text:
    No. 8457.
    Parish of Lafourche vs. Parish of Terrebonne.
    Interpretation of Acts of tbe legislature fixing the boundary lines betweon the Parishes of lafourche and Terrebonne
    In ease of ambiguity in tbe English text of an Act of the legislature, the French text may be consulted and serve to explain the ambiguity.
    APPEAL from the Nineteenth District Court, Parish of Terrebonne. Goode, J.

      ülmj Knohloch and F. A. (AStdlivan for Plaintiff and Appellant.

      JB. F. Winchester and Suthon, & Sufhon for Defendant and. Appellee.
   ' The opinion of the Court was delivered b3r

Poché, J.

This is an action to judicially ascertain and determine the boundary lines between the Parishes of Lafourche and Terrebonne, and this appeal is taken by the Parish of Lafourche, from a judgment of tlie District Court allowing the doubtful or. disputed territory to the. Parish of Terrebonne.

A reference to the Act of the Legislature creating the Parish of Terrebonne and 'defining its limits, is necessary to an understanding-of the issue involved in this controversy, which hinges exclusively on. a proper interpretation of the Act,-which was approved on the 22d of March, 1822, and from which we quote the following Section which is, the. source of the contention :

“ That all that tract of land lying to the westward of Bayou Lafourche, bonnded as follows: to the east, from the middle of the line-drawn from the lower boundary of Charles Ballot’s plantation, t.o the lower side of Laeoupe of Bayou Boeuf, thence following a line parallel with the Bayou Lafourche to within eighty arpents of Bayou Terrebonne, from thence winding round the settlement of said Bayou Terrebonne to the distance of forty arpents from Bayou Lafourche, to be-continued until a distance of eighty arpents from the latter Bayou canbo effected without encountering the limits of the lands on Bayou Terrebonne, from thence, still at a distance of eighty arpents from, Bayou Lafourche, a line parallel with said Bayou to the Bayou Blue Water, following whose right bank to the sea shall terminate its eastern boundary ; to the west, starting from the lower side of Laeoupe. of Bayou Bceuf to the settlement on the Atchafalaya, and following; the eastern shore of Atchafalaya Bay to the sea, including Marsh; Island, shall form a separate parish, to be called the Parish of, Terrebonne.” r

. By Act No. 97 of 1850, the western boundary was altered so as to. run as follows:

; “Beginning at the point where the-lino between the Parishes of Lafourche Interior and Assumption intersects the north boundary of. township No. 16, range No. 14 east, thence along said north boundary, to the northeast corner of said township, thence east along the north boundary of township No. 16, range No. 15, six miles to the northeast corner of said township, thence north along the east boundary of township No. 15, range No. 15 east, two miles, thence east according to the section lines of the public surveys, three miles to back line of¡ the lands of Mrs. Lemuel Tanner, at a distance of eighty arpents from, the Bayou Terrebonne,” and thence according to the lines described in the Act of 1822.

. There is no contest about any lines on the west of Bayou Terrebonne, nor about the line running east from a point forty arpents from BayouLafourche, crossing Bayou Terrebonne, in the rear of the town of Thibodaux, and extending east tt> the end.of the last property or settlement on Bayou Terrebonne at the line of Lafourche ; but the conteution begins at that point, which we shall for convenience designate as point P.

Plaintiff contends that from said point the line should run due south, and continue to wind round the settlements on Bayou Terrebonne, on the east, as it does on the west side, until a point at eighty arpents from Bayou Lafourche can be reached, without encountering the limits of the lands on Bayou Terrebonne, etc.

Defendant, on the other hand, maintains that from the said point F, the line should continue to run east by south parallel with Bayou Lafourche, and forty arpents from said Bayou, until a distance can be reached eighty arpents from said Bayou, without encountering the-limits of the lands on Bayou Terrebonne, etc.

In other words, plaintiff urges that the “ winding round ” the settlement of the east, of Bayou Terrebonne is the subject of the verb to “ be continued,” and that said “ winding round ” the settlement of Bayou Terrebonne on' the west should be the boundary line; and defendant insists that the distance of forty arpents from Bayou Lafourche being the subject of the verb “ to be continued,” this line, distant forty arpents from Bayou Lafourche, should be the boundary on the west of Bayou Terrebone, until it strikes Bayou Blue Water. As the language is somewhat ambiguous, the real intention of the legislator must be sought by considering the object proposed in the establishment of this portion of the boundary lines between the two Parishes. As the lines of the settlement on Bayou Terrebonne ran at right angles with the lines of the estates situated on Bayou Lafourche, the main and the evident object of the legislator, in running the lines of the new parish so near the Bayou Lafourche, and in enacting that the line from a point eighty arpents from Bayou Terrebonne and running north to a point forty arpents from the Lafourche, should “wind round” the settlement, or land lines on Bayou Terrebonne, was to avoid any change in the lines of the owners of property of that settlement, or to avoid placing portions of their property in one parish and portions in another. And the same care was taken not to break up the lines of the Lafourche lands. In our opinion, the same object prevailed in the legislator’s mind in establishing the lines west of Bayou Terrebonne so as not to cut up the lines of land owners in either parish and t<> have entire estates exclusively in one or the other of the two parishes. Hence, we conclude that what was to be continued after point F, or the intersection of the rear boundary west of the last tract on.Bayou Terrebonne and the rear line of forty arpents froin Bayou Lafourche, was the “winding round” the settlement of Bayou Terrebonne, until 9, distance of eighty arpents from Bayou Lafourche can be effected, etc. Such line does not'encounter the limits of the lands on Bayou Terrebonne, it merely follows along or winds round ” such limits.

No reasons are advanced by defendant, and none are apparent from the equities of the case, why the boundary line on the east of Bayou Terrebonne should be at a greater distance from the lines of the settlement on said Bayou, than on the west of the Bayou, where the line winds around ” the Terrebonne lands.

This construction of the doubtful words of the Act leaves entirely in Terrebonne Parish the estates situated on Bayou Terrebonne, and leaves entirely in the Parish of Lafourche the lands fronting on Bayou Lafourche, and it avoids the very difficulty of two parishes claiming taxes from the same owner for the same lands, which has given rise to this complicated litigation.

This conclusion is fortified, and in our minds absolutely justified, by the French text of the Statute, which is free of the ambiguity which characterizes the English text.

In calling to our aid the French text, we do not lose sight of the rule of our jurisprudence, which requires that when the two texts differ the English text must prevail.

But we are supported by very respectable authority in holding that when a law, written in the language of the Constitution is doubtful, the sense in which the members of our Legislature, who at that time spoke French, understood it, may be safely called to our assistance to explain what is uncertain.” 9 M. 364, Breedlove vs. Turner.

The sense which they gave to a Statute affords the highest order of contemporaneous interpretation which the case affords. The doubtful portion of the Statute in the English reads as follows in the French text: “ déla en contournani les établissements du dit bayou Terrebonne, a qua ran te arpens du bayou Lafourche, jusqu'a ce qu’il soit possible de s’éloigner de quatre-vingts arpens de ce dernier bayou, sans toucher aux limites des terres du bayou Terrebonne.”

This language clearly conveys the idea that the boundary lines should wind round ” three sides of the settlement on Bayou Terrebonne; first at the western end, secondly' on the lateral line, intersecting tlie forty arpent line from Bayou Lafourche, and thirdly on the eastern end.

The next difficulty suggested for solution is the proper location of the Bayou Blue Water, mentioned in the Act of 1822.

Plaintiff contends that itis the first stream eastof Bayou Terrebonne, taking its rise near the Lafourche at a short distance from Thibodauxville, running to the sea, nearly parallel to Bayou Terrebonne, and sometimes known as Bayou du Chéne.

Defendant-on the other hand locates Bayou Blue Water east of the latter stream, running northeast near Lake Long, until it intersects and forms one stream with another bayou .of the same name, flowing out of Lake Fields, and thence running to the sea parallel with Bayou Lafourche.

From extracts of the American State papers, containing confirmations by sections and townships by the general government, of lands situated on Bayou Blue Wat»1'» we are satisfied that the stream referred to in the Act of 1822 is correctly located by-plaintiff. Hence, we conclude that the. judgment of the lower court, which sustains the construction of defendant on the two points in controversy does not give a correct interpretation of the Act creating the Parish of Terrebonne.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed ; and it is now ordered, adjudged and decreed that the following are the lines fixed by law as the boundary lines between the Parishes of Lafourche and Terrebonne : u Beginning at the point where the line between the Parishes of Lafourche Interior and Assumption intesects the north boundary of township No. sixteen,, range No. fourteen east, thence along said north boundary to the northeast corner of said township, thence east along the north boundary of township number sixteen, range number fifteen, six miles to the northeast corner of said township, thence north along the east boundary of township number fifteen, range number fifteen east, two miles, thence east according to the section lines of the public surveys, three miles to the back lines of the lands of Mrs. Lemuel Tanner, at a distance of eighty arpents from the Bayou Terrebonne; from thence, winding round the settlement of the said Bayou Terrebonne to the distance of forty arpents from the Bayou Lafourche, said winding round said settlement to be continued east to the rear west line of said settlement, thence south, still winding round the settlement of Bayou Terrebonne, on the east of said Bayou, until a distance of eighty arpents from Bayou Lafourche can be effected without encountering the limits of the lands on Bayou Terrebonne; from thence, still at a distance of eighty arpents from Bayou Lafourche, a line parallel with said Bayou to the Bayou Blue Water, otherwise known as Bayo.u du Chéne, following its right bank to the sea.” Costs of this appeal to be paid by defendant.

