author: Smdeli., J.

text:
    John B. Devillers v. Schooner John Bell et al.
    Where a vessel undertakes to transport merchandise from one place to another, giving a bill of lading in the usual form, in case a re-shipment becomes necessary, she is bound to employ a seaworthy vessel. If the goods be lost in consequence of the unseawortliiness of the vessel on which they were re-shipped, the vessel originally employed will bo held liable for their value. But if she had only contracted to carry the goods from one point to another, from which latter place they were to be re-shipped, the vessel is only liable as a forwarder of merchandise, and is only bound to exercise ordinary care in procuring a proper conveyance for the goods.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    In this case, Francisco Del Camino intervened, and also claimed damages for goods shipped on the John Bell, which were lost.

      Durant and Honor, for plaintiff.

      Benjamin and Micou, for defendants.
   The judgment of the court was pronounced by

Smdeli., J.

These are suits to recover the value of goods shipped on board the schooner John Boll, at New Orleans, “ bound,” as the bill of lading states, “for Brownsville, Texas,” and “to be delivered in the like good order and condition at the port of Brownsville, Texas, the dangers of the seas and navigation only excepted, unto,” &c. The freight to be paid is stated in the usual form ; and consequently covers the entire transportation from New Orleans to Brownsville. The material facts presented by the testimony are as follows: The vessel arrived at the port of Brazos St. Jago on Thursday, the 29th November. For several days after her arrival, the weather was so boisterous as to prevent her discharging her cargo. On the following Wednesday, she commenced discharging. There was no warehouse at the port, nor any lighters in which the cargo could be stored or deposited. There was no steamer or other vessel bound for Brownsville, except the steamer J. E. Roberts, which was then taking in goods from other vessels lying in port; and, under these circumstances, the captain was compelled, he says in his protest, to re-ship in her such portion of his cargo as was destined for Brownsville. The steamer left the Brazos about sunrise, on the 8th December, for Brownsville, via the mouth of the Rio Grande, with a full cargo; and about twelve o’clock, on the same day, was wrecked near the beach, about midway between Brazos and the mouth of the Rio Grande. It is not shown, that the loss was occasioned by stress of weather. It is proved, that the steamer was rotten and unseaworthy; and that such was the condition of all the other steamers employed on the Rio Grande, except the Colonel Hunt, which, at the time, was laid up at the mouth of the Rio Grande. The J. E. Roberts had been crossed, as it is termed, by the inspector for the New Orleans underwriters, and had been advertised as such by them in the Brownsville and New Orleans newspapers, in October, 1849. Whether the captain of the John Bell knew this, does not appear. According to the testimony, “the course of trade between New Orleans and Brownsville is, that the vessels discharge at Brazos San Jago, and goods are taken in lighters from Brazos up the river to Brownsville, or are taken in lighters to Point Isabel, and then by land to Brownsville. When the bills of lading are signed, the goods deliverable at the Brazos, the consignees send a clerk there to take delivery of them. If the bill of lading is for Brownsville, it is the captain’s business to attend to forwarding them; he cannot collect the freight until the goods are delivered at Brownsville.”’

There was judgment in favor of the defendants, and the plaintiff and intervenor have appealed.

By the bill of lading, the undertaking of- the defendants was clear and unequivocal. It was, to cany the goods to Brownsville, and deliver them there to the consignee^. Nor is there any thing in the parol evidence, supposing that it ought to be considered, to impair the effect of that undertaking. From that evidence it appears that, in case of goods deliverable at Brownsville, consignees take no delivery of the goods until their arrival there; and the duty of transporting them to that point, by lighter, is at the vessel’s expense. Giving the defendants the benefit of the parol evidence, it amounts to no more than to interpolate, in the bill of landing, a permission'to the captain of the vessel to employ, at his own expense and risk, (“the dangers of the seas and navigation only excepted,”) some other conveyance to carry the goods from Brazos to Brownsville.

Under such a contract, what is the responsibility of the carrier ? Is he a common carrier only to the point where the new means of conveyance are employed, or does’that character adhere to him.until delivery at the place of destination? The rule of law is, in our opinion, well settled, that he remains a common carrier until such delivery, and is liable as such.

Thus, in Muschamp v. Lancaster and Preston Railway Company, 8 M. and Welsh., 341, (as cited by Mr. Angelí, in his Treatise on the Law of Carriers,) a parcel was delivered at Lancaster to the railway company, directed to a person at a place in Derbyshire. The person who brought.it to the station offered to pay the carriage, but the book-keeper said it had better be paid by the person to whom it was directed, on the receipt of it. The company were known tobe the proprietors of the line only as far as Preston, where the railway unites with another line called the North Union Line, and that, afterwards, with a third line, and so on to Derbyshire. The parcel having been lost after it was forwarded from Preston, it was held, that the company were liable for the loss.

So, in the case of Weed v. Schnectady and Saratoga Railroad, Company, 19 Wendell, 537, it was held, that the defendants, having undertaken to cany from the Springs to Albany, could not be received to say ■'that they were, in truth, carriers no further than Schnectady, the termination 'of their own road.

So, in St. John v. Van Santvoord et al., 25 Wendell, the defendants, who were common carriers employed in the transportation, in towboats, of goods on the Hudson river, between New York and Albany, received a package directed to Little Falls, a place beyond Albany, and gave a receipt for it in these words: “ New York, October 23, 1826. Received'from St. John and Tonsey, on board of towboat Ontario, one box of merchandise, marked ‘ J. Petrie, Little Falls, Herkimer county.’ ” They were held liable for the loss of the goods happening after their delivery to other carriers, who paid them the freight to Albany; the court observing, that if the defendants had intended to limit their duty, as common carriers, short of the place of destination, they should, in some way, have indicated to plaintiffs such intent. ¿

It will be observed, that in two of these cases there was no express agreement to cany beyond the carrier’s own line; yet from the receipt of the goods addressed to the ulterior place, an agreement was implied to deliver them at that place. Here, there was an express agreement to deliver at Brownsville.

These cases are very different from those where the carrier undertakes to convey the goods to a certain point, and forward them thence to the place of destination. In such case, he is regarded as a carrier to that point, and beyond it as merely a forwarder, who is only liable for ordinary care in procuring a proper convenience for the goods. See St. John v. Santvoord, 25 Wendell, 662. Garside v. Trent and Mersey Navigation Company, 4 T. R. 581. Story on Bailments, § 538.

The counsel for the defendants has referred us to the custom in the river Thames, respecting delivery to lighters, as stated in Angelí on Carriers, § 308. But we are unable to see any analogy to the present case. For there, it seems, the lighter is sent by the consignee to receive the goods, and the liability of the master continues until the goods are laden on board the lighter. In the present case, the consignee was to have nothing to do with the goods until their arrival at Brownsville. See alse Whitesides v. Russell, 6 Watts and Sergeant, 48, citing 6 and 7 Ohio, 143. 2 Scammond, 288.

Being, therefore, of opinion that, under their contract, the defendants made themselves liable, in the character of common carriers, until the goods should be delivered at Brownsville, the solution of the question of liability for this loss easily follows.

As common carriers, they were insurers against everything but the perils excepted by law and the contract. He who undertakes to transport by water, for hire, is bound to provide a vessel sufficient in all respects for the voyage. The goods which the defendants undertook to transport and deliver at Brownsville, not having been delivered there, but lost on the route, the onus probandis is on them to exempt themselves from liability. On the one hand, the proof is clear that the vessel, by which they attempted to transmit the goods from the Brazos to Brownsville; was rotten and unseaworthy; on the-other, there is no evidence to show that there was such violence of the winds and waves or other perils of the sea encountered, as would have wrecked a sound and seaworthy vessel. It is, therefore, just to infer that the loss happened from the insufficiency of the steamer for the voyage. See Davis v. Garrett, 6 Bingham, 716. Hart v. Allen, 2 Watts, 114.

