text:
    W. J. Whiting and Wife v. J. Hagerty et al.
    Where the sheriff's return does not mention that service of citation was made in the parish of which he is sheriff, it will be presumed that the service was made in that parish, unless the contrary be proved. It will also be presumed that he Imew the person on whom he returns that he made service.
    Sureties are not entitled to the benefit of the discussion of the principal's property, unless they have furnished a sufficient sum to carry the discussion into effect.

      APPEAL from the District Court of Morehouse, Copley, J.

      Richardson and Todd, for plaintiffs.

      Robertson and Boatner, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

Hagerty prayed the dismissal of the suit upon the ground that the citation was illegal, because signed by a deputy clerk, and because legal service had not been made. The first ground is palpably frivolous, and is abandoned in argument. As to service, the return is as follows: “ Received, April 2,1850, and on the same day, proceeded to the residence of M. J. Wilkins, the defendant’s place of abode, and found him absent. I therefore served a copy of the within citation, together with a certified copy of the petition, by handing the same to M. J. Wilkins, living in the house with said Hagerty, being a free white person above the age of fourteen years.” The first objection is, that no mention is made “ where the domicil or house inhabited by the defendant is situated,” and the appellant cites the article 201 of the Code of Practice. The officer who served the writ was the deputy of the sheriff of the parish of More-house. If he had returned, in express terms, that the abode of the defendant was in the parish of Morehouse, the objection would be untenable. But as the sheriff could not lawfully make a service out of the limits of his parish, and as he has served it in this case, we are bound in the absence of contrary evidence to presume in favor of what has been done by the public officer, acting under oath, that it was rightfully done: that is to say, that the service was made in the parish of Morehouse, and, consequently, that the defendant’s abode was in that parish. See Kendrick v. Kendrick, 19 L. R. 37.

The next objection is, that the return does not state that it was served “ at the usual place of domicil or residence of the defendant.” We think the expression “ place of abode,” satisfies the requisitions of the code. Arts. 189, 201.

The next objection is, that the return does not state “ whether the name of the person was known to him, or whether he learned it by interrogating the person.” From the officer’s certificate, that the person was M. J. Wilkins, we are bound to presume that he knew him to be that person. There is perhaps some obscurity in the English text of article 201 C. P. The French text is less ambiguous.

The action is against Hagerty, Aaron Livingston and R. D. Livingston, on a note in the following words and form: “ $420. Parish of Morehouse, February 22, 1849. On the first day of January, eighteen hundred and fifty, we, or either of us, promise to pay to William J. Whiting and Susan DeGraffenreid, his wife, the sum of four hundred and twenty dollars, the balance due on the sale of slaves purchased by the undersigned of Whiting and wife, as per instrument under private signature, bearing even date herewith. Jonathan Hagerty ; Elizabeth (her ¡x¡ mark) McLendore. Aaron Livingston, R. D. Livingston, sureties. Attest: J. H. Emsailer.”

Judgment was asked against the defendants in solido, and was so rendered in the court below. The note was the only evidence offered.

Aaron and R. D. Livingston contend, that they were erroneously condemned in solido. They argue that upon the face of the instrument, fairly construed, they are not bound in solido, but are mere sureties., The joint and several words, “ we or either of us” apply, it is said, to Hagerty and McLendore, and are not to be considered as used by the sureties, so as to bring them under that class of sureties who are bound in solido with the debtor, and as contemplated in the art. 3014 of the Civil Code. We deem it unnecessary to pass upon this question of construction. For if they are not sureties who have bound themselves in solido with the debtor, they are at all events ordinary sureties. As such, they have not entitled themselves to discussion, “ because they have not furnished a sufficient sum to have the discussion carried into effect. C. C. 3016. They are also, as sureties, “ each individually liable for the whole debt incase of insolvency of one of them;” C. C. 3018; arid not having pleaded the exception of division, they were properly condemned in solido. McCausland v. Lyons, 4th Ann. 273.

On the part of Hagerly the appeal is manifestly frivolous, and the plaintiff is entitled to damages.

It is therefore decreed, that the judgment be affirmed with costs. And it is further decreed, that the plaintiffs recover from the defendant, Jonathan Hagerty, the further sum of eleven dollars as damages for a frivolous appeal.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Elizabeth F. Dees and Husband v. J. H. Seale et al.
    Property purchased by the husband with the wife’s paraphernal funds becomes community property, and may be sold for the debts of the community.
    Where a wife as one of the heirs of a succession, consents to a sale to effect a partition, and at the sale the husband purchases' the property, crediting the price on the share coming to the wife, the property is not paraphernal but community property.
    APPEAL from the District Court of Union, Copley, J.

      McGuire and Ray for plaintiffs.

      Baker, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues the defendant as sheriff of the parish of Union for damages, for having sold under execution against her husband a slave named Clem, belonging to her. She is one of the heirs of Charlotte Emerite Eelahoussaye. In 1833, a judicial sale of the estate was made at the request of the heirs (her husband representing the plaintiff,) in order to effect a partition. At the sale the slave was adjudicated to the husband for $1650. Both husband and wife signed the proces verbal of sale. In the settlement of the estate she credited her share with the amount of her husband’s bid.

The plaintiff' contends, that the slave became her paraphernal property; the defendant, that he was the property of the husband by virtue of his purchase. Our code declares that property acquired during the existence of the community of acquests belongs to the community, whether the purchase be in the name of one or both of the parties, and that on the dissolution of the marriage, all effects me presumed to be common effects, unless they prove satisfactorily which effects they brought in marriage, or have been given them separately, or they have respectively inherited. Art. 2371, 2374.

The plaintiff did not inherit the slave Clem, but only an undivided interest in him, which on her own application was publicly sold by the parish judge. He was not given to her in payment of her interest in the succession,and it is not pretended was brought in marriage.

The husband paid for the slave with the paraphernal funds of his wife; but in precisely a similar case, the Supreme Court decided, in 1836, that the slave became community property, and the price a legal charge against the community; and the opinion has been adhered to in many subsequent decisions. Brown and Wife v. Cobb, 10 L.R. 180. Dominguez v. Lee, 17 L. R. 300. Brusser v. Wheeler, 4 R. R. 117.

. There is nothing in the case of Newsom v. Adams, 3 L. R. 232, or Savinet v. LeBreton, 1 L. R. 520, adverse to the opinion. In the first the wife exchanged a paraphernal slave for another; in the last, the conveyance was to the husband, but he acknowledged in the act that he received it as a part of the wife’s paraphernal estate. And in all those cases in which the claim of the wife to property purchased during the existence of the community has been recognized. She established not only that it was purchased with her paraphernal funds, but also that she purchased it herself, or that it was purchased for her and in her own name. 1 R. R. 368. 11 R. 529, 446. 2d Ann, 931. This is indispensable to distinguish it from the community property, or to form an exception to the rules of law as to purchases during the existence of the community.

An eifort has been made in argument to show that the wife herself purchased the slave, but we cannot come to that conclusion. The maxim res peril domino is a good test of the property in this case. Had the slave died, we think any court under the circumstances would have accorded to the wife a legal mortgage for the $1650 of her paraphernal funds with which the price was paid. "With this view of the merits of the case, it becomes unnecessary to examine the bills of exception.

The judgment of the district court is affirmed, with costs.


text:
    Malinda Sears, Administratrix v. J. B. Wilson et al.
    A widow may be appointed administratrix of her deceased husband.
    An administratrix may maintain a possessory action for property which had been in the possession of the deceased.
    The plaintiff in a possessory action may recover the value of the hire of the slaves during the pendency of the suit.
    APPEAL from the District Court of Morehouse. Copley, J.

      McGuire and Ray, for plaintiff.

      Baker, for defendants,
   The judgment of the court was pronounced by

Preston, J.

This is a possessory action, in which the plaintiff as administratrix of his estate alleges, that her late husband possessed as owner, until his death in September or October, 1847, the slaves she claimed. She alleges that the defendants obtained possession of the slaves without any right in November, 1847, and on the 29th of that month she instituted this suit to recover them. The defendants were not legally cited in this suit until the latter part of August,' 1848, although the slaves were sequestered immediately after the suit was instituted.

The defendants excepted that the plaintiff had no authority to institute this suit, on the ground that being a woman she could not be appointed an administratrix, which is a civil function, and relies upon the case of Cason v. Cabrara, administratrix, decided at the last term of this court. In that case, Cobrara was appointed administratrix of her brother’s succession, although under the disability prescribed by the 25th article of the Civil Code. In this case, the plaintiff was appointed administratrix of the succession of her deceased husband.

The 2d section of an act, approved the 28th of March, 1840, recognizes the appointment of the surviving partner in community as administratrix of the estate of tlie deceased husband. See also the case of Ferrari v. Lambeth et al., 11 L. R. 108.

We think the actual possession of the husband continued in the surviving widow in community, and administratrix of his estate until an actual adverse possession took place. Davis v. Dale, 2 Ann. 205, 206. Ellis v. Prevost, 19 L. R. 254. 13 L. R. 230. 2 N. S. 20.

The bills of exception taken by the defendant are not tenable. Deeds are immaterial to the possessory action, especially if made subsequent to its commencement.