Rehearing refused.


source: Caselaw Access Project

author: Todd, J.

license: Public Domain

text:
    No. 8557.
    J. S. Ikerd vs. Mrs. B. E. Postlewhaite et al.
    This Court will not pass upon the whole judgment of the court a qxia% when the latter only granted an appeal from a certain portion of such judgment. The nature of this cause requires that it should be remanded.
    APPEAL from the Eighth District Court, Parish of East Carroll. Felony, J.

      W. G. Wyly for Plaintiff and Appellant.

      F. F. Montgomery for Mrs. Postlewhaite,.Defendant and Appellee.

      J. M. Kennedy and F: B. Forman for Frankenbush and Englesing, Defendants and Appellees.
   The opinion of the Court was delivered by

Todd, J.

The plaintiff enjoined the execution of an order of seizure and sale against a certain plantation mortgaged to the defendant, Mrs. Postlewhaite, by J. Burnet, J. M. Frankenbush and F. C. Englesing, members of the commercial partnership of J. Burnet & Co. The plaintiff alleged, in substance, that he bought in 1874 one-lialf of this plantation known as Wayaway Plantation,” from the parties above named, and subsequently bought the one-third interest of Burnet in the other half, but that his deeds were never recorded. That in 1877, the said parties, without his consent, mortgaged the entire plantation to Mrs. Postlewhaite for ten thousand dollars. That after the purchase of his interest in said plantation he'became a planting-partner with his co-proprietors and sole manager of the plantation, and shipped to their firm in New Orleans for sale at least 800 bales of cotton, for which no account had been rendered. That the partnership of J. Burnet & Co. was dissolved in 1878, arid J. M. Frankfenbush became the liquidator of the same.. That in 1881, at the request of Fraukenbusli and to benefit him in some contemplated litigation, he executed bis note for the lease of the plantation, payable to the order of said Frankenbush, liquidator, but with the distinct understanding that his rights as part owner were not to be affected thereby. That nearly the entire mortgage debt had been paid to Mrs. Postlewhaite, but that a fraudulent combination between Frankenbush and Mrs. Postlewhaite had been entered into, by which she was interposed in this proceeding by means of which Frankenbush, or some one for him, was to buy iu the plantation in irtter disregard of plaintiff’s rights therein, under his purchases, although the mortgage debt or the greater part of it had been paid. He asked to have the parties cited and for an injunction against the sale of his interest in the plantation, and also against the negotiation of his rent note for $3,150, and for relief generally, in accordance with his allegations, and in case of eviction he prayed for $20,000 damages against his co-proprietors.

The defendants excepted to the petition on the ground of misjoinder of parties, having separate and distinct interests, and the cumulation of different causes of action in the same suit. The exception was sustained, so far as to dismiss all that part of the suit relating to the alleged planting partnership, and which demanded an account for the cotton shipped by the plaintiff to J. Burnet & Co., and enjoined the negotiation of the rent note and asked for its cancellation.

From this judgment the plaintiff moved for an appeal, which was refused by the Judge a quo, except as to that part of it relating to the rent note; and from this portion of the judgment alone the appeal was granted. 'No step was taken by the plaintiff, by mandamus or otherwise, to enforce his right of appeal from the entire judgment. And although the whole judgment is discussed by the appellant’s counsel, it is quite apparent that the only part of that, judgment before us and the only part we can review is that relating to the rent note. We cannot recognize an appeal unless it is supported by an order of appeal, and here there is no order of appeal, save and except as to the one feature of the judgment referred to. The difficulty will at once be seen of ,having, among so many issues contained in the pleadings and so closely connected, to single out one issue and pass upou it alone, regardless of everything else presented either in the petition or the exception thereto. Any action we might take or any expression we might use relating to the one point before us on this appeal, might seem to bear trpon other parts of the judgment., with which, at present, we can have nothing to do. Fully appreciating this difficulty, we have read over the entire pleadings, as it was necessary to do in order to discover the bearing and significance of this special matter upon the rights of the parties under the pleadings; and inasmuch as it. is apparent., taking as time the allegations of the petition, that a serious injury might result to the plaintiff if the rent, note in question was negotiated before the questions at issue between the parties are finally determined, we have concluded that it would best subserve the cause of justice if the status quo touching this note is preserved until all the issues in this case are properly before us on appeal, or the controversy between the parties is otherwise settled ; and this can only be done by remanding the cause and reinstating the injunction quoad hoo. In doing this we carefully abstain from conveying any intimation in regard to the character of this note — as to whether it was real or simulated, and should or not be cancelled — aud also in regard to the propriety of the ruling of the Judge a quo in sustaining in part the exception. All these questions, as well as the right of injunction against the negotiation of the note in question, which we now provisionally reinstate, as relates to its merits, are reserved for future adjudication, should those matters ever come before us again.

We have come to this conclusion after a careful review of the entire pleadings, without prej udging or intending to foreshadow in the slightest degree what our ultimate conclusions may be upon any single issue in the case.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed and the case remanded, to be proceeded with according to law and the views herein expressed; and that the exception filed in the lower court, so far as it relates to the rent note executed by the plaintiff for the rent of the Way a way Plantation for the year 1881, and to the injunction against its negotiation, be and the same is hereby overruled; defendants to pay costs of appeal.

Rehearing refused.


author: Fenner, J.

text:
    No. 7490.
    George Shantz and Wife vs. Carl Stoll.
    In a suit to evict the wife from property transferred to her by her husband, in satisfaction of her lights against him, the latter may be a witness on his own interest as warrantor.
    The failure to call one’s vendor in warranty will save the latter from, all the costs of court, except for service of original process.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.
    IF. It. Richardson for Plaintiff and Appellee.

      •J. H. Ferguson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

George Shantz, Carl Stoll and Henry Walters, purchased at a marshal’s sale of confiscated property a certain lot of ground and improvements situated in Baton Rouge. Walters sold his share to the other two, so that Shantz and Stoll became equal joint owners. On July 22, 1871, Stoll sold to Shantz his undivided half for $800, with full warranty. Shantz transferred the property with full warranty to his wife, in satisfaction of á judgment held by her against him. After the death of Michael Prendergast, the owner of the property at the time of the confiscation proceedings, the administrator of his estate brought suit oa September 21, 1876, against George Shantz and wife to recover the property and rent from July 22,1871. Shantz and wife defended the suit, but did not call Stoll in warranty. Judgment was rendered against them for the property and for rent at the rate of flOOjper annum, from judicial demand, viz: Sept. 21, 187(5; which judgment, on appeal, was affirmed by this Court. The present action is brought to enforce the warranty of defendiint, and thereupon to recover the purchase price, one-half the cost of the proceedings in eviction, including attorneys’ fees, and one-half the rent recovered by the evictor. The judgment appealed from allowed the price; $150 as attorney’s fees; $100 as costs; and $100 as rents.

The following are the questions presented :

1. Defendant excepted t.o the testimony of the husband, George Shantz. We think the judge did not err in receiving it. He was a party plaintiff and, as warrantor of his wife, had a direct interest and was, In fact, the beneficial plaintiff. For his interest he was a competent 'witness. C. C. 2281.

2. The evidence satisfies us that both Shantz and Stoll intended to acquire, and supposed that they had acquired under the confiscation proceeding, a fee-simple title to the property. The deed from Stoll to Shantz, and the price paid by the latter, conclusively show that this was the title intended to bo conveyed and warranted. That this was a mistake of law, shared by both parties, cannot affect the obligation of the vendor under his warranty.

3. The failure to call Stoll in warranty, in absence of proof that he had any defense, cannot avail to defeat plaintiffs’ rights to re-imbursement of the price, (C. C. 2518, C. P. 388) and of the rent paid under judgment to the evictor.

4. It is otherwise, however, as to the costs. It is clearly settled that the vendor, if not called in warranty and allowed the opportunity to determine whether he shall defend or not and how he shall defend, is not liable for the costs incurred beyond the service of the original process. He cannot be held responsible for the expenses of a litiga-tion which, if he had been notified thereof," he might have avoided. Delacroix vs. Cenas, 8 N. S. 355.

The attorney’s fees, in every event, were improperly allowed. Sarpy vs. New Orleans, 14 An. 311; Late vs. Armorer, Id. 82(5.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be reduced by the sum of two hundred and fifty dollars allowed as costs and attorney’s fees, and as thus amended, the samebe affirmed, plaintiffs and appellees to pay the costs of this appeal.

Rehearing refused.


author: Bermudez, C. J.

text:
    No. 8280.
    Succession of Marie Chedome, Wife of Jacques Cornu.
    Where a testatrix leaves one-fourth of her succession to certain collaterals and next makes mont-y legacies and special legacies of property in' kind to others, leaving the remainder of her property, after satisfaction of the foregoing legacies, to her husband, the legatees of the fourth will be entitled to one-fourth of the w hole assets after payment of the debts.
    The legacies of money and property will be satisfied next, and the husband, as universal legatee, will take the residue.
    A PPEAL from the Civil District Court for the Parish of Orleans, ti Monroe, J. -

      F. I). Seghers for Testamentary Executor, Appellee.

      Alfred Grima for Legatees, Appellants.

      F. L. Richardson for absent heirs, Appellants.
   The opinion of the Court was delivered by

Bermudez, C. J.

The question to be determined in this matter relates to the manner and order in which the legatees of the deceased shall be satisfied.

By her will she bequeathed : first, one-fourth of her succession to the five children of her sister; secondly, she made four particular legacies, three of money and one of two pieces of real estate; lastly, she gave the remainder of all the property which shall belong to her at her death, after satisfaction of the foregoing legacies, toller husband.

