text:
    Whitehead et al v. Woolfolk et al.
    Wherever security is-given under an order of court, it is wlsat is termed by the Civil Code judicial security.
    The domicil of judicial- sureties is required by law to he within the jurisdiction of the court in which the suretyship is undertaken; and. such sureties, though their domicils be heyondithe jurisdiction of the court, by entering into such a contract render themselves amenable toils jurisdiction.
    A judgment against the principal, though, not conclusive against his sureties, is evidencs against them until its effect is impugned.
    APPEAL from the District Court of the- First District, Buchanan, J. The-facts of this case are stated in the opinion infrd.

      Roselius', for the plaintiffs.
    Judicial sureties must reside within the jurisdiction of the court, before which their bond is given. C. C. 3011-, 3033. To permit defendants to except to the jurisdiction of the court, would be to allow-them to act in frauden legis. The judgment against the pricipal is primd facie evidence against the surety. Defendants, being judicial sureties, are bound in solido.■

      L. Pieree, for the appellants-
    The domicil of the defendants is pleaded and. proved to be without the jurisdiction of the court. The present case is not that put by the judge a qua, for this is not a security which was bound to be-given by law, or by a judgment of the court. A receiver was agreed upon by the parties, and the defendants were made his sureties by the same agreement. Upon this, a recognition, rather than an order, was entered on the minutes. There is no law that requires a receiver or sequestrator to give security, and it is not usual! It is therefore insisted that this security, entered- into by Lawson and Woolfolk-, did not deprive them of the privileges allowed to them by law, and differs from the cases of bail or appeal bonds, where statutes have prescribed such remedies as pre-suppose them to be parties to the original suit.
    Article 3011 of the Code intends cases where- the law makes it obligatory upon the debtor to furnish security, and not where it is mere matter of agreement. A person offering himself as security, where the.debtor is obliged to furnish such, is presumed to represent himself as having the qualities required by the law; and, if he have a foreign domicil, that he waives it — but this reason does not hold under any other circumstance.
    The exception taken by defendants to the introduction of the judgment against Conner, as evidence against them, is a valid one. The judgment against Conner was obtained long after the receivership ceased, and was for moneys abstracted by him before he became receiver, and for cotton diverted to his own purpose, received after the termination of his-office as receiver, so far as can be deduced-from the evidence, which is loose and unsatisfactory. This has nothing to do with the present action.
   The judgment of ’the court was pronounced" by

Eustis, C. J.

This suit is a branch of the litigation of the plaintiffs against James R- Conner, reported in % Annual Reports, p. 88. It is brought against the defendants as sureties on a bond given by them for the faithful discharge of Ms duties as receiver, under the appointment of the court before which the suit for the settlement of the partnership was pending. There was judgment against the defendants for the amount of the verdict of the jury against Conner, as receiver, which was afterwards affirmed by this court, to wit, the sum of $4,290 63, and the defendants have appealed.

The defendants have pleaded that their domicil was out of the jurisdiction of the court in which they were sued. This exception was overruled, and we think correctly. The Code of Practice provides as “ a general rule” that a party must be sued at his domicil, but to this rule there are many exceptions, and parties by contracting certain obligations have been considered as thereby waiving this privilege of domicil. A joint obligation has been held to be a waiver of it, on the part of the debtors. Thompson v. Chrélien, 3 Robinson, 26. Toby v. Hart, 8 La. 523. It often happens in the administration of justice, in order to secure and carry into effect the rights of litigants, that security is required to'be given, and wheneverit is given under an order of court, we understand the security to be what is called in our'Code judicial. The domicil of judicial sureties is required by law to be within the jurisdiction of the court in which the suretyship is undertaken. The contract itself is, under the authorities quoted, and, we think, on principle, a waiver of domicil, and the defendants are-properly amenable to the jurisdiction of the court.

The bond recites that James 'R. Conner-has’been appointed, 'by order of the District Court, receiver of the effects and property -of the co-partnership, which has'been sequestered in this case, with authority to collect the debts due the co-partnership, and to sell the effects-and property thereof, and to pay and discharge the claims against the same, the same having been put into his hands and control for that purpose in conformity -with the decree of the court. The value of cotton and property transferred to him as receiver was, as ascertained by inventory, $10,000. There-were two judgments against Conner, as receiver; the first for-$4,844 51,-which was reversed by the appellate court; the second was for $4,290 63, which was-affirmed by this court. ' This second judgment was offered in evidence against the defendants, and we think was, properly admitted. The defendants were not conbluded in their rights by this judgment, but it was evidence against them until its effect was impugned. Poth'ier on Obligations, § 61, de Re Judicatd. 10 Toullier, § 210. In Irish, v. Wright, 12 Robinson, 576, it was held that in a-legal suretyship the judgment against the principal debtor is res judicata against the surety. We think the defendants are bound jointly, and not in solido. Judgment affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Montecon v. Faures et al.
    A stipulation that a lessee shall not sub-lot the premises without the written assent of the lessor, is for the exclusive benefit of the latter, and if he does not .take advantage of it, no one else can.
    from the First District Court of New Orleans, McHenry, J.

      Preaux, for the appellant.

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

Rost, J.

This is an action for arrears of rent; and the plaintiff farther prays that the defendants be ousted from the premises, on tlie ground that they have violated the conditions of the .lease. The defendants deposited -in court the amount of rent due, and the monthly instalments which matured during the pending of the suit, but resisted the avoidance of the lease. The court below having given judgment for the rent and maintained the lease, the plaintiff-ttppealed.

The material facts of the case are as follows : In August, 1845, Egana leased a double tenement situated in the Second Municipality, to Jules Vaudry. It was a condition of the lease “that the lessee should not sub-lease the premises - without the written consent of the lessor, endorsed thereon. This lease was made for the term of twenty-six months. Vaudry entered into possession, and, in October following, sub-leased one of the tenements to Cam-panel, without the written consent of Egaña, for the term of one year, with the privilege of renewing for another year. Campanel occupied the premises till June, 1846, when he transferred his lease to Adele Pavajeau, who agreed to take his place and pay the rent .to Vaudry.. Adele Pavajeau went into immediate possession, and has occupied the tenement ever since, with the assent of Vaudry, who received the rent from her. In April, 1846, Vaudry transferred the unexpired term of the lease to the plaintiff, with the written assent of Egaña, and he bound himself to fulfill all the obligations of Vaudry towards the landlord. In September, 1846, Adele Pavajeau addressed a letter to the plaintiff, by which she notified Mm that she would avail herself of her privilege to renew the lease for another year. The plaintiff refused this application, and now resists her claim on the ground that the lease originally made to her was not made with the written .consent of Egaña, and was therefore void.

However this might be, if Egaña himself was the plaintiff in this suit, it is very clear that Monlecon has acquired nothing more than the rights of Vaudry and is bound by the sub-lease, which can in no respect be viewed as absolutely null. The nullity resulting from the prohibition in the original lease is for the .exclusive benefit of Egañaj and, if he does not avail himself of it, nobody else .can. The .evidence leaves no doubt in our minds that the plaintiff was fully .aware that Vaudry could deliver but .one of the tenements to Mm, and that the other was rented. He went to occupy .the vacant tenement without setting up .at the time any claim to the possession of the.other, and he could hardly have received rent for it, .as he did, .unless he had been apprised of the conditions of .the sub-lease. * Judgment affirmed!.


text:
    Seaton v. The Second Municipality of New Orleans.
    In an action by a contractor, against the party with whom he had contracted for the erection of a building, -for damages for non-performance on the part of the latter, the difference between the amount the contractor was to i*eceive, and that which he was to pay under subcontracts made by him for the materials and building, does not constitute the amount of profit the .contractor* is entitled to recover. PerCwriam: It cannot be ascertained, with•out evidence as to the value of labor and materials at the time, and as to the solvency of the sub-contractors, whether they would have been able to comply with itheir obligations, or .to indemnify the contractor if they had not. When a contrast is broken before the arrival of che time for full performance, and the opposite party sues for damages also before the time for full performance, the market value at the time of the breach, whenever there is a market value, is to govern. Where there is none, as in this .case, the question involves a minute enquiry into the cost of materials, the expense of procuring and transporting them to the place-of delivery, the amount of labor required for putting up the building and the value of the wages of laborers and mechanics, the whole to be assessed at ¡the time of the breach of the contract; and wherever the estimate of profits must be somewhat conjectural, the damages should be moderated so as to allow for any partial uncertainty that may exist.

      from the Fifth District Court of New Orleans, Buchanan, J.

      Benjamin and Micou, for the plaintiff.

      Lockett and Ii. Hunt, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The motion for a new trial in this case was improperly overruled, and the application of the defendants to have the .case remanded for trial before another jury must prevail, so far as the question of damages and loss of profits resulting from the breach on the part of the defendants of the building contract entered into by them with the plaintiff, is involved. It is admitted that the verdict of the jury allowed $28,000 as damage and loss of profits, and that the balance of the judgment has been voluntarily executed, without prejudice to either party as to the question remaining open. The damages and loss of profits allowed are based exclusively upon the loose and speculative opinions of the witnesses, and upon estimates of supposed profits. The plaintiff’s counsel argue that the difference between the amount he was to receive, and that which he was to pay, under the sub-contracts he had made for the building and materials, constituted the profits. Evidence of that description would open too wide a door to fraud, to be received as full proof. Flow can it be ascertained, without any evidence as to the value of labor and materials at the time, or as to the solvency of the sub-contractors, whether they would have been able to comply with their .obligations, or to indemnify the plaintiff if they had not.

