author: Spofford, J.

text:
    James Phillips v. St. Louis Perpetual Insurance Company.
    A valid abandonment passes the property in the vessel to the underwriters, and from that moment, at‘least, the captain becomes the agent of the underwriters, and his sale of the vessel, however reprehensible it may be, is made for their account and cannot relieve them from liability.
    In estimating the cost of repairs in order to ascertain whether it will exceed fifty per cent of the ship’s valuó, the deduction of one third new for old is not to be made; that rule applies to repairs made in certain cases of partial, or average losses, and seems to have been extended to a case of technical total loss only by local usage in two or three States.
    Where but two thirds of the valuation is insured, the owner is his own underwriter for the balance, and the nett proceeds of the sale of the vessel should be divided as salvage between the parties, in proportion to the amount each had at risk.
    APPEAL from the Fifth District Court of New; Orleans, Augustin, J.

      Sage, for plaintiff. Hanlon & Pike, for defendants and appellants.
   Spofford, J.

The plaintiff took from the defendants policies of insurance upon the barque Eleanor and her freight-list at and from the port of Nevv-Or-leans to the port of Baltimore. The barque was valued in the policy at $0000, and the insurance upon her was for $4000. Her freight, of the value of $1878 36, was insured for $1223. She took the ground in attempting to cross a bar at the mouth of the Mississippi River, where, at the time, there was a short, chopping sea; the tow-boat had great difficulty in twisting her off the bar, and did some damage by knocking against her, and carrying away her windlass-bitts, and some p*arts of her tackle. After getting into blue water, it was discovered that she leaked; day after day she encountered heavy gales and seas, and the leak continued to increase; it was finally found necessary to put into the port of Key West, where a survey was called, which resulted in a recommendation that she be discharged;,'upon another survey, she was reported unseaworthy, and irreparable save at a cost greater than her value after repairs; the captain forwarded her cargo to Baltimore by another vessel at a charge exceeding the amount of her original freight-list; the agent of the plaintiff in New-Orleans, upon being advised of the facts, made an abandonment to the defendants, which they declined to accept; the Insurance Company, however, sent an agent to Key West, who reported, after another survey called by himself, that the barque was unseaworthy by reason of rottenness in her timbers and fastenings ; the captain, after her abandonment to the underwriters, had her sold at auction, when she produced the sum of $1208 02.

This suit was brought by the owner upon both policies, for the amounts insured upon the hull and freight; the defendants have appealed from a judgment against them pursuant to the verdict of a jury.

Both parties having put their case upon its merits before us, we deem it unnecessary to notice the bills of exceptions, any further than they may be incidentally passed upón in this opinion.

The plaintiff bases his demand solely upon the position that there was a constructive total loss by reason of the perils insured against; that is to say, upon the position that, at the time of the abandonment, the damage done to the vessel by means of those perils was such, that the cost of her repairs would have exceeded one half of her value. Hyde v. Louisiana State Insurance Company, 2 N. S., 410. Riley v. Ocean Insurance Company, 11 Rob., 258. If so, the abandonment was a valid one and passed the property in the barque to the underwriters, and from that moment at least, the captain became the agent of the underwriters, and his sale of the vessel, however reprehensible it may have been, doubtless was made for their account and cannot relieve them from liability to the assured. 3 Kent’s Com., p. 331-2.

We think that the evidence preponderates in favor of the plaintiff, as to the extent of the loss, and that the necessary repairs of the vessel would have cost more than one half of her value, whether we take as a basis the sum at which she was rated in the policy, or her actual value as repaired. It becomes immaterial, then, to decide which is the true test, a question upon which authorities differ, although the better opinion seems to point to the real value as the criterion. 2 Phil. Ins., §1538-9.

In estimating the cost of repairs in order to ascertain whether it will exceed fifty per cent of the ship’s value, we are of opinion that the deduction of one third new for old is not to be made; that rule applies to repairs made in cases of partial or average losses, and seems to have been extended to a case of technical total loss only by local usage in two or three States. 3 Kent’s Com. *p. 331. Bradlie v. The Maryland Insurance Company, 12 Peters, 378. 2 Phil. Ins., §1543. Eor the rule in New York and Mass, see 11 Wend., 453; 16 Pick., 303.

Much testimony has been taken upon the extent of the damage, the purport of which is that the repairs would have cost upwards of $3000.

The defendants, by their course of action, have lent additional weight to this evidence; for, as we have intimated already, the agent whom they sent to Key West with a view to repair the barque and forward her, if possible, to her original port of destination, made no attempt to do so, but held a new survey before she was sold by the captain but after her abandonment by the owner, and reported, thereupon, to his principals that she was unseaworthy from the inception of the voyage, her disasters having been, in the judgment of the surveyors, occasioned by rottenness and unsoundness of the vessel and her fastenings; upon the faith of this report, it would seem that the defendants have always denied their liability and refused to pay anything to the plaintiff.

If the ship had not been greatly damaged, or damaged to a degree quite sufficient to justify the assured in declining to repair, such a report would hardly have been made by the defendant’s agent.

Now, it is proven that the condition of the vessel at Key West was owing to recent external injuries, and not to internal decay. The soundness of her timbers, at the time of her departure from New Orleans, is abundantly established, and the theory of the company’s agent as to the cause of her innavigability completely refuted.

She was old, it is true; but the company knew precisely her age, and charged an extra pretnium on. that account.

They say she was overladen and may have been rendered unseaworthy thereby; but the evidence also repels this theory. Numbers of witnesses, including those who knew her best, testify that she was not laden at all beyond her capacity, and the one or two who entertained a different opinion only thought of it upon seeing her after she. had 'experienced the disasters of the voyage.

The only remaining question is, was the injury caused by any of the perils insured against?

It is argued for the defence that her grounding on the bar was an ordinary peril, and, if that was the cause of her disaster, that they are not responsible.

We are of opinion that a combination of causes, which taken together constitute “ perils of the sea,” led to the breaking up of her voyage. These were: the chopping sea at the time she crossed the bar, the thumping of the steam-tug against her, the strains produced in twisting her off the bar, and the severe gales she encountered immediately afterwards.

The abandonment of the vessel for a constructive total loss was, therefore, rightful, and the defendants-are liable. There was a total loss of the freight in consequence of the same disasters.

The plaintiff has prayed for an amendment of the judgment in his favor. By an agreement of the parties,. made without prejudice, the plaintiff received $100S 49 as the nett proceeds of the, sale of the vessel. This sum the jury deducted from the amounts insured, and gave a verdict in favor of the plaintiff for the balance. It is now insisted that, as the defendants insured but two thirds upon the valuation, and the plaintiff was his own underwriter for the balance, the nett proceeds of the barque should be.divided, as salvage, between the parties, in proportion to the amount each had at risk. This view is sustained by authority.

If the total amount covered by all the subscriptions on policies does not equal the value of the thing insured, the assured is considered to be his own insurer to the extent of the sum not covered, and is consequently entitled, to that extent, to his proportionate share in the proceeds of the salvage. Thus, suppose A. to have insured goo'ds, the-real value of which is £1000, for £800, of which sum B. subscribes for £500 and C. for £300. A., it is plain, stands his own insurer for £200: a constructive total loss takes place on the goods, in respect of which A. abandons: the proceeds of the salvage amount to £100, i. e., a tenth part of the whole insurable value of the goods; this salvage, therefore, must be distributed among the parties to the insurance in the proportion of a tenth, of their respective interests.

To A. for his £200 uncovered hy the policy. £20

To B. for his £500 insured. 50

To.C. for his £300 insured. 30

£100.”

2 Arnould’s Ins., *p. 1187.

It is, therefore, ordered and adjudged that the decree of the District Court be so amended as to reduce the amount allowed as a credit to the defendants for moneys received by the plaintiff on account of salvage, from the sum of one thousand and eight dollars and forty-nine cents, to the sum of six hundred and seventy-two dollars and thirty-three cents, and that, as thus amended, the said decree be affirmed with costs.


source: Caselaw Access Project

author: Lea, J.

license: Public Domain

text:
    Bernard R. Garrahan v. Mary Curley, Tutrix, &c.
    The prescription oí three years of actions for the recovery of money loaned, is not applicable where there has been an acknowledgment of the loan in writing amounting to an obligation.
    Code, 8503.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      O'Neal and Collins, for plaintiff. Durant & Honor, for defendant and appellant.
   Lea, J.

In this case the plea of the prescription of three years is interposed as a bar to a recovery upon due bills sued upon, they having been given for money loaned. This prescription is not applicable where there has been an acknowledgment of the loan in writing amounting to an obligation. Sec Civil Code, Art. 3503. Any dictum of the court in the case of Cowan, wife of Aiken, v. Pulley, at variance with this view of the case, was too general in its applition and not intended to cover such a state of facts as the evidence discloses in this case. In that case the note was negotiable, and was sued upon in February, 1854 The second section of the Act of 1852, relative to prescriptions, has reference only to open accounts.

Upon the account for alleged disbursements of money, made for the purpose of defraying the funeral expenses of Mr. and Mrs. O'Cara, We consider all the charges of a date prior to the 5th April, 1852, barred by the prescription of three years, whether the claim be considered as for money loaned, or as due upon an account. In the one case, the Article 3503 of the Civil Code is applicable, in the other the statute approved March 5th, 1852, relative to prescriptions. Of the remaining items in the account, the details of which it is unnecessary to recapitulate, we consider as proved disbursements made for the funeral of Mrs. O' Gara to the amount of twenty nine dollars.