By the account presented by the latter as executor, the acknowledged sum in hand amounts to $4,497.47. Out of it it is proposed first, to deduct the money legacies, $1,000, and to divide the residue by giving one-fourtli to the nephews of the deceased, $1,124.364, and the remaining three-fourths, $3,373.104, to her universal legatee.

The inventory shows that the two pieces of real estate specially bequeathed and not included in the active on the account were valued, one at $800, the other at $1,200, together at $2,000.

The legatees of “ one-fourth of the succession ” complain that those two pieces of property should have figured among the assets on the account, besides the acknowledged amount mentioned in it, so as to make the amount to be distributed tobe, the money legacies added, $7,497.47. They claim that they should receive one-fourth of thatsum, viz: $1,874.364; that the pieces of real estate should next bo delivered and the legacies paid and that the residue should accrue to the universal legatee.

It is difficult to conceive what plausible reason can be given to resist their demand.

The assets composing the succession of a deceased consist of all the property of any kind existing at the death and form what is termed the mass. It is only after payment of the debts and charges that there remains a residue, which accrues to the heirs of the deceased of whatever description or class they may be. This is the property which .strictly constitutes the succession and over which the benevolence of a testator can operate cere alieno dedneto. R. C. C. 874. It passes by law where there is no will. Tt passes by a will where, one is made which violates no law. Where a testator gives a share of his succession it is to that residue that he alludes and that share is to be taken first out of it as a lump. .

As a rule, special legacies have to be satisfied'./trsf, but a testator may direct otherwise. All depends upon his intention as expressed.

In the i>resent instance, the testatrix has desired that the children of her sister should first receive the fourth of her estate and that the special legacies of the pieces of property and of money be satisfied out of. the remaining three-fourths of the residue, after payment of the debts and charges.

The universal legatee, under the terms of the will and under the law, is only entitled to the residue of the succession after satisfaction of the debts and legacies.

The simple reading of the will shows that the legatees of the fourth who are first mentioned, are first entitled to that proportion out of what remained after payment of the debts and charges.

The nephews of the deceased are not legatees under a universal title. They are not bequeathed a proportion of any specified part of the succession. They are instituted special legatees of one-fourth of the entire succession. R. C. C. 1612. They are legatees under a particular title, R. C. C. 1625, to whom the will of the deceased which is law, has reserved a certain proportion of the succession. R. C. C. 1611.

The remaining three-fourths, consisting of the real estate specially bequeathed and of cash, accrues to the other legatees. Those entitled to the pieces of property are to receive them in kind. Those entitled to the money legacies are next to be paid the same.

What remains then accrues to the universal legatee.

The inteution of the testator is easily ascertained, is well expressed, and must be carried out as announced. 7 L. 230; 12 R. 64; 12 An. 417; C. C. 1712, (1705.)

It is, therefore, ordered and decreed that the judgment homologating the account be annulled and reversed, so far as it distributes the residue of the succession otherwise, and that said account and tableau be amended by adding to the acknowledged amount therein the gross residue, the inventory value of the real estate bequeathed and the amount of the money legacies, and that one-fourth of the total thereof be allowed the five children of the sister of the testatrix, amounting to eighteen hundred and eighty-four dollars and thirty-six and three-fourth cents, ($I,884.3fif) ; that the two pieces of real estate be delivered to the legatees thereof; that'the money legacies be paid to the legatees entitled, thereto, and that the residue accrue to the universal legatee, the husband of the deceased, as hereinbefore set forth and specified, and that in other respects said judgment be affirmed; said universal legatee to pay the costs of appeal.

Levy, J., absent.


text:
    No. 7462.
    Mrs. Leauna Jenks vs. The Howe Sewing Machine Company.
    This case is one for damages, based upon Act Ho. 62 of 1877, which grants an action against Sewing Machine Companies for removing sewing machines from the premises of the purchasers. Held, by the Court, that the Statute has no application to the facts of this cause.
    APPEAL from the Fourth District Court for the Parish of Orleans, Houston, J.

      H. L. Edwards and H. H. Bryan for Plaintiff and Appellee. .

      ■J. H. Ferguson for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

The following are the essential facts of this case:

Au agent of defendant had several interviews with the plaintiff, with the object of inducing her to exchange au old sewing machine which she had, for a new one, upon paying acertain difference in value by instalments.

It seems that no very definite agreement was reached, but the agent,, anticipating an ultimate trade, carried the new machine to the house, and finding the plaintiff absent and the house in charge of her young daughter, left the new machine there and carried off the old one. No complaint of this action was communicated by plaintiff to the Company.

Subsequently, another agent called on plaintiff to obtain her signature to a printed and written contract. She signed the same without reading it, as she states, hut it was subsequently read and explained to her; and, although she states that she complained of the terms not being in accordance with the proposition made to her by the former agent, she does not pretend that she repudiated the contract or demanded the cancellation of her signature, or the return of her old machine and the taking away of the new. On the contrary, she accepted the situation and kept and used the new machine for some months without protest.

We can discover no ground for annulling this contract for either error, fraud-or violence, and think the plaintiff was conclusively bound by it.

By its terms she was to pay thirty dollars in cash, which was paid by the agreed valuation of her old machine, and the balance, in instalments of five dollars each, payable on the 2d of June, and of each succeeding month; and it was further stipulated, in substance, that said payments, until completed, were to be accepted ng rent for the machine, but, when completed, were to be accepted in full payment of the price thereof; and further, that in case of default, in payment, the lease should be forfeited and the Company should have the right to enter and retake the machine.

Plaintiff defaulted in payment during the first three months, never paying a single instalment. In the meantime, L. B. Jencks called several times at the office of the Company and applied for indulgence in the payments and made promises in reference thereto, and finally promised to pay on a particular day, and that in case of failure the Company might send up and get the machine. He did fail, and then the Company sent a man to the house to get the money or the machine. He went and communicated his mission to plaintiff whom he found at home. She asked him to wait till Saturday, which he said he had no authority to do; and she then voluntarily hunted up the attachments of the machine and delivered them to him and permitted him to carry it away without remonstrance or objection.

For this so-called “illegal trespass and seizure” of her machine, the plaintiff claimed in this action $2314, as actual and exemplary damage's, and was allowed by a jury one thousand dollars.

The action rests on the provisions of Act 62 Ex. Sess. 1877, which provided that contracts like the one here involvod, shall bé considered as contracts of sale, enforceable for unpaid instalments only by exercise of the vendor’s privilege, and forbidding, under penalties, the enforcement of any agreement that the vendor might enter and retake the property without, judicial process.

Pretermitting all questions as to the effect- to be given to such legislation, it is very plain that it was not intended to inflict penalties or liability in damages, except for trespass and forcibly carrying away property against the will and protest of the transforree.'

A case which would fall within the intendment of the Act is presented in the Illinois case quoted so confidently by counsel for plaintiff. 86 111. 456. Here we can find no element of a trespass or illegal taking and carrying away. There is nothing to show anything done in opposition to the protest of plaintiff; or to indicate that, had she denied the right of the party to take the machine or prohibited hinx from doing so, he. would have persisted in that course.

The Company had reasonable ground to suppose that Jencks represented plaintiff in his repeated visits and applications for indulgence iu the payments and in his final consent that it should send for the machine; and when, under this supposition, it sent for the machine and plaintiff herself surrendered it without opposition, it seems liable to no imputation of illegal action.

■ Plaintiff’s claim seems to us to have no foundation whatever. We find nothing in the conduct of defendant or any of its agents calculated to produce the pretended terror under which she claims to have acted.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be annulled,.avoided and reversed, and that plaintiff’s demand be rejected at her costs, in both Courts..

Rehearing refused.


author: Pocini:, J.

text:
    No. 7535.
    Edwin Telle vs. C. B. Fish et al.
    In a petitory action, tlie rule is well established, that the plaintiff has the light to meet the title opposed to him, even when it is a, tax sale, by all means of attack, as if specially pleaded.
    It is equally well established, that parole evidence is admissible to prove simulation and fraud in the apparent acquisition of real estate.
    APPEAL from the Fifth District Court for the Parish of Orleans. Rogers, J

      T. M. Rartlette for Plaintiff and Appellee.

      Mott de Kellg, A. 0. Lewis, John MeBnertj and JEllis & JSttis for Defendants and Appellants.
   The opinion of the Court was delivered by

Pocini:, J.

This is a petitory action involving the title to a large tract of land in the Parish of St. Tainmauy, and forming part of . “ Honey Island,” and for $7,500 damages claimed by plaintiff against (J. B. Fish and P. F. Herwig, for their wrongful possession by trespass on said tract of land.

For answer, C. B.-Fish urged the general issue and called his vendor and co-defondant, P. F. Her wig,., in warranty.

The latter joined issue with plaintiff by setting up title under a tax sale made by the tax collector of said parish in January, 1874, and through his vendors-aud their vendors.

Plaintiff filed a supplemental petition in which he urged that the tax sale invoked by Herwig was fraudulent, unreal, simulated, null and void, which plea was sustained by the District Judge, who recognized plaintiff’s title to the property and rendered judgment in favor of Fish, against his vendor, Herwig, for $2,000. Herwig alone lias appealed. Both parties claim from E. B. Benton, plaintiff, by purchase, and defendants through the tax sale of 1874.

Defendants and warrantor moved to strike out plaintiff’s supplemental petition, and during the progress of the trial objected to the introduction of any evidence under the allegations of said petition on the ground that it was in fact an answer or rejoinder to their answer, which is not allowed under our laws, and objected to all evidence in support of the alleged simulation and fraudulent character of the tax sale, on the ground that a tax sale could not be attacked collaterally, and for the additional reason that the tax collector, the State, the auditor and the purchaser at the tax sale, had not been made parties.