The jury had not before them the data necessary to make an estimate. When a contract is broken before the arrival of the time for full performance, and the .opposite party assents to consider it in that light, and sues for damages, also before the time for full performance, as is the case here, the market value at the time of the breach, whenever there is a market value, is to govern in the .assessment of damages. There being no market value'in this case, the question of profits involves a minute inquiry into the cost of .the materials, the expense of procuring and transporting them to the place of delivery, the amount of labor required for putting up the building, and the value of the wages of laborers .and mechanics, the whole to be assessed .at the time ,of the breach of the contract. Even with these data, the estimate of profits must be somewhat conjectural. B,ut wherever this is the case, it is the province as well as the duty of the jury not to assess damages rigorously; but, on the contrary, to moderate them, so ,as to make allowance for any partial .uncertainty that may exist. The nature of the proof required in cases of this kind has been thoroughly investigated by the courts of New York. Masterson v. Mayor of Brooklyn, 7 Hill, p. 62. Sedgwick on Damages, pp. 81 to 85—228 to 231.

It is ordered that the judgment, so far as it has not been voluntarily .executed, be reversed, and the case remanded for further proceedings on the single .question of damages and loss of profits resulting from the breach of the building ■contract entered into between the plaintiff and the defendants; the plaintiff and appellee paying the costs .of this appeal.


text:
    Barelli v. Riviere, Curator.
    All personal actions, except those for which the law has provided a shorter term, are proscribed by ten years, if the creditor be present; and neither the nature of the debt, nor the mode of life of the debtor, can effect the rule. C. G.3508.
    from the Court of Probates of New Orleans, Bermudez, J.

      Josephs, for the appellant.

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

Rost, J.

The plaintiff claims the sum of $3,026 24, for a balance of accounts resulting from transactions between him and the .deceased, which were closed on the 5th September, 1831. The petition alleges this claim to be the result of commercial transactions, moneys paid, .and goods furnished by the petitioner for the benefit of the deceased. This statement is corroborated by the account annexed to .the petition, upon which proof of the claim has been made. The only defence is the plea of prescription. It prevailed in the court below, and the plaintiff appealed. The citation in this case was served on the 14th of February, 1844, and it is satisfactorily shown that the plaintiff and the deceased had both resided in the State during more than ten years previous to that time.

The plea of prescription is resisted on three grounds : 1st. That the amount, sued for resulted from transactions of a fiduciary character. 2d. 'That in consequence of the defendant’s obscure and vagrant life, and of his, intentional misrepresentations, the plaintiff was kept in ignorance of his place of abode. 3d. That if the deceased ever acquired prescription, he renounced it afterwards, .and acknowledged the debt.

The two first grounds are untenable. All personal actions, except those for which the law has provideda shorter "time, are prescribed by ten years, if the creditor be present; and neither the nature of the debt, nor the mode of life of the debtor, can affect the rule. C. C. 3508. If they could, from the plaintiff’s own showing, his claim is an ordinary debt, and he might easily have ascertained the place of abode of the deceased. It is in proof that during the three years which preceded his death, he kept a cabaret near the St. Mary’s market, and that his name was on the door.

The facts in support of the third ground are as follows; Johnson, a witness for the plaintiff, states that, in December, 1842, or January, 1843, being in company with the plaintiff, they met casually on the Ievée a man crippled and about fifty years of age. Barelli appeared very much surprised, and enquired why he had not called to see him. He answered, “ 1 am so poor that 1 have nothing to give you.” The plaintiff told him to call and see him, and that he would aid him if he eould. After they left this person, witness asked the plaintiff what his name was, and the plaintiff stated his name was Aymard. Now, although it b.e true that a renunciation to a prescription already acquired may be implied from circumstances, those circumstances must be such as will .carry conviction to the mind of the judge. The payment of the arrears of interest or of a portion of the debt, or the giving security for the whole amount, , are circumstances of that class. The words, “ I am so poor that I have nothing to giveyou,” have no direct reference to the debt, and are far too loose and indefinite to make proof of the renunciation. The very identity of the person who uttered them with the deceased is only shown by the declaration of the plaintiff, which is not legal evidence, The alleged intentional misrepresentations of the deceased, and his statement to the plaintiff that he resided in Lafayette, when in fact he kept a cabaret near the St. Mary’s market, so far from benefiting the plaintiff, raises a veiy strong presumption that he had no intention to renounce any rights he might have acquired hy lapse of time, or otherwise.

Judgment affirmed-


author: Seidell, J.

text:
    Jones v. Fellowes et al.
    Where cotton seized under execution by consent of parties is shipped by the sheriff to factors residing in another parish for sale, and the latter accept the consignment with knowledge of the cap acity in which the sheriff held the property, they cannot refuse to pay over the proceeds on the ground of a claim for supplies famished to the plantation on which the cotton was produced'; nor can they question the sheriff's authority to send the property beyond his bailwick. Any priviiege for supplies claimed by them must be asserted before the Gourt under whose process the sheriff holds, the cotton. In such a case compensation cannot take place; the parties not being indebted to each other. C. C. 2203.
    from the Fourth District Court of New Orleans, Sírawbridge, J.

      Wray, for the plaintiff.

      Mott, for the appellants.
   The judgment of the court was pronounced by

Seidell, J.

This is an action to recover the nett proceeds of certain cotton shipped to defendants, commission merchants, by the plaintiff, as sheriff of the parish of Caddo. It appears that the cotton had been seized by the sheriff under an execution, and, instead of a sale'in the ordinary manner, he shipped it, by agreement of parties, to the defendants, with instructions to.sell it and- await his further orders. Sueh in substance is the result of the evidence. The defendants refuse to pay over the proceeds, on the ground of a claim for'supplies furnished to the plantation upon which the cotton was produced.

The defendants when they accepted the consignment were aware that-plaintiff held it as a legal custodian, and expected them to answer accordingly for the proceeds. If they were' dissatisfied with the terms of the consignment,they should have rejected it. Having accepted .i-t without reservation, they must cany out their contract by paying over the-proceeds to the sheriff; and,, if they have- a privilege for supplies, must prosecute it before the court at Cad-do, under whose process the sheriff holds. We do* not think that,- under the-circumstances, the defendants have a right to raise the question of the- sheriff's-authority to send the property out of his bailwick.

This is not a ease- in which compensation can take place, because the plaintiff, the consignor of the property, and the defendants are not indebted to each-other. The plaintiff represents, it is true, the owner of the plantation, who is the alleged debtor of the present defendants; but he also represents the seizing creditors. See Civil Cod8, art. 2203. Merlin, verba Compensation, § III.

Judgment affirmed.


author: Slidell, J.

text:
    Carlisle v. Holton et al.
    Damages cannot be recovered by the owner of a steamer for injuries sustained by a collision with another boat, though the latter was greatly in fault, where the collision might have been avoided by ordinary care on the part of those in charge of plaintiff’s boat.
    Where a collision takes place between steamers engaged in racing, the owners of neither boat will be allowed to recover damages for any injury sustained, however gross the fault of those in charge of the other boat.
    PPEALfrom the Fourth District Court of New Orleans, Slrawbridge, J.

      Randall, for the plaintiff,
    cited C. C. 2294. O. P. 1. Abbott on Shipping, p. 238. Story on Bailments, § 611. Lowry v. Steamer Portland, 1 Law Reporter, 313.
    Bartlette, for the appellants,
    cited C. C. 2299. Myers v. Perry, 1 An. R. 372. 8 Mart. N. S. 504. 8 La. 539v
   The judgment of the court was pronounced by

Slidell, J.

This is an action brought by the plaintiff, charterer of the steamer Edna, against the master, pilot and owners of the steamer Westwood, to recover the amount of damages arising from a collision. The plaintiff alleges that the officers and crew of the Edna did every thing in their power to avoid a collision, and were not guilty of any fault; and that the collision and loss were caused by the negligence and unskilfulness of those in charge of the Westwood. The court gave the plaintiff j udgment for $326 50, and the defendants have appealed.

'.It appears that these steamers were making a trip from Biloxi to New Orleans, each having a considerable number of passengers. The Edna left Biloxi a short time before the Westwood, and as they approached the entrance of Pass Christian, the latter attempted to pass the former, coming close alongside on the starboard or shore side — so close that the vessels were almost touching. A witness, who was a passenger, declared that he could have shaken hands with a person on the other boat. They ran in this position for about an hour, the passengers conversing together on the chances of a collision, and the women and children being in a state of alarm. At length the bell of the West-wood rang, and her engine stopped. She fell nearly astern; but before the two vessels were quite clear the engine was again in motion, and the former position was resumed. The collision took place shortly after, by the West-wood striking her bows against the Edna on the after part of the wheel house, her engine having been again stopped a few seconds, but too late to avoid mischief. The wheel-house and wheel of the Edna were broken; unable to proceed, she drifted towards tire shore, and anchored or touched the bottom. The Westwood proceeded on her voyage, offering no assistance. At the entrance, Pass Christian is a mile in width, and the two boats were at the time of the collision in sight of the wharf at Pass Christian, distant about half a mile. The immediate cause of the collision was considered by the district judge as left in doubt. The witnesses on one side deposed that the Westwood sheered into the Edna, while the witnesses on the other side as positively swore that it was the Edna which sheered into the Westwood. The district judge expressed his decided censure and condemnation of both masters; declaring himself satisfied “that the motive with the captains was to reach the wharf first to catch the passengers, for which purpose they recklessly pressed their boats regardless of consequences,” He gave, however, apparently with serious reluctance, a judgment in favor of the plaintiff. He was of opinion that an attempt to pass ought not to be made in a narrow channel; that, if passing was justifiable, it should have been attempted, not by running inside of the Edna, but by giving her a sufficient birth and running to seaward, where it was shown the Pass was a mile wide, with plenty of water. “ If,” said the judge, “ she chose to run between the Edna and the land in the inner side of the channel for the purpose of first reaching the wharf, she risked the collision whicít has taken place, and must bear the consequences.”