It is ordered that the judgment appealed from be reversed, and proceeding to render such judgment as in our opinion should have been rendered: It is ordered that the plaintiff, Bernard B. Carrahan, do have and recover of the defendant, Mary Curley, in her capacity as tutrix of the minor Thomas O'Cara, the sum of five hundred and twenty-nine dollars, with interest thereon at the irate of five per centum per annum from the 5th day of April, 1855, till paid' the same to be paid in due course of administration according to law. It is further ordered, that the costs incurred in the District Court be paid by the defendant and appellant, and that the costs of the appeal be paid by the plaintiff and appellee. .


author: Buchanan, J. Spoitoed, J.,

text:
    Eulalie and Her Descendants v. Long & Mabry.
    Under Article 8510 of the Code a slave may acquire freedom by prescription.
    Article 3510 of the Code w'as not intended to introduce a mo'de-of emancipating slaves, or of changing their status. It treats of the slave as being still a slave after the ten years enjoyment of his freedom. But it prohibits the master- from restraining him. The public have an overruling interest in the question of his status \ and the laws by'which the manumission of slaves has always been so sedulously guarded from abuse, are all in vain, if the State can be compelled to recognize as unconditionally free, with liberty to remain in the State, and without regard to age, character, and other legal qualifications, all such slaves as their masters may choose to turn loose for the space of ten years. Spofford, J., with whom concurred Lea, J.
    Code, 177.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      S. L. Johnson, for plaintiffs. Marr, for defendants and appellants.
   Buchanan, J.

The plaintiffs claim that 'they- are free by prescription, and that the defendants illegally and by violence have taken possession of their persons and treat them as slaves.' The defendants at first excepted that the petition disclosed no legal cause of action; which exception having been overruled by this court, (see the decision in 9th Annual, page 9,) the defendants have answered, settirig up title to the plaintiffs in themselves, by virtue of a sale from one Loftin.

It was clearly ruled by this court, when the cause was before ns previously, that the law (Civil Code, Art. 3510) recognizes prescription as one of the modes in which a slave may acquire a right to freedom. The same doctrine was held by our predecessors in Spalding v. Taylor, 1 An., 197, which was a suit for damages against the owners of a steamboat for carrying plaintiff’s slave away. And in Verdun v. Splane, 6 Rob., 530, when the slave was the actor, through his mother, Judge Martin did not dispute the right of a slave generally to claim his freedom under the Article 8510 of the Code,, but denied the exercise of it in that particular case, because the tender age of the slave precluded the presumption that it had been the intention of the master, in leaving him in the possession of his mother, (who was free,) to recognize the child as also free.

The counsel of the defendants has renewed the argument, so strongly urged by him on the former trial, that the peculiar phraseology of the Article 3510 only excludes the right of action of the master to reduce his slave to possesion after suffering him to enjoy his freedom during a certain length of time. And he relies upon the case of Meillun v. Coupey, 8 N. S., 129, as negativing the rigfit to freedom derived from prescription. But the case of Meillun v. Goupey arose under the Old Code which did not contain an Article analogous to the Article 3510 of the Code of 1825. Gompare the language of Judge Martin in the decision of this case with that in Verdun v. Splane, already cited, and the influence of the change of legislation which had taken place in the interval upon the doctrine of the court will be at onoe perceived. See also the remarks of the court in Baker v. Tabor, 7 An., 556.

The plaintiff Eulalie was formerly the slave of Simon Porche, who died about thirty-five years before the institution of this suit, leaving his widow his universal legatee. Some years before Simon Porche's death, Eulalie, with his permission, married a free colored man, an illegitimate brother of Porche's wife, who had a farm in Porche’s neighborhood; and lived with her husband in the full enjoyment of her freedom during the whole lifetime of Porche, and of his widow, being more than thirty years, with their knowledge and consent. Indeed it is proved that Mrs. Widow Porche frequently spoke of formally emancipating Eulalie and her children, (the other plaintiffs) but never carried her design into effect. After the death of Mrs. Widow Porche, Eulalie and her children and grandchildren appear to have been taken by force from her, residence in Pointe Coupée, notwithstanding an ineffectual resistance on the part of her aged husband, and brought to a slave mart in New Orleans, where they were conveyed as slaves for life to the defendants.

There is no doubt from the evidence that the heirs of Mrs. Porche were privy to this abduction of the plaintiffs from Pointe Coupée, yet they do not figure in the conveyance to defendants; neither, although the defendants ostensibly paid twelve thousand dollars in cash for the plaintiffs, do they make any call in warranty.

Their bill of sale gives no origin to the vendor’s title. The production of a certificate of mortgages is dispensed with; and their vendor is declared by defendants to be dead and insolvent. These are circumstances calculated to inspire a suspicion that the true parties in interest are keeping out of sight. And if so, the reason may be easily imagined.

Judgment affirmed, with costs.

Spoitoed, J.,

with whom concurred Lea, J. I concur in the judgment, but I do not think the Article 3510 of the Oode was intended to introduce a mode of emancipating slaves, or of changing their status. Its cautious phraseology shows that such a result was not contemplated. “If a master suffer a slave to enjoy his liberty lor ten years, during his residence in the State, or for twenty years while out of it, he shall lose all right of action to recover possession of the slave, unless the slave be a runaway or fugitive.” The Article treats of the slave as being still a slave after the ten years’ enjoyment of his freedom. But it prohibits the master from restraining him. The public has an overruling interest in the question of his status; and the laws by which the manumission of slaves has always been so sedulously guarded from abuse are all in vain if the State can be compelled to recognize as unconditionally free, with liberty to remain in the State, and without regard to age, character, or other legal qualifications, all such slaves as their masters may choose to turn loose for the space of ten years.

I adhere to the doctrine of the cases of Meillun v. Coupey, 8 N. S., 128, and Ned Baker v. Tabor, 7 An., 556.

Even'if the plaintiffs never were emancipated, as, after enjoying their freedom for thirty years, possibly it might be presumed they were, still I think the Article 3510 of the Oode may so far avail them as to enable them to invoke the protection of the courts against a manifest usurpation by the defendants. 0. O., 177.


author: Spojtord, J. Buchanan, J.

text:
    Jean B. Jeannin v. Mr. and Mrs. Charles DeBlanc.
    Until plaintiff pays defendant one half of the cost of the wall, it is not a wall in common, but remains the exclusive property of the defendants, though resting one-lialf upon the plaintiff’s land; and defendants may open or shut apertures in it, at pleasure, subject only to the police regulations of the city. In this she exercises not a right of servitude, but a right of property.
    Code, 671, 672, 6S1, 692.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Pream, for plaintiff and appellant. J. & E. Bermudez, for defendant.
   Spojtord, J.

We adopt the following opinion of the District Judge :

“ The defendant, availing herself of the provisions of Art. 671 of the Civil Code, rested one-half of her wall on the ground of the plaintiff; the wall is shown to be thirteen inches thick. The plaintiff did not contribute and has not contributed, in aDy manner, to the building of said wall. Since the construction of the wall, the defendant has caused certain openings to be made in it, consisting of grated windows in the second story, and of ventilators below the ground flooring. The plaintiff alleges that the defendant had no right to make said openings in the wall thus constructed, and that in so doing, she usurps the right of view upon his premises to his injury and damage. Therefore, he prays that the defendant be condemned to close the said openings at her proper cost, and to pay the plaintiff damages in the sum of $600, with costs., &e.

• There is no question of servitude presented by the pleadings and evidence, since it is conceded that the plaintiff may gt any time close the apertures and grated windows by making the wall a” wall in common ; but, in so doing, the plaintiff would have to pay one-half of its value.

The defendant contends that, until the wall is made common, it is her exclusive property, and that she has therefore a right either to pull it down altogether," or to make apertures in it," as she pleases. It appears to me that this view of the case is correct; indeed, if the exclusive right of property is conceded to the defendant, it seems to be a necessary consequence ; and the only limitations placed upon this right of property, in the Code, are those having reference to the right of making such a wall common, and to the restricted use of it after it is made common.”

These views, which led the court below to give judgment for the defendant, are supported by the text of the Code.

“ He who first builds in the cities, towns or suburbs of this State, in a place which is not surrounded by walls, may rest one-half of his wall on the land of his neighbor; provided he builds with stones or bricks at least as high as the first stoiw, and not in frame or otherwise ; and provided the whole thickness of this wall do not exceed eighteen inches, not including the plastering which must not be'more than three inches. But he cannot compel his neighbor to contribute to the raising of this wall.” O. 0., 671.

“If the neighbor be willing to contribute for his half to the building of the wall thus raised, then this wall is a wall in common (mur mitoyeri) between the proprietors. The neighbor, who has refused to contribute to the raising of this wall, preserves still a right of making it a wall in common, hy paying to the person who has made the advance, the half of what he has laid out for its construction, according to the rules hereafter established.” C. C., 672.

“ Neither of the two neighbors can make any cavity within the body of the wall held by them in common, nor can he affix to it any work without the consent of the other, or without having, on his refusal, caused the necessary precaution to be used, so that the new work be not an injury to the rights of the other, to be ascertained by persons skilled in building.” C. C., 681.

“ One neighbor cannot, without the consent of the other, open any window or aperture through the wall held in common, in any manner whatever, not even with the obligation, on his part, to confine himself to lights, the frames of which shall be so fixed within the wall that they cannot be opened.” C. C., 602.

It follows that, until the plaintiff pays the defendant one-half the cost of the wall it cannot be a wall in common, but remains the exclusive property of the defendant, though resting one half upon the plaintiff’s land.

And it being the exclusive property of the defendant, it follows that she may open or shut apertures in it, at her pleasure, subject only to the police regulations of the city.

In this she exercises not a right of servitude, but a right of property.

But the plaintiff' says that the judgment should, at least, be so amended as to recognize his right to shut the apertures by erecting a wall or enclosure opposite to them.

By the same right that the defendant builds a wall with apertures, undoubtedly the plaintiff may build one facing it without apertures, if it shall so please him. “ In suo pariete potest quis fenestros fucere vicino etiarn invito; vicinus contra sedificando eos obscurare potest.”