It is no excuse to the defendants, that the Roberts was the only vessel they could procure at the time. Under their contract, they were bound to delivor the goods at Brownsville, and there was no qualification that they might be permitted to use an unseaworthy vessel, if none other was to be had at the time. For the purposes of their liability as carriers, the Roberts was as much their vessel as the John Bell. Both were the instruments used by themselves to perform their contract, and earn the entire stipulated freight for the transportation from New Orleans to Brownsville.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial, and for further-proceedings according to law; the defendants to pay the costs of the appeal.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Oliver H. Bliss v. James Patrick.
    Where the plaintiff Sues for a debt due to him individually, the defendant may plead, in com-' pensation, a debt due to him by a commercial firm, of vvhich the plaintiff was a member.

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

      Elmore and King, for plaintiff,
    to show that compensation did not take place, referred to the following authorities: Walsh v. Wells, 7 L. R. 337, 340. Blanchard v. Cole, 8 L. R. 162. Smith v. Dimean et al., 1 M. R. 25. Thomas v. Elkins, 4 M. R. 378.

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

Slidell, J.

Bliss sues Patrick for $395 90, the price of certain merchandise sold by him to Patrick. Patrick sets up, 'in compensation, a sum of $306 59, due to him by the firm of Jones and Bliss, of which the plaintiff was a member. At the trial of the cause, the following bill of exceptions was taken: “Be it remembered, that on the trial of this cause, the counsel of defendant offered, in evidence, the testimony taken under two commissions, &c.; which testimony was offered to prove that said defendant was and is the owner of a claim against the late commercial firm of Jones and Bliss, of which the plaintiff was a member, for $306 59, which claim is set up in compensation against Bliss, the plaintiff, in his answer, by said defendant. That the plaintiff’s counsel objected to the reading of such evidence, on the ground that such claim could not be pleaded in compensation, it being a claim against the partnership of Jones and Bliss, and not against Bliss, individually. Whoreupon, the court sustained such objection, &c.”

The question, then, we have to consider is, whether the debtor of an individual can, when sued by his creditor, plead in compensation a debt due to him, the defendant, by the commercial firm of which the plaintiff is a member.

The error into which the plaintiff’s counsel falls, in answering this question in the negative, consists in confounding the case in question with another case quite dissimilar; and that is, the case of a partnership suing its debtor, and that debtor attempting to set up in compensation, a debt due to him by one of the partners individually.

There is a just and satisfactory reason for the well settled doctrine, that a debtor of the partnership cannot, when sued, plead in compensation a debt due to him by one of the partners individually. Corpus societatis aget, non ille. It is the partnership that sues, not the partner. What is the partnership ? It is a moral being, distinct from the persons who compose it. Tictes cujasdam persones vicem ollinet. All its assets, including, of course, all debts due to it, are a fund which, in legal contemplation, does not belong to the individuals who compose it. Their interest is merely residuary. The fund belongs to the partnership ; is affected by a lien, or preference, in favor of partnership creditors; and is not to be applied to the individual benefit of a member of the firm, except upon a partition, after a full settlement of the partnership liabilities. When, therefore, a debtor of the firm attempts to set off a debt of an individual partner, he substantially attempts to abstract so much from the. assets of the partnership, in violation of the rights of partnership creditors, and of the other partners, and apply it to the individual use of the partner who is his debtor.

But the case before us is a very different one. Patrick attempts to violate no right of the partnership of Jones and Bliss, or of its creditors. He seeks not to abstract anything from the social fund. Bliss says to him, pay me what you owe me. Patrick answers, pay me also what you owe me. Bliss rejoins, it is the partnership of Jones and Bliss that owes you. Patrick can successfully respond, that is true; but you, also, are my debtor for that very debt. As a commercial partner, you are bound to me in solido. Had I chosen to bring a suit against you alone, not joining either the partnership or Jones as co-defendants with you, I could have maintained my action. How, then, can you refuse me the right to use that as a means of defence which I could have used as a means of attack 1

It must be borne in mind,£that the motive of the law of compensation is, to avoid useless transfers of money, and circuity of action.

There may be a difference of opinion upon the subject among the commentators. But we think the reasoning of Mr. Duranton is sensible and practical, when he says: “ S’il s’agit d’úne soeiété commerciale en nom collectif, soeiété dans laquelle les associés sont tenus solidairement des engagements de la soeiété, contraetés sous la raison sociale (art. 22 Code de Com.), on ne voit pas non plus pourquoi il ne pourrait m’opposer la compensation, méme pour le tout, puisque. je lui dois le total de la dette de la soeiété. Cela ne peut faire aucun tort aux autres associés: au lieu de devoir á un tiers, ils devront k moi, leur co-associé. Si mon débiteur me payait, ne serais-je pas obligé de lui payer de suite it mon tour ma dette comme associé ? Si je ne le faisais pas, il aurait action contre moi.” Duranton, vol. 12, p. 519, No. 542.

We are, therefore, clearly of opinion that the defendant had a right to plead in compensation the debt due to him by Bliss, as a member of the commercial firm of Bliss and Jones.

We have been referred to the case of Walsh v. Wells, 7 L. R. 340, n which the ruling was otherwise. We are constrained to say, that we cannot follow it; especially as no authority is cited in support of it, and the reasoning is unsatisfactory to our minds.

It will be observed, that the question here is not, whether the case is one in which compensation would take place by mere operation of law, but whether the defendant can plead in compensation.

Judgment reversed, cause remanded; plaintiff to pay costs of appeal.


author: Preston, J.

text:
    The State v. The Judge of the Tenth District.
    The sheriff had seized, on execution, property, as belonging to the defendant, which was claimed by a third person, and an injunction obtained against the sale of it. The judge, in granting the injunction, made an order for the delivery of the property to the claimant. On a rule taken by plaintiff’s counsel, this order was rescinded. The claimant then applied for an appeal from the judgment rescinding the order, on the refusal of which by the district judge, application was made to the Supreme Court for a mandamus directing the district judge to grant the appeal. Held: That the judgment was an interlocutory order, which could not work irreparable injury; and was not, therefore, subject to an appeal.
    Where the sheriff has made a seizure of property on an execution, the sale of which was enjoined, and the property claimed by a third person, until the trial of the injunction, the court is bound to believe the property belongs to the defendant in execution.
    THIS was an application for a mandamus, to be directed to J. N. T. Richardson, Judge of the Tenth Judicial District, upon the relation of Cynthia Thompson.

      Snyder, Stacey and Sparrow, and J. C. Seale, for petitioner.
   The judgment of the court (Slidell, J., dissenting,) was pronounced by

Preston, J.

This is an application for a mandamus, to the Judge of the Tenth Judicial District, to allow an appeal.

TI10 New Orleans and Carrollton Railroad and Banking Company issued an execution against James B. Rush, and caused the sheriff to seize and take into liis possession a tract of land and some slaves, as the property of the defendant. The applicant brought suit against the bank and sheriff, claiming the property as belonging to her; and obtained an ordei* enjoining the sale. Concurrently with the injunction, she obtained an order to the sheriff to restore to her the possession of the property, during the pendency of the suit; which was done. The counsel of the bank applied to the court to rescind this part of the order, on the ground that it was not authorized by law. And after hearing both parties, the judge rescinded it, and the sheriff re-took the possession of the property. She applied for a suspensive appeal from this order. After hearing the parties, the court refused to grant the appeal; and she has applied for a mandamus to the district court, to allow it.