We entirely concur with the district judge in the view he has taken of the facts of this case, but are unable to assent to the legal conclusion deduced from them. It may be conceded that the captain of the Westw'o'od committed a gross fault in running his steamer inside of the Edna; and yet it by no means follows that the plaintiff should be maintained in his action. The question still remains, could the plaintiff, with ordinary care, have avoided the collision? Was there a proper prudence exhibited, under the circumstances ? Sucha prudence as must be exacted from every man, and especially from those to whom the lives and property of others are entrusted ? The district judge has pro", perly characterised the conduct of both masters as censurable and reckless. The spectators of this scene had been expecting a collision for sometime previ* ously, and its danger, instead of decreasing, was becoming more imminent, When the captain of the Edna saw that the rival boat was pertinaciously vio* lating the usage and pressing for the inner side of the channel, he had no right obstinately to persevere in his course because the other party was in fault. Pie should have abandoned his course and yeilded his right, in order1 to secure the safety of his vessel and passengers. Ther'e is not the slightest reason to suppose that the collision might not have been avoided, if the officers of the Edna had chosen to desist from the race in which, as said by the district judge1, both parties “ recklessly pressed their boats regardless of consequences.”

We held in Meyers v. Parry, 1 Ann. Rep. p. 374, that a party cannot be heard as plaintiff who has contributed to the collision by his own negligence Oí improper management; and, after a careful re-examination of the authorities, we find no reason to depart from the doctrine.

In Butterfield v. Forrester, 11 East, 60, the rule was Very forcibly stated by Lord Ellenborough. The defendant had put an obstruction in the road, over which the plaintiff fell. But it appeared that he was riding with great violence and want of ordinary care, otherwise he might have avoided the obstruction. It was then said, a party is not to cast hirtíself upon an Obstruction which has been made by the fault of another and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered the wrong side of the road, that would not authorise another purposely to ride Up against them. One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action — an obstruction on the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

In Handyside v. Wilson it was urged by counsel that, there was no law of the sea or the road, by which a person is justified in adhering to a particular course where it will be productive of mischief; and the court sustained that view. 3 Carrington & Payne, 528.

In Vanderplank v. Miller, 1 Moody and Malkin 171, it was proved that the defendant’s vessel, if carefully navigated, might have avoided the plaintiff’s vessel, which was lying at anchor in the Thames. But there was also evidence that the whole of the crew of the plaintiff’s vessel were below at the time of the accident, and that if any of them had been on deck, they might, by a slight shifting of her position as she lay at anchor,, have avoided the shock, and the accident would not have happened. Lord Tenterden told the jury that if they thought there was want of care on both sides, the action could not be maintained.

So in Luxford v. Large, 5 Carr. & Payne, 437, Lord Denman told the juiy that, to find for the plaintiff they must be satisfied that the plaintiff was not in fault, and did not contribute to his misfortune by Ms improper management of the boat.

The'same- doctrine has been repeatedly recognised in various States of this Union, and in this State. In Fleytas v. Ponchartrain Railroad Co. 18 La. 339, the plaintiff’s action was for the value of a- slave killed by the steam-car’s running over him-. It' was proved that the slave was lying upon the railroad, either asleep or drunk. It was also not improbable, under the evidence, that the cars could have been stopped before reaching the negro, by timely effort. But the court gave judgment for the defendants, saying that if the slave fell asleep on the road he was guilty of great neglect, and if he was disabled from taking care of himself by intoxication his owner could not expect compensation for him. So also in Lesseps v. Ponchartrain Railroad Co. where the evidence v?as that a slave, mules, and cart were run over and destroyed, through the fault and folly of the-slave in.driving across the railroad when the cars were approaching and near, it was held that the owner could not recover, although it was considered that the defendants had acted indiscreetly, in running their cars rapidly in a crowded street.

We are therefore clearly of the opinion that the persistence of the plaintiff’s officers and crew in maintaining a hazardous position under the circumstances stated, is not excused by the gross fault of the other steamer. Their own obstinacy and imprudence must be considered as having contributed to a collision, which with ordinary care they might have avoided. The practice of racing, which has become so common on our waters, is, in our opinion, highly dangerous and reprehensible ; and when a collision takes place between boats thus engaged, they must not expect any relief at our hands.

It is therefore decreed that the judgment of the court below be reversed, and that their be judgment for the defendants, with costs in both courts.


author: Kin®, J.

text:
    The State v. Howell.
    The delivery to tlie prisoner of alistof persons drawn to serve as jurors, a large proportion of whom had been either previously excused from serving, orwere not summoned, or were exempted from serving as jurors, and had made known their causes of exemption, though it contain among* the rest the names of all the jurors who are to serve on the prisoner’s trial, is not a compliance with the letter or spirit of sec. 35 of the stat. of 4 May, 1805. Per Cwriam: The object of the statute is to enable the accused to enquire into the characters of the jurors by whom he is to he tried, and to prepare his challenges; and a list containing other names than those of the jurors really tobe presented on the trial, necessarily tends to embarrass the prisoner in preparing his challenges, and thus defeats the ends of the law.
    Service on the prisoner of a copy oi an indictment,- unaccompanied with the finding of the grand-jury, is not a compliance with sec. 35 of the stat. of 4 May, 1805, which requires that the prisoner shall have a copy of the entire instrument served on him. Per Curiam-. The finding of the grand-jury musthe endorsed on the hill ¡ the endorsement is a part of the indictment, rendering it a complete accusation against the prisoner.
    A prisoner does not waive his right under sec. 35 of stat. 4 May, 1805, to have delivered to him a copy of the indictment and list of jurors two days before his trial, by pleading without claiming it.
    from the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.
    In England, under the statutes of 7 Wm. Ill, ch. 23, sec. 1, and 7 Anne, ch. 21, sec. 11, a copy of the indict-m ent has to be served on the prisoner ten days before his arraignment; and if he pleaded without a copy, or to a defective copy, it was considered a waiver of hie right to a copy. See 1 East. Ill — 5. Hawkins, P. C. b. 2, chs. 28, 39, 40. East. P. C. 113. Foster’s Crown Law, 227. 1 Chitty, 404 — 5. United States v. Carter, 4 Mason, 240 — 4. United States v. Hare, note, 2 Wheeler, 304 — 5. As to the necessity for endorsing the finding of the grand-jury on the back of the indictment, see Burgess v. Commonwealth, 2 Virginia Cases, 483.

      Preauz and Foulhouze, for the appellant,
    relied on the stat. of 4 May, 1805, s. 35. The judgment of the court was pronounced by
   Kin®, J.

The defendant was indicted for murder, and on his arraigment pleaded not guilty. By law he was entitled to a copy of the indictment, and to a list of the jurors.by whom he was to be tried,-two days before his trial. After his arraignment, a copy of the indictment was delivered to him, which exhibited no finding of the grand-jury, although certified by the clerk to be correct. Pie was also served with a list of one hundred and eight names, headed “ List of .Jurors drawn to serve during the term of June, 1847”; and with a further list •of -forty-eight names, headed “ List of additional jurors drawn to serve during .the term of June, -1847."” These lists comprised the names of all those who were originally drawn to serve as jurors for the term, and of two additional drawings ordered by the judge, in consequence of the large number who, from various causes, were not in .attendance on the court. On the day of trial a third list was delivered to the prisoner, of thirty-six jurors, whom he was informed were to be presented to him, and from whom alone the jury was to be selected. These thirty-six jurors were included in the two lists previously served on the prisoner, and of the several drawings were the only jurors present. The counsel for the accused objected to going to trial, on the ground that the prisoner had not been served with a true list of the jurors — that the lists delivered to him included the names of a number of persons whom the sheriff returned as not found, and of others who had, for sufficient reasons, been excused from serving; which facts were known to the clerk and sheriff before the lists were prepared or served ; that these lists were calculated to mislead and confuse the prisoner in preparing his challenges, and violated the satutes. He further objected that he had not been served with a true copy of the indictment. These objections were overruled by the district judge ; the prisoner was put upon his trial immediately, was found guilty, and from the judgment of the court has appealed.