But, as this right of the plaintiff is not put in controversy by the pleadings, so it is not barred by the judgment.

Judgment affirmed.

Buchanan, J.

As the idea is very general in this community, that a proprietor of a wall adjoining the land of another, has not the right to make openings in such wall, it is proper to notice a change in our legislation on this subject, made by the Code of 1825, and the reasons given by the framers of that Code for the change.

The Articles 43 and 44, on page 136 of the Code of 1808, permitted the proprietor of a wall not held in common, adjoining the estate of another, to make apertures or windows through said wall, under certain restrictions. Those two Articles were omitted in the Code of 1825: and we might have supposed that the intention of the Legislature, in suppressing those Articles, was to prohibit absolutely the making of openings in walls thus situated; were it not for the reasons given for the suppression of those Articles by the jurists charged with the amendment of the Code, in their report or projet. See Travaux pré-paratoires, page 73. “ Nous avons cru devoir supprimer ces deux Articles qui proscrivent au propriétaire d’un mur non-mitoyen, joignant immédiatement l’héritage d’autrui, de n’y faire des ouvertures ou fenétres qu’a une certaine hauteur, et avec des barreaux ou á verre dormant. Nous avons piense que eha-cun doit Ure le maitre de faire dans son bien ce qui lui plait, et par consequent, d’ouvrir dans son mür telles fen&tres que bon lui semble"

The argument of the learned counsel of plaintiff against the exercise of the right claimed by defendant, reposes entirety upon' the difference between the French Code and the Code of Louisiana, in relation to the rights of adjoining proprietors of land in towns and cities. By Article 23, page 132, of the Code of 1808, repeated in Article 671 of the Code of 1825, the right is g-iyen of placing one half of the boundary wall of a town lot on the adjoining lot. This is'an appropriation of the property of another, which is not copied from the Code Napoleon, nor sanctioned by any law in France. The argument drawn from this difference of legislation, is, that all the remarks of French commentators touching the right of the ‘ proprietor of a wall not common, to make openings in said wall, can have no application to a state of things unknown to the French law, to wit r the wall belonging to one,-and yet built upon the land of another, without the consent of that other. But it strikes me that this makes no difference as to the right of the party who owns the wall. By the terms of Article 672 of oúr Code, the neighbor upon whose land this wall is built, has no property in the wall unless he pays for it. Until he does so pay, there is, for the neighbor, a positive expropriation of so much of his land as is covered by the wall. And this, after all, is only one among many proofs, that the right of private property is- Jess sacred in this country than it is in the monarchical States of Europe.

However distasteful it may be to the plaintiff, he must give up the idea that he is the owner of soil which another enjoys without his consent and against his will. Ita scripta est lex.

I concur in the opinion pronounced by Mr. Justice Spoppoed.


author: Vookeies, J.

text:
    Joseph Maillot, Curator, v. Josephine Wesley.
    Parol evidence is admissable to prove the manual gift of movables.
    As our laws does not permit either replication or rejoinder, all matters of defence setup in the answer, must therefore be considered as open to every.objection of law and fact, as if such objections had'been specially pleaded. So, where plaintiffs claim certain furniture as belongiug to the succession, and defendant answers that the furniture was a donation to her from the deceased^ it is competent for the plaintiff to prove that defendant was the concubine of the deceased, so as to reduce the donation ii it exceeded one-tenth of the estate.
    Code 1526. *■ -
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Race & Foster, for plaintiff and appellant. Egan & Eupuy, for defendant.
   Vookeies, J.

This is an action of revendication, in which the plaintiff claims certain household furniture as property belonging to the succession of the late James 0. Logan.

The defendant, in her answer, avers that she'acquired the furniture in question from the deceased, by donation inter vwos, accompanied by real delivery.

“ The manual gift, that is, the giving of corporeal movable effects, accompanied by a real delivery, is not subject to any formality.” C. C. 1526.

It is clear, therefore, that the Judge a quo did not err in overruling the plaintiff’s objection to the introduction of parol evidence, to prove the manual gift of the defendant. But we think he erred in excluding evidence offered by the plaintiff to prove that the donor and donee lived together in open concubinage. As our law does not permit either a replication or rejoinder, all matters of defence set up in the answer, must therefore be considered as open to every objection of law and fact, as if such objections liad been specially pleaded; thus the plaintiff may resort to the exceptions of nonage, cover-ture, fraud, violence, and the like, without pleading them, because he is not permitted to reply. So in the present case, it was competent for the plaintiff to show, that the defendant was the concubine of the donor, in order to ascertain whether the donation of the furniture made to her, exceeded one-tenth part of the whole value of the donor’s estate" and if so, to reduce the same according to law.

After a close examination of the case, we think the evidence is sufficient to sustain the conclusion of the Judge a quo in his solution of the question, as to the fact of the donation of the furniture to the defendant, accompanied by a real delivery. On this point, we consider the matter adjudged.

It is therefore ordered and decreed, that the judgment of the court below be avoided and reversed; that the case be remanded for a new trial, touching the issue, whether the donor and donee lived together in open concubinage, in order that the rights of the parties litigant may be regulated in accordance with the requirements of the law. And it is further ordered, that the costs of this appeal be paid by the defendant and appellee, and those of the court below by the estate, except those arising hereafter, which are to abide the final determination of the suit.


author: Buchanan, J.

text:
    Citizens’ Bank of Louisiana v. J. E. Armor and M. Fisher.—H. J. Mason et al., intervenors.
    By Article 2428 of the Code, a thing claimed by suit cannot be alienated pending the suit by the defendant, to the prejudice of the plaintiff. Mortgage is a quasi alienation, and if made pending a suit for the property, cannot prejudice the plaintiff.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.
    Pitot, for plaintiff and appellant. Sornmr & Says, for intervenors.
   Buchanan, J.

The defendant was recognized as heir of the late Mrs. Josephine Armor, and put in possession of her estate by a judgment. Subsequently, the intervenors sued Armor in the court in which the succession was opened, claiming the property of the succession of Josephine Armor, of whom they alleged themselves to be next of kin and heirs at law. Pending this suit, the defendant mortgaged certain real estate, being a portion of the property of Mrs. Josephine Armor’s succession, in favor of the holder of two promissory notes for three thousand dollars each, to secure the payment of the said notes. In the suit of the intervenors against the defendant for the property of Mrs. Armor’s succession, they obtained judgment, from which defendant appealed, but subsequently abandoned his appeal.

The Citizens’ Bank, as holder of one of defendant’s mortgage notes, is now seeking to enforce its mortgage, and is opposed by the intervenors. The latter having obtained a judgment in their favor, declaring the mortgage null, the bank appeals.

Upon the above statement of facts, the right of intervenors and appellees is clear. By Article 2428 of the Civil Code, a thing claimed by suit cannot be alienated, pending the suit, by the defendant, to the prejudice of the claim of plaintiff. Mortgage is a quasi alienation. Rippoll v. Morino, 12 Rob. 662, and Long v. French, 13 L. 261, are cases in point. The plaintiff pleads fraud and collusion between intervenors and defendant; but there is nothing in the record to support this plea.

Judgment affirmed, with costs.

      Voorhieb, J., recused himself.


text:
    J. C. Marsh v. His Creditors and the Creditors of Marsh & Co.
    The commissions of syndids upon the property sold take precedence of the vendor’s privilege asan expense of administration resulting to the benefit of the vendor, but not so the fees of the cousel for insolvent, nor the counsel for syndic, nor the attorney of absent creditors.
    Code, 3223, 3234.
    ÜL PPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Legardeur, for Fochel, opponent and appellant. Cerne and Brewer, for syndic.
   Lea, J.

The question to be determined in this case is “ What are the expenses which immovables subject to the vendor’s privilege must contribute, under Article No. 3234 of the Civil Code “where the remaining assets- are insufficient to pay costs.” The Article referred^o provides that the vendor shall be paid from the price of the object affected in their favor in preference to other privileged debts of the debtor, even funeral charges,, except the charges for affixing seals, making inventories, and others which may have been necessary to procure the sale of the thing. In this case the issue between the parties is what charges were necessary to “ procure the salé of the thing.” On the one hand it is contended that- this claim embraces all the charges of the administration by the syndic, and on the other, that its application is to be restricted to those charges without which the sale could not have taken place. We think this latter construction most in accordance with the letter of the Article and the decisions interpreting i(. We adopt, however, the ruling of our predecessors in the case of Monroe v. His Creditors, 2d Rob. 281, which includes the syndic’s commissions upon the property sold as an expense of the administration resulting to the benefit of the vendor. It is conceded thatthe. sheriff’s clerk’s, notary’s and appraisers’ fees were necessary charges in procuring the sale, and as to these charges we consider the opposition withdrawn. It is, therefore, unnecessary for this court to pass upon their validity. To these we think the syndic’s commission should be added, for the reasons before stated. Neither the fees of the counsel for the insolvent, nor of the syndic (far less that of the attorney of absent creditors) constitute a charge without which the sale could ndt have taken place. . For a construction of an analogous Article of the Civil Code see Garritson v. His Creditors, 1st Robinson, 446, also Civil Code, 3223.

The opposition- filed is- not deficient in pleading. As the opponent does not dispute the correctness of any of the items on the tableau, but merely claims a superiority of privilege, it was not necessary that each item should be specially opposed. i

It is ordered that the judgment appealed from be reversed, that the opponent be placed on the tableau as a creditor in the sum of $3,335, with privilege upon the proceeds of the property refered to in his opposition above all others, except the fees of the sheriff, clerk, appraisers, notary, and the commissions of the syndic, and that in other respects the judgment be affirmed. It is further ordered that the costs of this appeal be paid by the appellee.


text:
    James Stafford v. His Creditors.
    So much of the Act of 20th February, 1817, as upon a verdict of fraud against an insolvent, disqualifies him from holding any office of trust or profit under the government of this State, is repealed by the Act of 1855.
    In Motines v. Wiltz (ante p.489) it was held that the repealing clause appended to the revisory Acts of 1855, did not repeal such pre-existing statutory provisions as were re-enacted by the revisory statute.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Cotton, William, B. Bunt and Denegre, for plaintiff and appellant. Magne, for Roehereau & Co., opponents.
   Lea, J.