If the property belongs to the defendant in execution, he alone had the right to bond it until the day of sale. The claimant has no such right. We are bound to believe, until the trial of the injunction suit, that the property does belong to the defendant in execution, because the sheriff seized it as such; and cannot take it for granted, that it belongs to the claimant. She has brought suit to establish that; but until the trial of the suit, and judgment in her favor, the court had no right to take the property out of the hands of the sheriff, on her bond. We know of no law to that effect; and the contrary in principle was decided in the case of Lacey v. Buhler, 8 N. S. 662, 663, 664.

The judge' was right, therefore, in rescinding an order which he had unadvisedly made, and without the authority of law. If an appeal were ordered, therefore, it would be only to affirm his judgment; and the effect would probably be, greatly to protract the final decision of the .controversy between the parties, on its merits.

We think, further, that the order complained of was interlocutory, and not a final order in the case; belonging to that class of orders which are made to facilitate the parties in their litigation, and which are always under the control of the court until final judgment in the case. Neither does it cause an irreparable injury to an applicant, even if the property for which she sues belongs to her.

If so, she may recover the property and all the damages which the bank or sheriff have caused to her, in the very suit she has instituted to enjoin the sale of the property.

The application for a mandamus is dismissed, at the costs of the applicant.


author: Rost, J.

text:
    George W. Page v. L. F. Generes.
    The recordation of an attachment, in the office of recorder of mortgages, is useless. Parties are bound to take notice of judicial proceedings; and the proper place to look for them is, among the records of the court in which such proceedings are conducted.
    It is not a valid return, on an attachment, for the sheriff to say, that he has seized according to law. He must take charge, and keep possession of, the property attached. Under a garnishment, nothing is seized but what is disclosed by the answers of the garnishees, where those answers have not been traversed.
    A judgment obtained against an absent defendant, who is brought into court merely by an attachment upon his property, is one purely in rem, and has no effect, except upon the pro* perty attached.

      from the Fifth District Court of New Orleans, Buchanan, L

      Stewart and Josephs, for plaintiff.

      St. Paul and Bouny, for defendant.
   The judgment of the court (Slidell, J., declining to sit in the cause, having been of counsel,) was pronounced by

Rost, J.

The defendant, claiming to be a judgment creditor of James Schaumburg, caused a house and lot in the possession of the plaintiff to be seized as the property of his debtor. This seizure was made in April, 1850. The plaintiff presented a petition, making opposition to the sale, on the ground that he had acquired said property in good faith, and fór a valuable consideration which he had paid, from James W. Schaumburg, on the 1st April, 1837; that he has been in open, peaceable and uninterrupted possession for more than ten years, under a just title; that the judgment of Générés against Schaumburg having been rendered in an attachment suit, has none of the attributes of a judgment in personam; and does not authorize the seizure of property not attached.

The answer contains a plea to the general issue, and a special denial of the plaintiff’s title to the lot seized. The district judge was of opinion, that the judgment did not authorize the seizure; and, on that ground, he enjoined the sale of the property. The defendant has appealed from the judgment. The facts material to a proper understanding of the case, are the following: On the 22d November, 1837, about eight months after the sale from Schaumburg to Page, Générés sued out a writ of attachment against Schaumburg’s pi-operty; caused Frederic Beckman and Charles Schaumburg to be cited as garnishees, and propounded interrogatories to them.

The return of the sheriff on the writ, is as follows: “ Served a copy of petition and citation on Frederic Beckman, garnishee; and attached in his hands, the goods and chattels, lands and tenements, monies, effects or property of any kind, which he might now or hereafter have in his possession, belonging to tho defendant, to an amount sufficient to satisfy this writ; and also caused a copy of this writ to be recorded in the office of the recorder of mortgages, as a lien upon all the real estate of the defendant, &c.; and executed this writ, in all things, as the law directs. No other property found.”

This return shows that no specific property was attached, except what might be disclosed by the answers of the garnishees. Those answers were, that, as individuals, they had no rights, credits, property or effects of Schaumburg in then-possession, or under their control; that, as executors of the will of his father, Barthélemy Schaumburg, they had already paid him more than his share of the proceeds of the property administered; that there is still under their control, a3 executors, some claims and property belonging to the succession; that the claims are very doubtful, and may never be worth much; that the property consists of eight small lots, at Nacogdoches; and that the share of James W. Schaumburg, in the succession of his father, is one-fifth.

Générés, considering this return insufficient for the protection of his claim, gave a new bond, took out an alias attachment, and caused M. W. Hoffman, Esq., to be cited as garnishee. The return of the sheriff, on the second writ, was, “ that he had attached in the hands of Mr. Hoffman, the goods and chattels, and so forth, which he might have in his possession, or under his control, belonging'to the defendant; that he has executed the writ, in all things, as the law directs, and found no other property.”

Mr. Hoffman, in answer to the interrogatories propounded to him, stated that he was empowered as the special agent and attorney at law of James WSchaumburg, to represent him at the meeting of the creditors of the late Thomas C. Cash, on a note held by the said Schaumburg for $1180, drawn by Cash and Spencer and Gloyd, in solido, to the order of said Cash, and secured by mortgage on two lots of ground situated in faubourg Annunciation.

None of the answers of the garnishees were traversed by Generes. We must, therefore, consider them as true, and that the garnishees had nothing in their possession or under their control belonging to James W. Schaumburg, beyond the property and claims which their answers disclose. After the filing of those answers, the court, on the application of Générés, appointed an attorney to represent the absent defendant; and the plaintiff having proved his claim, judgment was rendered in his favor for $3269 90, with costs of suit and privilege on the property attached.

The grounds upon which the defendant, in this case, expects to maintain his seizure, are: 1st. That the title from James W. Schaumburg to the plaintiff, never having been recorded in the conveyance office, is without effect against him. 2d. That he has a lien and privilege on all the property of Schaumburg, by reason of the service of the attachment, of the return thereon, and of the recording of it in the office of the recorder of mortgages. 3d. That he recorded his judgment in due time, and has a judicial mortgage on the property seized.

The recording of the writ of attachment in the office of mortgages was useless, and added, nothing to its force. Parties are bound to take notice of judicial proceedings; and the proper places to look for them are, the offices of the courts in which they are carried on.

The question as to the requisites for a valid return in cases of attachment, was fully considered in the case of Stockton v. Downey, 6th Ann. We there held, that in cases in which there is no garnishment, the actual seizure of the property of the debtor is alone the basis of the attachment. That it is not a valid return of the, sheriff to say, that he attached according to law; that he must take charge and keep possession of the property attached, and make his return in writing, describing the property and stating the manner in which he has executed the writ;' and that the return ought to be certain, to every intent, according to a reasonable intendment and construction.

Under the principle of that decision, it is clear that, in cases of garnishment, no property can be considered as covered by the sheriff’s return, except that which is disclosed by the answers of the garnishees. The property seized, in this case, had been sold by the debtor, and was in the possession of the defendant long before the attachment issued. The garnishees do not mention it in their answers as belonging to Schaumburg, or as being in any manner under their control. It was, therefore, not attached; and the privilege given to the creditor, by the judgment, does not extendió it.

The claim, under the judicial mortgage, resulting from the recording of the judgment, might be dismissed, with the single remark, that the defendant has Hot proceeded by the hypothecary action, and that he has no right to seize mortgaged property in the hands of a third person, as he has attempted to do. But it is proper to observe, that under the authority of Broughton v. King, 2d Ann. 570, the judgment in this case was purely inrem, and had no existence beyond the property of James W. Schaumburg, described in the answers of the gar„ nishees.

The judgment is therefore affirmed, with costs.


text:
    A. S. McComas v. A. M. Green and Husband.
    On a Re-hearing.
    (This case lias been reported. See ante, p. 181.)
   THE judgment of the court, on a re-hearing, was pronounced by

Rost, J.

