence does not show that this was incumbent upon him by tke custom at tke place of shipment*
    APPEAL from the Fifth District Court, parish of Orleans. Lecmmont, J.

      Fellows & Mills, for plaintiffs and appellants. Olarlce, Bayne, Renshaw i& F. T. Fellows, for defendant and appellee.
   Ludeling, C. J.

This is a suit on an account for goods alleged to Lave been sold by plaintiffs in New York to defendant, and shipped in August and September, 1866.

There was judgment for plaintiff for $600, rejecting the balance of his demand, to wit: $654. The plaintiff has appealed.

The evidence establishes fully the claim of the plaintiff. The attempt to make the seller and shipper responsible for the loss of the goods, shipped per Evening Star, must fail. He had no instructions or authority to insure the goods of the defendant. We think the evidence fails to establish any such custom.

It is therefore ordered that the judgment be amended by increasing the judgment to $1254, with five per cent, per annum from the sixth ■of December, 1866, and costs of both courts.