The verdict of the jury in this case establishes the fraud of the insolvent and we are not prepared to say that there is any error in their verdict. Upon this verdict the court decreed “ that the insolvent proceedings instituted and had in the District Court by the said Stafford be quashed and annulled and that in conformity to section 20, of the Act relative to voluntary surrender, approved 20th February, 1817, said James Stafford be forever deprived of the benefit of the laws passed in favor of insolvent debtors in this State, and that according to section 21 of the aforesaid Act, the said James Stafford be deemed incapable of holding any office of trust or profit under the government of this State;” from this judgment the insolvent has appealed, and urges as a ground for the reversal of the judgment, that the Act of 1817 has been repealed by the statute of 1855, and therefore, had no existence at the date of the judgment. So far as the Act of 1817 is inconsistent with the Act of 1855 or so far as its provisions are not embraced in the statute of 1855 it must be considered as repealed; that portion of the decree which imposes a disqualification to hold office should, therefore, be reversed. But the opponents have joined in the appeal, and complain that the insolvent having been found guilty of fraud by the verdict of the jury should have been condemned to three years imprisonment. It is to be remarked that it is not under the statute of 1817 exclusively that the opponent proceeds. He invokes the penalty of three years imprisonment as provided by the Act of 1840, as applicable to a conviction of fraud under that or any other statute then in force, see Act of 1840, sections 7, 10, 11 and 18, also Act ^of 1817. Greiner’s Digest, Articles 1667, 1668,1669. Now the matters complained of in the opposition under which the penalty of three years imprisonment was invoked, are such as are provided for not only by the statutes above referred to, but by the Act of 1855 to which the provisions therein contained have been transferred, and within which they are included. See statutes of 1855 “ relative to the voluntary surrender of property and mode of proceeding,” sections 19, 20, 21, 24. In the case of the State, on the relation of Bolmes v. Wiltz, we lately held that the repealing clause appended to the revisory Acts of 1855 did not repeal such pre-existing statutory provisions as were re-enacted in the revisory statute. This being the case the insolvent is in accordance with the verdict liable to an 'imprisonment not exceeding the term of three years, the duration of which is to be fixed at the discretion of the court. We think this discretion can be better exercised in this case by the District Judge who may be cognizant of many facts coming under his personal inspection, which may and probably should regulate the exercise of that discretion.

It is ordered that the judgment be reversed so far as it relates to the disquali-cation of the insolvent from holding office, and that the verdict of the jury be approved and recognized as a proper basis for the decree of imprisonment at the discretion of the court for a term, however, not exceeding three years, and for the purpose of enabling the District Judge to proceed further herein, according to law, and in accordance with 'the principle recognized in this decision, it is ordered that the case be remanded and that the costs of this appeal be paid by the appellee and the costs in the District Court by the appellant. It is further ordered that in other respects ihe judgment appealed from be affirmed.


author: Merrick, C. J.

text:
    J. Perkins v. A. Douglass—G. W. Hulse, Warrantor.
    •Counsel who made a certain admission on the minutes p£ the Court, not permitted to lessen its effect by his own testimony, showing that it was not authorized by his client, and that he mitde it from^he statement of a witness whom he believed, and by whose affidavit, produced, it appeared that the witness did not state quite so much as was covered by the admission.
    Code, 3400.
    APPEAL from the District Court, Tenth District, Parish of Tensas, Farrar, J.

      J. P. Farrar, for plaintiff. Reeves, for defendant and appellant. Snyder, for warrantor.
   Merrick, C. J.

This action was commenced on the 19th day of September, 1884. The warrantor, False, acquired -title to the land in controversy from Compton, in February, 1843, by a formal deed translative of property. The record contains the following admissions entered on the minutes of the court, viz:

“ It is admitted by plaintiff that Dr. Hulse went upon the property named in the deed from Compton in January, 1844, that he and his vendee have occupied and cultivated part of the same as a cotton plantation ever since.”

We think that full effect ought to be given to this admission formally entered upon the minutes of the court. If it was iraudulently made and possibly if made in error, induced by the- statements of the opposing party, it might be set aside on a rule. But we do not think that the counsel, who made it, ought to be permitted to lessen its effect by his own testimony to show that he was not authorized to make the admission by his client, and that he made it from the statement of a witness whom he believed, and by whose affidavit, produced by the plaintiff, it afterwards appeared that the witness did not testify to quite so much as covered by the admission.

The defendant had a right to rely on the admission which was volunteered by the plaintiff to facilitate the trial, and he cannot legally be deprived of it by the mistaken motives which induced the plaintiff’s attorney to make it.

Although the tract of land sold by Compton to Eulse is described by the sub-divisions of the landfoffice, yet the same (it may fairly be inferred) were lying contiguous and were placed together in the act of sale for the purpose of forming'a plantation. The entry, therefore, upon and possession of a part must be held, we think, to be a possession of the whole included within the boundaries embraced in the Act of sale. C. C. 3400.

We think, therefore, that the plea of prescription ought to have been sustained.

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


author: Meeeick, O. J. Lisa, J. Spoitobd, J.

text:
    G. F. Muntz v. The Succession of Samuel Broom.
    In a compromise partition of the effects of the succession between the widow and heirs in 1850, the ship 0. fell to the heirs. The executor, however, was not discharged. In 1851 the ship was in Liverpool, where she was supplied by plaintiff with patent metal for sheathing, for the price of which this suit was brought. The ship seems to have been sent on this voyage by B. & O., B. being the executor. By the Qowi'i: Under the circumstances of this case, the executor, in that capacity cannot be rendered responsible for this bill. The plaintiff must be left to his remedy against B. & C.jind the heirs who authorized this voyage. The executor, as such, can only be rendered, responsible for expenses incurred in the legitimate administration of the succession.
    The acknowledgment of the correctness of the account by the captain who contracted for the repairs, withdrew it from the application of Article 3499 of the Code and subjected it to the prescription provided by Article 8508. Lea, J., with whom concurred Spofford., J., dissenting.
    It is unjust that the owners should be benefited to the extent of the labor and materials furnished by the plaintiff, without any liablity for a reasonable remuneration. Lea, J., with whom concurred Spofford, J., dissenting.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.
    Jourdan, for plaintiff and appellant. Durant & Hornor, for executor. D. N. Eennen, for the heirs.
   Meeeick, O. J.

It has been held by this court in the case of Jouanneau, curator, v. Shannon, 4 An. 380, that a steamboat might, after the death of the owner, be employed by those representing the succession, and that they would not be personally responsible for accidents happening in the usual employment of such boat. We do not think that the authority of this case extends to the case before us under the present appeal. Samuel Broom died in 1849. George L. Broom was appointed his executor. In 1850 a compromise in the nature of a partition of the effects of the succession was made between the widow and the heirs, although the executor does not appear to have been discharged from the further settlement of the succession.

In 1851 the ship Cato, which was left to the heirs in the partition was at Liverpool, in England, where it appears to have been sent by Broom & GaugKlin on a voyage, which appears to have been made on their account-The plaintiff furnished the master of the ship with sufficient patent metal to sheathe the same, receiving the old copper in part payment. The bill, amount, ing to £217 17s. 4d., was acknowledged by the master of the ship in the name of Broom & Oaughlin.

"We think, under the circumstances of this case, the executor, in that capacity, cannot be rendered responsible for this bill. The plaintiff must be left to his remedy against Broom & Gaughliny and the heirs who authorized the voyage.

The executor, as such, can only be rendered responsible for expenses incurred in the legitimate administration of the succession. After the partition between the widow and heirs, the executors who had been directed by the will to sell the real and personal estate not otherwise disposed of by the same, could not he justified in making voyages with the ships belonging to the heirs on account of the succession. This view of the case renders it unnecessary to express an opinion upon the plea of prescription.

Judgment affirmed.

Lisa, J.

The plea of prescription in this case cannot be maintained. The acknowledgment of the correctness of the account by the captain who contracted for the repairs, withdrew it from the application of Article 3499 of the Civil Code, and subjected it to the prescription provided by Article 3508. See Davis v. Houren, 10 Rob., 402.

The evidence shows that the repairs to the vessel were necessary, and that the materials and labor were furnished at current rates. It is unjust that the owners should be benefited to the extent of the labor and materials furnished by the plaintiff without any liability for a reasonable remuneration.

The case of Jouanneau v. Shannon does not appear to me-to be applicable to the facts of this case. It'may be remarked, however, that neither in that case nor in the one at bar, was any claim made against an administrator personalty. This suit is brought against the succession of Broom. In that case the issue was between the curator of the succession of Whipple (in his eapaeity as such) and a co-proprietor of a vessel. As I understand the ruling in that case, it was determined that where the surviving part owner of a vessel continued to employ her in her usual trade, in the absence of any objection on the part of the proper representatives of the-succession, the estate of the deceased part owner would be liable for a contributive share of the cost of necessary repairs to the vessel. Indeed the case is quoted by Mr. Elanders in his work on shipping for the purpose of confirming this very doctrine; and the correctness of this construction is made apparent by the fact that judgment was rendered against the succession of Whipple for a proportionate contribution to the cost of the repairs.

So far, then, as the case is applicable to the peculiar facts of this case, it would seem to favor the right of the plaintiff to recover.

My impression, moreover, is that the plaintiff is entitled to recover as for useful and necessary repairs made upon the property of the defendants, by which they have been to that extent enriched". See 0. C., Art. 2278.

Spoitobd, J.

