author: Hownnii, J.

text:
    J. H. Johnston’s Executor v. Shepherd Brown.
    No provision of law can be found requiring the plaintiff in a partition suit to make creditors, who hold mortgages on the property, parties to the proceedings.
    The agent of a partnership is not an agent of the partners individually.
    APPEAL from the Second District Court of New Orleans,

      Thomas, J. Elmore & King, for O. E. Alter. T. 8. MeCay, for Brown.

      Durant & Honor, for plaintiffs.-

    — The reasons assigned by the Judge of the lower Court for his judgment are ample, and come fully up to the standard required by the Article 76 of the Constitution of Louisiana of Í864, which is a repetition of the clause found in all our constitutions since 1812. The judgment contains the reasons upon which it is founded, as the Constitution requires. The Judge says that he had heard the evidence and arguments,' and -therefore gave judgment. If it can be asserted that’evidenoe and argument are not reasons for a judgment, then what can be held to be such ?
    The language used is precisely equivalent to saying that the law and the evidence were in favor of the plaintiff’s demand, which are not only sufficient, but are, indeed, the best reasons for a judgment. Allen v. Pegfcmin, 10 L. R. J2. Morgan v. Police 'Jury, 11L. R. 162.
    But it is doubtful, moreover, whether in this case it was necessary to assign any other reason than the default,' or rather the default itself, with the evidence, constituted a sufficient reason for the confirmation. See O. P. Art. 360, and Hemlcen'v. Farmer, 3 Rob. 155.
    But, whether this be the case or not, the reasons that the Judge heard the evidence and the argument are clearly sufficient.
    No provision of law can be found requiring the plaintiff in a partition suit to make creditors, who hold mortgages on the property, parties to the proceedings. Indeed in most instances, it is impossible to know who the creditors are; as the notes which the mortgage secures generally pass at once out of the possession of the mortgagee in the notarial act, who, in many cases, is a mere nominal party.
    As the mortgage is only a right granted by law to the creditor, on the property of the debtor (L. O. Art. 3245), and “as, by our laws, the possession and title of property subject to mortgage, conventional, legal or judicial, remain in the debtor,” (see L. C. 3374, and Conrad v. Prieur, 5 Rob. 49,) it follows that, on principle, there can be no necessity for making mortgage creditors parties to a partition suit, We know that nothing of the kind is called for by the practice of our courts, and that no authority whatever is invoked or can be found sustaining any such position.
    The second point of the respondent is not a legal objection, but a mere begging the question. It is no valid objection to the executor that he is endeavoring to erase the mortgages after the probate sale; for, if the sale has the effect of transferring to the purchaser the property free of mortgage, then it is the duty of the executor to erase the mortgages, and it is in vain to object to him that he is doing his duty; “by the effect of the lieitation, the moment the adjudication is made, the former proprietor is considered in law as never having had any title to the property, but only a right to his share of the price. See Parker v. Bepeysler, 18 L. R. p. 351.
    The case is similar with mortgage creditors of the proprietor.
    The third point made by the respondent is one on which, we think, he cannot be heard.
    Courts of Probate proceed in rem, and their aotion is binding on all the world.
    The dative testamentary executor was bound, for he is a mere administrator acting for creditors, immediately after his appointment, to sue for a partition. See L. O. Art. 1128.
    “Causes of nullity which precede the decree of the Court, ordering the land to be sold for the payment of the debts of the succession, are insufficient under our jurisprudence, as settled in the case of Mitchell's Heirs v. Mitchell’s Curator, 11 L. R. 156, and Lalme's Heirs v. Moreau, 13 L. R. 431, to annul the sale made by the order of the Court. They-are irregularities, which do not render the decree of-the Court, and the sale under it, null and void. The Court had jurisdiction, and its decree protects the purchaser, although he was the administrator and one of the heirs at law, in the absence of any charge or proof of fraud against him.” Succession of John Gurney, 14 An. 622 and 623.
    The fourth ground of objection assigned by Davis, in the Court below, is so vague as scarcely to afford subject of debate.

      The judicial sale of the property was made by the sheriff for cash, as the judgment of the Court directed. It was duly advertised.
    There is no law which requires the property to bring tho appraised •value, where there are no minors interested. See Gilmore v. Gilmore, 9 An. p. 205.
    This was a judicial sale, in which the doctrine of lesion has no applicability. L. O. Arts. 1863 and 2572. See also the case, Hache v. Ayrand, 14 An. 179.
    But take the whole of the objections of Davis, from beginning to end, and we submit that they cannot be heard on a rule to erase mortgages ; they could only be the subject of a direct action to set aside the judgments and orders by which the property was finally converted into cash ; and even in such an action they could not prevail. See Gilmore v. Menard et cd. 9 An. 212. See Finlay v. Babin, 12 An. 236.

      F. A. Bradford, for Davis, appellant.

    — The counsel for Brown, and also the counsel for Davis, ox abundante cauteli, filed assignments- of error. The counsel for the executor in their printed brief on file, affect to think the whole controversy confined to the points made in those assignments of error.
    The Court will perceive that the certificate of the Clerk shows that the record is a full and complete transcript of all the evidence, documents and proceedings in the case.
    The appellants may call the attention of the Court to any illegality in those proceedings without an assignment of errors. See case of Mills Judson, decided April 23d, 1866. Holt v. Branden•, 14 L. B. 368.
    By the will of the deceased, G-. W. Johnson and David C. Schanks were made universal legatees, and the seizin of the property expressly given to them.'
    The effect of this seizin was to give them the possession of the property, and the appointment of the dative testamentary executor did not divest them of the possession of the real estate. C. O. 934, 1692, 1653; 4 Toullier, p. 94, $ 82. •
    A dative testamentary executor, without seizin, has not the right to bring a suit for the partition of real estate, in which the succession may be interested. See C. C. 1233, 1232 et seq.; C. P. Article 123; 5 Toullier p. 541. et séq.; 588, 590, 591; Savage v. Williams, 15 A. B. 250; Succession of Dupuy, 4 A. B. 571; Succession of Bowles, 3 B. B. 35,-37; Michel’s Heirs v. Curator, 11 L. B. 156. •
    In opposition to these authorities the counsel for the executor rely upon Articles C. C. 1663, 1128. These Articles are not applicable to tho case at bar.
    1st. The Article 1663, by its express terms applies only where the property is sold to pay debts.
    2d, The Article 1128 applies only to property held in community or partnership. Now, the property in question was not held either in community or partnership. There can be no partnership in real estate. Besides, the object of the partition suit mentioned in C. O. 1128, is to ascertain the part belonging to the succession. This was not necessary in reference to the property in question, because that part was accurately set forth in the title. Where there is a community interest or partnership to be settled, it may be very important to the succession that the part belonging to the deceased should be ascertained. Not so where the interest in real estate is shown distinctly by the title.
    The order of sale, the Sheriff’s return, and the deed of sale, as also testimony of Deputy Sheriff, show, beyond question, that the sale was made to effect a partition, and not to pay debts. The fact that the proceeds of the sale might subsequently be applied in the hands' of the executor to the payment of debts, did not change the character of the sale. If -the property had been sold to pay debts it must have brought two-thirds of its appraised value.