Parol proof of the letter of attorney from McDowell to HicJcs to take possession of the slaves, could not be received without an effort to obtain the document, nor of the existence of a petitory action by McDowell and Wife v. Sears, to recover the slaves, instead of a copy of the record. Moreover, both documents were immaterial in a possessory action. Conversations of McDowell and his counsel in relation to the suit and slaves could not be given in evidence against the plaintiff. We proceed, therefore, to examine the merits of the case.

On tho 25th of November, 1848, two of the defendants disclaimed the possession of the slaves. J. B. Wilson answered that he had been put into possession of the slaves by their legal owner that neither the plaintiff nor Daniel Sears> whose estate she represents, had the quiet, uninterrupted and peaceable possession of the slaves for the year preceding the institution of her suit and alleges that about three months before it was instituted Daniel Sears took the slaves out of the State of Louisiana, for the purpose of preventing the legal owner from getting the negroes, knowing that they had or were about to sue for them. He alleged that they belonged to Mary McDowell whose agent he was.

Boss proves that Daniel Sears possessed the slaves quietly as owner for two years before his death. Pie saw them in his possession at his house in Claiborne parish, in the spring or summer of 1847. Henderson knows that Sears possessed them as owner for several years before his death. He was at his house in February, 1847, at which time they were in his possession. Overton Boss knows that Sears had the slaves in possession for two years or more. He last saw them in his possession in the summer of 1847, in peach time. Bohertson heard Wilson and Sears talking of a compromise of their claims to the negroes in July, 1847; they did not effect it then, and agreed to meet next morning. Wilson got possession of the slaves, not from Sears, but from a man by the name of Hicks, in November, 1847, at the Mississippi river, and brought them to Bastrop.

This testimony, which is in no respect rebutted, fully proves that Daniel Sears was in the peaceable possession of the slaves for two years before the month of July, 1847, and, we must presume, until his death. His widow was appointed administratrix of his estate on the 5th day of November, 1847. The possession continued in her until an adverse possession was established. That took place in November, and she brought suit the same month. A legal citation was served upon the defendant in less than a year after this adverse possession took place.

The plaintiff is entitled to recover the possession of the slaves, and the value of their services until delivered up; for which 'the jury have made but a reasonable allowance, which is fully supported by the testimony of Boss and Davenport.

The judgment of the district court is affirmed, with costs.


author: Slidell, J.

text:
    Francis L. Matthews v. George W. Wilson.
    A contract purporting to sell a slave, in which the vendor has the privilege of redeeming the slave upon paying a certain sum and interest, the vendee agreeing to pay a certain stipulated hire for the slave during the time, hut if the slave is not redeemed, the vendee is to become the absolute owner upon paying an additional sum, will be regarded as a security for money lent, and not as a sale. Until the vendee has paid the additional sum, he does not become the owner of the slave and the vendor may redeem, and may deduct the hire of the negro from the amount loaned.
    APPEAL from the District Court of Morehouse, Copley, J.

      R. W. Richardson, for plaintiff.

      Hunter and Matthews, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

In the early part of the year 1846, the plaintiff and defendant entered into a written contract in the State of Arkansas. By that contract, Matthews purports to sell to Wilson a slave upon certain conditions. The conditions are as follows: “ That the said Francis L. Matthews shall have privilege to redeem said negro man Adam at the expiration of the year 1846 or 1847, by paying the said George W. Wilson three hundred dollars with ten per cent per annum on that sum; and the said George W. Wilson shall allow the sum of eight dollars per month for the labor of said negro during the time of possession, clothe him, &c.; and if said Matthews should fail to redeem said negro at the end of 1846, the said George W. Wilson shall pay the said Matthews a balance of two hundred dollars more and keep said boy.”

In the summer of 1846, the defendant made a clandestine departure from Arkansas and came to Louisiana, bringing the slave with him 'without the consent or knowledge of the plaintiff. In 1847, the plaintiff made two attempts to come to a settlement with defendant. On one occasion he sent an agent to the defendant, who admitted the slave belonged to the plaintiff, and said the plaintiff might have him on paying $830 — a pretension entirely unwarranted by the evidence in the cause. On another occasion the plaintiff went in person. A witness who was present at the interview states, that Matthews told Wilson his object was to settle with him and get his negro. He did not show him any money, but told him he had the money. Wilson said, “he had no settlement to make, and did not want his money, and all he could get from him was what lead and steel he could carry away, and if he did not leave he would kill him.” This action was afterwards brought to recover the slave. The plaintiff had judgment in the court below, and the defendant has appealed.

The intention of the parties was, that the slave should be a security for the debt, and not be absolutely conveyed to the defendant. It also involved a contract of hiring; and the intention of the parties, as may he deduced from the instrument, and as has been distinctly proved by other evidence which has been admitted without objection, was that the wages should be applied to the interest and principal of the debt. Although there is some ambiguity as to the time within which it should be optional for the plaintiff to redeem, and after which the defendant should have the right to take the slave absolutely by paying $200, yet we think the intention upon the face of the instrument was, to allow the plaintiff until the expiration of 1847; and we are not permitted to doubt upon this point, under the other evidence which was admitted without objection, explanatory of the written agreement and showing the defendant’s own construction of it. Besides, even if the intention was that Wilson should have the right at the end of the year 1846 to take the slave in absolute property upon paying two hundred dollars, the absolute title would not vest except upon Wilson’s announcing his election to do so and offering payment of the price. Otherwise, matters would go on as before : the interest running od one side and the wages on the other. It is not proved that Wilson, at the end of the year, announced such election.

The defendant attempts to resist the action upon the ground that the plaintiff made no formal tender in the presence of witnesses. Even if this was necessary to entitle the plaintiff to redeem — upon which point we need not decide— yet the plaintiff was excused from making such tender by the defendant’s refusal to make any settlement at all, and his threatening conduct as above stated. See Lynch v. Postlethwaite, 7 M. R. 218. Fernandez v. Silva, 1 L. R. 273.

The wages largely exceeded the interest; and applied each year to the payment of interest and capital, would, at the date of the judgment, have extinguished the debt within a few dollars. The district court should, in our opinion, have condemned the defendant to pay hire for the slave from the date of the decree. The result of this omission would be that the defendant would have the use of the slave without remuneration during the suspensive appeal, and after-wards until a writ of possession could be executed.

It is therefore decreed, that the judgment of the district court be so amended as that the plaintiff recover from the defendant wages at the rate of eight dollars per month for said slave, from the 22d November, 1849, until said slave be delivered to the plaintiff, and, that so amended, the judgment be affirmed; the costs of the appeal to be paid by thp defendant.


author: Rost, J.

text:
    John Briscoe and Wife v. W. E. Tarkington.
    The emancipation effected by the marriage of a minor does not qualify her to receive the appointment of administratrix. Paring minority she cannot bind herself for an amount exceeding her income.
    APPEAL from the District Court of Bienville. Olcoit, J.

      R. Tarver and A. Lawson, for plaintiffs.

      Geo. W. Peets, for defendant.
   The judgment of the court was pronounced by

Rost, J.

We are of opinion, that the minority of Mrs. Tarkington is an insuperable objection to her appointment as administratrix. When the law provides that, although emancipated by marriage, she cannot bind herself by promise or obligation for any sum exceeding the amount of one year of her revenues, and that she can neither alienate, effect, or mortgage her immovables or slaves without the authority of the judge, which can only be granted with the advice of a family meeting; and in case of absolute necessity or of certain advantage, how could she become a party to an administrator’s bond for an amount far exceeding, not her income only, but her entire fortune, and which, in case of mal-administration, may result in the forced alienation of all the property. C. C. 374, 376.

It is therefore ordered, that the judgment in this case be reversed, and that W. JS. Tarkington he appointed administrator of the succession of George M. Madden and Sarah O'Malty; the costs of the appeal to be paid by the appellees. Those of the district court to be paid by the succession.

Preston, J., dissenting. George M. Madden died in 1837, leaving an only heir, Martha A. Madden. She is not twenty one years of age, but emancipated by her marriage with John Briscoe.

Her mother contracted a second marriage wdth W. JS. Tarkington, by whom she had three children, and lately died. Tarkington, their tutor, applied for the administration not only of the succession of his deceased wife, of whose estate his children inherit three-fourths, but also of the estate of George M. Madden, in whose estate neither he nor they have any interest.

Briscoe and wife opposed his application, and claimed the administration, because she inherited the whole estate of her father and a fourth of the succession of her mother.

It is objected, that she cannot be appointed administratrix, it being a civil office to which a woman cannot be appointed. Code, art. 25. We have just decided the contrary as to an heir of the deceased, under an act of 1840. Bui. & Cur. Dig. 5.

It is objected, that the article 1035 of the code authorizes the appointment only of a person above the age of majority an administrator under the circumstances of this case. In consequence of her emancipation by marriage Mrs. . Briscoe is entitled to the full administration of her property, and to appear in court in all the necessary proceedings. Code, 368, 373.

An emancipated minor can be appointed a mandatory. It is true, he cannot be appointed an executor, but that is because the executor is exempted from giving security.

The appointment of Mrs. Briscoe as administratrix has no other effect than to prevent the administration of her own property, which she had acquired by emancipation, from proving prejudicial to creditors and third persons. New obligations are imposed on her husband to secure this object; and they both give security for their faithful administration.