The statute, the benefit of which the defendant complains that he has been deprived of, provides that, in certain cases, the prisoner “shall hove a copy of the indictment and list of the jury which are to pass on his trial, delivered unto him at least two entire days before he shall be tried.” Bui. & Cur. Dig. p. 248, sec. 35. The object oí the law in directing a list of the jurors to be furnished .to the accused is, to enable him to enquire into the characters of the . judges .by whom he is .to bo tried, apd to prepare his challenges. The short time allowed him for making ,this preparation is provided with reference to the limited number of the jury. The prisoner is not left during the brief interval granted for this purpose to prosecute a doubtful enquiry through the community at large into the characters of persons who are not to be presented to him, and for which the time allowed would be wholly inadequate, but may confine himself with more certainty to .a small number of jurors, whom he may reasonably expect to be .offered to him on the trial. A list containing other pames than those .of the jurors who are r.ealiy to be presented .on the trial, necessarily tends to embarrass the accused in his searches for information, and .to confuse him in preparing his challenges, and thus defeats the ends ,of the law, .Such a list is not a compliance with either the letter or the spirit of the statute, .although itmay at the same .time contain,the names of .all the jurors who are to pass on the prisoner’s trial. The list served on the prisoner in .the present instance contained the names ,of ope hundred and fifty-six persons, of whom one hundred and,twenty had either ,be.en previously .excused, or were n.ot summoned, or were exempted by law from serving ,op juries, .and made known .their causes .of exemption, Jt -was known to the officers of the court at the time that the lists were served, that those .ope hundred and twenty persons would n.ot be in attendance, op offered to the prisoner at the trial. They were as though they had never beep drawn or summoned ; and, with equal propriety, the names of .any other one hundred and twenty, .or greater number, of .citizens .might have .been inserted in the lists.

It is urged that, if this .construction be .given to .tire statute, a prisoner whose trial is assigned for .the commencement of the .term, before it can possibly be known how many of the panel will be ip.attendance, may decline going to trial jf the whole number of jurors contained in the list delivered to .him be mot in attendance. A just interpretation of the statute does pot, in our opinion, lead .to this consequence. The inconvenience to which the .prisoner maybe .subjected in the event of the failure of jurors to attend from unforeseen causes, is .one to which he must necessarily submit while deriving the benefits of the statute. It is one of those unavoidable evils which no legislative foresight can pro^ vide against, but can neyer b.e serious, the number of jurors selected a.t .each drawing being limited. The object of the law will be fulfilled, if the prisoner be furnished with a list which is correct at the time,of its delivery. Such a list was not furnished in the present instance.

The second .objection urged by the appellant, is equally fatal to the regularity of the proceedings in the court below. The finding of the grand-jury must be endorsed on the bill. This endorsement is a part of the indictment, and renders it a complete accusation .against .the prisoner. Com. Dig. A. 4 Black. Com. 305, 1 Chitty, C. L. 324. A copy which omits this indispensable part .of the indictment is imperfect, and is not a .copy within the intendment ,of the act, which .contemplates that the prisoder shall have a true .copy of the entire instrument.

But it is urged that the prisoner was entitled to the copy before his arraign, ment, and having pleaded without claiming it, he waived the right .of insisting on its delivery,and we are referred in supp.ort.of this position to the uniform interpretation given by the engiish judges to the statutes of 7 W. Ill, ,ch. 3, §1, and 7 Anne, ch. 21, §11, which provide for the delivery to the prisoner before trial, iu certain cases, of ,a copy of the indictment and list of jurors. It has been long settled under those statutes that the prisoner is entitled to the copy before arraignment, and that after pleading it is too late to object to the want of a copy or to any insufficiency in it. 1 East. P. C. 123. I Chitty C. P. 405. The act of Congress upon this subject declares: “ That any person who shall be accused and indicted of treason, shall have a copy of the indictment and a list of the jury and witnesses to be produced on the trial for proving the said indictment, mentioning the names and places of abode of such witnesses and jurors, delivered unto him at least three entire days before he shall be tried for the same; and in other capital offence he shall haye a copy of the indictment and list of the jury two entire days at least before the trial. Apt of 1790, ch, 9, sec. 29. All that part of our statute which relates to the copy of the indictment and list of the jury, has been taken literally from this act of Congress. In the case of the United States v. Curtis, a copy of the indictment was served on the prisoner after his arraignment, but more than two days before his trial by the jury. A motion was made for a new trial and an arrest of judgment, on the ground that the copy had not been delivered two days before the arraignment. The question presented involved an enquriry into the meaning of the words which occur in the act of Congress---11 before he shall be tried” and “ before trial ”. The statute was compared with those of William and of Anne, and Mr. Justice Story, in an elaborate opinion, in which the whole law on this subject was reviewed, said, that “we are clear in the opinion that upon the statute itself the true meaning is that the copy should be delivered two days before the cause is tried by the jury, and not before the party is arraigned on the indictmentand the reasoning upon which he founds hjs conclusions appears to us unanswerable, He demonstrates clearly that the interpretation given to the words “ before he shall be tried” in the statutes of W. and A- was forced upon the english courts in consequence pf a clause in the first of them, declaring the ebject of the copy to be to enable th.e prisoner to “ advise with counsel thereupon, to plead, and make his defence”, This avowed purpose of the statute would be defeated unless the prisoner was furnished with the copy before his arraignment, as he is required to plead instantes■ on being arraigned. This explanatory clause which governed the interpretation of the english statutes in relation to the time of delivering the copy does not occur in the a.ct of Congress, nor in the statute of this State. In concluding his remarks on this head Judge Story says: “ There is no reason to suppose that the learned (english) judges would have given a different exposition from that which we think the true one of the act of Congress, if the language had been in all respects the same as ours. In point of authority, then, there is nothing binding on the conscience of the court, or that justifies it in abandoning the natural sense of the words used in the act of Congress.” P. 244. This authority is conclusive. The prisoner was entitled to a copy of the indictment two days before the trial by the jury, and his right to claim it was not forfeited by pleading before it was delivered.

It is therefore ordered that the judgment of the district court be reversed, and the verdict of the jury set aside. It is further ordered, that the cause be re» jnanded for a new trial according .to law.


author: King, J.

text:
    Marrero et al. v. Nunez et al.
    A continuance should be granted where, from unforseen illness, the only counsel of a party is unable to attend at the trial, and the case is .a complicated one, and his clients are absent, residing at a distance from the place of trial, and there is no reason to believe that the application for a continuance was made for delay. The fact that a case had -been long pending, willnot authorise the refusal of a eontnraaace, where the.deiay does not appear to be imputable to .the party applying for it.
    from the Fifth District Court of New Orleans, Buchanan, J.

      D. Segliers, for the appellants,
    contended that the case should have been continued below, and that it cannot now be tried upon its merits, citing Barry v. Louisiana Insurance Co., 12 Mart. 484; Patin v. Poy.dr.as,.5 Mart. N. S. 639.

      Presión, for ithe .defendants.
   T,he judgment of the court was pronounced by

King, J.

On the day fixed for the trial of this cause, iu the court below, an application was made for a continuance, on the ground that Dominique Segliers, the-only counsel for the plaintiffs, was unable, from indisposition, to be present at the trial. The application was supported by the affidavit of Julien Segliers, who deposed, that his father, D. Segliers, had attended the trial of a cause, for several hours, on the Saturday previous, although at the time indisposed ; that, on the following day, his indisposition increased, and had since become so serious as to prevent him from leaving his house ; that he was the only counsel of the plaintiffs, who were in the parish .of St. Benard, twenty or thirty miles distant; that they were two poor to employ other counsel; and that the suit was intricate, and ,could not be safely tried by other counsel, without a great deal of-explanation. The application was overruled on the ground, that the cause had been too long pending to grant the continuance ; a bill of exceptions was taken to the opinion of the judge. The trial proceeded in the absence of the counsel of the plaintiffs, and a judgment was rendered in favor of the defendants. The plaintiff's have appealed. It is contended, on the part of the ■defendants, .that the counsel of the plaintiffs has become so infirm, from advanced years, that his clients could not reasonably have calculated upon his trying their cause; that this is so notorious, that it should have induced them to employ other counsel; that, in view of this fact, which was known to the judge, .and .of the long pendency of the suit, a sound discretion was exercised in refusing the continuance.

The record does not disclose the fact, that the infirmities of the plaintiffs’ ■counsel prevented him from attending to his professional business generally, nor that they had become so notorious as to warn the plaintiffs of the necessity for employing other counsel. It appears, on the contrary, that but a few days previously he had tried a cause, the investigation and argument of which occupied many hours. Besides, the judge has not based his refusal on the ground •of the known infirmities of the attorney of the plaintiffs : but of the long standing of the suit. The facts of this case present a much stronger claim for a continuance, than those in the case of Patin v. Poydras, 5 Mart., N. S. 639. Indeed, more urgent grounds could not well be presented, than the inability, from ■unforeseen illness, of the only counsel of the parties, to try a complicated cause of which he had had the sole management for many years, his clients being absent on the day of trial, and, if present, too poor to employ other connsel. The previous delays which have caused the suit to linger on the docket, do not appear to be imputable to the attorney of the plaintiffs ; nor does any fact disclosed by the record, create a suspicion that more delay was the object of the application. In our opinion, the judge erred in refusing a continuance; and justice requires that the case be remanded for a new trial.