      Garter v. McManus, 15 A. B. 641; Valdere v. Dodd, 10 E. E. 396; 10 E. E. 457; 13 L. E. 296; 7 L. E. 312; 11 E. E. 508.
    The fact that no regard was paid to the appraisement in making the sale, shows it was not a sale to pay debts. The Articles of the C. C. referred to by counsel for executor have therefore no relation to the case.
    The counsel for executor justify the sale to effect the partition without appraisement, upon the plea of necessity. The ease of Savage v. Williams, 15 A. E. 250, is conclusive against the existence of any such necessity. For very cogent reasons the Court decide in that case that the property ought not to have been sold in block. The heirs could not protect themselves in such a sale, without bidding for the whole property. The same remark applies with equal force to thé mortgage creditors as well as heirs in the case before the Court. They could not protect themselves in the sale in block, without becoming bound to pay in cash into the Sheriff’s hands the portion belonging to Shepherd Brown’s interest. This, it might have been, they were not able to do, and their interests in consequence sacrificed.
    But even if the dative testamentary executor had the right, under the circumstances of this case, to bring the suit for partition, still it was necessary that these proceedings should have been conducted contradictorily with the attorney for the absent heirs and the mortgage creditors. This is true, both with regard to the order of sale to pay debts applied for by the executor, as well as to the proceedings conducted specially in reference to the partition. Succession of Bowles, 3 B. E. 35, 37; French, Executor, v. Prieur, 6 E. E. 299; Michel’s Heirs v. Curator, 11 L. E. 156; Elliott v. Laharre, 2 L. E. 328; Savage v. Williams, 15 A. E. 250; O. O. 1157, 1204 et seq.; C. C., 1662, 1664; Acts 1817, p. 186 11. '
    6 E. E. p. 302, the Court says : “ In 3d Eobinson we held that an executor could not sell the property confided to his charge without notice to the heirs, as it might be their interest to furnish him with money to pay the debts and legacies, and thus prevent a sale. Mortgage creditors, have by law certain rights secured to them, in relation to the sale of property belonging to successions, and it would seem but just that they should have some notice of an application to sell that on which their lien exists, and thereby to discharge it.”
    In the case before the Court,, the mortgage creditors oomplain that not only their mortgages on the property of the succession, but also their mortgages against the property of Shepherd Brown, have been destroyed by these proceedings of the executor.
    We think the list of authorities above referred to conclusive upon the point. The statutory provisions cited have never been repealed. The decisions referred to have never been overruled. The most that can be urged to the contrary is, that in some extremo cases, amongst many othor sufficient reasons for their judgments, the Court decided that orders of sale in succession cases could not be attacked collaterally. We do not attack these proceedings collaterally. We attack them in the very caso in which they occurred, directly, and by appeal from the very orders themselves.
    Service of petition and citation in the partition suit was not made upon the defendant in person, but upon Bourke, an alleged agent. There is no sufficient proof of the agency.
    The power to represent the principal in actions is not one of administration, and must be express and special. C. C. 2966; 9 L. R. 78; 10 L. R. 698; 4 A. R. 61; 5 A. R. 218; 6 A. R. 662, 551.
    Knowledge of the pendency of a suit not sufficient to bind a party. There must be service of citation or waiver of it. 2 L. R. 172; 4 L. R. 154; 13 L. R. 11; 6 R. R. 9; 3 A. R. 9; 8 N. S. 147; Augusta Insurance Company v. Paclcwood, 9 A. R. 85.
    The Sheriff’s return on citation is not proof of the agency of the person on whom it was served. Jacobs v. Sartorius, 3 A. R. 9; New Orleans v. Christ Church, 3 A. R. 453; Mechanics’ Bank v. Walton, 7 R. R. 451; Fortier v.. Field, 17 L. R. 587; Ridge v. Alter. 14 A. R. 866.
    The only other evidence of the agency of Bourke is an entry, and the testimony of Bourke.
    The entry on the minutes of evidence, is as follows: “ Counsel for plaintiff offers in evidence the record, of the succession of Shepherd Brown, and also the power of attorney from Shepherd Brown to R. A. Bourke.”
    This power of attorney is nowhere to be found in the record. In fact, no such power of attorney, we are informed, existed. There is no evidence that-any such power of attorney was ever filed in the case. There is no suggestion of any diminution of the record. The Court, therefore, is bound to presume that no such power -of attorney was produced on the trial, especially as the. certificate of the Clerk states that the record contains all tlie documents filed in tlie case. It is evident that the counsel, in an expayte proceeding got the Clerk to make the entry, under the expectation that they might subsequently find such a power of attorney.. Not being able to produce the power of attorney, the entry in the minutes is no evidence whatever of agency.
    Bourke, says : “I have a power of attorney of Botchford, Brown & Co., which I produce in Court. The members or partners' all concurred in said instrument.” This power of attorney was not filed, and is not to be found in the record. It is evident from the language of the witness that this was a power from the commercial firm of Botchford, Brown & Co., and related solely to the business of the firm. It conferred no.power on Bourke to represent the private interests of Shepherd Brown in suits for the partition of real- estate; a species of property which cannot be held in commercial partnership. The whole proceedings based on the service of citation upon Bourke, must therefore tumble to the ground.
    The judgment ordering the partition and sale of the Union street property was a judgment by default. Guidny v. Guidny, 16 L. B. 157. It must be served in same manner as citation Brown v. Trent, 12 L. B. 600.
    Article 1813, p. 10, of Acts, only dispenses with notice where the defendant has answered, leaving the law as it stood before in relation to judgments by default. C. P. Article 621.
    The judgment ordering the sale and partition was appealable.
    The Union street property could not have been legally sold under this judgment. We shall hereafter show that this property was not sold under that judgment, but under a subsequent order which did not authorize its sale.
    The judgment above referred to ordered the experts to be appointed to partition the batture property in kind. The experts appointed were never sworn. Bee. p. 33. O. P. ’Article ,118. C. C. 3078. 2 N. S. 5.
    This omission is a fatal objection to the validity of their report.
    A rule Was taken to homologate' the report of experts and to sell the property in block. On the trial of the rule, the counsel for executor introduced Yienne as a witness. Yienne swore the property could not be divided in kind.
    Borgstede, a witness, had previously sworn this batture property could be divided in kind.
    I j is submitted that, upon this evidence, the Judge Was not warranted in ordering the sale in block. O. O. 1261.
    Defective as these proceedings were, the rule to homologate the report of the experts, and to sel the property in block, was tried ex parte; without any notice whatever to Shepherd Brown, the defendant. There was not even a shadow of notice to Bourke, the pretended agent.
    Bee. p. 38, will be found the order of Court directing the notice'to be giveni

      At page 40, it will be found that the rule was tried without this notice having been given, and in the absence of the defendant. This certainly is enough to establish the nullity of the subsequent judgment.
    Numerous and serious as are the points already urged against the validity of the proceedings which led to the sale, we shall proceed to call the attention of the Court to other irregularities, more fatal if possible than those already adduced.
    1. The judgment on the rule for the sale of the batture property was obtained without notice of the trial to the defendant, and in his absence.
    2. The judgment thus rendered was one by default and could not be executed without notice of judgment being served upon defendant. See authorities before cited. There was no such notice served upon the defendant. Everything done under an execution unlawfully issued is void. Holmes v. Henhen, 6 B. B. 51.
    3. This judgment could not be legally executed by the Sheriff without an order from the Clerk of the Court, signed by him, and sealed with the seal of the Court. O. P. Arts. 625, 626. In this case no such order was issued by the Clerk, but the Sheriff made the sale upon a mere copy of the judgment handed to him, we know not by whom.

      4. Five days after the judgment was signed, the Sheriff proceeded to execute the judgment, The executor did not wait for the lapse of the ten days provided by law. C.. P. 621. The defendant has never waived this objection.
   Hownnii, J.

W. B. Crane, having been appointed dative testamentary executor of J. H. Johnston, deceased, instituted this suit against Shepherd Brown to effect a partitition of certain real estate owned jointly by said Brown and Johnston, and had service made upon B. A. Bourke, as the attorney in fact of defendant, who was then absent.

Default was taken, and upon the subsequent procuration of evidence, the District Court ordered the property to be sold “in order to effect the partition.” The sale was made for cash, and a rule was then taken by the exeeutor on the Beeorder of Mortgages and the mortgagees to erase the mortgages existing on said property, which being made absolute, several of the mortgagees and the defendant appealedtherefrom and also from the judgments decreeing the sale.

Among the various grounds urged for the reversal, of said decrees, we think it necessary to notice one only, which is fatal, to wit: the want of citation to defendant.

The power of attorney, introduced in evidence by plaintiff, to establish Bourke’s authority to represent Brown in this action, is one from the commercial firm of Botchford, Brown & Co., composed of Philip Botchford, Shepherd Brown, the defendant, and Joseph H. Johnston, the deceased, and constitutes Bourke the agent of said firm, but not of the individual members. We call find nothing in it authorizing him to represent any one of the persons composing the firm in relation to their separate individual interests. The agent of a partnership is not an agent of the partners individually. Under the act of procuration before us, Bourke could not transfer the interest of one of the partners in the real estate owned jointly by them to another partner; for under it he represents one as much as another, and he cannot combine in himself the character of vendor and vendee. And, besides, the firm being dissolved by the death of Johnston, and the mandate being thus terminated as to the firm, it can not retain vigor as to either of the surviving members,

We think it clear that Bourke is without authority to represent Brown in this action, and that, consequently, all the proceedings based on the citation to him, as the agent of Brown, are null.

When' there is an utter absence of legal service, the case will be remanded. 3 A. 453.

It is therefore ordered that the several judgments appealed from herein be annulled, and that the petition be dismissed; the plaintiff, as executor, paying the costs of both Courts, his right of action, if any he have, being reserved.


source: Caselaw Access Project

author: Xlsley, J.

license: Public Domain

text:
    Succession of George Alexander.
    it is a presumption of the law, that every spooies of property found in a person’s possession at hid death belongs to his succession.
    Papers registered in the Custom-House at New Orleans when, under the oontrol of the so-called Con federate States Government, have no legal entity, and copies are not evidence for any purpose in our Courts,
    Where documents are received without objection, although illegal, they will be taken as evidence, but it will not be entitled to much weight.
    APPEALS from the Second District Court of New Orleans,

      Whitaker, J. Cutler & Hawlcins, for opponent and appellant, Lindsey. Fellows & Mills, for administrator. J. Ad Bozier, for Estes. T. Drouet, for curator ad hoc.
   Xlsley, J.

Lewis Lindsey, the opponent, is appellant from a judgment of the District Court, disallowing his claim for the one-third ownership in the steamboatLouisiana Bello, which was found in the succession of George Alexander; and also for one third of all tho moneyed assets found in the succession, which he says were the earnings of the said boat, and to which he is legally entitled as a partner of the said Alexander, engaged with the said boat in tbe carrying trade.

Before filing his opposition to the curator’s account, on which judgment Was rendered against him, he had instituted against the curator, in the same Court, a separate action for the same cause, and by agreement tbis suit and the opposition were consolidated and tried together.

It is a presumption of the law, that every speoies of property found in a person’s possession at his death belongs to his succession. Lynch v. Benton, 12 Rob. 113. And it therefore devolved on the opponent to establish the reality of his title and blaim to the one-third part of the boat and of the moneys found in the succession. He exhibits for this purpose a notarial act of sale and transfer, passed before the Becorder of the Parish of Pointe-Coupée, on the 14th April, 1862, by which W. B. Brown declares that he sells to Lindsey, for the price therein stipulated, one-third of the ownership of the said boat, then lying in the river Mississippi, at Waterloo, in the Parish of Pointe-Coupée.,

There is also in the record a paper dated in February, 1862, certified as a true copy of the original enrolment of the Louisiana Belle, relied on to prove title in Brown, by his own sworn statement, of one-third interest in the boat. It is signed ‘‘B. H. Miller,” who styles himself "Deputy Collector.”

This paper is certified as being at the time registered at the CustomHouse at New Orleans, an office then under the control of the so-called Confederate States Government, and which was in open rebellion against the United States.