We are of opinion, that justice requires this case to be remanded.

It is therefore ordered, adjudged and decreed, that the judgment rendered by this court be annulled. It is further ordered, that the judgment of the court, below be reversed, and the case remanded for further proceedings according to law; the plaintiff and appellees paying the costs of this appeal.


author: Eustis, C. J.

text:
    H. L. Stone & Co. v. Kidder, Deshon & Co.
    Every fraudulent device, contrivance or artifice, by which a creditor may have been injured, and from which a fraud upon his rights is practised, may be remedied by the action ot creditors in avoidance of contracts, provided by the Civil Code.
    Under arts. 1972 and 1973, C. C., the plaintiff is entitled to the alternative remedy, of either having the sale annulled, and the property applied to the payment of his demand; or, judgment for his debt, against the possessor of the property.
    from the Fifth District Court of New Orleans, Buchanan,

      Warfield and Band, for plaintiffs.

      Benjamin and Micou, for defendants.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs, who are creditors of Kidder, Deshon 8f Co have brought this action against the latter, together with Victor F. Wilson and Wm. H. Simmons, for the purpose of setting aside a sale of the steamship Fanny, purchased by Wilson and Simmons, at auction, on the 5th of July, 1849, in the city of New Orleans.

The action is called the revocatory action; and the petition asks, that on this setting aside of the sale of the steamer, she be re-sold, and the proceeds held liable to the plaintiffs’ debt; or in default thereof, that judgment be rendered against the defendants in solido, for the amount of the plaintiffs’ debt, with interest and costs.

' The plaintiffs recovered judgment against the defendants in solido for $G00, with interest from the 9th of July, 1849, and costs of protest, &c. From this judgment, Wilson and Simmons have appealed.

The action is based ou the 1978th. art. of the Code, which considers the attempt of one creditor to obtain an undue preference in the payment of his debt over other creditors of an insolvent debtor, as a constructive fraud; and compels the offending creditor to relinquish the advantages he has attempted to secure to himself, and restore those which he has received from the transaction. The judgment in this action, if maintained, is, that the contract be avoided, and that the property affected thereby, or its value, inure to the benefit of the plaintiff, to the amount of his debt. Code, 1972. Every fraudulent device, contrivanee or artifice, by which a creditor may have been injured, and from which a fraud upon his rights is practised, is reached and remedied by this action. It appears, that in June, 1849, Kidder, Deshon Sf Co. put the steamship Fanny, belonging to them, into the hands of Morphy and Nevius, auctioneers, to be sold to the highest bidder, at public auction, for cash; with the understanding that the proceeds should be applied to the payment of certain of their creditors, of which a list was given to the auctioneers. The plaintiffs were on tbis'list for the amount of their debts; and the appellants were privy to this arrangement. At the auction, the steamship was knocked off to Wilson, for himself and Simmons, for the sum of $9000, cash. Instead of which, $1369 50 only was paid in cash; the balance of the price, $7630 50, was received by the auctioneers, as cash, in certain claims of Wilson and of Simmons, against Kidder, Deshon Sf Co., by the express direction of the latter. The cash paid went to refund an advance made by the auctioneers, and the expenses of the sale. Wilson and Simmons by this contrivance secured their debt, and the creditors of Kidder, Deshon Sf Co. are left unpaid.

The facts of this case, we think, furnish a sufficient ground for the plaintiffs’ action ; provided the requisition of the code relative to actions of this class have been established by sufficient evidence.

Kidder, Deshon Sf Co. were merchants. They were protested on a draft of $500, on the 20th of April, 1849. They overdrew their account on the Mechanics’ Bank, for the sum of $1678, early in May; and, notwithstanding the urgent demands of the bank, the account was not made good until the 29th of June following, when the amount overdrawn was deposited to their credit by Simmons, one of the appellants. The evidence, as to the assets of the firm to meet its debts, is entirely unsatisfactory; and we think its insolvency at the time of the sale of the steamer, to be established beyond question. We think it equally well established, that both of the appellants were cognizant of the embarrassments and insolvency of Kidder, Deshon Sf Co. at the time they attempted, by this purchase of the steamer, to secure an advantage over the other creditors.

The district judge considered the amount of the claims of Simmons and Wilson, given in payment by them, as not proved; with the exception of the amount of the overdraft made good by Simmons, in the Mechanics’ Bank. We think it results from the evidence, that after paying the amount of these claims which have been proved, there remains a surplus sufficient to meet the demand of the two creditors, to wit, the present plaintiffs and Partee, who has instituted a suit similar to the present, and which is now before us. This surplus, under the art. 1972, the appellants cannot retain to the detriment of the complaining creditors.

Under the view which we have taken of this case, no more than a cursory notice is required of the appellants’ bills of exceptions. The first related to the admission of evidence, to establish the agreement or understanding as to the sale of the steamer for the benefit of the creditors pro rata. The objection was, that the evidence tended to establish a different cause of action from that set . forth in the petition. The court did not consider the evidence in that relation, but as relating to the knowledge, on the part of the appellants, of the condition of the affairs of Kidder, Deshon Sf Co., the original intent or purpose of the sale, and the frustration of that purpose by the appellants.

The testimony objected to by the, appellants, and received by the district judge, concerning the subsequent sale of the steadier at a profit, has not been considered in the conclusions to which we have been led by the other evidence.

The declarations and statements of Deshon, made out of the presence of the appellants, to establish the insolvency of Kidder, Deshon Sy Co., objected to by the appellants, and noted in the second bill of exceptions, we have not considered as materially affecting the other evidence adduced, and have not been heeded by us. It is, therefore, not necessary to determine on their admissibility.

We find no error in the judgment of the district court, to the prejudice of the appellants. But the plaintiffs and appellees have, in their answer, asked that the judgment in their favor be amended, by decreeing, in the alternative, that the sale of the steamer be avoided, and that the appellants surrender her to the sheriff, to be sold to satisfy the plaintiffs’ debt. After the institution of this suit, the steamer was taken under a writ of sequestration, issued at the instance of the plaintiffs; and under an order of court, was released and delivered to <Sm-mews, on his bond with security. This sequestration has not been set aside, and must be considered as in force.

Under the articles of the Code, 1972 and 1973, we think the plaintiffs are entitled to the alternative remedy, under tho prayer of their petition, for the avoidance of the sale. Taylor v. Knox, 2 L. R. 16. And the judgment must be amended accordingly.

It is therefore ordered, adjudged and decreed, that the judgment of the court; below, in favor of the plaintiffs, and against Kidder, Deshon Sy Co., be affirmed. It is further ordered, adjudged and decreed, that the sale of the steamship Fanny, made by John J. Deshon to Victor F. Wilson and Wm. H. Simmons, be avoided and annulled; and that they be, and are hereby, condemned to restore said vessel to the sheriff, within ten days from the filing of this decree in the district court, to be made liable to the plaintiffs’ judgment. It is further ordered, adjudged and decreed, that the costs of this appeal be paid by the appellants.


author: Preston, J. Etjstis, C. J.

text:
    The State v. Joseph Bradley.
    The Tight of resorting to force, upon tlie principle of self-defence, does not arise while the apprehended mischief exists in machination only, without some positive act showing the necessity of thus resorting to violence.
    A cause should not be continued on account of the absence of a witness, when the facts expected to be proved by him can as well be established by other witnesses who are present.
    In order to obtain a continuance, on account of the absence of a witness, it must be shown that his testimony is really material, and that the party has used due diligence to obtain the testimony, according to the rules of law and tbe practice of our courts of criminal jurisdiction.
    The rule of court, that evidence of verbal agreements between counsel, as to the trial of a cause, will not he received, is applicable to criminal as well as to civil cases.
    Letters found in one of tbe garments of the accused, in the room where, shortly before, ahoxni* cide had been committed, are admissible as circumstantial evidence, without proof of the handwriting of the accused.
    If the jury carry with them, when retiring to consider of their verdict, a paper they should not have carried, this does not avoid their verdict; nor is it sufficient ground for a neiv trial, unless it appear that the jury were improperly influenced by the paper so earned with them.