Construing the allegations in the supplemental petition touching the nullity of the tax sale, as mere means of defense urged by plaintiff, and as of no greater importance than objections advanced orally, we find no error in the ruling of the Judge in refusing to strike out the supplemental petition. I-Iis ruling on that point and on all the other objections of defendants and warrantor, hereinabove enumerated, is fully sustained by the decisions in the cases of Hickman vs. Dawson, 33 An. 438; McMaster vs. Seward, 11 An. 546, and Maillot vs. Wesley, 11 An. 467, in which the right of plaintiff, in a petitory action, to meet the title opposed to him, even a tax sale, by all means of attack as though specially pleaded, has been recognized as a correct rule of practice.

The objection urged by defendants to the introduction of parol testimony in support of the simulation and fraud charged against the tax collector’s sale, on the ground that it was an attempt to prove title to an immovable by parol evidence, is equally untenable. The rule admitting parol testimony to show fraud and simulation is too well established in jurisprudence to require any support by reference to authorities.

An examination of the evidence introduced by both parties on the validity of the tax sale of 1874, leaves no doubt in our minds of the correctness of the District Judge’s conclusions, which we reproduce in his own language:

There is no evidence that the property was seized or advertised according to law. The sale was never recorded and until it was recorded .under the law, the auditor could not affirm title. It is too clear to be disputed that all the statutory requirements in ta.x deed or sheriff’s deed must be complied with. I do not regard it as necessary ■ to enter into a review of the testimony affecting- the validity of the tax collector’s sale, as shown by the testimony of Mr. Baker, Staples •and Badon. I cannot find language sufficiently strong to demonstrate the enormity of the tax collector’s acts, proved and to be unmistakably inferred from all the facts of this controversy. They form but an additional circumstance in the past and unfortunate history of this commonwealth.”

The judgment appealed from is, therefore, affirmed at appellants’ costs.

Rehearing refused.


author: Eennicr, J.

text:
    No. 8386.
    Rondez & Pelas vs. Jean Buras. A. P. Alberti, Third Opponent.
    Held, that the tax sale in this case was made under Act No. 77 of 1880, and that the mortgage creditor had the right to redeem the property.
    APPEAL from the Twenty-fourth District Court, Parish of Plaque-mines. Livauclais, J.

      F. II. MoOaléb and G. J. Denis for Plaintiffs and Appellees.

      T. A. Flanagan, for Third Opponent, Appellant.
   The opinion of the Court was delivered by

Eennicr, J.

Tlie question involved in this case is the right of plaintiffs, as mortgage creditors of Buras, to redeem the latter’s property which had been sold for taxes and bought by tlie third opponent, Alberti.

Tlie evidence satisfies us that tlie tax sale at which opponent bought was made under Act. 77 of 1880, and not under Act 107 of 1880. Tliis is shown by tlie advertisement, which conforms to the requirements of Act 77, by the date of tlie sale which was different from that at which it could have been made under Act 107, and by the stipulation, contained both in the advertisement-and the deed, that the property sold should be redeemable on tlie terms and within tbe delay prescribed in tbe Act No. 77.

The purchaser is bound by tlie terms of tlie sale, and cannot dispute tlie right of redemption by the owner or his creditors.

Although the property was sold, as well for back taxes as for the taxes of 1880, and although the sheriff’s deed refers to Act 107, as well as to Act 77, there is no proof whatever that t.lie property had ever b een sold or forfeited to the State for the hack taxes, which is a condition precedent to the right of sale under Act 107; and it is besides evident, that no sale could take place under both Acts at the same time. We must treat the sale as having taken place under the Act 77, with whoso terms and conditions the proceedings comply, rather than under Act 107, which is not complied with.

The right and interest of plaintiffs to redeem do not admit of question under Act 77. Unless the property had been sold or forfeited to the State and the time for redemption had expired, plaintiffs’ mortgage was not extinguished. There was no proof of such sale or forfeiture or, even if such had taken place, of the date thereof. The constitutional ordinance for the relief of delinquent tax payers did not abbreviate the time for redemption allowed by prior laws, which was two years from the date of sale. Act 96, 1877, Sec. 57. The ordinance only fixed a period within which redemption might be made on the more favorable conditions therein prescribed.

It not appearing that plaintiffs’ mortgage is extinguished, their right to redeem must be recognized.

Judgment affirmed at appellant’s cost.


author: Pocíié, J.

text:
    No. 8366.
    Succession of Andreas Mansion.
    The confession of judgment by the executrix in this case, is considered by the Court as an acknowledgment of the debt of the estate, and prescription does not run against debts thus acknowledged, whilst the estate is being administered.
    The note given by the executrix in lieu of the one of the decedent, held by the creditor, is an acknowledgment of the debt of said executrix.
    The rule that executors can neither create liabilities nor change the nature of such liabilities of the estate as already exist, is also re-aifirmed in this case.
    APPEAL from the Civil District Court for the Parish of Orleans. liightor, J.

      Brauglm, Bucle <& Dinlecl^piel for Executrix, Appellant.

      B. 0-. Harris for Opponent and Appellee.

      Jos. B. Horn or and F. IF. Balcer on same side.
   The opinion of the Court was delivered by

Pocíié, J.

The account of administration presented by the executrix was opposed by H. Mehnert, who claimed to he a creditor for $878.25, and by John Becker, who claimed to be a creditor for $700, and the executrix has appealed from a judgment recognizing both opponents as ordinary creditors in the respective sums set up by them, and ordering them to be paid in due course of administration.

The claim, of Mehnert is resisted on the ground of his having sued Mrs. Mansion, the surviving wife of the decedent and the executrix of 3iis succession, personally on an open account constituting' the claim which he now urges against the succession.

The record shows that such is the fact; but that in defense Mrs. Mansion denied her personal liability for said account, and averred that said account was due by her husband’s succession. In the same suit, she subsequently filed a confession of judgment,' conditioned on a stay of execution until she could effect a sale of the property of her husband’s succession, or as much thereof as was necessary to settle Mehnert’s claim.

As the succession had -been opened and she had been qualified as executrix between the date of the institution of the suit and the date of her confession, we construe that confession as an unmistakable acknowledgment of the succession’s indebtedness to Mehnert, by the executrix; and we hold that such acknowledgment has had the effect of keeping the claim alive and of suspending prescription during the entire pendency of the administration. 33 An. 305; Cloutier vs. Lemee; Heirs vs. Hornsby, 32 An. 337; Renshaw vs. Stafford, 30 An. 853.

The principles and rules recognized and re-affirmed in the decisions just quoted dispose of all the objections of appellant to the introduction of evidence to show acknowledgments of indebtedness by the executrix, in any other form or manner than that prescribed in Art.' i)85 of the Code of Practice.

It is not pretended that prescription had accrued when the acknowledgment was made. The plea of prescription cannot be supplied by the Court.

The claim of John Becker is in the shape of a promissory note executed by the executrix, in her capacity, in June, 1880, and made.' payable six months of the date, and is resisted on the ground that the executrix had no power to contract debts for, or bind the succession by a promissory note.

The record shows that at the death of Mansion in June, 1873, John Becker, a brother of the executrix, held his note, for $500, falling due a few days after Mansion’s death, and that having made a loan to his sister, the executrix, of $200, for the use of the succession, he delivered to her Mansion’s note of $500, receiving in lieu thereof, and to represent the additional sum of $200, his sister’s note for $700 on which she paid interests annually and regularly, and which she renewed, by executing another note several times.

We construe these acts of the executrix as an unqualified acknowledgment of the succession’s indebtedness to Becker for $500, and that 5,uch acknowledgment, followed by an annual payment of interests, has kept the claim alive and suspended prescription. But we cannot hold the succession liable for the additional sum of two hundred dollars borrowed by the widow Mansion before the succession was opened, as shown by the record; she had no authority to contract a debt on behalf of a succession as executrix, a fortiori she was powerless to do so previous to her qualification as executrix. The fact that she used the money thus borrowed in paying another debt of the succession cannot bind the succession. It is well settled in our jurisprudence that administrators or executors have no power to create any liabilities-against the estate which they represent-, or change the nature of its obligations. 24 An. 83, Succession of Compton; 22 An. 372, Succession of Decuir; 21 An. 287, Livingston vs. Gaussen.

- The debt which is shown to have been paid by the- widow Mansion, with the money borrowed from Becker, might have been successfully resisted in due course of administration,- and the succession is not bound by the act of the surviving widow, or even of the executrix, in attempting to change the nature of the obligation.

We, therefore, think that the District Judge erred in allowing opponent Becker’s full claim.

The judgment appealed from is, therefore, amended, by reducing the amount recognized in favor of John Becker from $700 to $500, and as thus amended, it is affirmed. Costs of this appeal to be paid equally by the succession and by opponent Becker.

Note. — Justice Manning took no part in Delaney vs. Rochereau, ante 1123, on the Motion to Dismiss; nor in Renshaw vs. Stafford, ante 1138; nor in other cases which, like those, were submitted at the last term and held under advisement until this term, the hearing having been before his appointment.


author: Bermudez, C. J. Todd, J.

text:
    No. 8420.
    George Schepp vs. Thomas Smith.
    !íhe hypothecary action lies to compel payment of a note secured by mortgage, where the third possessor Was made aware, by the recitals in his title, that the note represented by the vendor as paid was outstanding and that the inscription of the original mortgage was cancelled*

      Á. third party acquiring such note before maturity, in good faith, in the ordinary course of business, for a valuable consideration, without any knowledge of its assumption by one who Was not the drawer thereof, is not affected by equities which might exist between such party and his own Vendor or a subsequent vendee, and is entitled to demand the surrender of the property mortgaged or payment of the note.
    tTlie third possessor is as effectually estopped from disputing the validity of the not© and mortgage as his vendor would, have been.
    ^Parties who, by anticipation^ pay mortgage notes for which they may be liable, should, at least, cancel or deface them after such payment, if not cause the mortgage inscription to be erased, in order to protect third parties.
    *Where one or two persons must suffer a loss, the law throws it upon him by whoso negligence or fault the damage was occasioned.
    APPEAL from the Civil District Court for the Parish of Orleans, ffissof, J.