Such documents cannot be deemed public and official, they have no legal entity, and are not evidence for any purpose in our Courts.

There is nothing whatever to connect W. B. Brown with that paper, but the statement of a functionary who had usurped the place of a duly constituted officer of the Government of the United States, and his statements have no legal value whatever.

Beyond the declaration in the act of sale to Lindsey, that Brown was, at the time of the transfer, the master of the Louisiana Belle (a declaration which does not affect Alexander, as he was no party to that act), there is not a' scintilla of evidence in the record to show title, either in Brown or Lindsey, to the boat, or the possession of her at any time by either of them.

The enrolment of the boat made by Alexander in the United States Custom-House in New Orleans, with his affidavit of sole ownership thereof in himself, although inadmissible to prove title in Alexander, yet, having been received without objection, is evidence in the case. See Hopkins v. Lacordare, 4 La. 64. It is not, however, entitled to much weight, see Gilmore v. Brenham, 3 A. 34; but, coupled with the fact of the exclusive possession of the boat by Alexander some time previous to, and at the time of his death, it strengthens the presumption of ownership, which that possession raises, if indeed, any such evidence at all was needed against Lindsey, who has exhibited no title or possession at all. If he had a joint ownership in the boat, he should have put the fact beyond all question. Gilmore v. Brenliam, 3 A. 34.

The judgment of the District Court must be affirmed.

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


author: Iusley, J.

text:
    Widow M. S. Dufossat v. Charles F. Berens et al.
    The execution of a judgment can be enjoined by no other Court than that from which the writ issued.
    District and Parish Courts have no jurisdiction when actions are brought against persons residing in the State, out of the limit of their respectivo jurisdiction, except in the cases expressed in the Code of Praotioe, unless the defendant, of his own accord, should submit to their jurisdiction.
    APPEALS from the Sixth District Court of New Orleans,

      Buplantier, J. G. Bufour and E. Bermudez, for plaintiff and appellant. E. W. Huntington, for defendant.
   Iusley, J.

The plaintiff obtained, in the Sixth District Court of New Orleans, a mandate of injunction to stay proceedings, under an order of seizure and sale, issued by the Third District Court of .New Orleans.

A rule was taken by the defendant in the injunction suit to show cause why the injunction should not be dissolved, with damages and costs, ,on the grounds :

1.That the Court was without authority to arrest the procoss of the Third District Court.

2.That the plaintiff should have filed her opposition to the writ of seizure and sale in the Court from which it emanated, and obtained the injunction in conformity with Article 738 of the Code of Practice ; and,

3.That the petition shows no ground for the injunction.

The rule was made absolute, and the plaintiff appealed.

The first question presented is whether the Sixth District Court could grant an injunction to arrest an order of seizure and sale, in another Court of concurrent jurisdiction, in the city of New Orleans ?

In the separate opinion of Chief Justice Merrick, concurring with the Court in the ease Donnell v. Parrott, 13 An. 253, he states the cases which had formed the exceptions, ex necessitate rei, to the general rule that the execution of a judgment can be enjoined by no other Court than that from which the writ issued.

The exception was that recognized in Lawes et al. v. Chinn, 4 N. S. 390. It was to prevent an immediate injury, which could not otherwise be warded off, the property being seized in a distant Parish from that in which the judgment had been rendered.

“We thought,” say the Court, “that if an execution, issued from Washita or Natchitoches, was levied in the Terres aux Boeufs or Washington, on personal property, it would be (sold, if no Judge but he who gave the judgment could grant an injunction.” And it was restricted to such cases in 16 An. 110; 5 An. 644 ; 4 An. 84; 2 An. 323 and 492.

In Ogier v. Daunoy, 7 Martin’s N. S., the Court said : “In the present ease, the Judge who gave the judgment, and he who issued the injunction, were in the same Parish. We therefore conclude that the injunction was improperly issued, and the District Court improperly applied to, to obtain a restoration of the property seized.

We do not think that the fact that the plaintiff in the executory process,, being the Clerk of the Court whence it issued, deprived that Court of jurisdiction to stay proceedings therein.

He is, quoad any duties that would have devolved on him in carrying out the order of the Judge, a mere ministerial officer of the Court, sworn to perform his duties as Clerk, faithfully and honestly; and any deviation from duty on his part, could be instantly remedied on a proper application.

We cannot perceive how his ministerial duty as an officer could be made subservient to his interest as a party litigant.

The Third District Court, we repeat, was not incompetent to grant the injunction, and it Was the proper party to issue it.

But the plaintiff, in the action via executiva, has waived the right to contest the jurisdiction of the Sixth District Court, by invoking its aid to realize the fund admitted by the defendant to be due by her, and deposited with the Sheriff. Art. 129 C. P. 10 La. 228. 11 Bob. 418.

And the Court, therefore, erred in dismissing the petition for injunction.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that the injunction suit be remanded, to be further proceeded in according to law; the costs of this Court to be paid by the appellee.


author: Labadve, J.

text:
    The State of Louisiana v. Wm. Ross and George Rogers.
    This Court has appellate jurisdiction in criminal matters on questions of law alone, whonover the offence oharged is punishable with death, or imprisonment at hard labor, or when a fine exceeding three hundred dollars, is actually imposed. (Oonstitution, Article 70.)
    The criminal law has not determined at what age a witness is competent; that competency depends upon his intelligence, reason, judgment, capacity and understanding, which are all matters of facts left to the discretion of the Judge and jury. As to the dying declaration, this Court, in the caso of State v. Bennett, 14 A. 651, has decided that the mental and physical condition of one, whose dying declarations are offered, is a question of fact over which the Supreme Court has no jurisdiction.
    APPEAL from the District Court of the Parish of Jefferson,

      Gazabat, J. Hon. A. J. Herron, Attorney General, for the State. W. T. Scott and AT. Commandeur, for defendants and appellants.
   Labadve, J.

The defendants and accused, having been found guilty of murder, were sentenced to suffer capital punishment; they have appealed to this Court.

This case comes up upon a bill of exceptions taken to the opinion of the Court, in admitting before the jury the dying declaration of Lena, the victim of the murder; the question is presented in the following bill of exceptions:

Be it remembered that on the trial of this case, prisoners’ counsel objected to the admission of the dying declarations of Lena, the victim of the murder for which prisoners have been tried and convicted, but the Court overruled the objections, and permitted said dying declaration to go to the jury.

Because, from the preliminary examination by the Court of the circumstances, under which the declarations were made, it appeared to the satisfaction of the Court:

1. That they were made in extremis as contemplated and required by law.

2. The declarant, Lena, if living, would have been competent to testify, because, from the evidence, it is shown that she was about nine or ten years of age, of good size, a very sensible, smart, intelligent girl, (to use the very expressions of witness, who knew her well) she had been to school, and church several times, and was by her age, training and bright mind, sufficiently able to understand the character and obligation of an oath.

Besides, it was proved that when she spoke and made her dying declarations, verbally, she was quiet, perfectly composed, in her right mind, and appeared to know well what she said.

3. The declarations were made by Lena at two different times in presence and within the hearing of four witnesses, who testified to the same. Both of her statements were short and identical; she stated and declared “Boss struck me upon the head with a hatchet.”

The terrible wounds inflicted upon her head, had been dressed by the doctor, and she did not speak for several hours, but towards night she appeared somewhat quiet; she asked for some water, and made the aforesaid declaration at that time, and repeated the same thing the next morning before she was removed to the hospital.

All the facts and circumstances connected with the case tend to show that the declarations were made wider a sense of impending death.

The words and expressions used by declarant, “ Oh, Lord, Oh, Lord,” the evident and extreme danger of her critical condition, the opinion of medical men, the testimony of parties who attended upon her, and saw her at the time, the very short time that elapsed-between the inflicting of the wounds, the declarations, and the death of declarant, everything indicates that the dying declarations of Lena were made under a sense of impending death.

The wounds were inflicted upon her on the afternoon of the 25th July, 1865, and she died on the morning of the 27th of said month.

The Court therefore admitted said dying declarations, and let the same go to the jury with proper instructions.

But the prisoners’ counsel excepted to the ruling and opinion of the Court, and tendered this bill of exceptions to be signed in open Court, which is hereby done according to law. November 29th 1865.

(Signed) A. Cazabat, Judge 2d Dist. Court La.

We are of opinion that this bill of exceptions presents to our consideration, entirely questions of facts and not of law alone.

We have appellate jurisdiction in criminal matters on questions of law alone, whenever the offence charged is punishable with death, or imprisonment at hard labor, or where a fine exceeding three hundred dollars is actually imposed. Constitution, Article 70.

The criminal law has not determined at what age a witness is competent; that competency depends upon his intelligence, reason, judgment, capacity and understanding, which are all matters of facts left to the discretion of the Judge and jury. As to the dying declaration, this Court, in the case of State v. Bennett, 14 A. 651, has decided that the mental and physical condition of one, whose dying declarations are offered, is a question of fact over which the Supreme Court has no jurisdiction.

It is therefore ordered, adjudged and decreed, that this appeal be. dismissed, at the costs of the appellants.


author: Howeud, J.

text:
    George W. Clarke v. Puig Brothers.
    — On a Rehearing.
    Tiie principal ought to reimburse the expenses and charges which the agent has incurrod in the execution of the mandate, and pay his commission where one has been stipulated.
    If there be no fault imputable to the agent, the principal cannot dispense with this reimbursement and payment, even if the affair has not succeeded; nor can he reduce the amount of reimbursement, under pretence that the charges and expenses ought to have been loss.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. George L. Bright, for plaintiff.