      If the jury, in rendering their verdict, decide the whole issue, and then add other immaterial things, the verdict is not thereby vitiated. The immaterial things so added will he regarded as surplusage.
    Matters left to the discretion of the judge of the district court, resting on facts, such as motions for continuance and new trials, will not he reexamined by the Supreme Court, in criminal cases.
    APPEAL from the First District Court of New Orleans, Me Henry, J.

      Isaac Johnson, Attorney General, for the State.

      Randal Hunt, for the appellant.
   The judgment of the court, (Eustis, C. J., delivering a separate opinion, in which Rost, J. and Slidell, J. concurred,) was pronounced by

Preston, J.

The prisoner, having been indicted and brought to trial for murder, in order to obtain a continuance of the case; made and filed affidavits, that Haynes Thompson, Mrs. Hart, and Dr. Meux-were material witnesses for him ; Meux and Thompson were temporarily absent, and Mrs. Hart was sick. Pie had not issued subpoenas for either of these witnesses, nor taken any steps to secure their attendance, or to obtain their testimony.

A trial for murder, is the most awful event that can befall a man in life. An individual whose life is put in jeopardy, upon a charge of murder, should devote his whole thoughts and energies, from the day of his arrest until his trial, to exonerate his character from imputation, and his life from jeopardy. The neglect to summon the witnesses in his behalf, and to recognize those about to absent themselves from the State, to appear on his trial, or to procure their iestimony by other means, indicates that it cannot be material.

If the facts to which it is supposed these witnesses would have testified bad ¡been regarded as essential to the defence, there is no doubt proper efforts would have been made by the accused, to have procured their testimony. The affidavit states, tiiat Thompson would prove that the deceased, Fanny Young, intended to take the life of the accused, and that she was in the habit of wearing a knife between her stocking and garter, and that Mrs. Hart would prove similar facts,and of equal importance to the defence. These facts, if established, would not have justified the homicide of Fanny Young, or even have alleviated it into manslaughter. The right of resorting to force, upon the principle of self-defence, does not arise while the apprehended mischief exists in machination only. The People v. Mc Clead, 1 Hill, 377.

The mere belief that a person has formed a design to take my life, will not alone justify me in taking his life. Without some ppsitive act on his part, to excuse or justify killing him, it would amount to murder. 4 Iredell, 409. 1 East, 271.

Moreover, Mrs. Hart’s testimony might, in all probability, have been obtained during the progress of the trial, if the accused had desired it; for the court, as appears by the bill of exceptions, suggested that a subpoena should be issued for her; of which suggestion the accused did not avail himself. It was not pretended in the affidavit, that Dr. Meux could prove that the deceased inflicted on the prisoner the wounds which he dressed. ANs to the wounds themselves, the nature of the case leaves no doubt that their existence could have been proved by other witnesses; and a cause should not be continued to obtain the testimony of absent witnesses, as to facts which could be proved by witnesses present. The accused, in his affidavit, further states that Dr. Meux took all the papers out of deponent’s pockets, and would show that there were no such papers as those now in court, and alleged to have been found on his person. As the papers were subsequently given in evidence on behalf of the State, there is no doubt the district court would have received the testimony of Dr, Meux on the subject, if lie had been present, and possibly would have continued the cause for the testimony, if proper diligence had been used, without success, to obtain it, or to procure his attendance, and if the same facts could not have been proved by other witnesses. But the rules of law wliich apply and should govern this case, are, that in order to obtain a continuance, it must be shown that the witness is really material, and that the party who claims the continuance has been guilty of no neglect in endeavoring to obtain the testimony of the absent witnesses, according to the rules of law and tho practice of our courts of- criminal jurisdiction.

Two applications for a continuance, on separate affidavits, having already been made and overruled, the court properly gave less consideration to the third, than if all the grounds had been presented at once, in a single affidavit. Besides, the testimony of Dr, Meux on this subject would only have been rebutting testimony, and not irreconcilable with that upon which the court admitted the papers in evidence, — that they were found in the pocket of a vest belonging to the accused, in the corner of the room which was the scene of the tragedy, and which may have been taken from the person of .the accused, before Dr. Meux examined it.

The second ground for a continuance was of a different character. The case having been called for trial on the 18th of June, 1849, the counsel of the accused moved to continue it, on the ground that they had an understanding with the attorney general, that it would not be tried until fall. The court having overruled the motion, and directed the trial to proceed, the counsel withdrew from the case. After some progress had been made in the cause, a distinguished lawyer appeared, at first as amicus curi<e. and afterwards acted as the advocate of the prisoner, until the close of the trial.

The jury found the prisoner guilty of murder, without capital punishment, and recommended him to the mercy of the court, on the ground that he was not prepared for trial. They added, at the suggestion of the court, that they did not intend in any manner to censure the action of the court.

On account of these unusual occurrences, the counsel of the accused has urged, with uncommon zeal and ability, that the judgment should be reversed, and the cause remanded for a new trial.

The trial of the prisoner took place on the 18th of June, 1849. On the 14th of June, 1849, a notice, issued by the clerk, was served upon the prisoner by the sheriff, informing him that his trial would take place on the 18th of J une, at ten o’clock in the morning. On the same day, he was furnished with a list of the jury empanneled to serve in the court for the June term in pursuance of law. These things clearly indicated to the prisoner, that his trial was to take place on that day.

One of the counsel of the accused believes, there was an understanding with the attorney general, that the case would not be tried until the ensuing fall. The attorney general did not think any such understanding existed. To avoid all such conflicts between counsel in causes, or the parties, the district courts of the city adopted a general rule, that “no private agreement or consent between parties or their counsel, relative to the progress of any cause, shall be alleged or suggested by either of them against the other, unless the evidence thereof shall be in writing, subscribed by the party against whom it is alleged or suggested, or by his counsel.” This rule was made and adopted by all the district courts of New Orleans, in pursuance of the 5th section of the act 30th of April, 1846, and is absolutely conclusive of the question before the court. The district judge made it the basis of his decision, on the application for a continuance on the supposed understanding. Were we allowed by law to disregard the rules of the district courts, we would not think of disregarding one so salutary in promoting certainty in practice, and in preventing disagreeable conflicts between parties to suits, or between their counsel. The suggestion, that the rule was adopted only for civil and not for criminal cases, is entirely unfounded. It is made, in express terms, applicable to “any cause.” There was no error, therefore, in refusing to continue the case on the supposed understanding of counsel.

Nor was the accused deprived of his constitutional and legal right to be defended by counsel. Having employed counsel to defend him, they, no doubt, pursued the course which they deemed best in his case, or due to themselves. Having retired, after failing to obtain a continuance of the case, the court offered to assign counsel to the prisoner, which he declined to accept; and before the trial closed, he appears to have been ably defended by a distinguished lawyer, who took an important bill of exceptions in his behalf, and argued the case at length to the jury.

The bill of exceptions referred to, was taken to the decision of the court, admitting the following letters in evidence against the prisoner: “ New Orleans, March the 5th, 1849. Dear Sir : I comit this deed, on account of trouble and deceit. May this a -warning be to all hov it may concern. My hand has been wavering ober it for some days. My agent is Mr. Meeker. I wish he would dispach the schooner Friendship, as quick as possuble, on a count of the — Joseph Bradley.” — “ New Orleans, March the 5th, 1849. Mr. Bidwell. Dear Sir: This is what I never expect to come to. But it is trouble, and no one to help mee out. So I want you to have this young woman Burned. But mee, let me lay top of ground, for the Turkey Buzards to eat; for I have did rong. Joseph Bradley.”