It is, therefore, ordered, that the judgment of the District Court be reversed, and that the case be remanded to be proceeded with according to law. The appellees paying the costs of this appeal.


text:
    Daley v. Cunningham.
    A judgment cannot be attached by a seizure in the hands of the cleric of the court by which it was rendered, who is merely a keeper of its records, having no legal possession of, or control over, it.
    Where an attachment has been levied, by seizing in the hands of a person alleged to be the agent of a judgment debtor of defendant, the amount due to the defendant, plaintiff must show the existence of the judgment attached, the absence of the judgment debtor, and the agency of the person in whose hands the seizure was made, in order to establish legal service of the attachment.
    from the First District Court of New Orleans, McHenry, J.

      Hammer, for the plaintiff.

      Watts and Spring, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The defendant has appealed from a judgment rendered against him in proceedings by attachment, and assigns, as an error apparent on the face of the record, that no property was attached, and no legal service of the attachment was made. It is admitted, that there was no personal service. The return of the sheriff is in these words : “ Seized, generally, in the hands of F. Gilmore, clerk of the Fourth District Court of New Orleans, and particularly the claim of defendant to the suit and judgment of Wm. Cunningham v. J. Erwin, No. 791 of the docket of the Fourth District Court; and also same day seized, generally, in the hands of W. M. Beale, attorney in fact of J. Erwin, and particularly the said claim of Cunningham against the said Erwin.”' Notices of this seizure were afterwards served on Gilmore and Beale.

It is manifest, that the judgment could not be attached in the hands of the clerk, who is merely the keeper of the records, and has no legal possession of, or control over, it. The attachment in the hands of Erwin's attorney in fact, might, in certain cases, be valid ; but in order to made it so, it was necessary to have shown the existence of the judgment attached, the absence of Erwin, and the mandate of Beale. Of these facts the record contains no evidence. We are, therefore, of opinion, that the error assigned has been shown to exist; and that the defendant wa3 not legally before the court.

It is ordered, that the judgment be reversed, and that there be judgment of non-suit against the plaintiff, and in favor defendant, with costs in both courts-


text:
    Goodhue et al. v. McClarty.
    Defendant consigned tobacco to his factors in New Orleans, with directions to forward it to G-. in Liverpool, and to send the bill of lading to M., defendant’s agent in New York, and to draw on M. for the expenses and for a certain sum to be placed to defendant’s credit. Afew days after, defendant wrote to (3-., advising him that he had shipped the tobacco to his factors in New Orleans, to be reshipped to him, and of his having drawn on him, in fa* vor M., for a certain sum. Two days After defendant Wrote, plaintiffs attached the tobacco in New Orleans. Defendant’s draft was forwarded to M., and with it a duplicate of the bill of lading under which the tobacco was consigned to defendant’s factors in New Orleans. The draft was negociated by M., and carried to the credit of the defendant, in payment of whose drafts a portion of the proceeds was disbursed. The draft was subsequently accepted and paid by Gr. When M. heard of the attachment he remitted the balance of the proceeds of the draft to G\, who intervened in tbe action, claiming the portion of the bill not covered by the remittance from M., with commissions and interest. Plaintiffs appealed from a judgment ordering the claim of the intervenor to he paid by preference to their attachment. Held, that no possession of the property rested in M. or G\, by the transmission and receipt of the duplicate hill of lading, it having been made in favor of defendant’s factors, neither M. nor (3. beingnamed in it; that the object of defendants in transmitting it, was, to fortify his representation that he had shipped to his factors, with orders to reship to Gr.; that, in accepting the draft, Gr. acted on tbe faith of defendant’s reresentations and promise that the tobacico should go forward, and not upon auy posséssion, for there was none; that defendant never lost, in a legal sense, his control over the' tobacco, either as to his creditors or third persons, the consignees in New Orleans being his agents, and their possessions his, they newer having been the agent’s of the intervenor ; that, at the date of the attachment, the intervenor had acquired no constructive possession nor privilege; and that the tobacco was subject to plaintiffs’ attachment. Alitor, had tbe consignees in New Orleans written to <3. or M., aud advised them of the receipt of the orders, and of their intention to fulfill them, and the párties had acted on such advice, or, perhaps, had the consignees known that the draft on Gr., had gone forward : for an agent is not chargeable for a breach of orders', if his compliance would have been a fraud upon others.
    from the Fourth District Coürt of New Orleans, Watts, J.

      Bradford, for the plaintiffs, appellants.

      Benjamin and Micou, for the infcervetoors.

      Mott, for the garnishees, who also appealed.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiffs are appellants from that portion of the judgment of the Commercial Court which awarded the sum of $1220 37, with legal interest from the 2nd June, 1845, to be paid to John Gilliat Sf Co.. intervenorsV out of the proceeds of the property attached in this case. The plaintiffs levied their attachment on the 7th April, 1843, on a quantity of tobacco in the hands’ of Messrs. Hewitt, Heran Sf Co* of this city, consigned to them by the defendant, Samuel McClarty. The tobacco was shipped on 31st March, 1843, a-t Clover Port, Kentucky, on the steamboat Somerville,, and consigned to Iiewitt, Heran Co. The instructions of McClarty to Messrs. Hewitt, Heran Co. were, to forward the tobacco to W. H. Gilliat of Liverpool, and to send the hill of lading to B. L. Maitland 4* Co. of New York, who were the agents of McClarty there, and on whom his agents in New Orleans were directed to draw for the expenses in New Orleans, and for the further sum of $3-00, to he placed to the credit of Me Ciar ¿y in account. In the postscript of the letter, McClarty says: “ In drawing on Messrs. Maitland 4* Go. for the $300, please do it at sixty day’s sight. Your bill will be provided for out of our sfelímg exchange, sold by Messrs. Maitland, Co.” On the 5th April, 1843, (which was five days after the shipment of the tobacco, and two days before its attachment in New Orleans,} MeClarty wrote to John Gilliat dp Co. of Lo.idon, advising them that he had shipped the tobacco to New Orleans, to be reshipped to their address, and also of his draft in favor of Maitland dp Co., for ¿6532.-The draft was forwarded to Maitland Co., to be negotiated for account of Me Clarty, A duplicate of the river bill of lading, under which the tobacco was consigned to Heioiit, Heran dp- Co., was also sent to Maitland dp Co. On this bill of lading was endorsed a memorandum, that the tobacco -was to be forwarded to John Gilliat dj- Co., of London; but it does not appear by whom, nor at what time, this memorandum wa's put on the bill. It exhibited this memorándum when received by Maitland Co.; but the memorandum was in a different hand writing from that in which the bill was filled up. It was probably put there by MeClarty, as a direction to Maitland dp Co. to- send it to' Gilliat Sf Co. On the 19th April, 1843, Maitland Sf Co. addressed a letter to John Gilliat S¡• Co., in which they say : “ When bill of lading is received from New Orleans, it shall be duly forwarded. We crave your protection for McClartyts bill, against the shipment, for ¿£532, which we shall negotiate.” The bill Was subsequently negotiated by Maitland <§• Co., and the proceeds carried by them to the credit of MeClarty. The bill was accepted by JahnGilliat dp Co., on the 30th May, 1843, and paid in due course. Maitland &>• Co. disbursed a portion of the proceeds of the bill, in payment of the drafts of MeClarty, till they heard of the attachment of the tobacco in New Orleans, when they refused to honor any further drafts from him, but remitted the balance in their hands, amounting to ¿6316, 14, 8, to John Gilliat Sf Co. For the portion of the bill not covered by these remittances, with commission and interest, John Gilliat Co. have intervened.

The following points are made by the intervenors : “ 1st. That the bill was endorsed and accepted upon the faith of the bills of lading from Louisville to New Orleans ;• and that the possession of the bills of lading, was possession of the goods. 2nd. ’í'hat Hewitt, Heran d$- Co., consignees in New Orleans, having received the tobacco, with instructions to ship to Liverpool, and with notice of the interest of the intervenors, became, by accepting the consignment, agents of the intervenors ; and their possession must be considered the possession of the intervenors. 3rd. That from the moment of enclosing the bills of lading to New York, and drawing the bills against them, the control of the defendant over the merchandise ceased, and the same was no longer liable to be attached for his debts.”

It is quite clear that no possession of the goods vested in Maitland dj- Co. or Gilliatt dp Co., by the transmission and receipt of the duplicate bill of lading. That bill of lading was in favor of Hewitt, Heran Sf Co. Neither Maitland S¡- Co. nor Gilliatt dp Co. were named in it. The object of MeClarty in transmitting it was, not to vest any possession in Maitland dp Co., but simply to fortify his representation that he had made a shipment to Hewitt, Heran dp Co. with orders ;o re-ship to Gilliatt. It is in vain to suppose that either Maitland Co. or Gilliatt S)‘ Co. viewed the matter in any other light. They knew that Hewitt, Heran Sf Co. would take possession of the goods on their arrival at New Orleans, ieing the parties clothed under the bill of lading with the legal ownership. In iccepting the bill of exchange the intei'venors acted on the faith of McClarty’s representation and promise that the tobacco should go forward, and not upon any possession, for in law there was none; Nor can McClarty be considered as having lost,- in a legabsense, his control over the property. In a moral sensei his control was gone, because it would have been a fraud on his part to have diverted the shipment. But in law, he was still the master, so' far as concerned his creditors or third persons. Hewitt, Heran Sy Co. were his agents, and their possession was his.