    — The answer admits the contract, and alleges
    1. That tho cargo of the Belle Bernard was sold to T. C. A. Dexter, but he failing to comply, the cargo was sold again, and gave a nett difference of $10,179 73, as is shown by the account of the re-sale filed, and the plaintiff agreed that the said difference should be carried "to his debit in his general account.

      2. That the said general account was furnished to plaintiff, whereby a balance of $209 23 is shown to be due to defendants.
    3. That the defendants claimed and charged exchange in their accounts at the rate prevailing in the market at the time the funds realized under the contract had come to hand, whereas the- plaintiff contended that the claim should be made at the rate of exchange existing at the time of shipment ; and the plaintiff contended that the excess of gold deposited for duties in the Custom-House should be returned to him; and the defendants claimed that the gold deposited • by them formed a part of the charges they had to pay for plaintiff. And these two points of difference being the only matters of difference between the plaintiff and defendants, a compromise was proposed and accepted, and they were submitted to arbitration, and the arbitrators decided in favor of defendants.
    They pray that plaintiff’s petition be dismissed, and for judgment for $209 23.
    We admit, on the part of plaintiff, that the Dexter loss of $10,179 73 should be charged to him.
    The answer admits the contract, and the only questions before the Court are ;
    1. Is the award of the arbitrators binding on the plaintiff ?
    2. If it is not, should the defendants have charged the premium on g’old, according to the rate ruling at the time they made the advances, or at the time they sold the molasses and realized the proceeds ? '
    3. What is the amount over-charged ?
    I. It does not appear that either party appointed an arbitrator.
    Mr. Peychaud, a witness, says : “I was appointed one of the arbitrators in this case.”
    . It does not appear by whom he was appointed; but, subsequently, by a note addressed by plaintiff to Mr. Peychaud, it appears that Mr. E. J; Eorstall was appointed umpire. The umpire rendered an award in favor of defendants. ' '
    The award is a nullity.
    C. C. 3076 : There are two sorts of arbitrators — the arbitrators properly so called, and the amicable compounders.
    C. C. 2078 : Before examining the difference to them submitted, the arbitrators ought to take an oath before a Judge, or Justice of the Peace, to render their award with integrity and impartiality in the cause which is laid before them.
    C. O. 8080 : The arbitrators shall appoint a time and place for examining the matter to them submitted, and give notice thereof to the partied or their attorneys.
    C. C. 3067 : The submission must be in writing.
    It does-not appear that any appointment was made by plaintiff, nor does it appear in 'writing that Peychaud was appointed ; it does not at all appear by whom he was appointed,

      It does not appear that they were ever sworn, nor that they gave to the parties notice of the time and place for examining the matters to them submitted. It does not appear that any award of arbitrators was ever rendered.
    It appears that Mr. E. J. Eorsiall rendered, as umpire, an award. It does no't appear that he gave any notice of the time and place of examination to either party; and it does appear that he was never sworn.
    In Harrod et al. v. Lewis et al. 3 Martin, 317, the Court said : In the Code there are many general rules laid down on this subject. Two important ones among them are these:
    1, The power of the arbitrators does not extend to things which are not included in the compromise.
    2. They ought to be sworn. * * * They ought to have been sworn. They have not been. The award was rejected.
    In Bethea v. Hood, 9 An. 88, the Court said: Neither the submission nor the award make any mention of the arbitrators having been sworn; and two of these arbitrators being called by plaintiff as witnesses in the case, testify that they were not sworn. The want of this formality is fatal to the award.
    In Overton v. Independence Alpha, 13 An. 558 : The arbitrators were not sworn.- The award, therefore, cannot be enforced against the defendant.
    II. Should the defendants have charged the premium on gold according to the rate ruling at the time they made the advances, or at the time they sold the molasses ?
    We think, at the time they made the advances. The contract stipulates “that the proceeds of said molasses here, after deducting cost and charges, commissions, and all expenses paid thereon by Puig Bro., will be handed over,” etc.
    The question, then, is what was the cost ? It was what was paid for it: the gold price on the day of purchase, in legal tender notes. The cost is the amount for which plaintiff became indebted to defendant on the day of purchase. He could have discharged the debt on that day by reimbursing them the amount paid. The defendants could have reimbursed themselves the gold paid for plaintiff, by buying at the rate of premium. The defendants were not speculating in the adventure ; by the contract, they were not either to make or lose anything, under any circumstances, except their commissions, which they were to make, but not to lose. If • they had a right to make on the advance of gold, it would have been their obiigation to lose on its fall. They expressly provided against that, by the stipulation that they should deduct the cost out of the proceeds; the cost was the value of gold in legal' tender on the day it was purchased. The cost is the price paid for it, and should have been, and probably was, charged against plaintiff on the day it was paid. The contract is, that the defendants, after deducting the costs paid, will hand over the balance to plaintiff. They do not pretend that they paid the amount charged by them, but they claim the advantage to be derived from the advance of gold. At the time they made the contract, it is evident that they were not to be speculators in the adventure; that the plaintiff alone was the speculator.

      Cyprien Dufour,for defendant and appellant.

    — For a proper understanding of this case, the Court should at once be put in possession of the contract which has given rise to it. It is as follows :
    “Puig Brothers agree to ship either in Matanzas or Cardenas (Cuba) for account of Mr. G. W. Clarke, one or two cargoes of molasses (Muscovado) not exceeding in all one hundred thousand gallons, or thereabout, covered by insurance effected by them. The respective bills of lading to be taken in their name, the shipment or shipments of said molasses shall come to their consignment, and the sales thereof shall be made by them on arrival in New Orleans for account of said Clarke.
    Mr. G. W. Clarke agrees on his part to furnish and send out on his own acoount a vessel or vessels, with the number of empty barrels sufficient to receive in Cuba said molasses, and bring them to New Orleans. He further binds himself to deposit and make over into the hands of Puig Brothers all the empty barrels he will ship to that effect, they being his own property, free from all claim or encumbrance, as a guarantee to said Puig Brothers against loss that might result from said shipments.
    It is fully understood and agreed that the proceeds of said molasses here, after deducting costs and charges, exchange, commissions, and all expenses paid thereon by Puig Brothers, will be handed over to A. W. Walker, and that whatever loss or deficit should result from the operation shall be made good, and refunded to Puig Brothers by G. W. Clarke. New Orleans, February 10th, 1864.”
    The controversy lies in the question of exchange, arising upon the account rendered by Puig Brothers, in pursuance of this contract. They claim exchange in their accounts at the 'rate prevailing at the time when the funds realized under the contract had come to hand ; whereas, the plaintiff contends that the claim should be made at the value of exchange as existing at the time the shipments were made.
    The lower Court sustained the plaintiff’s pretensions, and the defendants have appealed.
    The theory upon which this judgment is constructed, is not explained by the District Judge. He says : “I cannot conceive upon what prinei-pie the plaintiff can be held liable for the premium of exchange, at the date of the settlement between him and the defendants. ” I could not say this is satisfactory. There are some legal principles of the highest order which should not be overlooked in the determination ,of this question.

      ■ The contract between the parties contemplates no payment until the sales are realized in New Orleans. A supposed payment at the time of shipment by Puig Brothers is sheer fancy, because the plaintiff never furnished funds, and the defendants did not promise to advance any.
    The defendants are not the sellers of the goods shipped in Cuba; they are only the medium through which the goods were obtained.
    Every order for the purchase of goods conveys in se modus operand! and the provision made for payment. In the present instance the price is to be paid out of the proceeds of the goods realized in New Orleans; and of course this money cannot bo remitted at the place of purohase otherwise than at the rate of exchange then prevailing.
    The fundamental rule of mercantile law is, that no usage of trade can be set up in contravention of an express contract. ‘1 When the intent of the parties is evident and lawful, neither equity nor usage can be resorted to in order to enlarge or restrain that intent.” Article 1958, O. O.
    “ Le commissionnaire peut avoir a-se rembourser par des modes différents : selon l’usage, á moins que les parties ne s’en soient autrement expliquées ; suivant la convention, quand elle a reglé lo mode de rembonrsement. ” 2 Delamare et Le Poitvin, 494, No. 328. Droit Commercial; Oontrat de Commission.
    “Lorsque les contractants ont reglé d’avancele mode de remboursement cette convention fait partie intégrante de la formo du mandat, mandatum est indivisibile. Ditto p. 494, No. 328.
    It was in obedience to this ruling principle that the eminent merchant, who acted as umpire in the arbitration of this case, rejected the plaintiff’s claim. He says in his report: “ The undersigned can see nothing in the contract to justify such claim, which he considers unfounded.”
    The time and mode of settlement are established in our contract. All costs and charges, exchange, commissions, and all expenses shall be paid out of the proceeds of the molasses to be sold by Puig Brothers. If all these things must be paid with the proceeds of the sales, surely the time of payment is clearly marked out. The intention is expressed with irresistible clearness that such payment will be effected after the sales. And as the debt is contracted in a. foreign country, and- as the payment must of course be in the currency of that country, provision is specially made that exchange will be included in the settlement.
    There cannot be any serious difficulty about this matter when the contract contains so plain a provision for payment. If the 'adventure had been entered into'by valuations upon the parties, or by funds, or credits remitted; for that purpose, the operation would have been closed per appointment on the shipment of the goods. '
    If there had been a stipulation for advances, these should have been reimbursed with the interests, for interests are always chargeable upon advances.
    But there are no such things in our contract. The plaintiff furnishes no money and no credit; he is a speculator. v The defendants make no advances, and call for no interests; they only agree to obtain goods for account of the plaintiff, on condition that they shall have the entire management of them. And the cost, charges, exchange and commission are to be paid from the proceeds of. the sales. So situated, what are the relations of these parties ?
    In law, they are principal and agent. The defendants are mandataries. As such, they are entitled to be protected from all necessary expenses and unavoidable losses.
    The principal is bound to execute the engagements contracted by the attorney, conformably to the power confided to him. Article 2990 O. C.
    The principal ought to reimburse the expenses and charges which the agent has incurred in the execution of the mandate, and pay his commission when one has been stipulated. Article 2991, C. C.
    “Equity obliges the proprietor, whoso business has been well managed, to comply with the engagements contracted by the manager in his name; to indemnify the manager in all the personal engagements he has contracted; and to reimburse him all useful and necessary expenses.” Article 2278. C. C.
    “The general rule seems to be that the mandator is bound to indemnify the mandatory against all losses and injuries, the proximate cause of which can be directly traced to the execution of the mandate.” Story on Bailments; $ 200.
   Howeud, J.