These letters were not proved to be in the handwriting of Bradley, or signed by him. They would not have been admitted in evidence, being in the hands of a third person, in a civil suit, to establish an obligation against Bradley. Nor would they have been admitted in evidence in this prosecution, if no connection between them and Bradley had been established. But it is stated in the bill of exceptions, that the court was satisfied, by proof, that the letters were taken from a vest partially covered with blood, and which belonged to the prisoner; and, further, that it was stated by witnesses, that they were found in the pocket of the vest worn by the prisoner on the day the homicide was committed, and in the corner of the room where it was committed.

In overruling an application for a new trial, on the ground “ that the court erred in permitting the letters to be admitted in evidence and read to the jury,” the judge states more fully the circumstances which, in his opinion, rendered it proper that the letters should be given in evidence to the jury.

“Proof,” he says, “had been adduced, that Bradley lived with the deceased in a room rented of Virginia King, who also lived in the same house; that the prisoner and the deceased had been observed conversing together on the forenoon of the 5th of March, near the door of the room in which they staid ; the former looking as if he were worried. An hour afterwards, it was noticed that the door of the room was closed; and, an hour after this, a moan was heard .to proceed from this room, by Virginia King, who was passing by the door. The door was forced, and an entrance effected, when Bradley and Fanny Young were found on the floor, weltering in blood, and apparently dead. On examination, it was discovered she was dead, and.that the prisoner was still alive, although very weak from loss of blood. The evidence of the coroner had been given, which showed that the deceased had died of wounds inflicted on her with a knife; and that she must have been trying to save herself, as the cuts on the hand and arm indicated that they had been raised to ward off the weapon. A knife was found on the floor, and a razor on the bureau, both bloody. After the body of the deceased had been removed, and Bradley was conveyed from the room, in the latter part of the same day, or on the next, as the room was being cleaned, a black silk or satin vest was found in one corner of it, which belonged to Bradley, and was seen upon his person when noticed in conversation with the deceased at the door of their room.” The letters were found in a pocket of this vest.

The letters were allowed to go to the jury, because these circumstances rendered it probable that they belonged to Bradley. They were part of the tragedy, like the bloody vest and knife on the floor, and the bloody razor on the bureau. Testimony that it was his vest, and his knife, and his razor; that they were bloody, and found with him and the corpse in the very room of the homicide, was clearly admissible in the case; so, letters relating to the homicide, found in the same room, and in the pocket of the vest, raised a presumption that they were his letters.

To rebut the presumption of any connection between Bradley and the letters, his counsel relied upon the facts, as appears by the bill of exceptions, that the papers were found in the vest the day after the death of Fanny Young, as was testified to by a woman named Kelly; that the room had, in the meantime, been entered by many persons; and that it was not proved that they were in the vest at the time of the death of Fanny Young.

'With such reasons for and against their effect upon the case, they constituted circumstantial evidence in a prosecution for murder, dependent upon circumstantial evidence alone. If the jury believed, from the evidence, that they belonged to Bradley, it was immaterial whether they were written by him or a third person ; their contents would weigh against him. But, on the other hand, the jury might suppose them prepared by Fanny Young, who unsuccessfully attempted to kill Bradley, for the purpose of eluding suspicion; or that some person else had committed the deed upon both, and left the letters to delude the civil authorities from any investigation of the case. The letters were open to all these suppositions, and others; but they were, in point of fact, found at the scene of a homicide; they evidently had reference to .it, and were therefore properly, even without proof of the handwriting, left to the consideration of the jury for what they were worth.

The court, as appears by the charge to the jury, used every possible precaution to guard them against any improper influence which these letters might leave upon them, by stating that, if they were not satisfied that the letters came from the accused, they ought not to weigh against him; and that they ought to give him the benefit of all their doubts; but that, if traced to his possession, they showed a guilty knowledge on his behalf. This, perhaps, was the strongest view of the evidence. The letters, whether written by Bradley or not, did not prove a homicide committed by him. The jury, in finding him guilty, must have been convinced of that fact by other testimony; but when so convinced, the letters, if traced to Bradley's possession, whether written by himself or another, tended to show express malice, which it always behooves the State, if possible, to prove in a prosecution for murder. Had a letter been found on the person of the deceased, which stated that, being weary of life, she had determined to commit suicide, is it possible that the paper would have heen rejected by the court, when offered in defence, because her handwriting had not been proved? The paper would have been open to the objection, that it might have been written by Bradley to exculpate himself, or by other persons to prevent investigation by the civil authority; but without proof to that effect, the presumption being that the paper belonged to her, we think it would have been admissible for the accused; and that papers, found under similar circumstances, were admissible against him, guarding the jury against any improper effect upon their minds, by stating to the jury, that, unless they believed the papers came from and belonged to Bradley, they ought not to weigh against him; which appeal's to have been done in this case.

The description of circumstantial evidence, adopted by Wills, from Burk’s celebrated speech against Warren Hastings, and cited by the district court, applies to the evidence in controversy, and supports its admissibility by authority. “ All the acts of the party; all things that explain, or throw light on these acts; all the acts of others relative to the affair, that come to his knowledge, and may influence him ; his friendships and enmities; his promises, his threats, the truth of his discourses; the falsehood of his apologies, pretences, and explanations; his looks, his speech, his silence where he was called to speak; everything which tends to establish the connection between all these particulars; every circumstance, precedent, concomitant, and subsequent, become parts of circumstantial evidence. These are, in their nature, infinite, and cannot be comprehended within any rule, or brought under any classification.” Wills on Circum- . stantial Evidence, 27.

And as Lords Mansfield and Hardwicke leaned to the admissibility of a witness, leaving the objections made to his competency to go to his credit, so, we think, the district court did right in leaning to the admissibility of the circumstantial evidence offered, leaving the objections to it to go to its effect, giving such directions to the jury as the nature of the case required.

It was urged, as a ground for a new trial, that the two letters were taken by the jury into their retirement, to deliberate on the case; and it appears by the evidence, that they were attached to an affidavit, made before the recorder, as to the place where they were found.

In overruling this ground for a new trial, the court observes, that the contents of the affidavit had been stated to the jury, by the witness, on the trial. It is admitted, that these papers were carried out by the jury without the knowledge and consent of the court, or attorney general; and that the jury, having come into court at the moment the judge was about sending for them on account of these papers, was instructed by the court, that they ought not to have carried the papers out of court; and the judge states, that he again reminded them, that it was their duty to exclude from their consideration, in making up their verdict, every thing but what had been submitted in evidence. It was not until the next day that a verdict was rendered.

Lord Coke states, that “ if the jury carry away any writing which was given in evidence in open court, this shall not avoid their verdict; albeit, they should not have carried it with them.” Coke, Littleton, p. 227. The Supreme Court of Pennsylvania, in the case of Alexander et al. v. Jamison et al., decided the same thing. 5 Binny’s Reports, 239.

It was undoubtedly an irregularity, that the affidavit attached to the letters should have heen taken into their retirement by the jury. It was corrected as soon as discovered, and a long time before the jury rendered their verdict. And as soon as the irregularity was discovered, the juiy were told that it was their duty to exclude from their consideration, in making up a verdict, every thing but what had been submitted as evidence on the trial.