The administration of the undivided interest of Tarkington's children, temporarily at least, is necessarily subject to the administration by Briscoe and wife of her property; and I should have thought favorably of the appointment of Tarkington, as joint administrator with Briscoe and wife. Code, 1035, 1036.

But I do not think we ought to set aside the appointment made. The interest of Mrs. Briscoe is so much greater than that of Tarkington’s children, the two successions being about equal, that I think the judge exercised a wise discretion in confiding the administration to her and husband. It is to be observed, moreover, that Tarkington had been her co-tutor with her mother, and had to render to her an account of their administration of her property.


text:
    Norman and Trowsdal v. Ellis and Wright.
    The sale of improvements upon the public lands, where the vendor is in a situation to acquire a preemption right, is a good consideration for a promissory note.

      APPEAL from the District Court of Union, Copley, J.

      H. Bailey, for plaintiffs.

      McGuire and Ray, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The only legal question presented in this case is, whether the buildings and improvements on the public domain can be sold, and constitute a valid consideration for a promissoiy note given in payment for them. The defendants allege that they do not constitute a valid consideration, and rely in support of that ground of defence on the cases of Jenkins v. Gibson, 3d Ann. 203, and Hollon v. Sapp, 4th Ann. 519. This defence failed in the court below, and the defendants have appealed.

In the two cases relied on the land had been acquired from the United States by other persons, and the parties who had made the improvements claimed their value from the purchasers before they were compelled to surrender the land. In those cases it was further shown, that the improvements had been made by persons not in a situation to avail themselves of the preemption laws. We held them to be mere trespassers, and that their condition as trespassers was fixed by the sale of the land to other persons ; and as the powers of Congress in relation to the alienation of the public domain are absolute, we considered that State laws could impose no charge on the purchaser, and that the laws giving a remuneration for works and improvements made on the land of another, should not be construed as applying to improvements made on the public domain.

The facts of this case are entirely different. The defendants gave the note sued upon for an old tavern stand situated on public lands, with a house and other buildings. This contract is primd facie valid, and it was incumbent upon them to show the failure of consideration. It is not pretended that the land has been entered by any other person, or that the party who sold could not have acquired it under the preemption laws. The contract must, therefore, be enforced between the parties; but, of course, it gives no title to or privilege upon the land independent of or adverse to any title which may hereafter be derived from the United States. Duval v. Kellam, 1 R. R. 57.

The judgment is affirmed, with costs.


text:
    Evariste Blanc v. Samuel L. Forgay.
    Testimony by the plaintiff’s attorney that he presented the account to defendant who did not object to the correctness of the account, but stated he intended to beep the plaintiff out of the bill as long as he could, does not amount to an acknowledgment of the correctness of the account.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Charles DeBlanc, for plaintiff.

      W. H. Hunt, for defendant.
   The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment condemning him to pay the plaintiff the balance of an account for brick sold and delivered to him.

There is no positive evidence to show the correctness of the account. One witness testifies that the defendant was constantly having dealings with the plaintiff and always had an open account with him. Another witness states that he was in defendant’s employ, and paid the plaintiff for him five, six or seven hundred dollars: cannot recollect the precise amount, but that he never heard the defendant say that the account sued upon was correct.

The attorney of the plaintiff swears that he called several times on the defendant for payment of the account sued upon, and that the defendant did not object that the account was not correct. The last time he called on him he said that the plaintiff had treated him harshly, and that he intended to keep him out of the amount of the bill as long as he could.

This evidence, besides being objectionable, as coming from the plaintiff's counsel is not, in our opinion, satisfactory. The fact that the defendant made no formal objection to the correctness of the account, cannot be construed into an admission that it was correct; his declared intention to avail himself of all legal delays is inconsistent with such an admission.

It has been urged in argument, that the plaintiff had no white or free persons in his brick-yard, except his two sons, who could not be witnesses in this suit, and that, under the circumstances, the evidence adduced was the best which the nature of the case admitted of.

The rules of evidence cannot be affected by the manner in which parties choose to manage their own affairs. If the plaintiff has failed to preserve legal evidence of his dealings with the defendant, it must be because he had confidence in his honesty, and if he had he may safely appeal to his conscience.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed; and that there be judgment, as in case of non-suit, in favor of the defendant. It is further ordered and decreed, that the plaintiff pay costs in both courts.


author: Eustis, C. J.

text:
    Bernard Conant, Tutor of Mary, a negro woman v. William Guesnard and Wife.
    Since the act of the 30th of May, 1846, a slave carried by her master to a free State upon returning to Louisiana cannot claim her freedom on account of having been carried to such free State.
    APPEAL from the First District Court of New Orleans, Larue, J.

      J. C. David, for plaintiff.

      H. Remy, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff was the slave of Mrs. Guesnard. On the 20th of May, 1847, she sailed from this port for France, taking with her the plaintiff as her domestic servant. She sent the plaintiff back to Louisiana. The present suit is for the freedom of the plaintiff, on the ground of her having acquired it by her stay in France, where slavery does not exist. There was judgment for the defendant, and the plaintiff has appealed.

The plaintiff was taken to France for the purpose of her services in attending on her mistress, who was in ill health. She remained there during three months; and we are satisfied that the defendant in sending her back only carried out her original intention previous to her departure. But this is not material. By the act of 1846, it is provided that no slave shall be entitled to his or her freedom, under the pretence that he or she has been, with or without the consent of his or her owner, in a country where slavery does not exist, or in any of the States where slavery is prohibited.

Whatever may have been the rights of slaves acquired by the fact of going, with the consent of their masters, to countries where slavery did not exist, under the jurisprudence of this State previous to that statute we have already determined its provisions to be imperative in all cases occurring since its passage. Eugenie v. Preval, 2d Ann. 181. The statute merely enacts and establishes as law the rule laid down by Lord Stowell, in the case of the slave Grace, determined in the High Court of Admiralty of England. 2d Hazard's Adm. Rep. 94. This rule he deduces from general principles, and a rev-ifew of all the cases that had occurred in England previous to his decision. There can be no question as to the legislative power to regulate the condition of this class of persons within its jurisdiction, and to prescribe in what form and by what facts such condition shall be changed. Mary, f. w. c., v. D. L. Brown, ante p. 269. Hinds v. Brazeale, 2 Howard’s Miss. Rep. 837. Vick v. McDaniel, 3 Howard’s Miss. Rep. 337.

The judgment of the district court is therefore affirmed, with costs.


text:
    John O. Woodruff v. Columbus Insurance Company.
    Where an Insurance Company seeks to avoid liability for a loss, upon the ground that the lost merchandise was included in the policy by mistake, the mistake must be made out by the clearest evidence.
    Where an Insurance Company accepts a risk, by merely writing on the application “ Taken at three per cent premium,” the company will be held to the same liability as if a formal policy had been executed*
    APPEAL from the Fourth District Court of New Orleaüs. Strawbridge, J.

      E. A Bradford, and C. M. Emerson, for plaintiffs.

      L. Hunton for defendant. Maybin, for Memphis Insurance Company.
   The judgment of the court was pronounced by

Slidell, J.

On the 9th of March, 1849, the defendants, by their New Orleans agent, executed in favor of the plaintiffs, or whom it might concern, a policy “ on wheat and lard, shipped on board of the steamboat Duke of Orleans, and barge to be towed by said steamer, at and from St. Louis, Missouri, to New Orleans, as interest may appear.” Subsequently, on the same day, the defendants, by the same agent, executed another policy in favor of the plaintiffs, marked D † 24 “ declared to be on all merchandise, flour, pork, or other produce, shipped to the address of the assured, upon good steamboats, &c., from ports or places as above specified, excepting only such shipments or consignments as the assured may be directed at or before the time of the shipments not to insure.” &c. “ Monthly returns to be made out and tendered of all expired risks,” The policy also contains the words “ lost or not lost.” At foot of this policy was written the following further agreement by the company’s agent. “I will cover under your policy, D † 24, in this office, merchandise or produce shipped at and from St. Louis, Missouri, to this port, on good barges in tow of steamboats to your address, to the amount of $5000, at the rate of three per cent on the valuation ; and property shipped on board of the said steamers having barges in tow will.be covered under the conditions of said policy, provided it does not exceed in value the sum of $10,000. at the rate of i per cent.”

This action is brought for the recovery of the value of flour and corn, shipped per barge George Washington, and lost at the same time with the wheat and lard insured by the policy first mentioned.

The defence mainly urged is that the defendants did not intend to insure the flour and corn, and that if the policy, by its language, covered those articles, it was through mistake, and the defendants are not equitably bound to make good the loss. It is said by the defendants that a court of equity may correct a mistake in a policy. If this be conceded as the true doctrine, and as applicable to contracts made in this State, still it should unquestionably be acted upon with i great caution. As was said by Mr. Justice Story, the aid of a court of equity should be withheld when the mistake is not made out by the clearest evidence, uiccording to the understanding of both parties, and upon testimony entirely exact and satisfactory, Mr. Arnould, in his Treatise on Insurance, remarks that there is only one well- authenticated instance in which a eourt of equity in England has actually exercised the power.