      Bobt. Q. JDttgtié for Plaintiff and Appellee :
    The pledgee of anoto can sue upon it in his own name, without diaclo»ing the nature of big title, and recover the entire amount, subject to the obligation of returning to the person • legally entitled to receive it, any surplus that remains after satisfying the pledge. 19 An. 526 : 2 La. 264; 7 An. 225; 21 An. 5 ; 8 N. S. 370; 4 La. 219; 6 An. 757.
    The defendant who pleads error, failure or want of consideration, must prove it 9 An. 20; 21 An. 731; 22 An. 457; 1 An. 325; 3 An. 331; 16 An. 367; 0 An. 757; 10 An. 683 ; 14 An. 14 An. 860; 26 An. 16. Story on Bills, § 106 ; 1 Parsons, p. 255.
    Possession of a mortgage note by the maker of it, or by the owner of the mortgaged property, extinguishes the note and the mortgage when he possesses iu his own right. 4 it. 410. Bis possession of the note for another extinguishes neither the note nor the mortgage. 18 An. 36; 21 An. 5.

      W. 8. Benedict and Jos. P. JLornor for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an hypothecary'aetion. The only serious defense is the alleged payment of the note declared upon and the consequent extinction of the mortgage originally securing it aud now sought to he enforced. Prom a judgment in plaintiff’s favor this appeal is taken.

The following are the facts indisputably established ;

Perrault, in December, 1875, issued two notes at 1 and 2 years, each for $5,750, and secured them by mortgage. The act was then duly recorded. He sold the property to Hencke in June, 1876, who, as part of the price, assumed the notes and the mortgage. The notes were marked ne varietur and paraphed by the notary, before whom the act of mortgage was executed. They were not identified with the act of sale by Perrault to Hencke. Subsequently, in May, 1879, the property was sold by Hencke or his succession to Thomas Smith, the defendant. The note at one year was exhibited, cancelled, while the second note was not produced. The certificate of mortgage attached to the act of sale, and alluded to therein, mentions the mortgage originally consented by Perrault. The act of sale to Smith contains the declaration that the first note Was paid ; that the second note was also paid and returned to Perrault, who, afterwards, at the moment of the sale by him to Hencke, delivered it to the latter, from whose possession it went out improperly.

It appears also from the record that, on the 15th of March, 1877, an individual, Cambon, who was the manager of the plantation mortgaged, issued his note for $3,908, signing it merely as “agent,” without saying of whom, and to secure its payment to Sohepp, the plaintiff, who had discounted it, pledged Perrault’s unmatured note at two years. The original mortgage inscription was then extant on the proper mortgage record.

There is no evidence that the notes ever were negotiated by Perrault or by Hencke, consequently none that either was ever due and paid. The act of purchase of defendant states that they were in Perrault’s possession when he sold to Hencke and that he then delivered them to Hencke.

The charge is made by the defendant that Carnbon, the plantation manager, took the second note from Hencke’s possession and' used it for his own purposes.

No evidence was adduced by the defendant to substantiate this attack, other than that of the plaintiff, who was sworn in Smith’s behalf. He says that Carnbon acted in the matter, that is, in signing the note for $3,908 ; in pledging that for $5,750 and in receiving the proceeds of discount, as the agent of Hencke.

It is worthy of note that at the time of the trial of the case, Perrault, Hencke and Carnbon had disappeared from the scene of life, without having testified.

The glaring fact, therefore, is, that Carnbon, acting as such agent, issued a note, for value actually received, and secured it by pledge of a mortgage note signed, not by Ilenelce, but by Perrault, and which was in no way connected with the act of sale by Perrault to Hencke.

Had the note been paraphed to identify it with the act, the defendant might perhaps have charged that the pledgee was thereby put on his guard, notified of the declarations contained in it and was bound thereby, and that the recitals therein mentioned the assumption by Hencke. But the fact is that the note was not thus paraphed, and nothing establishes that Scliepp knew of the assumption. 8 R. 35; 14 An. 589.

The argument is unsound, that dealing with Carnbon, both as Hencke’s agent and as.manager of the plantation, Schepp was bound to know and, therefore, knew that the property had ceased to belong to Perrault and was then owned by Hencke. Such argument cannot obtain, for the obvious reason that knowledge of the transfer to Hencke does not imply that of the assumption by him of the note and of the reversion of the mortgage. That was not an essential ingredient for the purchase of the property, which could well have taken place without Hencke’s voluntary incurring such obligation.

If it be true that the second maturing note passed from Perrault to Hencke’s possession, the only inference dedueible would be that the note, prior to the date of the pledge, had not been issued and so was not due by either of those parties, and that the dormant mortgage had not risen from slumber. If such were the case, then the note was issued for the first time when it was pledged by Hencke’s agent, acting as such. The agent’s doings must then be viewed as those of the principal and binding on him. Had Hencke himself issued this note of Perrault, assumed by him, lie could not have been listened to plead confusion, because the inducements offered- and the representations made by him having been accepted and acted upon by an innocent third party, in good faith, in his ordinary course of business, without any actual, constructive or possible knowledge of the pretended cause of extinction, he would have been effectually estopped from contesting the validity of either the note or the mortgage, which, principal and accessory, would have passed together as do substance and shadow.

When Smith purchased, he was made aware of the. apparent existence of the incumbrance by the registry of the mortgage consented by Perrault; he was exhibited the first note, cancelled, but he was not shown the second note. He remained satisfied with the declaration that it had been paid, that the mortgage was extinguished, and that its inscription was a lifeless form and should he cancelled. He took the risk and, purchasing the property, lie stepped in Hencke’s shoes. That which his author would have been estopped from contesting, he is necessarily debarred from attacking.

If the defendant’s theory be true, that Cambon was not Hencke’s agent, that he had no authority to draw notes and borrow money for Hencke; that he stole the note in question, and this theory or defense prevails over and annihilates plaintiff’s adverse testimony, offered by defendant, then the plaintiff must be viewed as having dealt with Cambon, as with a bona fide holder of Perrault’s unmatured note secured by mortgage. From that standpoint his position would be stronger.

Schepp, the pledgee, did not know that the note had been assumed by Hencke. What he was bound to know was what he could have known and, in point of fact, what he did know; That was, that the note was signed by Perrault and was undefaced; that it was secured by mortgage by one who had the right to do so ; that the inscription of this mortgage was uncancellcd; that the note was unmatured and subject to no equity; that it was given him in pledge by one in possession of it and holding it presumably in the capacity in which he represented himself, and this to socare the payment of a discounted note, for which valable consideration had been given. By exercising the most diligent search and inquiry, Schepp could have ascertained nothing beyond this.

Now, on the contrary, if it be true that the note came to Hencke’s possession, it was in common honesty incumbent upon him, at least, to have cancelled it, if not also to have caused the inscription of the mortgage act to be erased. He could and should have done so, and lie has not done it. He has kept the same undefaeed and exposed, to be stolen and reissued to a third innocent holder, who cannot be made a sufferer. His assign, who cannot plead ignorance, must stand the consequence of his author’s and his own derelictions.

There exists another telling reason why it should be so and it is a powerful one that appeals strongly to the equity of the Court. It is this: that Hen eke actually knew that such was his duty, but that he did not do it, for some occult purpose disclosed in the testimony of the notary heard in the case. That object avowedly was to retain the note, undefaced, in order eventually to use it some way or other, to shield himself and the property and thus defeat an apprehended adverse decision in a suit pending in the federal court, in which the mortgaged plantation was apparently seriously involved.

The defendant has no one to blame if, by his author’s derelictions and his own indifference and negligence he is made to suffer. An innocent third holder, guilty of no laches, cannot be permitted to sustain a loss which should fall upon other shoulders.

We have carefully examined with unusual pains not only the authorities relied upon by the defendant, but also others having a bearing on the question. In none of them do we find either the characteristic features encountered in this litigation, or that the mortgage was permitted to be enforced after estoppel opposed to the mortgagor or those holding under him.

The three cases, in 4 R. 416, 19 An. 260 and 20 An. 263, have little or no application to the present controversy, as they lack material analogy.

In the first ease, payment of the note had been pleaded, and the evidence showed that after it had been issued by the mortgagor, it had “ come bade ” to his hands as drawer and that the plaintiff had obtained it from him directly.

In the second case, the holder of the note had acquired it two months after maturity, from the maker, with knowledge of the extinction of the debt.

In the third case, the note had been acquired, after publication of its loss in the public papers and after the inscription of the mortgage had been cancelled from the public record.

In the present instance the plaintiff did not know that Heneke had assumed the note; he did not acquire it from the dz'awer Perz’ault, and the inscription of the mortgage was extant at the time on the public records.

Whatever perplexities once existed, touching- the power of a mortgagor to dispose himself of his notes secured by mortgage in favor of a nominal mortgagee, have been effectually dispelled by the ruling in the case of Merchants’ Insurance Co. vs. Jamison, 25 An. 363. See also 21 An. 3, Succession of Dolhonde; 27 An. 561, Gardner vs. Maxwell. These two last oases theoretically favor the recognition of the existence and validity of the mortgage, in favor of a third innocent holder, where the note is reissued by the maker before maturity.