It is the duty of the courts and their officers, to guard, as far as possible, against all irregularities in their proceedings. Still, they will occur; because tribunals of justice, like all human institutions, are imperfect. Some irregularities are of so gross a character, that a prejudicial effect may be presumed. We do not think the one complained of is of that character. If, by any means, it could be shown, that the affidavit had produced an improper influence on the jury in making up their verdict, it would afford sufficient ground for granting a new trial. But we will not presume it, because it is barely possible. Wo should regard jurors as rational men, capable of performing the high duties which the Constitution and laws impose upon them. The Constitution and laws charge them to judge of the issues upon which life, liberty and property depend. The law presumes them to possess the capacity and integrity to perform those duties correctly, and that they will not be swerved from their performance by improper influences; and we will not presume or decide the contrary, until it appears by proof, or necessarily results from their gross misconduct.

The accused further made application for a new trial, on the ground of newly discovered testimony. He filed, in support of it, the affidavit of Margaret Glover, that deceased carried a knife; that she said, she earned it to cool Bradley, and that if the knife could not do it, arsenic would. She believed the deceased intended to kill Bradley, and that she warned him of it more than once. Therefore, it was not newly discovered testimony, and probably might have been obtained, under the suggestion of the court as to Mrs. Hart, to have her subpoenaed during the progress of the trial. But this evidence is also subject to the observations, as to its materiality, made in relation to the testimony of the other absent witnesses; it afforded a powerful motive to the accused to quit their common room, and go permanently on board his vessel, or even to bind over Fanny Young to keep the peace; but did not justify his killing her, or even alleviate the criminality of the act into manslaughter.

We have already stated the verdict of the jury. That part of it which was responsive to the issue, and the act of the General Assembly, approved on the 29th of May, 1846, was, that the prisoner was guilty of murder without capital punishment.

The jury added three other matters to their verdict. They recommended the prisoner to the clemency of the court. They gave, as the ground of their recommendation, that he was not prepared for trial. They declared, that they did not intend to censure the course of the court. Neither of these three things were in issue. It would have been more proper, that the expression, by the jury, of their wishes and opinions should have been written on a separate paper, and not upon the indictment, as a part of their verdict.

As it was a case in which the court could exercise no clemency, as to the punishment; as the jury had nothing to do with the preparation of the prisoner for his trial; and as their applause or censure of the court was immaterial to the case, it was proper for the court to have regarded all this, which was not responsive to the issue, as surplusage. Lord Coke lays down the rule, that “if the jury give a verdict of the whole issue, and more, <fcc., that which is more is surplusage, and shall not slay judgment, for utile per inutile non vitiatur Coke upon Littleton, 227.

It is urged, that the verdict was the compromise of a difference of opinion with the court. That part of the verdict which settled the true issue, could not have been a compromise. The statement, after finding the prisoner guilty, that he was unprepared for trial, strengthens the conclusion that, on the evidence before the jury, they were obliged to find him guilty. The statement, therefore, must have been intended to have an influence upon the court in a subsequent stage of the case. It could only have an effect in the consideration of an application for a new trial. There it might, and probably was, well considered by the court. For in criminal trials, besides the cases in which it is well settled that new trials may be granted, others of a novel character may occur, in which it would be proper to grant a new trial, although no precedent could be found.

We do not think the jury intended any thing offensive to the court by their verdict, in its original form; and consider the addition made to it, surplusage which in no manner vitiates it. And upon the whole, in this singular case, although the counsel of the accused adopted an unusual course; although the ury traveled out of their appropriate sphere; and although the court suggested a modification of the verdict, for which we find no precedent; yet, in the great matter, that the prisoner was guilty of murder, the jury were satisfied, by legal evidence; the court, after an anxious and elaborate examination, fully approved that part of the verdict, and we have found no error of law in the record of the trial.

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

Etjstis, C. J.

1 concur in the conclusions of Judge Preston, on the questions of law presented in the bill of exceptions taken in the interest of the prisoner on the trial of the cause, and arising in the application for a new trial. Under the decision of this court, in the case of The State v. Hunt, 4th Ann. 438, and in the case of The State v. Lintell, recently decided, I do not think myself called upon to express any opinion upon the matters of fact upon which the judge exercised his discretionary power in refusing to continue the case, when called for trial; and after the verdict, to grant the prisoner a new trial.

I concur in the affirmance of the judgment of the district court.


text:
    Gilbert S. Hawkins v. John M. Bell.
    l’he defendant applied for a suspensive appeal, an order for which was granted, requiring bond for $1114 73 ; and he did not give the bond in the time required by law, but subsequently filed a bond for $100, intending to take a devolutive appeal, the order of the judge granting the appeal remaining unchanged; Held: the appeal must be dismissed, the order of appeal not having been complied with.
    APPEAL from the District Court of West Feliciana, Stirling, J.

      E. T. Merrick and J. T. Collins, for plaintiff.

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

Rost, J.

The plaintiff has moved to dismiss the appeal in this case, on the ground that no legal bond has been given; the appellant not having complied with the order of the judge, fixing the amount of said bond. It appears, that the order of the judge required the appellant to give bond in the sum of $1114 73; and that the appellant, without obtaining an order to reduce the amount required, gave bond for one hundred dollars only.

The rule undoubtedly is, that when the judge, in granting the appeal, has fixed the amount of the appeal bond, the appeal is granted upon the condition that the bond required shall be given. C. P. 574. Glaze v. Russell, 5 N. S. 237. Smith et al. v. Vanilhe, 10 L. R. 252. Rightor v. Phelps, 1 R. R. 324. Slatter v. Commercial Bank, 12 R. R. 187. In cases of suspensive appeals, it has sometimes happened, that the amount of security fixed by the judge was less than the amount required by law; and we have entertained those appeals as devolutive. We do not. consider this as affecting the principle of the decisions quoted. Poydras v. Patin et al., 5 L. R. 129. Parker v. Patten, 9 R. R. 167. Ralph v. Haggatt, 2d Ann. 462. Lewis v. Splane, 2d Ann. 754.

If the bond given was nearly of the amount required in the order of the judge, and manifestly more than sufficient to satisfy the costs in both courts, we might, perhaps, be inclined to attribute the non-compliance with the order to an error of the clerk, and to relieve the appellant. But no such error can be predicated upon the facts of this case; and we are compelled to say, that the appellant was not authorized to disregard the order of the judge, and to give bond for less than one-tenth of the amount required by that order.

It is therefore ordered, that the appeal in this case be dismissed, with costs.


text:
    Dickson & Co. v. W. S. Morgan et al.
    The plaintiff garnisheed, on a judgment against the defendant, an absentee, by service on his agent; Reid: That as no special authority was shown in the agent to answer for the principal, the answers of the agent did not bind the principal, and that no judgment could be entered against the principal.
    from the Second District Court of New Orleans, Lea, J.

      Durant and Iiornor, for plaintiffs.

      J. Q. Bradford,, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiffs commenced suit, and obtained judgment, against William, S. Morgan. In commencing their suit, they prayed that David, Melleville, by his agent and attorney in fact, W. E. Camp, might be made garnishee, and cited to appear and answer interrogatories. The sheriff returned, that, the citation was served on David.Melleville, garnishee, through William E. Camp, his agent, in person; said Melleville being absent from the parish. Interrogatories were served upon Camp, as agent of Melleville, and the sheriff seized in his hands the effects of the defendant. He answered the interrogatories, as agent of Melleville, showing assets of the defendant in his hands, and afterwards attempted to file a supplemental answer, showing a greater indebtedness from the defendant to Melleville; but which application was dismissed.

A rule was then taken upon Melleville, having for its object, to render him liable, on the answers of Camp, to the amount of the judgment. It was dismissed by the court, on the ground that the plaintiffs had not shown that Camp had power to appear in court for Melleville, so ns to render his answers binding upon the latter; and the plaintiff's have appealed.