It is obvious that the first policy was directed to specific articles, “ wheat and lard,” and afforded the plaintiffs no protection for any other merchandise coming to their address. It is equally obvious that the terms of the second policy amply cover the other merchandise, “ corn and flour,” which came consigned to the plaintiffs by the same barge in which the wheat and lard were shipped. The language is plain, and entirely free from obscurity; and the defendants certainly cannot escape from responsibility under it for the shipment in question, without clearly showing the. alleged mistake. In this, we think with the judge below, they have failed. The agent of the defendants, who was examined as a witness, does not assert that words of exclusion were intended to be inserted in the policy, which would have shut out shipments by the barge in tow of the Duke of Orleans ; nor does he even assert that in conversations with the assured such an exclusion was spoken of, or that he intimated to them his unwillingness to take a larger risk by the same barge than the wheat and lard consigned to the plaintiffs, and certain other shipments to other customers, which it seems were covered by policies issued by the defendants. At the trial, an admission was made by the plaintiffs in a statement of facts agreed to by both parties; upon which much stress is laid by the defendants.' Taking the admission as a whole, we understand it to be an acknowledgment by the plaintiffs that they were not aware, at the time of effecting insurance, that other merchandise besides the lard and wheat would be shipped to them by the same barge, and did not expect such additional shipment by that conveyance ; but there is no evidence to show that they made any declaration to that effect to the defendants, or intended to exclude from the policy any such further shipments, should they have been made. Looking at the instructions of their correspondent, received before the policy in question was effected, it was natural and proper that they should provide generally for all shipments by barges, as was done by the terms of the policy in question. If the case were reversed, and the corn and flour had arrived in safety, we do not see how the plaintiffs could have resisted an action for the premium.

It appears that the advice of the shipment of the flour and corn, and order to enter it upon the open policy, reached the plaintiffs on the same day with the intelligence of the loss, being two days after the insurance was effected. It is not shown which reached them first; but that does not affect the plaintiff's right to recover under the policy. After the shipment, and before the news of the loss, they had effected insurance, “lost or not lost.” The object of the policy was to keep the plaintiffs covered for unknown as well as known shipments. As was remarked by the judge below, the mass of commerce on the Mississippi is carried on by steamboats which out-travel the mail, and the advico of a shipment often arrives with the goods themselves.

The Columbus Insurance Company called the Memphis Insurance Company in warranty, and obtained against that company in the court below a judgment for half of the loss. The Memphis Insurance Company were re-insurers of part of the risk upon the wheat and lard, and subsequently became re-insurers of part of the risk taken by the Columbus Insurance Company by the policy D † 24. This contract for re-insurance was made on the day before news of the Joss, in the form of an application and acceptance, as follows: “ To the agency of the Memphis Insurance Company : Re-insurance is wanted in the sum of $9,500, on merchandise or produce shipped on board of good barges in tow of steamboats, at and from St. Louis to this port, — this sum being one-half the amount covered by this office under open policy D † 24. (Signed,) C. C. Snethen, Agent Columbus Insurance Company, applicant.” At foot of this, the agent of the Memphis office wrote, “Taken at three per cent premium, W. J. Frierson, agent.” No policy was taken out. This was a loose way of doing business. But the Memphis Company cannot be permitted to derive any benefit from that looseness. As they chose to make a contract in this way, we must hold them bound as fully as though they had executed a formal policy of re-insurance. If that had been done, it would have contained a recitation of the risks covered by the policy D † 24 ; and as it was not done, we must give the application which refers to that policy and its acceptance a like effect.

We see no reason to disturb the judgment in warranty rendered against the Memphis Company. If the witness, Frierson, had been permitted to testify as to a verbal understanding between himself and Snethen, that the re-insurance was not to cover further merchandise by the barge towed by the Duke of Orleans, and had so testified, his testimony would have conflicted with the testimony of Snethen, the agent of the Columbus Insurance Company, and other evidence in the cause, and no case of mistake would have been made out, under the rule already noticed. The Memphis Company had immediate notice of the loss ; and we find nothing in the subsequent conduct of the Columbus Company which discharged their liability as re-insurers.

It is said the district judge should have allowed to the Memphis Company the premium at the rate stated in the application. This was not asked in the answer, and does not appear to have been brought to the notice of the court below. We do not think that the re-insurers have a right to an amendment here in their favor to that effect. Their claim for premium is notin our opinion barred by the judgment.

Judgment affirmed, with costs.


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    Julia Arbuckle, f. w. c., v. Bouny et al.
    An action will lie by a free person against one wlio claimed that person as a slave, for damages incurred daring the pendency of the sail for freedom; and an admission that the defendant had acted in good faith, is no defence against an action for damages incurred subsequent to the institution of the suit for freedom.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      J. C. David, for plaintiff.

      Moise and Randolph, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

By a judgment of this court of date the 14th of May, 1849, affirming that of the district court, the plaintiff was adjudged to be a free person. Talbot had sold,the plaintiff as a slave to the co-defendant, Mrs. Bonny, previous to the suit for freedom. The present suit appears to be for personal injuiy from violence and damages for loss of time in her imprisonment during the pending of the suit, but not for anything done previous to its institution.

On tlie trial, the plaintiff’s counsel admitted that Talbot had purchased her as a slave in good faith; and, at the instance of the defendant’s counsel, the district judge dismissed the plaintiff’s suit, on the ground that under the plaintiff’s admission of Talbot’s good faith in his purchase, the present action could not be maintained. The plaintiff has appealed.

The action is based on the responsibility of the defendants after the institution of the suit, and excluding that subsequent to the sale from Talbot and previous to its institution. Conceding that the defendants’ non-liability under the admission continued until he had notice of the plaintiff's claims on the institution of the suit, it by no means follows that after that event the exemption still continued until the termination of the suit. This period is not necessarily embraced in the admission.

The learned judge was under the impression that, by the decision in the case of Phillis v. Gustin, 9 L. R. 209, the good faith of the purchaser being admitted, the action in this case necessarily failed. It was held in that case, that damages would not be awarded against an innocent purchaser of a colored person as a slave, on the subsequent recovery of her freedom. But in that case, at the institution of the suit the plaintiff who sued for her freedom at her. instance, had been taken from the possession of the defendants, so that the question of damages related to those incurred previously to the institution of the suit. We have in three cases allowed a compensation in the way of damages to persons who have established their right to freedom against those depriving them of it, dating from the pendency of the suit. Eugenie Smith v. Preval, 2d Ann. 180. Arsene v. Pigniguy, Ib. 620. Coby v. Cook, 3d Ann. 439.

It is obvious that the admission of the plaintiff’s counsel afforded no ground for the dismissal of the plaintiff’s suit; and that the plaintiff’s petition, though very inartificially drawn, is not without a cause of action.

The judgmentof the district court is therefore reversed, and the case remanded for trial on the issues joined ; the defendants paying the costs of this appeal.


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    A. Prudhomme et al. v. Henry & Laurans.
    As a general rule, the right of a partner to bind the firm by new contracts ceases with the dissolution of the partnership; but where a liquidating partner has borrowed money to pay tlje debts of the firm, the partnership is liable so far as the evidence shows the money was used for the benefit of the firm.'
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Lems and Bermudez, for plaintiffs.

      G. LeGardeur, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

F. Henry and W. Laurans were associated as commercial partners, under the firm of Henry Laurans. A dissolution took place; Henry was charged with the liquidation of the partnership, and Laurans went abroad. Henry borrowed money from time to time from the house of Henry, Prudhomme Co. (of which he was a member) after the dissolution of the partnership of Henry Sf Laurans, and in its name. The lenders were fully aware of the dissolution. Henry had no powers from Laurans except such as pertained to his appointment as liquidator. The question is, whether Laurans is liable to reimburse to Henry, Prudhomme Sf Co. a balance of account arising from monies thus advanced.

It may be assumed, as a general rule, that upon the dissolution of a commercial partnership, its members can no longer bind the partnership by new contracts, and that the partnership is considered as continuing for the sole purpose of settling its affairs and winding up the concern. When one of the partners is charged by the others with the liquidation, they are to be considered as clothing him with power to collect the assets, pay the debts, and finally settle the partnership affairs, and with such incidental powers only as are clearly necessary for the attainment of that purpose. When, therefore, a liquidating partner attempts to bind the partnership by a new contract, it cannot be considered as, per se, binding upon the other partners. But when it is shown that the new contract was entered into by the liquidating partner in good faith, under circumstances of necessity, or of manifest expediency for the interest of the firm, and upon its credit, and has actually inured to its benefit, in such case it is just that the partners should be held, if not as under a contract, at least under that equitable rule which forbids one man to enrich himself at the expense of another. This qualification of the general doctrine is distinctly recognized by one of the authors upon whom the counsel for the defendant relies. After treating of the limited character of the liquidating agency, and his inability to bind the partnership by new contracts, Mr. Troplong justly observes: Cependant si la liquidation avait profité du traité fait avec le liquidateurs, les associés en seraient tenus jusqu’á concurrence du profit qu’elle en aurait retiré. Contrat de Société, No. 1054. The principle was fully recognized by the Supreme Court of Pennsylvania, in the case of the estate of Davis L. Desaugue, 5 Wharton, 539. That court remarked, that cases may be readily supposed where the exercise of such an authority (borrowing money to pay debts) may be highly expedient, nay, absolutely necessary, for the preservation of the right of the creditors, and of the partners themselves, as when money is borrowed to relieve the estate from the pressing demands of a creditor who may urge the sale of the assets, to the injury or the absolute destruction of the estate. We think also the principle is sanctioned by the spirit of the just and liberal provisions of our own code on the subject of quasi-contracts; especially the article which declares that equity obliges the proprietor whose business has been well managed, (bien administrée,) to comply with the engagements contracted by the managor (gerant) in his name; to indemnify the manager in all the personal engagements he has contracted, and to reimburse him all useful and necessary expenditures.