The plaintiff and defendants entered into an agreement, by which the latter were to furnish a quantity of molasses, in Cuba, and the former the means of transportation thereof to this port, to be sold by defendants for account of plaintiff, and “tho proceeds here, after deducting the cost and charges, exchange, commissions, and all exponses paid thereon by Puig Brothors, to be handed over to G. W. Clarke,” who is to refund to them any loss or deficit that may result from the operation.

The sole matter in controversy is the date at which tho exchange should be charged- — the plaintiff contending that he is to pay the rate current at the date of the shipments, and the defendants that he should pay the rate current when the proceeds of the adventure wore realized.

In our former judgment we recognized the principle that the date of actual payment by defendants should govern, and ordered the caso to be remanded to ascertain that date; but both parties applied for a re-hearing, on the ground that the rights and obligations of the parties are to be determined by tho written contract itself, and they call upon us to decide the question from the record before us.

Upon further reflection, we have come to the conclusion that the contract, under a fair and legal interpretation, contemplates the refunding payment by plaintiff of the market value of the molasses in Cuba, at the date of the shipments, with the addition of the exchange' then current and necessary to make the purchase and shipment.

It is, we think, clear that defendants were to furnish the requisite funds, and were to be reimbursed out of the proceeds, and that, unless the contrary be shown, it was a cash transaction. It appears that the purchase had to be made with gold, and that, at the date of the purchase, the gold could be procured at 66 2-3 per cent, premium, and we must infer that they invested or disbursed for plaintiff’s account at those figures, and are to be reimbursed at the same. They were careful to protect themselves against loss, while plaintiff took all the risk of theffuctuations in the market and currency. The contract does not say that the plaintiff should refund in gold or its equivalent at the end of the adventure, but simply the cost and charges, exchange and expenses paid by defendants, and their commissions. Had gold declined, he would still have to refund the sum advanced by defendants, made up of the cost at the place of shipment and the exchange then current. And had the adventure proved a total failure, he still, under the terms of the contract, would have to reimburse the same amount. O. C. 2991. He is, therefore, entitled to the advantages which may attend the risk.

To illustrate the principle : We find that, on one shipment, defendants paid, in Cuba, the sum of $11,650 08 in gold, and that, at that date, the premium on gold was 66 2-3 per cent., which would make the sum of $19,416 80, necessary to effect the payment in Cuba, and which sum should be reimbursed to them out of the proceeds, according to the contract, otherwise; they would themselves become the adventurers, and gain or lose, accordingly as the premium on gold would advance or decline, between the date of the shipment and that of the sale here ; which was not contemplated by the contract; for they were under no contingency to suffer loss, and they cannot be said to sustain loss if they are reimbursed What they have advanced for account of plaintiff on the two shipments.

We think, from an examination of their accounts, in connection with the written contract and the admissions of parties, that the judgment of the lower Court has allowed such reimbursements, and placed a proper interpretation upon the contract in question.

It is therefore ordered that the judgment heretofore rendered by us b<3 set aside ; and it is now ordered, adjudged and decreed, that the judgment of the lower -Court be affirmed, with costs.


author: Howelu, J.

text:
    Grieff & Byrnes v. Wm. G. Betterton.
    íhe Oodo of tractive authorises the property of the debtor to be attached in whatever hands it may be found, and the attachment is effected by service of the process upon the person having in his possession the property of the debtor.
    APPEALS from the Sixth District Court of New Orleans,
    Duplantier, J. Durant & Hornor, for plaintiffs.
   Howelu, J.

Plaintiffs instituted suit against defendant by attachment, and garnisheed Montgomery & Brothers, auctioneers, who answered that they had no property belonging to defendant, but added that they held $3,919 12, proceeds of a lot of merchandize and office furniture, which was in the store No. 5 Tchoupitoulas street, lately occupied by him, and sold at the request and for the account of J. W. Goslee, of this city, and prayed that any further proceedings herein be taken contradictorily with said Goslee, who was thereupon served with the garnishment process. He answered that the defendant had left with him certain goods and credits, most of which he placed in the hands of Montgomery & Brother, auctioneers, for sale, pursuant to the instructions of defendant, and the proceeds of which had not been paid over to him, because the plaintiffs had attached them. He reserved the right to amend his answer, upon obtaining the return of the auction sale and proceeds thereof ; and stated, further, that they had been seized in his hands prior to the institution of this suit, in the case of W. H. Walker & Co. v. Betterton, in the United States Provisional Court, and he held the same subject to said seizure.

After judgment against defendant, a rule was taken on Montgomery & Brother to pay the amount thereof ; to which they answered that Goslee claimed the money in their hands, and prayed that he be made a party to the rule, which was done, and, on the trial thereof, counsel appeared also for Walker & Co. and Bodney & Co., attaching creditors of defendant ; judgment was rendered making the rule absolute, and ordering Montgomery & Brother to pay the amount of plaintiff’s claim; from which, Walker & Co., Goslee, and Montgomery & Brother, appealed.

It is contended, on behalf of appellants, that the service of the garnishment process, from the United States Provisional Court, upon Goslee, prior to the one issued in this cause, effected the attachment of the money in the hands of Montgomery & Brother.

It will be remarked that the writ in this case was issued against and served upon the party in the actual, corporeal possession, and that, although their answers did not admit having property or ftihds of defendendant, yet, the answers of Goslee, for whom they professed to hold, made it apparent that the funds really belonged to defendant, and the attachment was, consequently, effectual, unless the process from the United States Provisional Court had reached them by the service upon Goslee.

A reference to the articles of the Code of Practice, relating to attachment, and the relations sustained by the garnishees, respectively, will solve this question in the negative.

The Code of Practice authorizes the property of the debtor to be attached in whatever hands it may be found, and the attachment is effected by service of the process upon the person having in his possession the property of the debtor. See Arts. 399, 446, 447.

. In this instance, Montgomery & Brother, as public auctioneers, were in possession of the proceeds of defendant’s property, which, Goslee says, he placed in their hands to be sold, pursuant to the instructions of said defendant, and their possession must, under the circumstances, bo considered the possession of the principal or debtor. Up to the service of the attachment upon them, they had no notice of the attempt to attach in the hands of Goslee.

Tailing, therefore, tho answers of Montgomery & Brother and Goslee together, the attachment in the hands of the former was complete, and was not affected by the proceedings had in the United States Provisional Court.

Judgment affirmed, with co’gts.


author: LaSauvE, J¡

text:
    B. W. Huntington v. The Crescent City Bank.
    Whenever a notice of protest for non-payment of any bank note, as described in the section 19 of the Act, approved March 15th, 1855, shall be lodged in the District Court, verified by the affidavit of tho creditor, that the amount is still duo and unpaid, it shall be tho duty of the Judge of said Court forthwith to ordor notice of the same to bo served upon tho Attorney Goneral of the State, and it shall be tho duty of the Attorney General, receiving said notioe, immediately to ascertain whether there be any logal or equitable defonco to tho payment of said note; and, if in his opinion, there bo no such defence, he shall forthwith apply to said Court, by petition, for a writ of sequestration against all the property, and assets of the bank, whose noto has boon protested as aforesaid, and for judgment of forfeiture, upon filing said petition, such sequestration shall issuo, and it shall bo the duty of the Court at once to appoint three liquidators, who shall give such security-as the Court mayorder. Said bank shall be allowed three days to answer said writ; the cause shall be heard in preference to all other cases, and should there be no sufficient legal or equitable defence established to the payment of said note, judgment of forfeiture shall be entered up.
    A judgment by default must first be taken in all oases before a final judgment can bo obtained.
    The Attorney General is the proper porsonto represent tho State, in place of tho plaintiff, for the forfeiture of tho Charter of a Bafik.
    APPEAL from the Third District Court of New Orleans,

      Féltowes, J. Son. B. L. Lynch, Attorney-General, for the State. FeUows & Mills, for defendants and appellants.
   LaSauvE, J¡

This suit is brought to obtain a judgment of forfeiture of the charter of said Bank,

These proceedings, evidently commenced under the 20th section of the act entitled an act to establish a general system of free banking in the State of Louisiana, approved 15th March, 1855; but the said section was amended and re-enacted by an act approved on the 18th March, 1858. See Act No. 287 of the Legislature of 1858. By this amending act, it is provided that, whenever a notice of protest for non-payment of any note,as described in tho section 19 of the said aot, approved March 15th, 1855, shall be lodged in the District Court, verified by the affidavit of the oreditor, that the amount is still due and unpaid, it shall be the duty of the Judge of said Court forthwith to order notice of the same to be served upon the Attorney General of the State, and it shall be the duty of the Attorney General, receiving said notice, immediately to ascertain whether there be any legal or equitable defence to the payment of said note ; and if, in his opinion, there be no such defence, he shall forthwith apply to said Court, by petition, for a writ of sequestration against all the property and assets of the bank whose note has been protested as aforesaid, and for judgment of forfeiture; upon filing said petition, such sequestration shall issue, and it shall be the duty of the Court at once to appoint three liquidators, who shall give such security as the Court may order. Said bank shall be allowed-three days to- answer said suit; the cause shall be heard in preference to all cither cases, and should there be no sufficient legal or equitable defence established to the payment of said note, judgment of forfeiture shall be entered up. * * * •»