Hewitt, Heran Sy Co. cannot be considered as the agents of the intervenors,- and holding for them. They were the mere factors and agents of McClarty.The letter of advice may- pehaps be considered a^ informing them that, at that' time, Me Clarty intended to draw on England-against this merchandise. But suppose the next day he had countermanded his orders,¡and said to Hewitt, Heran SyCo.: I have changed my mind, I prefer to sell in New Orleans — sell and send me the proceeds? We are of opinion that Hewitt, Heran Sy Co. would have been bound to obey his orders. Again, suppose that, on the 7th April, 1843, instead of the sheriff with a writ of attachment, Me Clarty had presented himself at Hewitt, Heran Sy Co’s, counting'house, and had-said: I will take’charge of the tobacco myself — here is the amount of your claims for freight1, &c.? Hewitt, Hkran Sy Co. would clearly have been bound to give up the property to him, and there would have been no bad faith-on thir part in doing so. This is the view- of their position and duty, which Heran-hss stated in his examinationas a witness, and we thinkit not only a practical but' a legal one. They were Me Clarty's agents only, and knew, and were bound to, no one else: The case would have' been very different if they had written to Gilliat dp Co. or Maitland Sy Co., and advised them of the receipt of the orders and their intention to fulfil them", and the parties had acted on such advice. Perhaps too it would have been their duty to hold on, and they would not have beenliablein damage to McClarty in doing so and refusing to recognise his control, if they haddi-nown, in the case supposed, that the draft on Gilliat Co. based on this merchandise had gone forward; for it is a principle of the law of agency, that the agent is not chargeable for a breach of orders, if his compliance would have been a fraud upon others.

Upon a careful consideration of this case we are of opinion that, at the date of the attachment,- no constructive possession had been acquired by the intervenors, nor any privilege ; nor had any thing occurred which created on the part of Hewitt, Heran Sy Co. an implied obligation to hold the property for their benefit, and divested the control of McClarty. The property therefore was subject to the plaintiffs’ attachment.

So far as the judgment off the court below affects the garnishees, it appears to us to have been irregularly rendered. There was no traverse of the answers of the garnishees, nor was the case heard as to their rights. The case appears to have been tried only as between the plaintiffs, the defendants and the intervenors. The action of the court as to the garnishees was without a contestatio litis or notice of trial, and was premature. As the case is presented, wa have not the means of doing justice between the garnishees and those opposed to them in interest, and shall remand the cause for further proceedings.

It is therefore decreed that so much of the judgment of the court below as sustains the intervention of John Gilliatt Sy Co. be reversed, and that said intervention be dismissed at the cost of the intervenors. It is further decreed that the judgment of the court below, so far as it affects the rights of the garnishees Hewitt, Heran Sy Co. be reversed, and the cause as to the said garnishees be remanded for further proceedings according to law. And it is further decreed that the judgment of the court below, except so far as above set forth, be affirmed; one half of the costs of the appeal to be paid by the said John Gilliatt Sy Co. and the other half by the plaintiffs.


text:
    Lafayette et al. v. Blanc.
    The presentation of a petition to a Spanish intendant of the province of Louisiana praying for the grant of a tract of land, which was referred to the surveyor general to report thereon, but on which no further action had been had at the time of the transfer of the territory to the United States, the petitioner never having had actual possession of the land, can confer no title to it.
    Sec. 1 of the act of Congress of 12 April, 1814, only confirmed titles to lands claimed by virtue of incomplete french or Spanish grants, concessions, warrants, or orders of survey, granted prior to 20 Dec. 1803, and having a special and definite location. It did not confirm any claim unsupported by written evidence .of title emanating from the french or Spanish governments.
    In order that a confirmation may have the force and effect of a patent, the description in the-inchoate title or in the act of Congress must be such.as will identify the land. If the description will fit another place as well or better, it is defective, and will not protect the holder, who can show no original possession, against a subsequent location made under the authority of Congress.
    from tlie Parish Court of New Orleans, Maurian, J.

      L. Janin, for the appellants.

      H. A. Bullard and Prestan, for the defendant.
   The judgment of the court was pronounced'by

Rost, J.

This action purports tobe instituted against the defendant for slandering the plaintiffs’ title to waste lands; but, as the fact of possession is left in doubt by the evidence, we will consider it as a petitory action. The plaintiffs assert title to a tract of land situated in the rear of the city of New Orleans, under a patent issued in 1825, on a location made a short time previously t in pursuance of the provisions of several acts of Congress granting lands to General Lafayette, for his services in the revolutionary war. They allege that the defendant claims title to a portion of said land; they pray that he may be ordered to produce his title, if any he have; and finally, that they may be quieted in their title against his pretended claims. The defendant alleges that he is, and has been for more than a year before the commencement of this suit, in quiet possession of a tract .of land of six arpents front on the canal Carondelet, and running back between parallel lines to the line of the late John Gravier's plantation, marked on the public surveys of that part of the city with the name of Ls. Lioteau; and he denies that the plaintiffs possess, or ever have ■possessed, any part of said land. He farther pleads the prescription of twenty and thirty years. There was judgment in favor of the defendant, and the plaintiffs appealed.

The extent of the conflict is shown by the evidence, and the only question for our consideration is, whether the land claimed by the defendant falls within the reservation of the patent, by virtue of which only such parts or parcels of the tract of land which it embraces are granted, as were not at the time it issued legally claimed by any other person or persons whatsoever.

The title on which the defendant relies may be stated as follows: In 1801, Louis Lioteau presented a petition to the intendant Morales, praying that a tract of land be granted to him, having six arpents front on the left bank of canal Carondelet, with the ordinary depth, if there should be such a depth vacant, being bounded on one side by the Jand of Garbs Guascliola, and on all the other sides by public land. He states as a reason which entitles him to the favorable notice of the intendant that, his object was to establish a large garden and to drain the land, which would be advantageous to the public and contribute to the salubrity of the city. He stipulated to conform to the regulations relating to grants .of land. On this petition an order was made in 1802, which is attested by the notary, Carlos Ximenes, and is in these words; “ Vistos pásese este expediente al agrimensor gnl. Dn. Carlos Trudeau, para que en vista de el informe lo conbeniente.” No report is either alleged or shown to have been made on this petition by the surveyor-general, Trudeau. No farther action was had upon it. It appears to have remained i,n the land office, and, was found there by Lbte.au in 1813, in a bundle of papers bearing the ¿superscription, t‘ Instancias pendientes.” Soon after, Lioteau filed a claim in the land office, stating in his application, that “ this land is claimed by virtue of proceedings had before the Spanish intendency in 1801 and 1802, of which proceedings the accompanying docuijient is a true copy, as taken from the original in the registry .office for the eastern district of Louisiana.” On this claim a report was made by the register and receiver, stating .that the land was claimed by virtue of an order of survey dated in the year 1802. It was embraced in the second species of .the first class of claims, .on which the board reported as follows: “We are of opinion that all the claims included under the se.cond species of the first .class are already confirmed, by the act of Congress of the 12th April, 1814.” The report bore date the 20th November, 1816, and was acted upon by the ¿act of Congress of May 11th, 1820, which provided that “all the claims embraced in this report, and recommended for .confirmation,, are confirmed.” It is not denied that the defendant is subrogated to the rights of Lioteau, and our only enquiry is in relation to the nature of those rights.

In the case of Hooter v. Tippet, 8 Mart. 637, in which the plaintiff set up a plairn similar t.o that of the defendant ip this .suit, the la.te Supreme Court .said: “ There is no order of survey ; no decree of any kind is given by the inten- j ,dant or his representative; .the application stands unanswered. Now, supposing the parties to be in the situation in which they were before the relinquishment of the rights of the United States, woul.d the plaintiff be able to eject the possessor of the land with such a paper — a paper which is the act of the party j .alone, and bears p,ot the slightest intimation of the grantor’s pleasure.” The j .claim was hold by the court to be destitute of merit, law, or equity. J

In a subsequent case, b.etween the same parti.es, the court went farther, and held that a permission to settle, obtained on a requete, but not followed by actual settlement, did not give a right superior to that resulting from an actual settlement without perprission, or in other words from naked possession. 5 Mart. N. S. 11.0.

These decisions are clearly correct, and under them we are bound to say that Lioteau, never having had the actual possession of the land in controversy, had no lawful or equitable claim to it, at the change of government. The defendant farther claims title under the first section of the act of Congress, of the 12th of April, 1814, by which he alleges his claim ,to have been confirmed. That section only confirmed the title to lands claimed by virtue of incomplete french or Spanish grants, concessions, warrants, or orders of survey, granted prior to the 20th of Dec. 1803, and having a special and definite location. Lio? teay IjeJd no.ne .of those inchoate titles, nor was .the location of his clainj deli* nite and certain as this law seemed to require. The opinion expressed in the report that the claim was confirmed by that act, cannot supply those deficiencies. The facts of this part of the case do not materially differ from those of Orillon v. Slade, 11 La. 591, in which the court held that the first section of the act of 1814 did not confirm claims unsupported by any written evidence of title emanating from .the Spanish government. The defendant’s claim was not recommended for confirmation jn the report, and of course was not confirmed by the act of 182.0.