But, when we come to apply the principle to the case before us, we find a difficulty in sustaining the action in consequence of the mengreness of the evidence. Only one witness deposes as to the application of the borrowed money to the payment of the debts of the firm. His language is loose and inaccurate. “ Most of the sums charged in the books of F. Henry, Prudhomme Sf Co. were applied to the payment of debts due by the late firm of Plenry Sf Laurans.” “ The debts of Henry Sf Laurans were very much diminished from the amount obtained on loan from the house of Henry, Prudhomme Sf Co.” It should have been shown, with precision, what amount of debts was extinguished by monies so borrowed. It is no answer to this objection to say, that the testimony may be considered as satisfactorily showing that the moneys were advanced to Henry for that purpose. It is not upon the advance to the liquidating partner, but upon the actual application of the advance by him to the debts of the firm that the equitable claim of the plaintiffs must rest. It is proper also to add, that the testimony is loose as to the necessity or expediency of affecting loans. We are not informed as to the nature and amount of the assets entrusted to the liquidating partner, or the extent and nature of the partnership liabilities.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be reversed, and that the cause be remanded for a new trial according to law ; the plaintiffs paying the costs of the appeal.


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    L. P. Maxwell v. Mallard & Armistead et al.
    A plaintiff may seize on execution property which his debtor has transferred by a simulated sale.
    Where an execution which has been issued in a case entitled to preference is enjoined, the preference must be extended to the injunction case.
    Where the judgment enjoined bears five per cent interest, only three per cent additional interest should be allowed upon the dissolution of the injunction.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      T. J. Durant, for plaintiff.

      P. E. Bonford, for defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff has enjoined the sale of certain slaves seized in execution as the property of Abraham, A. Green, on the ground that on the 20th March, 1845, those slaves had already been sold under execution as the properly of Green, and purchased by L. N. Baldwin, who sold and delivered them to the plaintiff on the 30th September of that year.

The answer is that the titles under which the plaintiff pretends to claim are simulated; that the slaves have ever remained in the possession of Green, and were still his property at the time of the seizure in this case. The district judge maintained this defence; and dissolved the injunction, with ten per cent interest and twenty per cent damages on the amount enjoined. The plaintiff has appealed.

The view taken by the district judge is fully sustained by the evidence. The judicial sale by which Baldwin, acquired the slaves was avowedly simulated. 'Whatever was paid under that sale was paid by Green, and the slaves remained, as they were before, under his exclusive control. In September, 1846, he wrote to Baldwin that he had concluded to sell the slaves to Maxwell, the plaintiff, instead of his mother, and directed him to give the said Maxwell a title for and in consideration" of the sum of eight hundred and fifty dollars. He goes on to say, that on account of his embarrassments he is not in a condition to retain such property, and will do so no longer. “I inform you of this, judge,” says the letter, “trusting to your discretion, deeming it due to you, and requesting it kept to yourself.”

Agreeably to these instructions, Baldivin made a paper title of the slaves to Maxwell for $850, but no money was ever paid to him, nor is the possession of the slaves satisfactorily shown to have changed after this sale ; on the contrary, the very last acts of possession shown in relation to them were done by Green and his agent, Oliver.

An attempt has been made to prove that the price was to have gone in part payment of a sum of money due Maxwell by a commercial firm, of which Green was a partner; and the witness, Baldwin, has testified under a release, that in May, 1848, nearly three years after the sale, he advised Maxwell to record his title, and told him at the same time that he ought to credit the firm of Green, Mc-Dougal Co. for the sum of $1000, instead of $850 stipulated in the deed of sale ; and that Maxwell promised to do so.

This evidence shows conclusively that there was no price agreed upon, and that the sale was not a serious contract. The credit which Maxwell agreed to give was never given; and when, subsequently, the firm of Green, McDougal Sf Co. failed, Maxwell was placed on the schedule as a creditor for the whole amount stated to be due him, without reference to the slaves conveyed to him by Baldwin.

We are satified that the plaintiff has no title which can arrest the seizure of the defendants.

We are not prepared to say that the court erred in deciding that, under the 12th section of the act of 1846, this case was entitled to be tried by preference. The executions enjoined were issued in commercial cases, and the preference given to that class of cases to be effectual must be extended to the actions arising from them.

Under the authority of the case of Millet v. Henry, 2d Ann. 146, and Dwight v. Richard, 4th Ann. 240, the plaintiff is entitled to relief, as to the allowance of interest at the rate of ten per cent. The judgment enjoined bears five per cent interest, and only three per cent more should have been allowed. We cannot say that the judge did not exercise a sound discretion in assessing the damages as he did.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be amended, so as to reduce the interest allowed on the dissolution of the injunction to three per cent. It is further ordered and decreed, that the judgment as amended be affirmed; the plaintiff paying the costs of the district court; those of the appeal to be paid by the defendants and appellees.


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    R. Carmanty and Wife v. Mexican Gulf Railway Company.
    Railroad companies are responsible for injuries inflicted upon passengers in consequence of the negligence, imprudence and want of skill of persons in the service of those companies; and the injury having occurred, it is not necessary that the party who sues for damages should allege the particular cause of the accident.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      W. S. Upton, for plaintiffs,
    made the following points: That the law of this case is to be found in 13 Peter’s U. S. Rep. 181, Stokes v. Saltonstall. The facts presented by the record make known great negligence on the part of the defendants. Those facts were passed upon by the jury, and their verdict should not be disturbed.

      Janin and Taylor, for the defendants,
    contended: The defendants have proved : 1st, that there was a competent and careful engineer in charge of the locomotive; 2d, that there was no defect in the car in which the injury was sustained, the axles being unbroken notwithstanding the severity of the shocks; 3d, that there was no derangement or imperfection of the rails; and, 4th, that the only wood at the point on the road where the accident occurred, was wood of which the defendants had had charge of ns freight, and that the same was deposited so as not to affect the passage of the cars upon the road. This, certainly, was sufficient to rebut the presumption recognized by the Supreme Court of the United States in the case referred to, and make it necessary for the plaintiffs to establish the fault of the defendants by positive proof. This was not done.
    It is not easy, from the facts shown in the record, to determine, with any certainty, what occasioned the accident. It not unfrequently happens that cars on railroads run off the track without its being possible to ascertain the cause. The smallest substances are known to be at time sufficient to produce such an effect; and it is probable, that in some instances the passing of animals may have caused the deposite of such substances. It is, however, probable, that the accident in the present case was caused by a stick of wood upon the tract, or very near it. Let us suppose for a moment that such was the fact. Then, it seems clear, that this cannot be attributed to the defendants. The wood had been brought down by them as freight. It was deposited in such a manner as not to interfere in the least with the railroad. Two trains of cars passed after the wood was so deposited, without interruption or accident. After the wood was deposited by the defendant, it was disturbed by the negroes of the owner of it, who were engaged in hauling it away. They were so engaged at the time the second train of cars passed. If it be true, that a stick of this wood occasioned the mischief, by whom was it placed in such a position as to cause it? Not by the defendants most certainly; but by the negroes of Proctor. Under the facts, then, no recovery can be had against the defendants, unless they are to be held responsible for the acts, not of their own agents only, but of all other persons along the railroad. However, a jury may be inclined to act upon such a principle when their sympathies are excited, it is hardly probable that a court will recognize it as having any foundation in law or in equity.
    But if this is a case in which any responsibilty attaches to the defendants, the damage awarded to the plaintiffs are excessive. In the Ohio case and in that of Stolces v. Saltonslall, there was gross misconduct: and vindictive damages were properly due. Here, there was nothing of the kind. If the plaintiffs are entitled to recover at all, it is only a fair compensation for the pecuniary loss they have suffered. They can justly pretend to nothing more. The damages, however, which have been awarded them are so extravagant that they must be looked on as a penalty inflicted on the defendants, rather than a compensation given to the plaintiffs.
   The judgment of the court was pronounced by

Eustis, C. J.

This is anactioninstituted by the husband and wife against the defendant for $15,000 damages from injuries sustained by the wife from her having been thrown from the defendants’ car when under way. It appears, that on the 12th of September, 1849, when the locomotive was going very fast on the Mexican Gulf Railway, near Proefarr’s landing, one of the cars was thrown off the track and broke down. Several of the passengers were wounded and seriously injured; the wife, one of the plaintiffs, had her leg broken in the shock, and was confined to her bed for four months in consequence of the fracture. The case was submitted to a jury who rendered a verdict for the plaintiffs in the sum of $4000; judgment was rendered accordingly, and the defendants have appealed.