I am also of this opinion, and add that the succession might, perhaps, have its recourse over against the heirs to whom the ship fell in the partition.


author: Voorhies, J.

text:
    John McCarty v. J. W. Zacharie.
    Where neither the plaintiff nor defendant sought to avail himself of the report of experts-in the manner provided by Article 456 of the 0. P., the plaintiff had the right to disregard altogether the report and prove up his claim.
    Xi. PPEAL from tho Fifth District Court of New Orleans, Augustin, J.

      Durant & Hornor, for plaintiff. Garrett Duncan, for defendant and appellant.
   Voorhies, J.

This is a suit to recover a balance alleged to be due on an account for work and labor done and materials furnished by the plaintiff for the repair of the defendant’s building-, known as the Verandah Hotel.

After issue joined, Daniel Blair was appointed, by consent, sole expert to measure the work, make an estimate of the same, and to report upon the whole bill of the plaintiff.

A report was filed bjr the expert on the 28th of March, 1854, awarding the sum of $1185 07 in favor of the plaintiff. On the 2d of May following, the defendant opposed two items therein allowed to the plaintiff, one for the sum of $160, as an overcharge on sixteen water-closets, and the other for the sum of $47 18, as commission charged for purchasing, etc. Alleging that the report was correct in all other respects, the defendant prayed that the same, after making the correction of said errors, might be confirmed and made the basis of the judgment of the court.

It does not appear from the evidence that any other steps were afterwards taken either by the plaintiff or the defendant in relation to the report. At this stage of the proceedings the cause was fixed for trial on the 10th of November following, without any objection on the part of the defendant.

On the trial, the plaintiff introduced evidence to prove his demand, which was excepted to by the defendant, “on the ground that the same was incompetent, irregular and irrelevant under the pleadings, report and exceptions.”

We do not think the Judge a quo erred in overruling the objection. After a report of experts, auditors or arbitrators, is filed, the party wishing to avail himself of the same, may, on motion, call upon the adverse party to show cause, within ten days after the notice of such motion shall have been served on him, why such report or award should not be homologated. O. P., 456. In the present case there is nothing to show that the plaintiff ever took any steps, or ever intended, to avail himself of the report of the expert; on the contrary, we are led to infer, from all the circumstances disclosed by the record, that he never entertained any such intention. Had the defendant wished to avail himself of the report, when the cause was called, on the 1st of September, to be fixed for trial, he should then, or, at all events, previous to the day fixed for the trial, have done so, by calling on his adversary in the manner prescribed bylaw. 3 L., 73; 6 R., 494; 2 An., 892. Under these circumstances, the plaintiff, it appears to us, had clearly the right to disregard altogether the report of the expert, and to prove up his claim.

On the merits, we consider the items charged in the plaintiff’s account for work and labor done, amounting to $962 45, and those for materials furnished, including the water closets, etc., amounting to $3485 30, to be sufficiently proved by the evidence. After deducting: therefrom the sum of $1765 51, the total amount of credits to which the defendant is entitled, there remains a balance of $1682 24, for which we think there should have been judgment in favor of the plaintiff, instead of the sum of $1463 31, as allowed him by the Judge a quo. Hence, we. are of the opinion that the judgment should be amended in favor of the'plaintiff and appellee,' as prayed for in his answer to the appeal.

It is, therefore, ordered and decreed, that the judgment of the court below be amended in favor of the plaintiff, by allowing him the sum of sixteen hundred and eighty-two dollars and twenty-four cents, instead of fourteen hundred and sixty-three dollars and thirty-one cents, and so amended, that said judgment be affirmed, with costs.


author: Merrick, 0. J.

text:
    L. D. Whipple v. P. Hertzberger et al.
    No privilege is granted by law tapone who furnishes feed for the horses of a keeper of a line of omnibuses employed on such line.
    The seizure and even the sale of property does not deprive the vendor of his privilege, so long as the property, or its proceeds, are in the hands of the Sheriff, syndic, administrator, etc., and the property has not been sold confusedly with a mass of other things belonging to the vendee. 0. 0., 3195.
    An amendment to the judgment of the lower court, by embracing within it the name of one of the opponents, accidentally omitted, is irregular. But if the record contains evidence which shows that judgment in the same form should be immediately pronounced, the decree will be affirmed by the Supreme Court.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      LugenbvM, for plaintiff and appellant. Janin, St. Paul & Bouny, Preaux, Holland, Budd & Lambert and Saucier, for different defendants.
   Merrick, 0. J.

The plaintiff complains of the judgment of the lower court, because it recognized the privilege of the vendor upon the movables which he had seized under execution, and because the judgment of the lower court was amended after it was -rendered, without ordering a new trial, and because it refused to the plaintiff a privilege for feed furnished for the horses used for the line of omnibuses kept by Hertzber'ger.

The law does not seem to have accorded a privilege to him who has furnished feed to the keeper of a line of omnibuses for the horses employed in such line. ■ „

Although the seizure has the effect to take the property out of the custody of the debtor, the vendee, yet the seizure and even the sale of it does not deprive the vendor of his privilege, so long as the property or its proceeds are in the hands of the Sheriff, syndic, administrator, -etc., and the property has not been sold confusedly with a mass of other things Belonging to the vendee. C. C., 3195. ‘

We think the amendment of the judgment of the lower court, by embracing in it the name of one of the opponents accidentally omitted, without granting a new trial, was ivregular. But as the testimony is in the record, and requires that the judgment should loe immediately pronounced in the same form, we will affirm the decree, and award to the appellant the costs of the appeal.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, and that the appellees pay the cost of the appeal.


text:
    Daniel Mayes v. Schmidt & Co.
    Where thfe plaintiff 'does not interfere with the officer charged with the execution of a ffnal process upon a judgment regularly obtained, he cannot be held responsible for the wilful or negligent acts of such officer in the execution of the writ.
    CJ. P. 059.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.
    Helm, for plaintiff. Fitz, for defendants and appellants.
   Merrick, C. J.

This action is brought to recover of defendants damages for injury done to household furniture, injured while under seizure on a judgment for rent.

The defendants Schmidt & Go. had obtained judgment against the plaintiff (while absent during the summer months at Biloxi) for two hundred dollars, it being for four months rent. They caused furniture of about two thousand dollars in value, to be seized. The Judge of the lower court was of the opinion that the seizure of all the furniture was directed by the plaintiffs in order to obtain possession of the leased premises. The unnecessary seizure of all the furniture perhaps gives some color to this supposition. The proof shows that the furniture was injured in taking it from the premises leased and in storing it afterwards.

The Sheriff’s or Constable’s duty and responsibility are prescribed by Art. 1559 of the Code of Practice, in these words, viz:

“When the objects seized consist of money, movables, beasts or slaves, he should put them in a placo of safety, under the penalty of being responsible for the loss or injury they may sustain through his fault or neglect.”

Where the plaintiff does not interfere with the officer charged with the execution of a final process upon a judgment regularly obtained, he cannot be held responsible for the wilful or negligent acts of such officer in the execution of the writ. But we are not satisfied that there was such an active interference on the part of Schmidt & Go., as to render them responsible for the acts of the officer.

See Meredith v. Flaxman, 5 C. & P., 99.

The plaintiff has filed an answer praying for an amendment of the judgment in his favor, by allowing him a larger amount of damages than was allowed in the lower court. The defendants, Schmidt & Go., claim that they should be allowed an additional month’s rent, on account of the removal of the property by the plaintiff since the seizure.

We do not think the judgment ought to be disturbed in either particular.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be affirmed as against the said George F. Pierson, with costs, and that saidjudgment as to the said Schmidt and Vogel, composing the firm of Schmidt & Go., be avoided and reversed, and that there be judgment against the plaintiff and in their favor, and that they recover their costs in both courts.


text:
    E. G. Marmiche v. F. Roumieu.
    Defendant was in possession of plaintiff’s house under a lease, and when the lease was about to expire, defendant refused to renew it on the terms proposed by plaintiff. Defendant continued to occupy and was notified by plaintiff that he considered the annual lease renewed, to which defendant responded that he would leave the premises at the end of the month, and continued to notify plaintiff from month to month that he would leave. Held: There was no contract, and the relation of lessor and lessee can only be created by contract; and that defendant was only liable for the rent of the house during the period it was actually occupied by him.
    Xi. PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Byma, for plaintiff. Filleul, for defendant and appellant.
   Lea, J.

The facts of this case are correctly stated by the District Judge. “ The plaintiff claims $1,500 for the rent of a store, to be paid monthly, on the ground that the defendant rented the store from him by the year. The defendant claims that he is merely a monthly tenant, and denies any liability for rent except when in the premises. The facts show that the defendant first occupied the house under a written lease, that when the lease was about to expire, plaintiff asked defendant if he would continue for another year. The defendant was desirous of doing so, but under different conditions, to which the plaintiff refused to accede. The defendant continued to occupy the premises, and was notified by the plaintiff that he considered the lease renewed. To this defendant replied that he would leave the premises at the end of the month. He continued in the premises and notified plaintiff from month to month that he would leave.” To this statement we may add that both before and after the expiration of the written lease, the defendant positively refused to accede to the terms proposed by the lessor, who, in his turn, insisted upon his original proposition, and would consent to no other. Under these circumstances it is clear that there was no contract and the relation of lessor and lessee cannot be created otherwise than by a contract. If the defendant was a trespasser, which is not pretended ,the plaintiff had his remedy by the summary process for expelling a tenant, together with his claim for damages, if any were sustained ; but this is a suit upon an alleged contract, to which the defendant not only never agreed, but against which he always protested. The tacit reconduction of the lease of property not predial does not extend beyond one month, which will be presumed to be continued from month to month, unless terminated by one of the parties, in accordance with the provisions of Article 2656 of the Civil Code. See Geheebe, et als v. Stanby, 1st Annual, p. 17, also Bowles v. Lyon, 6th Rob. 264.