On the 6th May, 1865, B. W. Huntington filed his petition in the lower Court, with a protest for the non-payment of a one hunddred dollar note of said Bank, verified by his affidavit as creditor that tho amount was still due and unpaid. He prayed for a sequestration, for the appointment of a receiver, for a citation upon the bank, and for a judgment of insolvency. On the same day the Court ordered a sequestration to issue, appointed a receiver, and ordered the. said Bank to show cause, within ten days, why the said note was not paid on presentation. The bank was served with citation and petition on the 10th of same month. On the 11th, on motion of Huntington, it was ordered that the entire proceedings be served on Hon. B. L. Lynch, Attorney General, to be proceeded in according to law. On the same day, it was ordered by the Court, on motion of J. Q. A. Fellows, of counsel for the Bank, that plaintiff show cause, on the 16th of same month, why the sequestration and appointment of receiver should not be set aside and the proceedings dismissed, on the ground that the entire proceedings were unauthorized by law.

The Attorney General filed, on the 15th of May, 1865, a petition of intervention, stating that he has ascertained that there is neither a legal nor equitable defence to the payment of said note, and praying, among other things, that the Crescent City Bank be cited to appear within three days, and that a forfeiture may be decreed, etc. The Bank was duly served with this petition and citation, on the 18th of same month.

The District Court, without having passed on the rule taken by defendant upon plaintiff, to show cause why the proceedings should not be dismissed, and without a previous judgment by default, proceeded to render a final judgment of forfeiture, on the 27th May, 1865. The Bank, having failed in a motion for a new trial, on divers grounds, took this appeal.

We are of opinion that this final judgment is erroneous, no judgment by default having been previously rendered. We understand this to be a regular suit by the State against the Bank, to have the forfeiture of its charter declared by a judgment of the Court, with this difference from ordinary cases, that the defendant has only three days to answer, instead of ten days, and the cause is to be heard in preference to all other cases. The Attorney General, having ascertained that there is no legal or equitable defence to the payment of any protested note of the Bank, shall forthwith apply to the Court where thá notice of protest has been lodged, by petition, for a writ of sequestration * * * * and for judgment of forfeiture. * * * * * Said Bank shall he allowed three days to answer said suit. Here commences a regular suit in forfeiture of the charter ot the Bank, in the name of the State as a party plaintiff, and not as intervenor as miscalled in this case; and it becomes the duty of the Attorney General to prosecute the suit,through, without the interference of the party who lodged in Court the notice of protest. The writ of sequestration ordered and the appointment of a receiver made by the Court, on the 6th of May, 1865, on the application of B. W. Huntington, were unauthorized by law, and premature. It is only on the appearance and application of the Attorney General that this writ of sequestration can issue.

It is therefore ordered, adjudged and decreed, that the final judgment appealed from and the order of the 6th May, 1865, authorizing the sequestration and appointing a receiver, be annulled, avoided and reversed, and that the case be remanded, to be proceeded according to law.


text:
    Thomas Hale v. The City of New Orleans.
    A judgment can he amended for an error of calculation.
   In this case, it haying been brought to’ the notice of the Court that there are errors of calculation in the judgment, rendered herein on the 14th May, 1866, as follows, to wit: that the notes given by the plaintiff for the credit portion of the four lots (Nos. 20, 21, 22 and 23), bore an interest of six per cent, per annum from daté to maturity, and consequently that the price paid by the plaintiff to the city, according to the torms of sale, for the said four lots, was seventeen thousand one hundred and sixty-eight dollars, instead of fourteen thousand eight hundred dollars.

Also, that the last instalment of said price, being two thousand nine hundred and sixty dollars, with four years’ interest at six per cent, per annum, fell due and was paid on the 18th March, 1857, instead of the 19th August, 1857.

It is now (see Chew v. Flint, curator, 10 La, 372) ordered, adjudged and decreed, that the judgment rendered by this Court on the 14th May, 1866, be amended as follows : that the plaintiff and appellant recover of the_ defendant and appellee seventeen thousand one hundred and sixty-eight dollars (instead of $14,800), with interest of five per cent, per annum, from the 19th August, 1856, on 'eleven thousand eight hundred and forty dollars; and from the 18th March, 1857 (instead of 19th August, 1857),.on two thousand nine hundred and sixty dollars; and, in other respects, that the said judgment remain unchanged.


author: Lajbatjvb, J.

text:
    M. S. Hedricks v. Steamship Morning Star and Owners.
    A bill of lading is merely prima facie evidence, and parol testimony oan be reoeived to contradict or vary its contents.
    Where a party selects one ship in lieu of another whereon to ship his goods, he cannot complain if they are lost, although his bill of lading was made out.for that other.
    APPEAL from the Sixth District Court of New Orleans,

      Buplantier, J. Whitaker, Fellows <& Mills, for defendants.

      B. Fgan, for plaintiff and appellant.

    — It is a well settled principle of law, that parol evidence is not admissible to contradict or vary the written contract, or as to what may have been said before, since, or at the time of making it. The authorities on this point are quite numerous. Seh-S. C. 2256; Henderson v. ¡Slone, 1 N. S. 641; Cook v. ParTcarson, 16 L. 129; Arnou v. Davison, 18 L. 43; Hilly. Hall, 4 R. 416; Clark y. Slidell, 5 R. 330; Williams’ Adm’ry. Garey Hood, 11 A. 113; Angelí on Common Carriers, 228-9; James Knox v. Lidell, 5 R. 111. In this last cáse the Court held that the Article 2256 of the C. C. was not confined to acts relative to the transfer of immovable property or slaves, or authentic acts.
    In the case of Slinson y. Schooner Pennsylvania, 12 L. 332, this Court held “that a ship landing goods at an intermediate port, and shipping them on another vessel without the consent of the shippers, is liable for their loss.
    And in a still later case, Murrell y. Dixey, 14 A. 299, this Court held “ That the cargo of a vessel while in the port of New Orleans, where it had arrived by reason of a deviation occasioned by the unseaworthinesss of the vessel, was at the risk of defendants as insurers.”
    ' See also-Angelí on Common Carriers, $ 175, 176, 177; Abbott on Ship» ping, 340; Parson’s Mercantile Law, 348, 351.
    ' Those authorities, we contend, show that it is a universal and well set» tied principle of law, and one' recognized by this Honorable Court, that the least deviation on the part of the common carrier from the terms of the contract contained in the bills of lading, renders them liable to the shippers as insurers.
    When an agent acts within the’scope of his authority, his acts are binding on his principal. Attord y. Allord, 6 R. 320; 8 Wheaton, 338; 7 Cranch, 299.
    Mr. Fuller, who signed the bill of lading, was the clerk of defendants and purser of the steamship Morning Star; he is shown to have signed other bills of lading for defendants. See the four bills of lading offered in evidence, all signed by him.
    Now, if the plaintiff’s bill of lading was not a good contract of shipment between him and the defendants, on the steamship Morning Star, we aro unable to conceive how the defendants can pretend that it is a good contract of shipment between them and the plaintiff, by the steamship Electric Spark, when the bill of lading does not contain a word about any other vessel than the Morning Star.
    It seems to us clear, that it is a contract of shipment by the steamer Morning Star, or no contract at all.
    Where one or two innocent persons must suffer, he ought to suffer who has placed his property in the hands of a careless agent, rather than one who acts in good faith, and on his confidence in what the agent has done. 4 A. 19. 3 A. 400.
    Corporations can only contract in writing, and parol evidence is inadmissible to contradict the writing. Courtney et at. v. Miss. Marine and

      Fire Insurance Co. 12 L. 233. See also the ease of Pontcharirain B.B. Co, v. Sleirn, 2 A. 129.
    For these reasons, we think the judgment of the Court a quo ought to be reversed, and judgment rendered in favor of the plaintiff for the amount of his claim.
   Lajbatjvb, J.

This suit is brought to recover of the defendants $1,255, the value of four boxes of merchandizes, received by them on the 9th July, 1864, to be shipped on board steamer Morning Star, from New York to New Orleans, and alleged not to have been delivered according to the bill of lading.

The answer contains, in substance, a general denial and averments that the bill of lading was not a contract of shipment intended for the Morning Star; that, on the 9th July, 1864, and for a considerable time immediately preceding and subsequent, the said steamship was not on the berth in the North River, at New York, receiving goods, but was at the dock in the East River, rebuilding; that there was no one authorized to receive freight and sign bills of lading; that the fact of her being* out of the trade, and the Electric Spark replacing her between New York and New Orleans, was well known; that the said freight was actually delivered by plaintiff’s agent to the steamer Electric Spark, in New York; that said steamer, on her way to New Orleans, was captured by Confederate cruiser Florida, and that, in consequence, the said freight was not delivered, without any fault of theirs.

The District Court, after hearing the testimony, gave judgment in favor of .the defendants, and the plaintiff appealed.

On the trial below, the Court properly admitted parol evidence to contradict or vary the bill of lading, which was merely prima facie evidence.