The plaintiffs’ suit is founded on the allegation of negligence, want of skill and imprudence of persons in the service of the company; and it is contended, that this general allegation is limited by the cause of the accident, which is assigned in the petition, which is, that the company had placed many cords of wood so near the rails, and had so badly piled said wood that the action of the locomotive in passing caused the same to fall, and to fall upon the road. It is certain, that the accident happened at the wood pile, and the probability is that it was caused by the falling of a log of wood on the track.

Admitting that some uncertainty exists on this subject, and the testimony of the witnesses is conflicting, we cannot disturb the verdict of a jury on that account. The cause of accidents of this kind is often difficult to be ascertained with pi’ecision, but the plaintiffs in this case have proved, that she was a passengar in the cars; she has proved the accident and great bodily injury to herself; she has designated a cause, which she was not bound in law to do, and which her case was weakened by stating; and the verdict of the jury on contradictory testimony has affirmed her allegations. Mrs. Carmanty,at the time of the accident was a teacher in one of the public schools of this city. ¡Her salary was $60 per month; and, though her means were limited, she -was very much esteemed and respected in her vocation. She suffered a great deal from the injury and from her confinement. The estimate of the value of the services of the surgeons, in consideration of the position of Mrs. Carmanty, is rated at $250 in the testimony; but were she wealthy the charge iwadld be double. :'$100 was considered a fair estimate-.of the ¡cost mf ¡medicines, nurses, and apparatus. The fractured limb will always'be more ordess attended \with pain after much exercise and a,change.of \weather,.and it-,will take twoyears'before.-sheican use it as welhastthe-olher.

Under'tliese circumstances the jury assessed the damages at-1$d0G0, which we are called upon to reduce as being excessive. Notwithstanding our control over the verdicts of juries in cases of this kind, and our disposition not to allow excessive damages in any case to be exacted, we are at a loss in'this instance for a principle on which the amount of the damages can be reduced. ’Every case of this kind must depend on its merits; and we cannot undertake to say that the jury has exceeded that discretion in the allowance of a 'Compensation to the plaintiff for her grievous injury, which the law empowers them’to exercise, and which they have exercised under the responsibility of their oaths, and which the judge of the first instance has sanctioned.

The judgment of the district court is therefore affirmed, -with costs.


author: Eustis C. J.

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    Henry Holland v. William Cammett et al.
    The court will not heed the opinion of port wardens as 'to the ('cause of damage, when all the facts are in evidence upon which that opimon'was founded.
    Where a vessel is sued for damage done to goods in transportation, the burthen of proof is on the defendant, (after the damage is proved,) -to show it did not happen on board the vessel.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Winthrop, for plaintiff.

      E. L. Goold, for defendants.
   The judgment of the.courtvwas pronounced hy

Eustis C. J.

Thisiisian action'byithe consignee of'fiveieases of looking* glasses shipped on board ’the ship Emblem in Liverpool for New Orleans, for the recovery of damages alleged to have ibeemcaused by the careless and improper handling and storage of the articles in the course of their transportation. The plaintiff had judgment, and the-defendants have appealed.

In the consideration of this case, we do not heed the opinion of the port wardens as to the cause of the damage, inasmuch as we have all the facts before us in which their opinion was formed. The filets as to the exterior condition of the cases stated by them, we do not understand the bill of exceptions taken by the defendant’s counsel as embracing. It is, therefore, not necessary furtherto notice the bill of exceptions.

It is conclusively proved, that the cases were delivered in Liverpool to the mate of the ship under proper caution, as to their handling and contents, and that there were printed directions on the outside in these words, “glass, with care, this edge to be kept uppermost.” No serious question appears to be made as to their condition when put under the charge of the carrier.

The evidence in the case is quite contradictory, and the learned judge of the district court has determined, that the only satisfactory conclusion that can be drawn from it is, that the glass was broken while it was in the custody of the defendants.

The cases were examined in the plaintiff’s store and the glass was found broken. The defendants contend, that the breakage was caused by the transportation of the cases in a common dray, from the ship to the plaintiff’s store, and that they ought to have been carried in a furniture cart. But it is, we think, proved that the cases bore external marks of violence which must have occurred on board the ship. The glass, in one of the cases, was broken to pieces on board the ship, and we think the district judge right in assigning the injury to the glass in all the cases, to the same cause.

Under the general rule, we think, the burthen of proof of the cause of the damage rested with the defendants. They have entirely failed in their proof in this respect. Shackelford v. Wilcox, 9 L. R. 59. Code, 2725.

The judgment of the district court is therefore affirmed, with costs.


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    A. Leftwitch v. St. Louis Perpetual Insurance Company.
    Where a policy for tobacco shipped states that the insurers shall not he liable for damage or injury to goods by dampness, change of flavor, or by being spotted, discolored or mouldy, unless the same be caused by actual contact of sea water with the articles so damaged, it is incumbent on the plaintiff to show that the damage occurred in that manner If the underwriters be responsible for a partial loss, it is with' reference to the market value at the port of departure.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Hoffman and H. D. Ogden for plaintiff.

      Hirnton and Bradford, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This action is upon an open policy upon 307 packages of tobacco, shipped by the plaintiff from New Orleans to Charleston, and which, with the exception of two passages, was sold at auction at Charleston, as damaged, for account of whom it might concern, after a survey by port wardens. The policy given by the defendants was to an amount of $5000; and one for $2000 was given by another office. The damaged tobacco produced at auction gross $1211 09. The plaintiff claimed under this policy the sum of $3771 26, and had a verdict for that amount. The defendant has appealed. ,

The point of seaworthiness does not seem to us so clearly in favor of the plaintiff as was assumed by his counsel in argument. We do not, however, deem it necessary to form and express an opinion upon that point, since upon other grounds we think the judgment must be reversed.

There is no doubt a large portion of the tobacco upon its arrival in Charleston was in a damaged condition. The question is whether this damage is attributable in whole or in part to perils of the sea; and if in part to such causes, to what extent. Before noticing the evidence upon this subject, it is proper to recur to the terms of the policy. It stipulates “ that the insurers shall not be fiable for damage or injury to goods by dampness, change of flavor, or by being spotted, discolored or mouldy, unless the same be caused by actual contact of sea water with the articles so damaged.” It is also “ provided, that no loss except general average shall in any case be paid, unless amounting to five per cent, after deducting proceeds of savings, if any, and exclusive in each case of all charges and expenses of ascertaining and proving the loss.”

It appears that soon after the vessel got to sea she was found to be leaking, without stress of weather. This leak seems not to have injured the tobacco. Subsequently, however, tempestuous weather was encountered, which caused further exposure of the cargo to salt water; and the evidence justifies the conclusion that the salt water came into actual contact with some of the packages of tobacco. Soon after the vessel’s arrival at Charleston a survey was made on shipboard by two wardens of that port, who by their report represent two hundred and twenty five boxes of the tobacco as “ wet, damp and stained, some very slightly, owing to leaks through deck and waterway seams.” In a second report, made on the following day by two merchants at the request of the consignees, upon examination after landing, they state “that they found three hundred and five boxes of the tobacco damaged by salt water; some of the boxes which did not appear damaged on the outside, on being opened were found to be damaged.” They recommended a sale at auction for account of whom it might concern. They also furnished an estimate of what the tobacco would be worth in the Charleston market, if in a sound and merchantable state. A sale of the three hundred and five boxes was soon after made at auction.

These merchants were examined under commission by the plaintiff. From their testimony it appears .that they made a subsequent examination, which brought them to a different opinion, They state that upon the examination previous to their report, they had formed the opinion that the tobacco was damaged by salt water. That they saw the tobacco afterwards, and made a more full and thorough examination. They then became convinced that it had been more injured by age and frequent transportation than by salt water. The variety of marks upon the boxes indicated that it had passed through many hands. It was moulded and dry, and the boxes decayed: circumstances indicative of age. Apparently disappointed by the result of this examination of his witnesses, the plaintiff took out a second commission to examine the same persons. They still adhered to the conclusion adopted upon their second examination of the tobacco ; which it appears was made by one of them at the exposure for public sale, which took place soon after the arrival at Charleston, and by the other at the request of the Charleston underwriters, who had expressed themselves not satisfied as to the injury of the tobacco on the voyage.

Those witnesses are perhaps reprehensible for having acted at first without a sufficiently minute examination; but their change of opinion seems to have been the result of honest conviction, upon further and fuller examination. Besides their testimony, there is evidence tending strongly to corroborate the conclusion that the deterioration of the tobacco was largely attributable to age and the effects of previous transportations. It is proved that an important portion of it had been received a year before at New Orleans from Mobile, shipped to Vera Cruz, and brought back. A witness, who was at the time the plaintiff’s agent, states that it was on its return from Vera Cruz dry, mouldy and rotten, with age. There is also reason to believe that the residue of the shipment had been on hand a good while, and had become deteriorated by age and other causes. The plaintiff has not thought proper to fux'nish evidence as to the quality and condition of the merchandise before the shipment, beyond the bill of lading.