This suit was brought, before the expiration of the first month, no exception was taken to the prematurity of the suit, and the evidence shows that the defendant continued to occupy the premises-helonging to the plaintiff up to the month of April inclusive. The defendant is, therefore, bound for six months rent, say 750 dollars.

It is, therefore, ordered that the judgment appealed from he reversed, and proceeding to render such judgment as in our opinion should have been rendered : It is ordered that the plaintiff, B. G. Marmiche, do have and recover of the defendant, F, Roumieu, the sum of ($750) seven hundred and fifty dollars and costs of suit in the District Court, for the rent of his store up to the 1st day of May, 1855, without prejudice to the plaintiff’s rights, if any he have, to sue for and recover such damages as he may have sustained by a failure to rent his store for the residue of the year ending 31st October, 1855, in consequence of the alleged occupation of the same by the defendant without his consent.

It is further ordered that the plaintiff and appellee pay the- costs of this appeal.


text:
    The State v. William Bass.
    1'he action of the District Court relative to the granting of new trials, in criminal causes, cannot be reviewed by the Supreme Court, unless brought before it in such a mode as to present for solution an unmixed question of law.
    When the prisoner provokes an inquiry into the character of the deceased, he cannot complain that the State, on re examination, seeks to obtain from the same witness evidence of a general character calculated to rebut the unfavorable impression produced by the answers of the witness to the prisoner’s questions.
    1’he prosecuting officer always has the right to open the argument of the cause. If the prisoner offer no evidence, it seems that it is usual for the argument to cease with the reply of his counsel to the argument of the prosecuting officer. But the prisoner’s counsel is not entitled to open the argument upon the merits before the jury, in any case, as a matter of right.
    APPEAL from the District Court, Seventh District, Parish of East Feliciana. Waüerson, J., presiding.

      Moise, Attorney General. Muse, for appellant.
   Spofford, J.

The action of the District Courts relative to the granting of new trials, in criminal cases, cannot he reviewed by this Court, unless brought before it in such a mode as'to present for solution an unmixed question of law. Const., Art. 62. State v. Johnson, ante, p. 422.

We must therefore confine our attention in this case to the two hills of exceptions.

I. The prisoner complains that the court erroneously admitted evidence touching the general character of the slave whom he was accused of hilling.

It is true, as a general rule, that evidence in regard to the character of the person on whom the offence was committed, is inadmissible. 3 Green Ev., p. 27. But, in this case, the defendant’s counsel opened the subject by inquiring into the character of the slave and eliciting answers from one of the witnesses for the prosecution in cross-examination, which had a tendency to cause the jury to form an unfavorable estimate of his general character; if objected to, such evidence could not have been received; but the party who provoked it certainly cannot complain that the State, on a re-examination, sought from the same witness evidence, of a general character, calculated to rebut this unfavorable impression.

II. The prisoner’s counsel having adduced no evidence, except by cross-examining the witnesses for the prosecution, claimed the right to open and close the argument of the cause, which the court refused, and the counsel took a bill of exceptions.

He asked too much. The prosecuting officer always has the right to open the argument of the cause. The burden is on the State to make out a case of guilt. If the prisoner chooses to rest his defence upon the weakness of the State’s proof, and to offer none himself, it seems that it is usual for the argu-merit to cease with the reply of his counsel to the argument of the prosecuting officer. 1 Chit., Cr. Law, *p. 627. ' 2 Bay, 451, State v. Brisbane. But the prisoner’s counsel is not entitled to open the argument upon the merits before the jury, in any case, as a matter of right.

Judgment affirmed'with costs.


text:
    State v. Patrick Kennedy.
    The Supreme Court has no jurisdiction over the conclusions of the lower court on the mixed questions of law and fact raised by an affidavit for a continuance in a criminal case.
    Decision in State v. JoJmson ante, p. 422, affirmed."
    The Supreme Court, as a court of error, or an appellate c'ourt, for the consideration of questions of law only, is without authority to reverse the judgment of.the lower court in a criminal case, except upon a clear showing that there has been error committed in the proceedings of the lower court, and that the appellant has been prejudiced by it.
    Bill of exceptions to the order of the judge directing the clerk to commence calling the jury list at No. 70. By the Court: The industry of counsel has not furnished us with any adjudged case, nor have we been able to And any, in which it has been held that it was error if the jury were not called to the book in the order in which they were placed on the list served upon the accused. There is nothing in the statute which directs the order in which the jury are to be called to be sworn, nor which requires the names to be set down on the list in the order in which they are drawn, although that is the more regular and natural mode of transacting the business. The statute which provides that the accused shall be furnished with a list of the jury who are to pass upon his case, at least two days before his trial, does not require that the list should be numbered. Yet, we believe the practice is almost universal, (audit ought not unnecessarily to be departed from) to number the list, and in capital cases to call the jurors in the order of their numbers.
    It is not sufficient for the accused to show a mere irregularity in the manner in which the jury is called — he should show that "he has been prejudiced by the action of the court in that particular.
    APPEAL from the First District Court of New Orleans, Bobertson, J.

      Mo'ise, Attorney General. Field) for appellant.
   Merrick, C. J.

The prisoner and James Doyle were indicted for the murder of James Cruise.

The prisoner was tried alone, and an unqualified verdict of guilty having been rendered against him, he was sentenced-to he executed".

On his appeal to this court, he urges for the reversal of the judgment of the District Court, what may he embraced in three grounds. They are in substance as follows, viz:

xlst. The court erred in refusing the accused a continuance on his affidavit showing the absence of his material witnesses.

2d. The court erred in proceeding to trial in the absence of a large number of the jurors who were not, and had not been in attendance; three of whom were excused by the court.

3. The court erred in not allowing the names of the jurors to be placed in a hat or box and drawn therefrom one by one and so tendered the accused, and in refusing to commence the calling of the "jurors from the head of the list, and by commencing the calling of said jury'from No. 70 of the list.

I. It has been so often decided by this eouVt that we have no jurisdiction over the conclusions of the lower court on the mixed question of law and fact raised by an affidavit for a continuance in a criminal case, that it is sufficient to refer to those decisions as an answer to the first ground urged by the appellant. See State v. John Johnson, 11 An., p. 422, and authorities there cited, viz: State v. Hunt, 4 An., 438; State v. Long, Ib., 441; State v. Butte, 6 An., 661; State v. Cazeau, 8 An., 114; State v. Muldoon, 9 An., 24.

II. The second ground of reversal presented was considered by us in the case of the Slate against Johnson, just cited. The jury list, in this case, is the same as served upon the defendant in that case, and the reasoning of the court in that ease is applicable to this. The only difference between the case of Johnson and the present, consists in the remark of the judge annexed to the bill of exception in this, which was not a part of the bill of exception in that case. The remark is in these words: “ The court had made extraordinary efforts to obtain a full panel. Some of the jurors on the list had been placed there, as fbey were well known citizens and it was thought that they could be obtained; but, owing to the prevalence of cholera, and other causes, many jurors were never in attendance, though repeated attachments had been issued,” &c.

It has been argued to us, although not a ground of exception taken in the bill, that this bill of exception shows that instead of drawing the jurors as required by law, the judge has arbitrarily placed upon the pannel the names of certain well known citizens to serve in the place of the jurors who did not attend. We do not think the language of the judge will bear the construction contended for by the accused. It is not to be presumed, except upon the clearest showing, that the District Judge so far forgot his duties, as to prepare a list of jurors, because they were well known citizens and might be supposed willing to serve. The law has intrusted the duty of drawing the jury to the sheriff, even to supply the absence of jurors when a sufficient number are not in attendance to transact the business of the court. We are therefore bound to conclude that the expression of the judge contained in the bill, was merely an opinion which he entertained of the jury as it had been originally drawn.

On the authority, therefore, of the case of the State against Johnson, to which we refer for the reasoning of the court on this point, we conclude that the second objection is untenable.

III. The third error alleged is presented by the following biil of exception, viz:

“Be it remembered that at the time this cause was called for trial, and before any of the jury had been sworn, the defendant, who notwithstanding his objection had been ruled to go to trial, moved the court to have the names of the jurors found on the list served on the accused, to he placed in a hat or box, to be thence drawn by the clerk or sheriff, one by one, and tendered as jurors, which motion the court overruled; whereupon the accused moved the court to require the clerk to call the jurors from the head of the list, which motion the court likewise overruled and began the calling at No. TO on the list, to which rulings of the court the defendant by his counsel excepts,” &c.

This court, as a court of error, or an appellate court for the consideration of questions of law only, is without authority to reverse the judgment of the lower court in a criminal case, except upon a clear showing that there has been error committed in the proceedings of the lower court, and that the appellant has been prejudiced by it.

The industry of counsel has not furnished us with any adjudged case, nor have we been able to find any, in which it has been held that it was error if the jury were not called to the book in the order in which they were placed on the list served upon the accused. There is nothing in the statute which directs the order in which the jury are to he called to he sworn, nor which requires the names to be set down on the list in the order in which they are drawn, although that is the more regular and natural mode of transacting the business. The statute which provides that the accused shall he furnished with a list of the jury who are to pass upon his case, at least two days before his trial, does not require that the list should be numbered, yet we believe the practice is almost universa^ (and it ought not unnecessarily to he departed from) to number the list, and in capital cases, to call the jurors in the order of their .numbers. It is the practice, ir. the ease of high treason, in England, to call them in the order of the list. 1 Chitty Crim. Law, p. 532. We know that the practice in civil cases and in misdemeanors, in many parishes of this State,' is to call the jury in such a manner as to divide the labor of the jury trials.during the term among all the jurors in attendance, and not impose upon the first'named on the list the labor of the term. And such, we were informed in the argument, was the object of the judge of the District Court by commencing the call of the jurors in this case at number seventy of the list. A comparison of the jury empannelled with the jury list shows that four of the jury between numbers seventy and eighty-two (the last number on the list) were sworn as jurors, that the residue of the jury accepted and sworn were taken from between-numbers one and twenty-three. Indeed, the bill of exception does not complain that the jury were not consecutively called from the number at which the calling commenced, but that the court refused to commence calling from the head of the list. That the jury called were not legal, competent and impartial jurors, (legales homines), is not pretended ; nor is it shown that the accused was taken by surprise by the mode in which the calling of the jury to the book was conducted, nor that he even used, much less exhausted, his challenges, in order to prevent men with whose character he was not familiar from being placed on the jury. On the contrary, the accused first desired the court to place the names of all of the jurors on the list in a hat or box, and to draw the jury one by one therefrom, thus showing a willingness that the jury should be taken from any part of the listas chance should determine.