Registry laws are artificial rules, the creatures of legislation. Their object is to notify third parties either of the transfer or incumbrance of property, or of the existence of certain contracts. They are designed for the protection of such parties who, while they are affected, must be benefitted thereby. The converse of the maxim.: Qui sentit commodum sentire debet et onus, may well in such a case receive a just application.

A mortgage may be likened pro tanto to a purchase. A bona fide mortgagee is equally entitled to protection as the bona fide grantee or purchaser. So the assignee of a mortgage is on the same footing with the bona fide mortgagee. In all cases the reliance of the purchaser is upon the record. When that discloses an unimpeachable title, he receives the protection of the law as against unkuown and latent defects. 16 Wall. 273; 19 Wall. 146; 95 U. S. 16; 47 Maine 513; Daniels on Neg. Inst. p. 685, § 834, et seq.

An unperempted and uncancelled mortgage inscription is, as to third persons, a notice, not only that a mortgage was consented, but also, that it is still alive as the accessory of an unextinguished obligation. It is both a warning and an inducement. It cannot, at the same time, proclaim the existence and non-existence of the mortgage.

The cancellation of the inscription is an epitaph on the tombstone of the pre-existing obligation.

The precedent most approaching the matter now under consideration, is that of Carpenter vs. Allen, 16 An. 435. In that case, after reviewing the decisions in 8 R. 435 and 14 An. 587, the Court states the question to be: whether a person who finds a mortgage duly recorded, which has .been executed by one having lawful authority to make the same, may acquire for a full price and in good faith such mortgage, notwithstanding equities may exist between the original parties to the instrument.”

The Court solved the question in the affirmative: 1st, because when one of two innocent persons must suffer, the law throws the loss upon Mm by whose negligence or fault the damage was occasioned; and 2d, because a mortgage is a real right which, so far as third persons are concerned, can be created only by the observance of the forms of law. Like sales of real estate, it is necessary that it be properly recorded. Third persons, without actual notice, are not bound to look beyond the registry and may acquire the mortgage by notarial act, by private act, or by simple delivery of the note. Where the equities between the parties are equal, the legal title must prevail. This opinion is well considered, deliberate, conservative and commands itself. Vide also, 21 An. 3; 27 An. 561; Daniels on Negotiable Instruments, p. 685, § 834, et seq.; 16 Wall. 273; 19 Wall. 146; 95 U. S. 16.

Neither Heneke nor Smith can be heard to say, that when Schepp received in pledge the mortgage note declared upon, he did not acquire all the rights which originally attached to it and to the mortgage securing it. Schepp is entitled, therefore, to ask a surrender of the property, or payment of the debt which the collateral was designed to secure.

The conclusion thus reached is supported by law, justice and equity, and tends to give security in transactions of the description of that considered in this case. Holding differently would be to authorize debtors, ostensibly such by their own acts or culpable omissions, to take advantage of their own laches in order to prejudice and entrap innocent parties becoming bona fide creditors and to desecrate the sanctity of justice by closing the fatal door upon them,

•• There is no error in the judgment appealed from, which is affirmed with costs.

Mr. Justice Pocbé recuses himself, having been of counsel.

Mr. Justice Todd dissents.

Dissenting Opinion.

Todd, J.

The following facts appear from the record to my satisfaction:

That Perrault gave a mortgage on the plantation named to secure the payment of two negotiable promissory notes executed by him for the sums mentioned'.

That this plantation was subsequently sold, by Perrault to Heneke, who, as p'art of the price, assumed the payment of these mortgage notes.

That the notes were taken lip by Heneke and came into his possession either subsequent or prior to his assumption of them.

That without his knowledge or consent, the one sued on was taken from his possession and delivered to the plain tiff as collateral security for a loan made to the party thus delivering it, who professed to be acting-as the agent of Heneke, and was treated as such agent by the plaintiff with whom he negotiated.

That this pretended agent acted without any authority from Heneke, and his acts were never ratified- by Heneke.

That Heneke subsequently sold the plantation to the defendant, the act of sale containing the statement, substantially, that the notes had been settled and the mortgage extinguished.

I hold, under these facts, that Hencke having assumed the payment of these notes and having taken them into his possession, the presumption is, they were both paid by him in accordance with his obligation, and the notes and mortgage securing them thereby were extinguished. And also, that Hencke being the owner of this plantation, under his purchase, as soon ns he became the holder of the note and mortgage, the mortgage being on his own property became extinguished by confusion.

It is true that the note, although reissued without Hencke’s authority or knowledge, being delivered to the plaintiff for value, and without notice, revived or kept in force the liabilities of the parties to the note, and that the holder was not affected by any equities between these parties. This results, however, exclusively from the rules of the commercial law, only adopted in furtherance of the negotiability of commercial paper and for the protection of the bona fide holders of such papers.

Mortgages, even mortgages accessory to and securing negotiable instruments, are, however, not subject to such rules and are not governed by the commercial law. The law governing mortgages and the liabilities of mortgagors and mortgaged property, whether the mortgages are the accessories of negotiable paper or not, is to be found in the Civil Code. The first and elementary principle of which is, that a conventional mortgage cannot he created, re-created or revived without the consent of the mortgagor. As to its transfer or assignment, a mortgage stands on-the same footing of a.ll other property j that it cannot be validly sold or conveyed without the consent or authority of the owner.

This, in my opinion, is settled by frequent adjudications. Thus, in the case of Hill vs. Hill, 4 Rob. 416, I find the following language of this Court:

“ This act shows that these uotes were delivered to the payee, and the notes, themselves, exhibit the endorsement of the payee toWm. Henderson, and of the latter to some other person. The evidence shows that they came hack into the hands of the maker some time after their date and before maturity. From, the moment Jno. S. Walton became the owner of these notes drawn by himself, the debt evidenced by them was extinguished by coufusiou. C. C. 2214. But it is argued by the appellant’s counsel, that the extinction of the debt between the maker and the payee did not incapacitate the former from contracting a new debt to Hill and handing over to him, as evidence of it, the same notes secured by mortgage on his property ¡ that Hill could have recovered on these notes from John S. Walton, and can, therefore, pursue his property, since sold, subject to tbe debt* To this argument the answer is obvious : that the notes thus reissued by the drawer undoubtedly bind him, but by replacing them in circulation be cannot revive the obligations of the other parties to the notes or the mortgage on the defendant’s property, which, being only an accessory to tbe debt between the maker and payee, became null and void as soon as the debt itself was extinguished.”

And again, in tbe case of Doll vs. Rizolli, 20 An. 264, we quote as follows:

But the question of the mortgage rests upon a different principle. When, as is shown, the note was paid and came into the possession of the maker and mortgagor, confusion took place, and the subsequent reissue of the note could not revive the mortgage. A mortgage is but accessory to the principal obligation, the extinction of which releases the mortgage. Mortgages not being negotiable, are not subject to tbe rules of commercial law, by wliicli the rights and obligations of the parties to commercial paper are fixed.”

My conclusion is, that the mortgage which is sought to be enforced in this case was extinguished in the manner stated, and that it was never revived.

Nor can I concede, that, from the fact that the mortgage note was stolen from Hencke, or taken from his possession without his knowledge and negotiated without his authority or consent, either he or his vendee, the defendant, was estopped from urging the extinguishment of the mortgage $ or that the failure of Hencke to have the. inscription of the mortgage cancelled had the effect of continuing the mortgage in force after its extinguishment, against or in favor of auy one.

For these reasons, I dissent from the opinion of the majority of the Court.

Rehearing refused.


author: Pociié, J.

text:
    No. 8640.
    The State of Louisiana vs. John Fahey.
    A clerk.of a District Court, elected iu December, 1879, who took an oath of office as clerk on the 21st of January, 1880, and who took an oath as ex-ojjlcio jury commissioner on March 6th, 1880, complied with the requirements of the Constitution, of the law and of jurisprudence ; and was thus legally qualified as far as the prescribed oath was concerned as a jury commissioner. No other oath was required of him on entering into his office on the 1st Monday of April, 1880.
    'There is no authority under the laws of Louisiana or the Common law, to empower a court to issue a commission to take the testimony of witnesses residing in another State, in a criminal cause.

      A new trial will not be grauted with the view to introduce newly discovered evidence for the purpose of impeaching the testimony of a witness in a criminal case. Cumulative evidence cannot be considered as a sufficient ground for a new trial.
    Tho newly discovered evidence, made the basis of the motion for a new trial, must be shown to be mal erial and of such a nature as to change the result of tho trial. The presence in court of the accused is not indispensable during the trial and disposition of motions for continuance, to quash the venire or other proceedings of like insignificant character, not material or essential parts of the trial of tho guilt or innocence of the accused.
    APPEAL from the Thirteenth Judicial District Court, Parish of St. Landry. Hudspeth, J.