The testimony shows that, at the date of the bill of lading, 9th July, 1864, the Morning Star was undergoing repairs in East River, and had been so for at least four weeks previously, and remained undergoing re-' pairs there until September, 1864; that the Electric Spark took her place, and was advertised by the company to sail for New Orleans, on the 9th Jtdy, 1864;’ on this day she lay side of the company’s wharf, in sight of every person who delivered goods for shipment; she had been advertised from June 28th, 1864, to the 9th July, inclusive, to sail from New York to New Orleans on the 9th July, 1864; she was so advertised in 'the Journal of Commerce, Commercial Advertiser, Evening Post, Daily World, New York Daily Times, and the New York Herald, for some eleven days previous to her sailing. From the 6th of June, 1864, to the 24th September, 1864, the Morning Star was not in a condition to go to sea. The bill of lading shows that the goods were to be shipped on the Morning Star. Previous to obtaining this bill of lading, plaintiff’s agent in New York had obtained a permit to ship the goods by the Morning Star. The Electric Spark was considered a very good, seaworthy vessel, but was not so fast and so large as the Morning Star.

After having carefully examined the testimony, we are of opinion that plaintiff’s agent’s consent was impliedly and constructively given to ship the goods on the steamer Electric Spark. This agent sent the goods to the steamer by his cart-man, who delivered them to the Electric Spark, in lieu of the Morning Star, the latter not being in port, of course, and the former occupying her place. The plaintiff’s agent states in his testimony: “I delivered the goods, mentioned in the bill of lading, myself. I saw them delivered, and I actually delivered them; my cart-man received them.” The delivery, then, of the goods to the Electric Spark, by his cart-man, was his own act, and binding on his principal. The bill of lading is dated 9th July, 1864, showing that the goods were delivered on the very day that the Electric Spark was to leave. She was captured at sea and destroyed, with her whole cargo, by the cruiser Florida.

We are of opinion that the defendants have satisfactorily accounted for the non-delivery of the goods to the plaintiff, and that, under the circumstances, they are not responsible. The case would be different, if the goods had been actually and really delivered to the Morning Star, and reshipped by her on the Electric Spark.

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


author: Labauve, J.

text:
    Jean Pierre Guenivet v. Frank Perret,
    Where a depositor entrusts funds for use and interest into the hands of another party, and the latter keeps no separate account of tho same in Bank, in tho name of such depositor : Held, that ho will be held responsible in legal currency, whatever may have been the character of the notes deposited with him.
    APPEAL from the Fourth District Court of New Orleans,

      Theard, J. R. R. Qrandmont and Durant & Rornor, for plaintiff and appellant.

    The defendant relies on the fact that he had funds deposited in the Bank of Louisiana in his own name, and that after the order of General Butler, dated May 16, 1862, and by which the banks of this city were directed to pay all deposits in their own bills, United States Treasury notes, gold or silver, he withdrew his deposit from said Bank of Louisiana (in notes of that institution) and made a separate bundle of the amount due plaintiff, which was labeled “ Jean Pierre Guenivet.” But how can this act on his part, which was done for his own private interest, without the participation or knowledge of plaintiff, be binding on the latter ? Had the plaintiff any interest in the funds thus withdrawn from the bank ? Were not these funds the exclusive property of the defendant, who had at the same time his- money scattered in three banks of this city ? Why should the plaintiff, then, share in the loss resulting from the depreciation of the notes of one of them ?
    Again, is the date'of the withdrawal of these funds from the bank established before the Court ? and is it proven that the defendant has not made use of them before their depreciation, in his own transactions ?
    But admitting, for argument's sake, that there was an obligation on the part of the plaintiff to receive Louisiana bank notes in payment of his claim, then I say that a real tender of- these notes in the manner pointed by law should have been made to him, (0. P. Article 407) and that without such a legal tender, foEoived by a consignment, in the mode pointed out by Article 413 of the same Code, the subsequent loss occasioned by the depreciation must entirely faE on the defendant. So that in either case, whether the plaintiff was bound to accept the notes of said bank or not, the result is this case would be the same.
    The judgment appealed from must be reversed, and given in favor of plaintiff, payable in Treasury notes, for the sum claimed, viz: $2,647 08, with interest from judicial demand. See 12 An. p. 267, Code of Practice, Article 405 et seq. Civil Code, Article 2163, et seq. and 2146.
    We rely on tho foEowing points and authorities :
    1. The money coEected by defendant for plaintiff, by which defendant became indebted to plaintiff, -and became bound to return other money of equal quantity and value, is not a deposit, but loan for use. L. C. 2883, 2884; Story on Bailments, § 88, p. 65; Edwards on Bailments, p. 66; 17 WendeE, 100, 10 A. 342, 346.
    2. In this, and in aE similar cases, the property is transferred to the depositary or loanee. Troplong, Depot 115, 116; Pothier, Contrat de Bienf, p. 71; Melville v. Dodge, 60 Eng. C. L. H. p. 455; Pott v. Clegg, 16 Exchequer Bep. 323, United States Bank v. Bank of Georgia, 10 Wheaton, 333.
    3. The moneys that went into the possession of the defendant were not to be restored in the identical notes, but an equal amount in cash. They passed therefore into the hands of the defendant, and became his property.
    4. In such a case, the defendant is liable for the whole amount of the debt, in dollars, and it is error in the Court to render a judgment for money payable in Bank of Louisiana notes.
    5. It does not affect the case, that defendant never used the money; or that he withdrew the amount from bank, and then made a special deposit of the notes in an envelope, with plaintiff’s name on it. The law is that, in commerce, as soon as the money is received, it is considered as having been put in circulation. There is not the sHghtest proof in. this record, that it was the intention of the parties, that defendant was to restore the identical money he received. Troplong, § 115.

      Carleton Hunt, for defendant.