Moreover, he seems to have anticipated the action, of the court by his motion to commence the calling of the jurors from the head .of the list. We are therefore unable to see in what manner the accused has been prejudiced by the mode in which the jurors were eallecLfrom the list; for it must he conceded they were as competent and impartial at the one end of the list as the other.

We have already observed, that it is hot sufficient for the accused to show a mere irregularity in the manner in which the jury were called, he should show that he has been prejudiced by the action of the court in that particular. Had the bill of exceptions shown that the accused was taken by surprise by the unusual manner in which the jurors were called, and that he had been compelled to exhaust all his challenges to protect himself against such action of the court, or that the court arbitrarily and without cause, directed the jury list to be called in an unusual manner, a different case would have been presented from the present. Whether sufficient to occasion the reversal of the judgment, it does not become us now to determine.

We have already intimated that the court did not err in refusing to put the names of the jurors in a hat or box, and draw, them therefrom. This is done by statute in England in ordinary cases only; but even there, in those cases where the list is served on the accused, they call from the list in its order. But the accused has so little of a vested interest, so to speak, in the jurors, that the State always exercised, the arbitrary right of setting aside any of the jurors in the pannel, until it is gone through with, whereupon the jurors which have been set aside, are then called, and if not challenged by the accused, they are sworn, unless cause is shown on behalf of the crown. Wharton, Crim. Law, 839, note v.

Such is still the practice in the United States Courts, and such was the practice of this State from the passage of the act requiring the indictment and list of jurors to be served upon the accused, until the enactment of the Statute of 1837, p. 42, which took from the State the power to set aside jurors, and gave in lieu thereof six peremptory challenges. If it was not error in the State to set aside the jurors as called, at its pleasure, under the Act of 1804, it cannot be error now, under the same statute, for the Judge simply, for a cause tending to facilitate the transaction of the public business, to commence at a particular number on the list, and call the same consecutively until a petit jury is formed or the pannel exhausted.

Judgment affirmed.


author: Merrick, 0. J. Spofford, J.,

text:
    Auguste Devron v. His Creditors.
    Where mortgage creditors not only did not oppose the sale by the syndic of the mortgage property, and did not endeavor to enforce against him the pact de non alienando, but took a rule upon him to compel him to sell the property for cash, they cannot complain that the proceeds of the sale are burthened with the charge of the surrender, the movables proving insufficient.

      By the Gourt: We are not prepared to say that a privilege for law charges does not attach as well to property mortgaged with the foregoing pact as without it, so long as the title to the property has not been divested by a sale. The pact gives the creditor a more easy mode of seizing the mortgage property, but does not elevate his mortgage into a privilege.
    The proceeds of mortgaged property ought to be applied, whether there are one or several immo-vables, to the payment of the privileges in the order in which the property was mortgaged, commencing with the most recent and ascending to the most ancient.
    The mode of contribution to debts privileged genwaUy upon movables a/nd immovables has been judicially determined. The decisions are that the immovables, not the mortgage creditors» owed the contribution and that these privilege debts must be borne by the immovables pro rata? according to the price which they produced respectively, and this rule is not opposed to Articles 8286, 8287 of the Code. Spoeford, J., with whom concurred Lea, J., dissenting.
    C. P. 715.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Magne, for Rocliereau & Go., appellants. Dufour, for Syndic.
   Merrick, 0. J.

(Spoeeord, J., and Lea, J., dissenting.) Eugene Roehe-reau & Go. appeal from a judgment homologating a tableau of distribution.

They are mortgaged creditors, and complain of the judgment on the following grounds, viz:

I. and II. “That having seized the property prior to the surrender they could not be divested of the rights they had so acquired. That having in their favor the pact de non alienando, they have the right to take the proceeds of the sale of the property without any further costs and charges than would have been incurred by a sale under their order of seizure and sale which was arrested by the surrender; that it is unjust to impose upon them, the movables proving insufficient, almost the entire charges 6f the surrender.’’

In answer to this reasoning it may be replied, that the opponent not only suffered the property to be sold without objection and without endeavoring to enforce against the syndic the pact de non alienando on which they were relying, but they took a rule upon him to compel him to sell the property mortgaged for cash.

Neither are we prepared to say that a privilege for law charges does not attach as well to property mortgaged with the foregoing pact as without it, so long as the title to the property has not been divested by a sale. The pact gives the creditor a more easy mode of seizing the mortgaged property, but does not elevate his mortgage into a privilege. We see no error in the ruling of the court in allowing the privileges to be paid, for want of movables, out of the immovables specially affected with the mortgage of* opponents.-

III. The third objection is, that the division of the privileges among the mortgage creditors, and charging them therewith pro rata is in direct opposition to the principles of the law of mortgages embodied in the Code. In support of this proposition the appellant cites Article 8236 of the Civil Code, and insists that the court ought to have-charged the privileges against the proceeds of the property in the order in which it was mortgaged beginning with the least ancient and ascending in this order, so that the younger mortgages should be compelled to bear the loss, and not compel the older ones to bear any portion of the same.

To this it is replied, that the opponents are made to contribute to the privileged expenses by virtue of Art. 3236 C. C.; that the second paragraph of the Article speaks of the creditor who is to bear the loss, showing clearly its application or reference exclusively to different special mortgages on the same property; whereas, the first paragraph containing the rule of the law has invariably been construed to mean that it is not the creditor holding the mortgage, but the property on which the mortgage exists which is liable to the contribution. In support of this position counsel for appellees cite 5 M. 469, 6 M. 520; 10 L. R. 554, 18 L. R. 372 ; and 6 Rob. 268.

It may be remarked in regard to the first two of' the authorities cited, that they were decided under the old Code, the provisions of which are not the same as the Code of 1825. In regard to the more recent cases the attention of the court does not appear to have been directed to 'Articles 3236 and 323T, which seem to us to be provisions directly in point. They read as follows:

“ Art. 3236. Wjth the exception of special privileges which exist on immov-ables in favor of the vendor, of workmen and the furnisher of materials, as declared above, the debts privileged on the movables and immovables generally, ought to be paid, if the movables are insufficient, out of the product of the immovables, and slaves belonging to 'the debtor, in preference to all other privileged and mortgaged creditors.

The loss which may result from their payment must be borne by the creditor whose mortgage is less ancient and so in succession, ascending according to the order of the mortgages or bj pro.rata contributions where two or more of the mortgages have the same date.”

“ Art. 3237. When the debts privileged on the movables and immovables cannot be paid entirely, either because the movables are of small value or subject to special privileges which claim a preference or because the movables and immovables together do not suffice, the deficiency must not be borne proportionally among the debtors (creditors), but the debts must be paid according to the order established above, and the loss must fall on those which are of inferior dignity.” (clu rang inferieur.) But it is contended that the foregoing Articles of the Civil Code apply to cases .where the same property is affected by the all the mortgages, and that then only the loss must fall upon the junior mortgage and that where there are several pieces of property, the privilege attaches to them all and under the authorities cited they must bear the loss pro rata. The reason why there should be the distinction contended for between one or several immovables is by no means clear.

The first mortgage creditor having his mortgage upon a single immovable, would, in the event of insolvency, have' the right to insist that the proceeds of the movables and unincumbered immovables should be exhausted before his fund should be required to contribute to the payment of the general privileged claims. Let us take another step ; a second mortgage creditor acquires a right upon another immovable, and the debtor becomes insolvent. Here, this second mortgage creditor has .the right in like manner to compel the application of the proceeds of the movables and unincumbered immovables to the payment of the general privileges before his fund shall be required to contribute. But suppose the movable and unincumbered immovables are insufficient to meet the privileged claims, and that the mortgaged property must contribute, and he were to call upon the senior mortgage creditor, to contribute to the payment of the privileges, would there be any-want of equity in a reply to him, from the first mortgage creditor, to this effect: ‘‘Sir, when I took my mortgage, the very immovable, the proceeds of which you now claim, was liable, in the hands of my debtor, to be first exhausted for the payment of all general privileges before I could he called upon to contribute at all. You have acquired no greater right than the debtor had, who gave you the mortgage”?

The compilers of the Civil Code of 1826, having made no exception, appear to have adopted the view, that the proceeds of mortgaged property ought to be applied, whether there are one or several immovables, to the payment of the privileges in the order in which the property was mortgaged, commencing with the most recent, and thus ascending to the most ancient. This is also in harmony with Article 715 of the Code of Practice, which requires the holder of a legal or judicial mortgage, to discuss other property which the debtor has in his possession, and even that which he has r lienated since the purchase, before requiring payment of a purchaser of property bought at Sheriff sale, which is subject to a legal or judicial mortgage. The reason announced by the lawgiver, in the same article, is: 11 Because the creditor who has a general mortgage, can only act against the property of which his debtor disposed, in the order in which the alienations have been made, beginning at the most recent and ascending to the most ancient.”

Although the property contributes, and not the mortgage creditors, to the payment of the privileges, nothing prevents the appropriation of the proceeds of the mortgage property to the payment of the privileges in an inverted order from that in which the mortgages were created.