      J. G. Egan, Attorney General, for the State, Appellee :
    1. Motion to quash the venire because of an alleged defect or irregularity must be urged on the first day of the term. Sec. 11, Act No. 44 of 1877, p. 58 ; State vs. Thomas, 32 An. 350 ; State vs. Jack Williams, 34 An. 1251, etc.
    2.' Commissions to take testimony outside of this State cannot issue in criminal oases. State vs. Bulford, 33 An. 684.
    3. Tho State can offer evidence in rebuttal to prove the good character of one of her witnesses, whose character for honesty and veracity has been attacked by the defense.
    4. Defendant is not entitled to a new trial for the purpose of offering cumulative evidence; nor for offering newly discovered evidence, unless he state in his affidavit annexed to the motion that he has used duo diligence to obtain said evideuce.
    5. This court will not disturb the ruling of the lower court in refusing a new trial, when the judges quo has, in the discretion vested in him by law, based said refusal on the ground that he did not believe the allegations in the motion, and that the only object was delay. State vs. Beaird et al., 34 An. 105; 4 An. 438; lb. 441.
    6. It is not essential that the accused should he present in court during the trial of preliminary motions before trial, or on the trial of motions for continuance and new trial. State vs. Harris, 34 An. 121, and authorities there cited.

      John N. Ogden and H. P. Veasie for Defendant and Appellant.
   Tlie opinion of the Court was delivered by

Pociié, J.

Under a sentence to liard labor for life, for murder, tbe accused, ou appeal, complains of numerous errors alleged to have been committed by tbe District Judge:

1. In overruling a motion to quasli the venire of jurors drawn for the term.

2. In refusing to issue a commission to take tbe testimony of witnesses residing in tbe State of Illinois.

3. In admitting, over defendant’s objection, tbe testimony of a witness to prove tbe good character of a State witness, whose veracity bad been assailed by witnesses for tbe defense.

4. In overruling defendant’s motion for a new trial, predicated on tbe ground of newly discovered evidence.

5. In overruling bis motion in arrest of judgment, predicated on the failure of the minutes' to show bis presence in court during tbe fixing, trial and disposition of his motion to quash the venire; of bis motion for'a commission to take testimony, and of liis motion for a continuance.

Mrst. In liis motion to quash the venire, the accused urged that J. O. Chacheré, the clerk of the court of St. Landry, had not taken an oath as a member of the jury commission since the date of his oath as clerk for his present term, on the 8th of April, 1830.

It appears from the record that Chacheré was the clerk of the District Court for the Parish of St. Landry, under the Constitution of .1868, for the term immediately' preceding his present term ; and that being elected to the same office under the present Constitution, he took the office under his new election on the 8th of April, 1880, on which day he took an oath as clerk, but not as ex-officio jury commissioner.

The record shows further, that under his election in December, 1879, and during his tenure of the office, under the Constitution of 1868, Chacheré took an oath as clerk of the Thirteenth Judicial District Court for the Parish of St. Landry, the present court, on the 21st of January7, 1880; and that on the 6th of March following, be took an oath as jury commissioner in and for the Parish of St. Landry.

The question is, therefore, as to the sufficiency of the oath thus taken on the 6th of March, 1880.

We are clearly of the opinion that the question must be answered in the affirmative.

In taking his oath of office as clerk elect, on January 21st, 1880, that officer fulfilled the requirement of the present Constitution, which provides in Art. 149, that “members of the General Assembly and all officers, before they enter upon the duties of their offices, shall take the following oath,” etc.

Nothing in the Constitution, nor in the existing laws, fixed the time at which such oath should be taken before the date, the first Monday in April, 1880, on which that officer was to enter upon the duties of his office; and, therefore, the oath could have been legally taken by him immediately after receiving his commission.

The only mandatory direction of the law was the statute prescribing the time within which the oath should have been taken after the issuance of the commission of office. Hence, the oath of January 21st,

1880, was sufficient to qualify him as clerk, as far as the exigency of the oath was concerned, and, therefore, the oath of March 6th, 1880, as ex-officio jury commissioner was sufficient. There was no necessity for the oath of April 8,1880, which did no harm, but added nothing to his legal qualification as clerk. State ex rel. Lemonnier vs. Beard, 34 An. 287.

Second. The judge did not err in refusing the commission to take testimony in Illinois; and in so doing he correctly applied the rule laid down by us, after mature reflection, in the case of Fulford, 33 An. 684, in which we held that no such right exists under our Statutes, or could be traced to the common law.

Third. The veracity of a leading- State witness having been assailed by the defense, it was not only legal but incumbent, on the part of the prosecution, to attempt by testimony to maintain his good character. There is no force in the objection that the proffered witness had not been a long resident of the parish and, therefore, not competent to testify touching the good character of the assailed witness. This objection might go to the effect, but surely not to the admissibility of the testimony.

Fourth. The avowed object of the defendant in moving for a new-trial was to introduce newly discovered evidence against the veracity and character of the leading State witness, Riley, one of the very objects for which, under established criminal jurisprudence, a new trial should not be granted. Waterman’s U. S. Criminal Digest, pp. 458 and 459, Secs. 196, 207 and 208, and cases there noted; Archbold Cr. Practice, etc., pp. 649 to 653.

And besides, the affidavit fails to allege or show that with due diligence, that evidence had not been discovered before or during the trial. Evidence on that point had been introduced at the trial; and the newly discovered evidence would at most have been cumulative; an insufficient ground for a new trial. Waterman, p. 459, Sec. 207; State vs. Alverez, 7 An. 284.

As a groundwork for a new trial the affidavit was radically defective in failing to allege or show that the newly discovered evidence was sufficiently material to change the result of the trial. State vs. Clark, 8 R. 533; State vs. Hornsby, Ib. 554; State vs. Kennedy, Ib. 590; State vs. Johnson, 30 An. 305.

Fifth. The objection that the minutes fail to show the presence of the accused in court during the discussion of his motions for continuance and to quash the venire, etc., and during proceedings of an insignificant character, can hardly be treated as serious in the light of our recent rulings on this point, which were calculated to entirely eliminate such questions from the field of discussion.

It can now be considered as elementary, that the absence of the accused during the trial of motions not making part of the actual trial of his guilt or innocence, but having reference to the form or conduct of the trial, will not vitiate the proceedings. State vs. Clarke, 32 An. 560 ; State vs. Harris, 34 An. 121..

The point is clearly untenable.

Our conclusion is, that the defendant has had a fair, legal and impartial trial, and hence, he can obtain no relief by his appeal.

Judgment affirmed.

Rehearing refused.


text:
    No. 8325.
    Emma Marionneaux, Tutrix, vs. Forester Brugier.
    When a boy is sliot intentionally or carelessly by another boy with a shot gun loaded with powder and fired off on one tbe streets of New Orleans, the father of the boy who discharged the gun is liable for damagos for the iujury inflicted and suffering caused thereby.
    The boy shot did not contribute to his own injury and excuse the fault of the other, because he would not or could not get out of the way when ordered by the boy shooting to do so.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      H. H. Walsh for Plaintiff and Appellee.

      T. J. Semmes & Payne and James Legendre for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

This is an action brought by the plaintiff, as mother and tutrix of her minor son, for a wound inflicted on him by a minor son of the defendant, by tbe discharge of a gun in the bands of tbe latter, and for the suffering caused thereby.

The defeuse is, that the iujury was the result of an accident, and that the plaintiff’s son contributed thereto by his own carelessness or neglect.

From a judgment upon a verdict awarding one thousand dollars damages, the defendant appeals,

That the plaintiff’s son was wounded by the discharge of a gun in the hands of the defendant’s son loaded with powder and wad is unquestioned. The boy shooting was thirteen years of age and the one shot nine years. The shooting took place on one of the streets of this city on the 1st'of January, 1880. • The wound was in the face and eyes, causing great pain and subjecting the wounded boy to medical treatment for several months. Upon receiving the shot the boy fell to the ground, his eyes tilled with powder, a part of which penetrated one eye-ball and could not be removed, his face bleeding and swollen, and remains permanently disfigured.

The testimony as to the manner of shooting is conflicting. One witness, aman who was sitting on his doorsteps across the street from where the shooting took place, and says he saw the whole affair, testifies that the act was deliberately and intentionally done. That the boy raised the gun to his shoulder, pointed it at the plaintiff’s son and fired when the latter was a few feet from him. That lie, the witness, saw the boy fall and ran to Mm and carried Mm into a house.

The testimony of this witness is contradicted l>y others, whose version of the affair is, that the boy had just adjusted a cap on his gun, had the butt against his stomach, and whilst holding it in that position and after ordering the boy shot and others to get out of the way, the gun went .off. However we may view the evidence, it is certain that the shooting was either intentional or the result of culpable or inexcusable carelessness -on the part of the defendant’s son. It was culpable in the first place, because the boy had no right to fire off his gun on one of the public thoroughfares of the city on New Tear’s day, or any other day. It was a wrongful act, regardless of any city ordinance on the subject. In the next place, his manner of handling the gun and suffering it to go off, adopting the view most favorable to him, in the midst of a crowd of boys, evinced great carelessness.

For injuries resulting from such acts, intentional or careless on the part of a child, the parent must respond. C. C. 2318.

It is contended, however, that' the wounded boy was guilty of contributory negligence and, therefore, cannot recover.

We do not see it in that light, and find no room in this case for the application of the principle referred to.

The evidence shows that the defendant’s son, with a crowd of other boys, was in the street, he firing off the gun, and some of the others discharging fire crackers; that the plaintiff’s son, who rvas passing along on the other side of the street, attracted by the crowd and the noise, crossed over, and when he got near the place where the amusement was going on, received the shot. In this the unfortunate boy committed no wrong, but acted like any other child. Nor was he in fault in not promptly obeying the other boy’s order to get out of his way. It was not his way ; it was the public way or street, where the injured boy had a right to be ; and it is possible that he did not see the gun pointing at him, and hear the order given him, or did not know in what direction to move.

The relative position of the boys was, that one was engaged in a wrongful act, the extremely dangerous pastime of shooting off his gun in the street, where persons were continually passing; aud the other, an innocent spectator of the act.