The result of a careful examination of all the evidence by this court is an inability to deduce from it, with anything like reasonable certainty, a just estimate of the proportion of injury attributable to perils of the sea encountered upon the voyage insured. It is proper also to add, that the evidence is defective upon the subject of value. If the underwriter in this case is answerable at all for a partial loss, it is with reference to the market value at the port of departure.

It is therefore ordered,.adjudged and decreed, that the judgment of the court below be reversedand' judgment is now rendered as in case of non-suit; the plaintiff to pay costs irrboth courts.


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    Antonio Roca v. J. B. Slawson.
    The speculative opinions' of a'physiei&n founded upon-a'post mortem examination, as to the time of the inception of a redhibitory disease,- should not be received as full proof of the fact.
    To entitle a party to recover the price of a slave who has died of a redhibitory disease, the slave must have received suitable attention after the disease made its appearance, and medical attendance, if possible, must have'been seasonably procured.-
    APPEAL from the Fifth District' Court of New Orleans, Buchanan, J.

      Roselius and Latour, for plaintiff.

      T. W. Collins, for defendant.
   The judgment of the court was pronounced by

Rost, J.

This is a redhibitory action. The plaintiff claims the rescission of the sale of a slave' sold to- him by the defendant on the 21st October, 1847, on the ground that before and at' the' time' of the salethe slave was afflicted with an incurable chi'onic pulmonary consumption, of which he died on the 31st March, 1848. The defendant filed a-general denial, and has appealed from the judgment rendered against him-on the issue thus made'.-

There'is no evidence of the existence-of any external symptom of the disease alleged before or at the time of the-sale-. A> witness who had the slave in charge during several yeax's testifies that, down-to-the time of the sale, he was sound and always healthy, excepting once, when he was sick from excessive drinking and had the delirium tremens. Witness further says,-that he was unifoi-mly put to hal'd work, and that he never complained of pain in the side, difficulty of breathing oxi'eough.- The'same witness-saw the'slave twice after the plaintiff purchased him,- and says that lxe-never saw him look so well before.

On the 1st of March, 1848’, a physician was first called in to see him ; he felt sick, and another physician was called- in his place. These two gentlemen attended the slave until he died, and made a. post mortem examination, in which they ascertained the existence of the disease alleged. One of them gives it as his opinion that the disease was of two or three yeai's’ standing; the other says, that it could not have commenced less than ten or eleven months befoi'e its termination. Another physician examined for the defence has declared, that it is impossible to say how long the disease has existed from a post mortem examination, and that it frequently runs its course in a few months.

In the ease of Seaton v. Municipality Number Two, 3d Ann. 44, we held that the conjectural opinion of witnesses, unsupported by any other evidence, did not carry conviction to the mind, and could not be received as full proof of any fact. In the case of the Executors of Duprey v. Prescott, lately determined in the Western District, we applied the same principle to the opinions of physicians founded on post mortem examinations, and intended to show the time at which the disease had commenced.

This rule appears to us peculiarly applicable to the present case : the slave was purchased by the plaintiff as an habitual drunkard; that vice predisposes to the disease of consumption, and, according to witnesses, greatly accelerates its course. We believe, under the evidence, that it may have commenced after the sale, and that possibility is fatal to the plaintiff’s claim.

But supposing that, although no outward symptom indicated the disease at the time it did actually exist in its incipient stage, it was not then necessarily incurable. A few weeks after the sale-,, when the symptoms proved on the trial were first discovered, it was the duty of the plaintiff to call in a physician, and to have the slave properly attended to ; instead of this,, he- kept him at hard work all the time, and no physician saw him until months after those-symptoms were known to the plaintiff to exist, and when it was too late to arrest the- progress of the disease; this negligence and want of humanity en his part, would, under all circumstances, prevent his; recovery.

It is therefore ordered, adjudged and decreed, that the judgment be reversed; and that there be judgment in favor of the defendant, with costs in both courts.


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    Succession of J. Bozant.
    Where the executor has filed a final account, which is opposed by one of the heirs on a claim he holds against the succession, the opposition should not be dismissed upon the ground that the opposing heir should resort to an ordinary suit against the other heirs. It is a succession case to which the parties are not entitled to a trial by jury.
    APPEAL from the District Court of Jefferson, Clarke, J.

      Grivot, Race and Foster, for appellees.

      Livingston and M. M. Reynolds, for appellant.
   The judgment of the court was pronounced by

Rost, J.

The defendant, who is the testamentary executor of the late Jean Bozant, filed a final account of his administration, showing a balance in money,- and the share coming to each of the heirs of the deceased ; he prayed that the heirs might be cited and for the homologation of the account, and leave to distribute the assets in accordance therewith. In his petition, he stated that A. Bozant, one of the heirs, claimed from the succession the balance of an unliquidated account, amounting to $8024 34, which he had refused to allow, because no evidence had been adduced in support of it.

The heirs were personally cited. A. Bozant appeared and made opposition to the account, claiming to be placed thereon as a creditor for the amount of his-claim. Two of the other heirs excepted to this proceeding; on the ground that as the executor had refused to acknowledge the claim, the only remedy of the-opponent was to establish it in an ordinary suit.

The district judge considering that, under article 986 of the Code of Practice, 0pp0nen(; should have brought a separate suit, and that in contesting his account, the other heirs could not be deprived of the trial by jury, which two of them claimed, sustained the exception and dismissed the opposition. A. Bozant has appealed.

We are of opinion that the district court erred. This being a claim against a succession, the parties would not have been entitled to a trial by a jury if a separate suit had been brought. The executor and one of the heirs are willing to litigate the claim in this form; and although the other heirs may intervene for the preservation of their rights, they cannot be permitted to file exceptions as to mere matters of form which the executor and one of the co-heirs have waived. Parties litigant must agree as to the manner of prosecuting their claims, and are never allowed to make inconsistent pleas. Succession of Hilligsberg, ante p. 118. Pargaud v. Giffins, 10 L. R. 356.

The rule laid down in the unreported case of the Succession of Layton, is undoubtedly correct, with the reservation therein made ; but that case was not analogous to the present; it turned upon an opposition to a provisional account showing a distribution among creditors and a balance due to the executors. The court held, that as the opposing creditors claimed no part of the money distributed, and the court could not render a judgment ordering the payment of their claim out of it, the homologation of the tableau could not affect their rights, and they should not be permitted to delay the homologation of the account to the prejudice of other creditors, when art. 986 of the Code of Practice pointed out a separate and distinct suit as the proper mode of liquidating unsettled claims against successions.

In this case the account is final, and involves a partition among the heirs; there are no creditors to be paid, and the opponent is entitled to a share of the fund to be distributed; the amount of which cannot be ascertained until his claim is liquidated.

We are unable to perceive the necessity or expediency of a separate suit, and the law does not imperatively require it.

It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the opposition of A. Bozant be reinstated, and the case remanded for further proceedings according law; the costs of this appeal to be paid by Catherine and Cecile Bozant.


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    William S. Paradise v. Farmers and Merchants’ Bank of Memphis.
    Property, in relation to which an order of court of a sister State of competent jurisdiction has been issued, and which has been fraudulently or forcibly withdrawn and brought to Louisiana, is not liable here to attachment by third persons, so as to defeat the rights acquired by virtue of the previous order. In such a case, a decree will be entered ordering a prompt restitution of the property, or such decree as will prevent any right being acquired by those fraudulent attempts.
    APPEAL from the Fourth District Court of New Orleans, Straiobridge, J.

      John Finney, for plaintiff.

      W. C. Hamner, for defendants.
    A. A. Frazer, for intervenor.
   The judgment of the court was pronounced by

Eustis, C. J.

In this suit a large amount of bills and notes, and other assets of the bank, defendant, were attached in the hands of Jeptha Fowlkes, its president, who was at the time in this city, and who stated, under oath, that he intended in a few days to leave it for his home in Tennessee. The property attached was, by an order of the court, delivered to the sheriff, and is now subject to its control. The court of the first instance ordered this property to be delivered over to an intervenor, who had been appointed, by a decree of the Court of Chancery for the Middle Division of Tennessee, i-eceiver of the effects of the bank, and thus defeated the attachment. From this judgment of the court the present appeal is taken by the plaintiff, who was an attaching creditor. He has since died, and his representative has been made a party in this court.

To take the statement of the facts as admitted by the counsel for the plaintiff, it appears that a suit was instituted in the Court of Chancery at Memphis by Thomas S. Cope and others, stockholders of the bank, against the bank, in which Fowlkes its president, and other directors, were parties defendant; that during an unsuccessful attempt to enforce the process of the court of chancery, Fowlkes, the garnishee, obtained possession of and ran off with the property which is attached in this case. The property which thus stands before us for adjudication, thus appears to have been brought within the jurisdiction of this court in disobedience and in violation of the process of a court of a sister State, and in fraudulent violation of the rights of property of its real owners. It is proved, that the process of the court of chancery, and a writ of injunction and an order directing the delivery of the assets of the bank forthwith to the receiver appointed was duly served on Fowlkes, as well as on the directors of the bank.

The grounds on which it is contended the judgment of the district court is to be reversed, are: 1. That a receiver in chancery cannot maintain a suit without special authority from the court which appoints him. 2. That the possession of the property attached, not having been in the receiver, it is liable to the process of attachment at the instance of a bona, fide creditor.