Since the adoption of the Code of 1826, we do not think the point now before us has been expressly decided. The cases of Janin v. His Creditors, 10 L. R. 664; Montouchet v. Ferraud, 18 L. R. 872; and Cazeau v. His Credi tors, 6 Rob. 268, without directly deciding the case, seem to affirm, by implication, the decisions in the 5 Martin, 469, and 6 Martin 520, decided under the Old Code. In the case of Dreux v. His Creditors, 7 N. S. 637-640, the court notice the change in the legislation introduced by Article 3236, but the case itself having arisen before the Code of 1825, was decided under the provisions of the Old Code.

We consider the provisions of the Code clear and unambiguous, and that hitherto there has not been any interpretation .placed upon the articles cited, which could weigh as an authority against what appears to us to be their obvious meaning. ,

The mortgages of Francois Jartoux and Mrs. Devron, being both junior to those of Eugene Roehereau & Co., the property subject to the subsequent mortgages, must first contribute to the payment of the privileges, and the fund subject to the mortgage of E. Roehereau & Co., can only be applied to the payment of the residue of the privileges, after the ..funds subject to the junior mortgages are exhausted.

It is therefore ordered, adjudged and decreed by the court, that the judgment of the lower court be amended, by directing that said tableau of distribution, filed 7th November, 1855, be further amended by applying the whole instead of a part of the following 'sums, to the payment of expenses, viz :

Amount of movables and collections..’..$824

The proceeds of the undivided half of'.thirteen lots in the Third District. .310

Lots at Carrollton, set down on tableau as No. 9.110

Price of slave Rosania.270

Total.$1014

That the claims of Frangois Jartoux and Mrs. Dewon, to any part of said sums, be rejected; that the sum of $18,342 60, mentioned as the proceeds of property mortgaged to said E. Roehereau & Co., contribute to the payment of the expenses and privileged claims, $957 98, instead of $1589 82, mentioned in said tableau, leaving $17,270 02, to be distributed to said Eugene Roehe-reau & Co. And it is further ordered, that the Judgment of the lower court, so amended, be affirmed, and that the appellees pay the costs of the appeal.

Spofford, J.,

(with whom concurred Lea, J.,) dissenting. It appears to me, that the mode of contribution to debts, privileged generall/y upon movables and immovables, has been judicially determined in the cases of Janin v. His Creditors, 10 L. 554 and Cazeau v. His Creditors, 6 Rob. 268, in both of which cases the court must have had in view Articles 3236 and 3237 of our present Code.

The decision was, that the immovables, not the mortgage creditors, owed the contribution, and that the privileged debt aforesaid, must be borne by the immovables pro rata, according to'the price which they produced respectively.

Nor does this interpretation seem to me to 'be opposed to the fair meaning of Articles 3236 and 3237.

The reference to different mortgages, according to their date, must be taken to refer to different mortgages upon the same thing.

Conventional mortgages, in due form, upon different things, are of equal dignity irrespective of their dates.

The argument, that the eldest mortgagee of a single immovable, looks to the fact, that the mortgagor has at the time other unincumbered immovables to respond first to the privileged claims in question in case of insolvency, would seem to imply that the mortgagor was bound not to alienate his other immov-ables, or, if alienated, that they would still be liable to contribute, when the opposite is the fact.

Until death or a declared insolvenc)'', the privileged claims under consideration do not spring into existence. When they arise, I think they attach indifferently to all the immovables surrendered, and thus each must pay its quota. When there are two or more creditors, with mortgage upon the same thing, their rank is fixed by the Code.

On this point, I dissent from the opinion just pronounced.


author: Merrick, C. J,

text:
    SAME CASE ON A REHEARING.
   Merrick, C. J,

A rehearing having been granted in this case, as to the claim of Mrs. Devron, by consent of parties, her marriage contract was produced in evidence in this court.

The parties further consent, that her legal mortgage be maintained for $246 46, as set down on the tableau.

It is therefore ordered, adjudged and decreed by the court, that the judgment heretofore pfoiiounced by us( be so far set aside and amended, as to maintain the legal mortgage of said Mrs. Devron, as set down on the tableau, for the sum of $246 46, and that sum ordered to be paid to E. Roehereau & Oo., viz,-, be reduced accordingly to the sum ’of $17,028 56 ; and, that said judgment by us so pronounced, remain in all other respects undisturbed.


author: Buchanan, J. Spofeobd, J.,

text:
    Thomas J. Ivy v. James A. Lusk and Francis Quarles.
    There is nothing in the Act of 8th of March, 1841, creating the office of Harbor Master, which justifies the conclusion that the 8th of March was the day fixed by law for the commencement of the term of office of the Harbor Master.
    However specious the argument that the Governor should, if possible, seek to avail himself of the assistance of his constitutional advisers, the Senate, in making appointments to office, and to avoid an independent nomination, which would only have effect until the end of the next session of the Legislature, it is plain that an appointment thus made by anticipation, has no other basis than expediency and convenience, and can only derive its binding force from the supposition that there will be no change of person, and consequently of will, on the part of the appointing power, between the date of the exercise of that power by anticipation, and that of the necessity for the exercise of such power by the vacancy of the office.
    It is entirely inadmissible to pretend that the Governor and Senate can forestall the action of their own successors in office, upon executive appointments to the offices, of which the term shall expire during their possession of the reins of government.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      M. & H. S. Taylor, for plaintiff and appellant. Elmore & King, for defendants.
   Buchanan, J.

The motion to dismiss the appeal in this ease, cannot prevail. Mr. Quarles is not a warrantor in the legal sense, although styled so in the pleadings in the district court.

The pretensions of plaintiff, as well as those of defendant, to the office of Harbor Master, are not only independents of, but antagonistic to, those of Mr. Quarles. The case of Williams v. Courtney, 8th Ann. 68, has therefore no application.

The true test of the necessary parties to an appeal is this: Has the party an interest that the judgment appealed from be maintained? As to Quarles, it is plain that such an interest does not exist in the present instance. The judgment of the court below was agáinst him, as well as against Ivy. Quarles has acquiesced in the judgment. Ivy alone has appealed. A reversal of the judgment, as between Ivy and Lush, can have no effect upon Quarles. His right to the office is notin question before us,,and even should we be of opinion that neither of the other parties has the legal right to the office, we could not award it to Quarles. We could do nothing more, in such a case, than dismiss the suit. In no event, could either of those parties have had any recourse against Quarles, had he even been made party to the appeal. He has therefore no interest in the success of either appellant or( appellee.

The plaintiff and defendant both claim to have had, at the date of the institution of this suit, (November, 1853,) the legal right to the possession of the office of Harbor' Master of the First District of'New Orleans. . Each is holder of a commission under the broad seal of the State; that of plaintiff, signed by Governor Walker, bears date the 12th of March, 1852 ; and that of defendant, signed by Governor Hebert, is dated 8th of August, 1858. The term of office of the Harbor Master, by the Act of 8th March, .1841, is two years; and it is admitted on all sides, that Francis Quarles was the legally qualified incumbent of this office, up to the 25th of February, 1853, at which date his term of office expired, and that he was not reappointed. When Governor Hébert, therefore, appointed Mr. Lusk, in August, 1853, the office was vacant, unless the appointment of Mr. Ivy by Governor Walker, about a year before the expiration of Quarles' term, took effect from the, expiration of that term, as it was intended to do. But in the interval between the 12th of March, 1852, when Ivy was commissioned, and the 25th of February, 1858, when that commission was intended to take effect, a new State Constitution was adopted, and a new State Government organized, with a new Governor, and a new Legislature; and the only question which we deem it necessary to decide, is the legality of an executive appointment to office, under such circumstances, in anticipation of the vacancy of the office.

The argument for the plaintiff is, that inasmuch as the Act of the Legislature creating this office of Harbor Master declares, that “ from and after the passage of this Act,” it shall be the duty of the Governor to nominate, and by and with the consent of the Senate, appoint three Harbor Masters for the port of New Orleans, who should “ hold their office for two years” ; therefore the term of this office has a day fixed by law for its commencement, to wit, the 8th of March, 1841, and the same day, every second year thereafter; and that inasmuch as under the Constitution of' 1845, the Legislature only sat biennially, and the year 1853, when Quarles' term of office would expire, was a year of legislative recess, it was proper, if not necessary, that the Governor should lay his nomination of Quarles' successor before the Senate, which was in session in 1852, the year previous to the vacancy of the office.

As to the 8th of March being the day fixed by law for the commencement of the term of office, we see nothing in the Act of 1841, which justifies such a conclusion. The practice of the government, as proved by the executive record in evidence, is, moreover, contrary to this theory; for we find therein that Qum'lea' commission, as already said, took effect from the 25th of February, 1851. And however specious the argument, that the Governor should, if possible, seek to avail himself of the assistance of his constitutional advisers, the Senate, in making appointments to office, and to avoid an independent nomination which would only have effect until the end of the next session of the Legislature, it is plain that an appointment thus made by anticipation, has no other basis than expediency and convenience, and can only derive its binding force and effect from the supposition that there will be no change of person, and consequently of will, on the part of the appointing power, between the date of the exercise of that power by anticipation, and that of the necessity for the exercise of such power by the vacancy of the office.

But we hold it to be entirely inadmissible to pretend that the Governor and Senate can forestall the action of their own successors in office, upon executive appointments to other offices of which the term shall expire during their possession of the reins of government.

Judgment of district court affirmed, with costs.

Spofeobd, J.,

concurring. The plaintiff admits that he could not succeed in his pretensions, without overthrowing the constitutional interpretation upon which the decision of the case of Sigur v. Crenshaw, 8 An. 401 was based.

The public interest and repose, to which all personal pretensions to office are subordinate, demand that the jurisprudence upon this subject, should be as consistent and uniform as possible.

I concur in the decree, upon the authority of the case of Sigur v. Crenshaw.