    — The relation between plaintiff and defendant was that of principal and agent. The contract of mandate under which they acted, requires no particular form, and to be correctly understood and interpreted, must be read by the light of the surrounding circumstances of every kind. The authority of the defendant as a mandatary, is to be inferred from his occupation as a merchant and planter, or the particular duties he performed, and the manner of their execution as well as his relations to the plaintiff. And for some ends a mandate must be express and special, but for others it need be only verbal, and as in this instance, general and indefinite. O. G. 2961, 4, 6, 9; Millet' v. New Orleans Canal Company, 8 Rob. 23G.
    In the case before the Court, the plaintiff was saved from a total loss by the refusal of the defendant to withdraw his money when the Bank of Louisiana was paying Confederate notes only. It is notorious that other agents at the same time pursued a different course, accepting the return of their deposits in Confederate currency, and that their conduct was followed by calamitous consequences. But in this they were guilty of no fault, and are Certainly not chargeable with neglect; neither would an action in favor of a principal to recover for losses so sustained lie against any one of them.
    The plaintiff was favored by fortune. Whore nearly every other purse suffered, or was entirely lost, his escaped uninjured. And the evidence contained in the record establishes that the prudent and successful course of Perret was afterwards ratified by the plaintiff, who, on the 16th of June, 1862, applied to the defendant for $600, and himself received that sum in notes of the Bank of Louisiana, and then relieved the defendant of the agency.
    On the trial in the lower Court no explanation was attempted of these acts of the plaintiff. Had he disapproved of the conduct of the defendant, it is clear he would not have received Bank of Louisiana notes from him, and at the same time relieved him of his .agency; or he would at least have returned the notes within a reasonable delay, and make knowD his disapprobation. He cannot play fast and loose, and was bound to make his election. The acts of a principal are liberally construed in favor of a ratification; he cannot adopt a transaction in part, but must endorse it as a whole or reject it altogether; and if the ratification be established for a part, it will operate as a confirmation of the entire business concerned. Neither can he avail himself of the acts of his agent while he thinks it to his advantage to do so; settling with and relieving him altogether, so as to terminate their connection .and relation, as in this instance; and after-wards repudiate his own conduct, because its consequences turn out to be adverse. C. C. 1811; Story on Agency, $ 250; Flower v. Jones, 7 N. S. 143; í)upré v. Splane, 16 La. 51; Ward ei al. v. Warfield et ail., 3 An. 468, and numerous cases there cited.
    But, if for the sake of argument, it is conceded that this reasoning and these authorities are inapplicable to the case at bar, on the ground that the ratification of Ferret’s acts by the plaintiff, and the termination of the agency, do not sufficiently appear; and it is agreed that the contract of mandate continued uninterruptedly between the parties, the well ascertained principles of law which regulate that contract, furnish the defendant with a thorough vindication of his conduct, and support the defence he has here set up.
    In treating of the obligations of a person acting under a power of attorney, the Civil Code provides : . '
    ' ‘‘The attorney is responsible, not only for unfaithfulness in his management, but also for his fault or neglect. Nevertheless, the responsibility with respect to faults, is enforced less rigoursly against the mandatary acting gratuitously, than against him who receives a reward.” C. C. 2972. And the Code Napoleon contains the same provisions. Code Nap. Article 1992.
    Troplong, in explaining the Article of the Code, says :
    “Ainsi. les magistrals pourront prendre'conseil, de l’équité; dans le cas -de mandat gratuit, ils verront si le mandataire qui rend un service d’ami doit autre chose que les soins qu’il.donne a ses propres affaires, et si une responsabilité plus sévfere ne doit pas étre réservée pour le mandataire qui regoit une rétribution, ou pour celui qui a fait l’officieux et, par ses promesses, a empéché le mandat de. choisir un représentant capable. •Troplong, Du Mandat, No. 393.
    And Duranton, after noting the fact that the aneient Roman law upheld the doctrine of the responsibility of the mandatary, with great severity, observes:
    “Mais le Code, évidemment, s’est éloigné de ces principes rigoureux; car si, dans tel cas donné, le mandataire doit repondré de sa faute, parce qu’il re<joit un salaire, il est bien elair qu’il n’en devrait pas repondré si le mandat était gratuit, autrement la circonstance qu’il y a un salaire serait absolument indifférente, et cependant les rédacteurs du Code veulent qu’on y ait égard;’d’oñ il faut conclure, ainsi que nous l’avons dit souvent dans cefc ouvrage, que, méme sous le Code, il y a des degrés dans les fautes, ou, si l’on veut, des cas ©ú le ¡juge doit y avoir égard, et des cas oú il n’en doit pas faire la base d’une condamnation a des dommagésintéréts.” Duranton, Droit Franjáis, vol. 18, pp. 232, 233.
    It is to be observed, that the Article of the Napoleon Code here referred to, and the reasoning of Troplong and Durant on thereon, pre-suppose the commission of some fault on the part of the unsalaried mandatary, to which indulgence is extended because his services are gratuitously rendered; and, a fortiori, from the same spirit of natural equity it follows that; where no fault whatever has been committed, as in the case at bar, and there appears to be only such an error of judgment on the part of the mandatary, in favor of the issue of a bank of the highest credit, as could have been avoided, under the circumstances, by infallibility alone, that there is no consequent liability.
    Our own jurisprudence on this subject is well settled, and has wisely provided for the very class of cases to which that before the Court belongs. In this respect our law contains provisions not to be found in the French Code.
    The Code of 1808 says: “ In case of an indefinite power, the attorney cannot be sued for what he has done with good intention. The Judge must have regard to the nature of the affair, and the difficulty of communication between the principal and the attorney.” Old Code, chap. 3, Article 20, p. 424; and Article 2975, of the Code of 1825, is a repetition of this Article of the Code of 1808.
    In the case of Madeira el al, v. Tovmsley el al. Judge Porter, in delivering the opinion of the Supreme Court, laid down the principle which regulates the responsibility of the compensated mandatary, as follows:
    “ The degree of diligence which is required of an agent who receives compensation for the business he transacts, is that which a prudent man pays to his own affairs, what is called in law ordinary diligence, and which, of course, creates a responsibility for ordinary nogleet. ” 12 Martin Rep., p. 87. And this reasoning, as has been already indicated, applies with increased force to the case of the gratuitous mandatary, who falls into natural and unavoidable errors of judgment.
    The same learned Judge, in the later case of Percy v. Millaudon, after an elaborate discussion of the principles of the law of mandato, defined the duties and liability of the mandatary as follows:
    “ But, when the person who is appointed attorney in fact has the qualifications necessary for the discharge of the ordinary duties of the trust imposed, we are of opinion that, on the occurrence of difficulties in the exercise of it, which offer only a choice of measures, the adoption of a course from which loss ensues, eannot make the agent responsible, if the error was one into which a prudent man might have fallen. The contrary doctrine seems to us to suppose the possession, and require the exercise, of perfect wisdom in fallible beings. No man would undertake to render a service to another on such severe conditions.” 8 N. S. 74. See also the cases of Dupré v. Splane, 16 La., p. 54, and Ward el at. v. Warfield el al., 3 A. p. 468, already referred to.
    The correct application of these decisions to the circumstances of the case before the Court, leaves no room for doubt that the defendant has not incurred any liability to the plaintiff. When he deposited the plaintiff’s money in the Bank of Louisiana, he put his own there also. If his own business prospered, he made twenty-five per cent. ■ profit for the plaintiff at the same time; and when, at a most critical period in the late great civil war, when values were unsettled, and all financial calculations, however skillful, failed, and in the progress of which the Bank of Louisiana itself succumbed, he withdrew plaintiff’s funds in bank, notes of that institution, then and long afterwards at par; he did exactly what,, as a prudent father of a family, he thought proper to do at the same time for himself, and to protect his own interests.
    The defendant now submits this case with confidence to the judgment, of the Court. The demand of the plaintiff is unreasonable, and finds no. warrant in the facts which have been established, or in correct principles of law. It is impossible to render services free from human eryor, and this suit shows that the plaintiff required such; he must therefore fail. These views were deemed so correct by the Judge below, that he felt no hesitation in expressing his warm approval of defendant’s conduct, and, promptly gave judgment according to his prayer, without even taking the matter under advisement. The language of Dr. Paley, which is. quoted with approval by Story (Story on Bailments,- g 182), furnishes the only just and true rule in such'cases :
    “Whoever (says Paley) undertakes another man’s business, makes it. his own; that is, promises to employ upon it the same care, attention and diligence, that he would do if actually his own; for he knows that the, business is committed to him with that expectation, And he promises no more than this.”
   Labauve, J.

The plaintiff claims of the defendant the sum of $2,647 08, as a balance due by defendant to him for servicos rendered as a gardener for a number of years up to the 30th of November, 1864, as shown by an account rendered.

The answer contains first, a general denial, but admits that the defendant has in his possession in notes of the Bank of Louisiana, the sum of $2,647, as shown by several accounts current, rendered from time to time, and by plaintiff acquiesced in; and that said1 bank notes have been kept to his order, and have been tendered to him and refused. The said sum in Louisiana Bank notes, was deposited by defendant in Court as a tender.

After hearing the evidence, the Court below decreed that plaintiff recover of the defendant the sum of $2,647, in notes of the Bank of Louisiana, and that plaintiff pay costs.

The plaintiff took this appeal.

The evidence shows that the plaintiff was employed by defendant for eight- or nine years as gardener and overseer, and that defendant invested his money by loaning it at interest or buying paper, and rendered him generally accounts current of his position with credits and debits, showing what amount was in his hands, in individual notes and cash. The accounts current rendered successively by defendant to plaintiff, showing balances cash in his hands, are as follows :

On the 5th March, 1858, balance, in cash....................$1,317 25

“ “ 19th February, 1859, “ “ “ .................. 279 89

“ 10th March, 1860 “ “ “ .................. 39119

“ “ 8th July, 1863, 31st December, 1862................. 2,647 08

On the 12th March, 1864, he rendered another account, commencing by crediting the plaintiff'with the above balance in his hands on the 31st December, 1862, as follows :

'Reste a son avoir a ce jour et a sa disposition, en billets de la Banque de la Louisiane $2,647 08.'

’ In the account rendered, 8th July, 1863, where the above balanee figures as'beingin his hands, 31st December, 1862, there is not’ a word about its being in notes of the Louisiana Bank. He says : Reste a son avoir, 31 Décembre 18'62, $2,647 08.

i 'On the 28th November, 1864, the defendant wrote a letter to the plaintiff, stating that the balance in his hands, consisting in notes of the Bank of Louisiana, as per last account rendered, was at his disposition and nsli’s and perils.

All these balances struck by these accounts current so rendered, constituted the relations of creditor and debtor between the parties. The only doubt, as to the currency with which the balances should be paid, is raised by the account rendered, 12th March, 1864, where the defendant says : ’

'31 Décembre, 1862., Reste it. son avoir á ce jour, et á sa disposition, tin billet dela Banque de la Louisiane, $2,647 08.

But this restriction of the mode of payment is contradicted by the account pondered 8th July, 1863, striking that very balance as in the hands <gf defendant, where it is said : “31 Décembre, 1862. Reste a son avoir, $2,0^08.” . '

It is in evidence th^t plaintiff cannot sign his name, that he can read printed matter, but not hand-writing. We believe,. under the circumstances, that the plaintiff is not bound by this last account, the contents of which it seems he did not know, as shown by the testimony. The plaintiff had no particular funds in the hands of the defendant, who had at the time, accounts with other banks than the Bank.of Louisiana, and there was no separate account in the name of the plaintiff; whatever money plaintiff had in the hands of the defendant, created simply a common indebtedness, and not a special deposit of any distinct funds. Tile judgment of the District Court must be reversed.

,Itis therefore ordered’, adjudged and decreed, that the judgment appealed from be annulled and avoided. It is further ordered, adjudged £^nd decreed that the defendant, Frank Perret, pay to the plaintiff, Jean Pierre Girenivet, the sum of twenty-six hundred and forty-seven dollars, with legal interest, from judicial demand, to wit: from the 30th of December, 1864, until paid, and costs in both Courts.


author: IiiSHET,'J.

text:
    Jean Pierre Guenivet v. Frank Perrett.
    — On a Rehearing.
   IiiSHET,'J.

A motion is made to dismiss the appeal in this ease, on the ground that the plaintiff, appellant, has acquiesced in said judgment, by having voluntarily executed the same, said appellant having subsequently to the granting of the appeal, taken the amount of $2,647 08, in bank notes of the Bank of Louisiana, tendered to him, and for which judgment was rendered in his favor, as appears from the copy, of the receipt of the appellant, filed in this Court.

Said receipt is in the following words : “Received from the Clerk of. the Fourth District Court the sum of twenty-six hundred and forty-seven dollars and eight cents, in notes of the Bank of Louisiana, to be held by me subject to the decision of the Supreme Court in the above ease.

(Signed) H. R. Grandmont, attorney for plaintiff; $11 27 still due.”-

This cannot be considered a payment in satisfaction of the judgment,- or acquiescing therein; for the receipt expressly.states-that these hank notes are to be held subject to the decision of this Court in this case. It must be viewed as a deposit made by the Clerk of the Fourth District Court, in the hands of plaintiff’s attorney, to abide the action of this-Court. .

This view is sustained by the fact that the costs, a statement of which, with the sum recorded by the Clerk, accompanies the receipt, were not deducted.

The attorney of the plaintiff seems to he the custodian for the Clerk.

It is therefore ordered that the motion to dismiss be overruled, atthe costs of the mover.