We will not enquire into the technical question whether the authority of the chancellor is necessary to institute a suit at law; it is sufficient for us that property, in relation to which an order of a court of a sister State of competent jurisdiction has been issued, has been fraudulently or forcibly withdrawn from its jurisdiction by a party to the suit, and that the injunction issued in this ease by the chancellor is still in force and binding upon the offending party. The order of the court of chancery is a sufficient authority for the intervenor to receive the assets of the bank ; and the delivery to him will be a good delivery, binding upon the bank, as well as in the furtherance of justice. We have uniformly discountenanced all attempts, in whatever form they may be made, of making our courts instruments for defeating the action of courts of other States on property within their jurisdiction, by means of clandestine or forcible removal to this State. The only decree which we render in such cases is that of immediate and prompt restitution, or one preventing any rights to be acquired by these attempts to defeat the ends of justice.

This is an answer to the question raised concerning the peculiar right of the creditor. The only right which he in any event could reach, would be subordinate to the injunction from the operation of which this property has been attempted to be removed. Not only on general principles, but on the cases cited by the learned judge who decided this case, the claim of the plaintiff to subject this property to attachment is without the shadow of right. In the case of Simmins v. Garrison, 4 Humphreys, 148, which occured in the State in which the occurence before us took place, a slave was decoyed from his owner for the purpose of subjecting him to the jurisdiction of the courts, under an attachment. The owner was a non-resident, and the court dismissed the attachment declaring that such an act could not give jurisdiction, and the chancellor ordered the slave to be taken to the State line and delivered to his owner, who resided in a contiguous State.

The judgment of the district court is therefore affirmed, -with costs.


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    H. M. Robinson v. John F. Staples.
    The lessor has a privilege as well for rent not due as for rent due, and is entitled to that privilege in preference to a creditor who has made a seizure upon execution. C. C. 2675.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, .O'.

      W. C. Hamner, for plaintiff.

      Griffon and Trudeau, for third opponents.
   The judgment of the court was pronounced by

Slidell, J.

The heirs of Trudeau leased a store to Staples for one year from 1st November, 1849, at a rent of $150 per month, payable monthly. Robinson, a creditor of Staples, obtained a judgment against him, and caused a fieri facias to be levied upon the stock in trade of Staples (who kept a drug shop on the premises), and also upon all the shop furniture. The stock, &c. being advertised for sale by the sheriff, the lessor who had received only part of the rent that had fallen due, took a rule upon the plaintiff to show cause why the proceeds of the sale about to be made, to the amount of the entire rent due and to become due, should not be paid to them as privileged creditors. After hearing, the district judge maintained the privilege, and decreed that the amount of rent due should be paid forthwith to the lessors out of the proceeds of sale ; and that the sheriff should pay them out of the proceeds a sum of $150 at the end of each month thereafter, up to the 1st .November, 1850.

The plaintiff has appealed; and, while-he admits the>corractness of the.decree as to the rent matured, contends that there was error in the allowance of privilege for the rent not due.

We think there is no error in the judgment to the prejudice of the appellant. The article 2675 of the Civil Code declares, that the lessor has, for the payment of his rent and other obligations of the lease,- a right of pledge on the movable effects of the lessee which are found on the property leased. The language is general and cannot be restricted to rent due. The right to levy a provisional seizure, even before the rent be due, is given by the statute of 1839 to the lessor who has reason to believe that his tenant is about to remove his property. We do not consider this statute as creatingithe,privilege, but providing a conservative remedy for its enforcement. It is not, thei’efore, well ai’gued by plaintiff’s counsel that the lessor's cannot have their privilege in this case because they did not make a provisional seizure under the statute. The proceeding was unnecessary, the properly being ahead y '“in cusio&ia'legis” under the fieri facias. Another creditor threatened to absox-b, by his proceedings, the lessor’s security, and if they were not permitted to protect their privilege prospectively, ithe security would have been lost. It is only when the landlord’s-security is not endangered that he is obliged to wait until the rent falls due.

Judgment affirmed, with costs.


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    Duncan N. Hennen v. Hayden and Kelly.
    The lessor is entitled to have the lease annulled if the lessee does not pay the rent.
    The lessor is bound for the expense of such repairs as decay renders necessary; but the lessee has no right to have such repairs made at his expense, unless the lessee has first put him in default.
    PPEAL from the District Court of Jefferson. Clarke, J. The judgment of the district court was as follows: “This case is before the court after a new trial. The plaintiff sues to cancel a lease, on the ground that the defendant’s lessees refuse to pay rent. The latter, being put in default for non-payment, attempt to justify their refusal, on the plea that the plaintiff had neglected to repair the floors of the premises which had decayed, and had refused to deduct from the rent the costs of those repairs made by the lessees themselves; for which, $230, a reconventional demand is instituted. There is no doubt but that, under articles 2686, 2687, C. C., the lessor is bound for the expense of repairs which decay renders necessary. But the lessee cannot himself make the repairs at the lessor’s expense, unless he complies with article 2664, and puts the landlord in default. There is no proof that the landlord was called on to make the repairs.
    “It is therefore ordered and decreed, that the lease of the premises in the petition described be annulled and cancelled as prayed, and possession thereof be delivered to the plaintiff, at the costs of defendants; and further, that the reconventional demand be dismissed as in case of non-suit.”

      D. N. Hennen, in propria persona. Elliott, for defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

For the reasons given by the judge of the district court, it is ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs.


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    Henry Penny v. Peter B. Taylor et al.
    To entitle a party to recover damages for the wrongful sequestration of a vessel, he must prove that he suffered damage from the consequent detention of the vessel to entitle him to recover on that account.
    The fees paid counsel for defending a sequestration wrongfully issued should be re-imbursed, and will be allowed in a suit for damages for the issuance of the sequestration.
    To maintain an action for a malicious prosecution, want of probable cause as well as malice must have existed in undertaking the prosecution.
    APPEAL from the Fourth District Court of New Orleans, Strawhidge, J.

      J. A. D. Rosier, for plaintiff.

      E. A. Bradford, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action against Taylor and Zacharie, the principal and surety on two sequestration bonds given in the case of Taylor v. Penny, in which the brig Mount Vernon was seized. It is charged that the writ of sequestration was wrongfully sued out; the damages claimed amount to twenty-' five hundred dollars. The plaintiff had a verdict for six hundred dollars, on ■which judgment was rendered, and the defendants have appealed. The plaintiff in his answer on the appeal has asked for a change of the judgment, allowing him the amount claimed in his petition.

The damage of which the plaintiff complains is alleged' to have resulted from the seizure and detention of the brig while she was ready for sailing, and from the loss of profits and expense incident thereto ; fees paid counsel; and from being harrassed by the vexatious proceedings under the sequestrations aforesaid, which it is charged were taken with malice on the part of Taylor.

It is admitted that the plaintiff paid Messrs. Peylon and Rosier the sum of two hundred and fifty dollars, as a fee for defending him in the original suit. It appears that the Mount Vernon was taken possession of by the sheriff under the writ of sequestration issued at the instance of Taylor on the 22d of May, 1847, and was on the 25th following released on Penny's depositing the sum of five hundred dollars with the sheriff. On her return from a voyage to this port she was taken under another writ of sequestration granted by the judge on the ground of the insufficiency of the security given. This writ was executed on the 3d of July, 1847, and on the 7th following the vessel was released on Penny’s bond, with security in the sum of two thousand five hundred dollars. The returns of the sheriff are relied upon to show the detention for which the plaintiff claims damage. But the evidence shows that there was no detention by the seizure in May. She was cleared on the 24th and sailed for Havana on the 25th, and the freighter of the vessel, the plaintiff’s own witness, knew of no detention. The testimony is silent as to any detention of the vessel in July; and as to the mode in which the writ was executed, or the extent to which the custody and possession of the vessel or her business was interfered with by the sheriff’s officer we are left without any evidence which is at-all satisfactory.

We consider that no damages are proved to have resulted to the plaintiff from the detention of the vessel, and that to enable him to recover for this cause proof to that effect ought to have been administered. Selleck v. Kelly, 11 R. R. 145. Jones v. Doles, 3d Ann. 589.

The expense the plaintiff' was put to for counsel fees, for the purpose of having the vessel released from the sequestration, and other expenses resulting therefrom, the defendants by their bond are clearly bound to reimburse to the plaintiff. The judgment of the district court, affirmed by this court, determined that Taylor had no interest in the Mount Vernon, and consequently the writs of sequestration were wrongfully sued out The plaintiff paid his counsel two hundred and fifty dollars for their professional services in the suit; the portion fairly due for the services relating to the release of the vessel from the sequestration we think is all he is entitled to recover.

We think the verdict of the jury clearly erroneous. The defendant Taylor is not liable to the plaintiff' for a malicious prosecution. To maintain such an action, want of probable cause as well as malice, must exist. The evidence in the original case we do not think establishes either. Under the verdict we are authorized to allow the plaintiff in addition a sum for damages, the amount of which cannot be. specifically proved.

It is therefore decreed, that the judgment of the district court be reversed; and that the plaintiff recover the sum of one hundred and fifty dollars with costs in the district court; those of the appeal to be paid by the plaintiff and appellee.