If the defendant’s son had been a soldier or policeman, who was required to cany a gun on the streets, in the discharge of hie duties, and if his gun had accidentally gone off and shot some one who, intentionally or carelessly, had placed himself at its muzzle, when warned against it, the person shot might he considered as contributing to his own injury ; but if the party thus lawfully with the gun should proceed to discharge it in the streets, it could not reasonably he held that one, shot by him, contributed to his injury, because he could not or would not get out of Ms way, though warned to do so. Such a doctrine would allow any one, on a festive occasion, or in a festive mood, to brandish his knife or fire off his pistol or gun on the street, and excuse himself for all injuries done and from all liability therefor, on tlie plea that the parties hurt were not sufficiently obedient or alert enough to escape his knife or bullet, when ordered to get out of the way, and that by such lack of obedience or alertness they contributed to their own injury. This would be only a slight exaggeration of the principle of the defense in this case.

No complaint is made that the damages were excessive, the contention being that there was no liability for any, and under the evidence we are not disposed to disturb the finding of the jury in this respect.

Judgment affirmed with costs.


author: Fennee, J.

text:
    No. 8051.
    Jules Tardos vs. Chicago, St. Louis and New Orleans R. R. Co.
    Where a bill of lading is pleaded as a contract and set out in extenso as part of plaintiff’s petitiou, be will be held bound by all the provisions therein contained.
    It is now the settled law of this country that carriers may, by express and special contract, limit their common law responsibility.
    Under the contract in this case, being a through bill to San Francisco, Cal., the defendant’s responsibility was expressly limited to the safe carriage of the goods over its own road and delivery to the connecting carrier, and to a guaranty of the through rate stipulated in the bill.
    With reference to the guaranty, under the general law, as well as under the stipulation of the contract, defendant, as guarantor, was entitled to notice of failure of the delivering carrier to recognize the stipulated rate.
    In absence of such notice, defendant is liable for no damages beyond the difference between the rate agreed and the rate demanded by the connecting carrier.
    It was the duty of plaintiff to use all proper measures to protect himself from the injurious consequences of the wrongful act, and he can only recover such damages as could not thus have been prevented.
    APPEAL from the Fourth District Court for the Parish of Orleans. Houston, J.

      I. H. Stauffer, Jr. for Plaintiff and Appellee:
    1. A carrier of freight who contráete to deliver goods at a destination beyond the terminus of his own line is answerable for the default of any connecting road in the line of trans. portation. Hutchinson on Carriers, pp. Ill, 112,117; Redfield on Railroads, pp. 104,109; Field on Damages, p. 324; 8 Exch. 341; 49 Vt. 255; 48 3ST. H. 339 ; 1 Woods, 100; 68 Fa. St. 272 ; 21 Wis. 582; 104 Mass. 122.
    2. A carrier can only limit his liability by express and special contract. 15 An. 103 ; 16 Wall. 329 ; 28 Ohio. 418.
    3. Error cannot be proved under the general issue. 5 M. 623; 7 M. 221; 11 An. 193.
    •4. An amended answer cannot be filed after the case is fixed for trial. 22 An. 351; lb. 534; 1 Rob. 58; 19 L. 542.

      5. Th© measure of damages for failure to deliver goods is their value at the point of destination. Field on Damages, p. 322.

      L. JÜ. Simonds for Defendant and Appellant.
   The opinion of the Court was delivered by

Fennee, J.

Plaintiff delivered to the defendant Company a quantity of freight to be carried by the said Company and its railroad connections to San Francisco, Cal., under a written contract which is entitled, on its face, a “ contract for a through rate, via Chicago, St. Louis & New Orleans Railroad connections.”

The contract embodies the ordinary receipt for the packages, which are described and stated as consigned to Jules Tardos, San Francisco, Cal. It stipulates the rate of freight to he $2.50 per hundred lbs. for some packages, and $3 per hundred for others, and contains the special clause: “Through rate guaranteed from New Orleans, La., to San Francisco, Cal.”

It also contains numerous conditions and stipulations placed in the body of the contract and covered by the signature, amongst which we note the following: “if the freight, after transportation on this road, is designed to be forwarded by some other road, carrier or company to its place of destination, the packages must be marked accordingly and the receipts so specify •, it being expressly stipulated that the responsibility of this Company ceases when freight is delivei’ed to the connecting carrier. If the forwarding carrier or route, is not designated, the Company’s agent may select the carrier or route he deems advisable and deliver the freight accordingly, wheu all responsibility of this Company in any and every form shall cease.”

We find also the following: “ Should this bill of lading not be recognized in settlement of over charges, when occurring on freight.herein receipted for, the consignee is requested to forward the hill of Jading without alteration or erasure, together with all the. freight hills paid the delivery road therefor, to the general freight agent at New Orleans, for adjustment.”

The freight was safely conveyed to San Francisco by defendant and its connecting carriers, and was there met by the plaintiff, wiio demanded delivery thereof under his hill of lading. The delivering carrier refused to recognize the through rate of $2.50 per hundred stipulated in the bill on a portion of the freight, and demanded $3 per hundred on that portion and refused delivery without such payment. The plaintiff declined to pay the excess, but tendered the amount duo under the contract, and offered to deposit the excess to abide settlement, all of which offers were declined.

Plaintiff, thereupon, simply abandoned his goods. He gave no notice to the defendant Company of the difficulty that had occurred, made no demand upon it for execution of its contract; and about one year afterwards brought the present suit, in which he claims, as damages, nine hundred dollars, the value of the goods, and a further sum of $1,000 as special damages, claiming that he had.gone to California for the purpose of engaging in the business of wine-making, that his goods consisted of machinery and appliances for such business, and that, by reason of their detention, he was compelled to abandon his purpose and suffered the loss alleged.

The petition specially alleged that the contract sued upon was the one embodied in the bill of lading which we have referred to and described and annexed the same and made it part thereof.

The defendant pleaded a general denial. Subsequently it filed a supplemental answer, in which it averred, substantially, that plaintiff had held negotiations with its contracting freight agent, in which he tried to secure the through rate afterwards embodied in the bill, which the latter had declined to agree to ; and that, afterwards, plaintiff called at the office in the absence of the principal agent, and falsely representing to a subordinate agent that the principal had agreed to the rate, obtained from him the bill sued on, through error and misrepresentation.

' When, on the trial, defendant offered evidence in support of his amended answer, plaintiff objected to the same on the ground that said answer was inconsistent with the general denial, which put at issue the fact as to whether the contract sued on was ever made, but did not admit of proof that, though actually made, it was so made through fraud or error; and the Judge sustained the objection.

■ It is admitted that the difference between the through rate stipulated in the bill and that charged by the connecting carrier was fifty-eight dollars. The assent of the defendant, that if we should find this amount to be the measure of damages, we should dispose of the case, dispenses with the necessity of reviewing the above ruling of the Judge, on the correctness of which we express no opinion.

The bill of lading with ail its provisions, conditions and stipulations having been set forth in extenso and without qualification, as the contract between him and defendant, and having been made part of his petition, and. having been made the basis of his objections to evidence, the plaintiff is conclusively bound thereby, and cannot dispute any part thereof. All its provisions and limitations are thus embodied in an express and special contract, and the carrier is entitled to the full benefit thereof. For it is now the universal law in this country, that carriers may, by express and special contract, limit their responsibility. Hutchinson on Carriers, Sec. 237, and numerous authorities quoted.

Turning then to the contract, the provisions of which have already been stated by us, it is clear that the only obligations assumed by the defendant are:

1. To carry the goods safely and seasonably over its own road and to deliver them to a proper connecting carrier.

2. To guarantee the through rate of freight stipulated.

The first obligation was fully performed, and no complaint is made touching the same. As to the second, its effect was to make the defendant a guarantor that the delivering carrier would accept the agreed through rate and deliver on payment thereof.

Under the general law notice of breach by the person whose act is guaranteed is essential to the guarantor’s liability. 1 Parsons on Cont., pp. 28 et seq.

But, in this case, the contract itself expressly contemplates the possibility of overcharges by the delivery road and refusal to recognize the bill, and distinctly indicates the course to be pursued by the consignee in that event, viz: “to forward the bill of lading, together with all freight bills paid the delivery road, to the general freight agent in New Orleans for adjustment.”

Had the plaintiff paid the overcharges, it would have been the duty of defendant, on notice, to refund the same. Had the plaintiff declined to pay, but simply notified defendant of the overcharge, it would have been the latter’s duty proinptly to pay the same, or otherwise to effect the delivery to plaintiff on payment by him of the agreed rate.

Nothing in the record indicates that had plaintiff pursued either course, the matter would not have been promptly adjusted, and a.ll damage prevented.

Equity, as well as law, abhors the idea that a man who, by the payment of $58, could escape all injury, may quietly sit down and suffer damage to the extent of $1900, and then claim this enormous sum from a third person without even notifying him of the injury or giving him the opportunity to avert the damage.

. The law is thus laid down by Mr. Field : “ It is the duty of a party to protect himself from the injurious consequences of the wrongful act of another, if he can do so by ordinary effort and care or at a moderate expense, for which effort and expense he may charge the wrongdoer. And where, by the use of such means, he may prevent loss, he could only recover for such loss as could not thus be prevented.” Field on Damages, §§ 21, 32, No. 8, 126 et seq.; Loker vs. Damon, 17 Pick. 282; Mather vs. Butler, 28 Ind. 253.

Under the contract herein and the principles stated, we think the amount of the overcharge is the limit of damages for which defendant is responsible.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the same to the sum of fifty-eight dollars, with interest from judicial demand, defendant to pay costs in the lower court and plaintiff to pay costs of this appeal.