Had the defendant obtained .a .confirmation, it is probable it would not avail him in this controversy. His requite .calls for one of the side lines of Guasdiola, but does not state which of the side lines. This location, unsupported by any survey or by actual possession before the change of government, would be too indefinite and uncertain to prejudice the plaintiffs. We take the rule to be that, in order that the confirmation may have the force and effect of a patent, the description in the inchoate title, or in the act of Congress, must be such as will identify the land. If it will fit another place better or equally well it is defective, and will not protect the holder, who can show no original possession, against a subsequent location made under the authority of Congress.

An attempt has been made to fix the location by means of a map of the city of New Orleans and of the plantations around it, purporting to have been made in 1802 by Trudeau, i.n obedience to an order of the intendant Morales, and of record in the land office. Had an order of survey been given on the requite, we might perhaps at this distance of time presume, in the absence of the plat of survey and of the return of the surveyor, that' the land was correctly represented on this map; but Lioteau, when applying for the confirmation of his claim, never pretended that an order of survey had been obtained nor a survey made, and rested his application exclusively upon his requite and the statement of Ximenes thereon. Under this state of facts the map adduced does not make proof of the location, and there is other evidence in the record which raises a strong presumption of its want of accuracy. The defendant’s claim is designated on the map as “ terreno solicitado pr. T)n. Luis Lioteau.” Adjoining it is another claim designated .as “ terreno solicitado pr. JDn. Guilberto Guilleniard,” which is also embraced within the lines of the patent of the plaintiffs and which nobody claims. The register of the land office who, in 1816, gave it as his opinion that the defendant’s claim had been confirmed by the act of 1814, had this map in his keeping, and must have been aware of the location it gave to that claim. The report of the same officer, made to the general land office in 1825, with a view jto the location of General Lafayette’s patent, that this land was at that time vacant, shows that he disregarded the map, and that he must have considered the proper location of Lioteau’s claim to be on the other side line of Guasdiola’s land, that location answering the description in the requite equally well.

Had the United States parted with their title in favor of the defendant, this case would not be easily distinguished from that of Lefebvre v. Comau et al. 11 La. 321. In that case it was not shown that the settlement made by tho defendant was upon either of the quarter sections which the plaintiff had acquired from the United States, and on that ground he was cast. In this case, no settlement whatever is shown to have been made by the defendant anterior to the date of the patent, and the calls of the requite are indefinite.

The defendant has failed to show either a title, or a possession upon which prescription can be based; and we are clearly of opinion that the land in controversy was pot lawfully claimed by him when the patent issued to General Lafayette,

It is therefore ordered that the judgment in this case be reversed. It is further ordered that there be judgment in favor of the plaintiffs, and that they be forever quieted in their title and possession against all claims and pretensions of the defendant to the tract of land described in the petition, to wit, a triangular piece of ground, lying in the rear of the city of New Orleans, bounded by Prieur street, Common street, and in the rear or west by a line running from a point on Orleans street, .between Roman and Derbigny streets, to the corner of Miro and Common streets, and designated as squares nos. thirty-three, thirty-four, thirty-five, .thirty-six, thirty-seven, thirty-eight, thirty-nine, forty, forty-one and forty-two, on a plan made by Louis Pilié, and deposited in the office of 2?. L- Me Cay, notary public, representing lands granted by the Ulilted States to Major General Lafayette, .by letters patent dated the 4th of July, 1825,. I,t is further ordered .that the defendant pay the costs in both courts.

         Eubtis, C. J., having been of counsel, did not sit in this case.


text:
    Gates v. Bell.
    A judgment rendered'on a rule taken on a sheriff, to show cause iwhy he should not he declared liable as surety, on account .of his neglect toitake the surety required by the court on releasing sequestered property, if notsignedby the judge, cannot have the force of res judicata. C. P. 546.
    A sheriff will not be personally responsible, where he acts under ithe orders of a court having jurisdiction in the matter.
    An express authority is necessary to authorise an «gent to hind his principal, by a contract of suretyship., for a stranger.
    A sheriff ordered by the court to release sequestered property on the execution of a bond by defendant with a certain person as surety, released the property on the execution of a bond by an agent of the person designated as surety in ithe name of the latter, but who having no .express authority to hind his principal in such a contract, could not bind him as surety. Held, that though plaintiff's judgment against his debtor is prima facie evidence of the extent of injury in consequence of the sheriff’s failure to take the surety ordered, yet, that having acted in good faith, he will be responsible for such damages only as the plaintiff is proved to have sustained by reason of the bond not being obligatory on the party by whom it was to have been signed as surety; and where he is shown to have been insolvent at the date of the judgment against the principal, nothing can he recovered against the sheriff.
    from the District Court of .the F irst District, Buchanan, J.

      Bradford, for the appellant.

      II. D. Ogden, contrá.
   The judgment of the court was pronounced by

Slidell, J.

The property of the defendant was sequestrated, and he ob-ta’ned an order of count that the property be released on his giving bond with T. G. Chamberlin, as his surety, in the sum of $1500. Under this order the sheriff released the property to the defendant, upon his giving a bond in the usual form, with T. G. Chamberlin as surety, conditioned for the payment of such judgment as might be rendered in the suit. The bond, however, was not signed by T. G. Chamberlin personally, but by one G. Chamberlin, who signed as his agent. Judgment having been rendered in favor of Gates against Bell, a fieri facias was issued and returned nulla bona. When the bond was returned by the sheriff, objections were formally made to it in writing by the plaintiff. Among these objections was an allegation of a want of authority in G. Chamberlin to sign the name of T. G. Chamberlin. A rule was simultaneously taken opon the sheriff, to show cause why he should not be declared liable as surety. Judgment was entered ex parte upon this rule against the sheriff, who accepted service of the rule but made no appearance. He was condemned to be personally liable to the plaintiff for his demand against the defendant Bell, in the same manner as the surety would have been. This judgment was never signed. Subsequently a rule was taken upon the sheriff, to show cause why judgment should not be entered against him as surety for the amount of the plaintiff’s judgment against Bell. There was judgment discharging this rule, and the plaintiff has appealed.

It is urged that the judgment rendered on the first rule was res judicata upon the question of the sheriff’s responsibility as surety- The court below held otherwise, considering the first judgment against the sheriff as in the nature of a judgment by default. Whether it was properly so characterised or not it seems to us inoperative as res juslicata, from the fact of its being unsigned and consequently incomplete. C. P. 546. See also. C. P. 229.

It is also urged by the plaintiff that the order of court, being ex parte, was no authorisation to take Chamberlin as surety. We think otherwise. Whether it was erroneous or not to grant the order to bond ex parte, that order was the order of a court having jurisdiction in the matter, and as such was a justification to the sheriff. Bacon’s Abridgt. verba Sheriff. Saffry v. Jones. 2 Barnwall and Adolphus 598.

The next point taken hy the plaintiff is that G. Chamberlin, had no authority to sign the name of T. G. Chamberlin to the bond. The only evidence to establish sueh authority adduced by the sheriff is, a notarial power of attorney by which T. G. Chamberlin, in his individual name, and in the name of his commercial firm of T. G. Chamberlin <$• Co. constitutes G. Chamberlin his and their true and lawful attorney in fact, general and special; giving and granting unto the said attorney full power and authority, for and in his and their name, and to his and their use, to conduct, manage, and transact all and singular his and their affairs, business, and concerns of whatsoever nature, to open and answer all letters addressed to said constituent, to make and endorse promissory notes in his and their name, &c., to sign judicial bonds, and other judiciai obligations and documents. We cannot concur with the district judge in the opinion that this power of attorney authorised the signature of the constituent’s5 name as surety, to the bond in question. There is nothing to show any connection whatever of the constituent’s interests with the property bonded or the cause, nor that the contract was in any way directly or indirectly for the constituent’s use or benefit. An express authority was necessary to authorise the agent to bind his principal by a contract of suretyship for a stranger. The attorney must be considered as having acted without authority, and therefore the bond is not, as directed by the court, a bond executed by T. G. Chamberlin US' surety. See Stainer v. Tysen, 3 Hill, 281. North River Bank v. Aymar. Ibid 263.

The sheriff having given up the property sequestered without receiving such a bond as was ordered by the court, the question then arises — what is his responsibility 1 Is he to be treated os though he were himself surety on the bond, and thus responsible for the judgment upon the default of the principal obligor, or is he only to be held liable for such damages as the plaintiff may have sustained by reason of the bond not being obligatory upon T. G. Chamberlin ? Some cases are to be found in the books in which the sheriff is held liable for the amount of the judgment, without abatement on account of mitigating, circumstances. For example, the case of a sheriff who has falsely retured bail, when lie took none. But with, a few exceptions the general rule is well settled that, though the judgment recovered by the plaintiff against the debtor is prima facie evidence of the extent of the injury which the plaintiff has sustained by the officer’s breach of duty, yet it is competent for the officer to prove in mitigation of the injury any facts shewing that the plaintiff has suffered nothing, or but little, by his unintentional default or breach of duty.

In the present case the sheriff, evidently in good faith, intended and attempted to comply with the order of the court; and his mistake was upon a question of law — the interpretation, of a power of attorney and the extent of the authority conferred by it — a mistake which should not be visited harshly upon him, especially when we find the judge who tried this cause taking the same view of the power as the sheriff did. 'We therefore consider this case one of those in which mitigating circumstances are to be considered ; and the true enquiry is, what is the real and actual damage wnich the plaintiff has sustained by not having a bond obligatory upon T. O. Chamberlin ?

The evidence is that, in March, 1842, Chamberlin was prosecuted in the Federal court by proceedings in bankruptcy. It is also expressly admitted, that he was insolvent when judgment was rendered in this case against BelL We cannot, therefore, say that the plaintiff would have been in any better situation if Chamberlin had really been bound. It is possible that the plaintiff would not have been as well off. The attorney who executed his mandate is clearly bound himself, and non constat, under the evidence, that he is insolvent*

Judgment affirmed.


text:
    Knight v. Lauve et al.
    In an action against part of the owners of a steamer, who, as commercial partners, were bound in solido, on a note, given for materials furnished for her equipment, which recites that “ the steamer and owners promise to pay, &c.,” and was signed by two of the partners who acted as agents for the rest, the latter will not be incompetent as witnesses for the plaintiff on the ground of interest in the event of the suit.
    from the Fourth District Court of New Orleans, Strawbridge, J*

      T. R. Wolfe, for the plaintiff.

      Sigur and Bonfond, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

This suit is upon a note signed by Dimitry and Plaisent, by which “ the steamer Belle Creole and owners promise to pay;" and also upon an account for materials furnished for the equipment of the steamer, in consideration of which the note was given. The articles of partnership, and the other matters established by the evidence in the case of McAlpin v. Lauve, recently decided, 2 Ann. R. p. 1015, are also presented in the present case; and the point of difference between that case and this is that, in McAlpin’s case, the furnishing of the materials for the steamer, through the partners and agents, Dimitry and Plaisent was established by witnesses as to whose competency there was no objection ; whereas, in the present case, Dimitry is the ivitness upon that fact, and a bill of exceptions was taken by the defendants to his competency, upon the ground that he had a direct interest in the event of this suit.

The case of McIlvane v. Franklin, 2 Ann. Rep. p. 622, was a case approaching this: we there held Routh, the partner in a plantation, to be an incompetent witness. In that case it is to be observed, that the sate of the goods Was made to Routh, in Rouih’s name, and he Was offered as a witness, to prove the partnership. In the pre'sent case, tirei partnership is established by evidence entirely independent of Dimitry’s testimony; and on the face of the note, Dimitry and Plaiseiit do riot profess to bind thetaselies alone, but all the owners of the steamer.

Before expressing our opinion as to the competency of Dimitry, it is proper to notice tWo cases upon which the defendánts rely, rihd to point out the difference which exists between them and the cases before us. In Shiras v. Morris, 8 Cowen, 60, it was held, that án agent Who had borrowed money, and drawn tt draft on his principal to repay the lender, cannot, Upon a refusal by the drawee to accept, and a suit against him for money advanced to his use, be called to prove his liability to reimburse the plaintiff. In that case there Was nothing on' the face of the bill to show that he was acting in a representative capacity; nor Was there, independently of his own testimony, anything to show that the plaintiff advanced the money on the credit tif the defendant, and not Upon the individual credit of the witness. It seems to have been considered by the court, a Casd in which the witness’ own responsibility was involved in the result of the cause, so that he would be responsible if the plaintiff failed.

In Sage v. Sherman, 25 Wendell, 430, the witness called by the plaintiff was the agent of the defendants to purchase lands. The suit was brought on drafts drawn by the witness in his own name, and a note signed by him as agent, but not giving the names of his principals. The relation of the witness to the defendants, Was that of agent merely. There was no partnership. It Was considered that the witness, being himself prima facie liable for the debt, was called to fix this debt upon the defendants, and thus to create a new liability, by means of which he would become discharged. For it was said by the court that if the plaintiff adopted his acts as agent, and recovered against the defendants, he could not afterwards resort to him. It was upon this reasoning we find the court acted in Hickling v. Fitch, 1 Miles’ Rep. 209. In that case, one Booth, a broker, bought stock in his own name, his principal, Fitch, being undisclosed and unknown to the seller at the time of the transaction. The seller sued Fitch, and offered the broker as a witness, but he was held incompetent, the court saying that, having bought in his own name, he was primd facie liable to an action by the plaintiff; and that in such an action, a verdict against Filch could be given in evidence by Booth to show that the plaintiff had adopted Fitch as the real party, and would preclude a recovery against Booth.

We have looked into a great many adjudged cases bearing upon the present question, and find them conflieting — either side may be defended by authorities of great respectability; and the subject, by reason of this conflict and its own inherent difficulty, is perplexing. In view of this uncertainty, we believe the safer course is, to sustain the competency of the witness in the present case. In all cases of doubtful competency the attainment of truth is, we believe, more likely to be accomplished by the admission, than the exclusion, of evidence, taking care of course to make due allowance in estimating the credibility of the witnesses. In adopting this course on the present occasion, there is one consideration suggested by a perusal of the authorities, which has impressed us very forcibly, and deserves particular notice. It is, that a judgment against these defendants is no bar to a future action by the plaintiff’ agaiust Dimitry for llie whole debt. Tt is trim that, if tlm plaintiff can obtain satisfaetion after j udgment from the defendants, Dimitry will be'disoharged'sofaras-the plaintiff is concerned. But' the propability that, in consequence'of the judgment, the plaintiff would seek and obtain satisfaction from the defendants rather than the witness, may be considered as not amounting to that legal certainty which may reasonably be required to justify disqualification. It is also tobe observed that, if these defendants are compelled to pay, Dimitry, on his'own evidence, is answerable to them- for his- contributivo share ; and further,-that the evidence he has given-in this'cause,-is sufficient-to:enable the plaintiff to get a judgment against him for the whole debt. We are therefore of opinion; that the court below did not err in admitting Dimitry as a witness ; and the only point which remains to be considered witli regard to his testimony, is its credibility. We find nothing in the case to cast a suspicion, upon it. On the contrary, the other evidence corroborates and harmonizes with it. The case consequently stands upon the same footing as that of McAlpin v. Lame; and the reasons for affirmance there given, are applicable to the present case.

Judgment affirmed.


author: Eustis, C. J.

text:
    Tardy v. Allen et al.
    One who, having hound himself as hail for the defendant, in an action hy a passenger against the master of a ship for the value of property lost through the neglect of the officers and crew, is compelled to pay the amount of the judgment obtained against the master, will he subrogated to the judgment so paid by him and its incidents, and will have the recourse which the master would have against the owners of the ship had he paid the judgment; but he will not be subrogated to the original cause of action resulting from the neglect of the master, so as to affect other parties by bis.havingpaid the judgment against the latter, and to entitle him to recover the amount paid from the owner of the ship.
    from the Fourth District Court of New Orleans, Strawlridge,

    J. Hornor, for the appellant.

      Wvnthrop and Watts, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

I-Ieald, a passenger on board the ship Deucalion, from Boston to Mobile, sued the defendant Allen, who was master of the ship, for the sum of $300, being the value of the contents of a chest lost in the bay of Mobile, through the carelessness and neglect of Allen and others, the crew of said ship, and recovered judgment for the amount in the county court of Mobile county, Alabama. The plaintiff was Allen’s bail, and was condemned to pay the amount of the judgment and costs, which he accordingly paid; the judgment and costs ammounting to $357. The plaintiff, as subrogated by the effect of law to the rights of Heald depending on the original cause of action resulting from the neglect of Allen, has brought his action against him and also the owner of the ship. There was judgment against Allen and in favor of the owner, and the plaintiff has appealed.

We held recently in the case of Trent v. Calderwood, 2 Ann. R. 942, that a surety on a twelve month’s bond on paying it was subrogated to all the rights of the creditor against the debtor in the bond, but that he acquired no rights whatever beyond the contract to which he was a party, and none consequently in the judgment under which the property was sold for which the bond was given. This decision was founded upon the consideration that the third paragraph of article 2157 of .the Code, which provides that subrogation takes place of right for the benefit .of him who being bound with others, or for others, for the payment of the debt,had an interest in discharging it, related to those who were originally bound by .the contract; and that where a party made a separate contract of suretyship, or the like, in favor of one .of the persons thus originally bound, the contract was personal, or applicable only to him, and gave the party thus contracting no rights under the primitive contract except those which belonged to the original debtor. Thus Tardy, by paying the judgment against Allen, would be suhrogated.to the judgment which he paid and its incidents, and would have the recourse which Allen would have against the owners of the vessel had he paid the judgment. Our views on this subject did not concur with those entertained by the Supreme Court in the case of Cox v. Baldwin, 1 La. 408. The decision in the case of Trent v. Calderwood, was founded on the authority of Pothier on Obligations, § 441 and 519, and 7 Toullier, 147, 148.

As it is not necessary for the decision .of this case, nothing farther need bo said in respect to our own jurisprudence on this subject. It was deemed advisable to notice the case of Trent v. Calderwood, as it was decided in the western district, and has not yet been reported. [Since published, see 2 Ann. R. 942.]

The contract of bail was entered into, and the judicial proceedings were all had, in the State of Alabama, in which the .common law prevails. We have examined the authorities referred to by the counsel for the plaintiff, but do not find that they support the principle contended for by him. We are of opinion that the subrogation to the original cause of action did not inur'e to the plaintiff, so as to effect other parties by his paying the judgment against Allen. The judgment rendered in favor of the .plaintiff against Allen is not complained of; and we think the District Court did .not err in rendering judgment for the owner of the ship. • Judgment affirmed.