The proceedings against Melleville are based upon the ground, that Camp's answers amount to a confession, that Melleville owed the defendant the amount claimed from him. Our code provides, that the power to acknowledge a debt must be express and special. No such power from Melleville to Camp is shown. No administration, as agent of a garnishee, can lead to a result indirectly, which could not be obtained from the agent directly. Judgment against the garnishee was properly refused, so far as it was claimed by virtue of the answers of his agent.

It is next urged, that the petition, citation, and interrogatories to Melleville, as garnishee, were duly served upon him; and that, having failed to answer the interrogatories, are Io be taken as confessed against him. The Code of Practice requires the service of citation personally, which did not take place in this case, or at the domicil of the person to be charged. The garnishee had no domicil in the State. It was held, in the late case of Fusillier, Administrator, v. Robin, that the power of administration given to an agent, does not authorize him to defend suits which may result in the alienation of the principal's property.

It is said, the affidavit of Camp, the agent of the garnishee, shows that he had property in his hands, subject to the plaintiff’s attachment. It was an ex parte affidavit; perhaps, by cross-examination, the garnishee might elicit that the property was not subject to the attachment. And if it was liable, that investigation can still be had, as the sheriff attached all effects of the defendant in the hands of Camp, agent of Melleville.

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


author: Existís, C. J.

text:
    Claudius Dord v. Bonnaffee & Co.
    Where the principal resides in a foreign country, and his agent, without any sufficient authority, makes a contract for him, which he afterwards ratifies, the contract will bo governed by the law of the place of the agent’s residence ; the ratification relating back to the date of the contract.
    An assignment, by an insolvent debtor, for the equal distribution of his property among his creditors, in a country where such assignments are legal, will be valid against all creditors who reside in countries governed by similar laws. Such an assignment made in New York, is valid against a creditor residing in Mississippi.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      A. N. Ogden, for plaintiff.

      W. C. Iianmer, for defendants.
   The judgment of the'court was pronounced by

Existís, C. J.

This suit was commenced by attachment. The appeal is taken by the plaintiff, from a judgment of the Court of the Fourth District of New Orleans, dismissing his petition, on the ground that no property of the defendants was attached. The plaintiff attached certain assets in the hands of Eugene Rousseau, under process of garnishment. The garnishee claims to hold the assets, as assignee of the defendants, for the use of their creditors. The plaintiff traversed the answers of the garnishee, and alleged that the assignment under which he claims to hold are, on their faco, fraudulent., null and void as to creditors; and that no title to the property was thereby vested in the assignee, which can prevail against his attachment. The argument before us is on the validity and effect of the assignments.

Edward Bonnaffée and Charles Bonnaffee were merchants, residing in Havre, France, and there trading under the name of Bonnaffée Co. The assignment purports to be made by them in favor of Eugene Rousseau, by their attorney in fact, Charles Bonnaffée, in the city of New York, on the 11th of December, 1847. It purports to transfer to the assignee, all the property of the firm of Bonnaffée Sf Co., all the assets, &c., originating from or connected with a bankrupt banking concern in the State of Mississippi; and to be in furtherance of a certain other assignment, bearing the same date, made by the said Bonnaffée Sf Co. to Victor Delaunay and Charles Sagony, of the city of New York. This assignment is also signed by Charles Bonnaffée, as attorney in fact of Bonnaffée S¡- Co., of Edward and Charles Bonnaffée. Both of these assignments were afterwards formally ratified by the pi’incipals in France.

The plaintiff is the holder of several bills of exchange, drawn by the agent in New York, in the name of the fii’m, on the house in Havre, protested for nonacceptance and non-payment. His residence is in the city of New York. In considering by virtue of what system of laws the rights of the respective parties, in relation to the assignment, are to be determined, the first question among those raised in argument, to be determined, is, as to the place in which the contracts were made in a legal sense. They were both signed in the city of New York, by Charles Bonnaffée, as agent. That in favor of Delaunay and Sagony, so far as they are conceited, may be considei'ed as having been executed in that city; as they bothresided there and signed the assignment. That in favor of Rousseau, he at the time being a resident of Jackson, in the State of Mississippi, may be considered, so far as he is concerned, as executed in that State; as the last consent may be held to be given by his acceptance of the assignment. But whether to be considered as executed there or in New York, as the laws in relation to instruments of this class are not supposed to be different, it is not material to inquire. The difficulty appears to be, the place in which the contracts were made by Edward Bonnaffée and Charles Bonnaffée, the parties of the first part to the assignments.

It is not insisted, that the assignments, as made by the agent in New Yoik, derive any validity from his signing them, as his authority to make them has not been shown. But the formal ratification of both instruments, by the parties in Havre, is urged as supplying this original want of authority on the part of the agent. It is held, that in cases of contracts, made between persons who are separated from each other in different countries, by written communication, the contracts are considered as made in the country, and subject to its laws, where the final assent has been given. This rule is laid down by Casaregis, in his 179th Discourse; and was recognized by the Supreme Court, in the case of Whiston v. Stodder et al., 8 M. R. 95. In case of a contract made in a foreign country, by an agent without authority, which the principal at home afterwards ratifies, the contract is considered as made in that foreign country, because the ratification relates back tempore et loco, and is equivalent to an original authority. 2 Casai'egis, p. 210, Discourse, 179, § 20. The property upon which the assignments were to operate, so far as this case is concerned, must be considered at the time as being in the State of Mississippi, or of New York; thei-efore, there can be no question as to the laws by which the effect of the assignments, in relation to the attaching creditor, are to be tested.

Neither of the assignments purport to have any other object, than an equal distribution of the property of the firm in the United States among their creditors, withoutdiscrimination, orto make any appropriation of it, except that which the law of.France and of Louisiana would itself malee. Their pui'pose was laudable in every point of view, and one which the laws of every State must approve and encourage. We think, from the authorities adduced, that the assignments are unquestionably valid under the laws of New York. We are bound to consider the decisions of the courts of the last resort of that State as evidence of what the law is. The case of Cunningham v. Freeborn, 11 Wendell, 241, appears to afford a complete answer to the objections taken by the counsel of the plaintiff, to the validity of the assignments. The district judge, in his written opinion, lias given his conclusions on the law of the case; in which we fully concur. The several grounds of objection to the assignments have been examined, in detail, in the wi'itten argument of the counsel for the assignee. As the questions raised involve points in a jurisprudence which is not our own, we do notfeel ourselves called upon to do more than give the result of our investigations, which is in favor of the validity of the assignments under the law by which they are to be tested; and that they vest the property conveyed in the assignee, subject to the trusts, for the benefit of all the creditors. The interest thus created cannot be defeated by the attaching creditor, in the case presented to us.

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


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    Widow Uzee v. P. S. Biron.
    The allowance, in mortuary proceedings, of a fee to an attorney, which had not been paid, is contrary to the 71st article of the Constitution ; but an attorney is entitled to recover his fee upon proof of a contract, or on a quantum meruit.

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

      Michel, for plaintiff.

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

Preston, J.

The defendant was employed by the plaintiff as her attorney, to settle the succession of her deceased husband. . She was the surviving widow, with one minor child. He was placed, on the account she rendered, as a privileged creditor for six hundred dollars. The account was homologated by judgment, and the plaintiff has issued execution for four hundred dollars; admitting the receipt of two hundred dollars on account. The plaintiff has enjoined the judgment as a nullity, because, so far as it made au allowance to the defendant, as unpaid compensation for his professional services, it was rendered in violation of the 71st article of the Constitution. The article provides, that “ no court or judge shall make any allowance, by way of fee or compensation, in any suit or proceedings, except for the payment of such fees to ministerial officers as may be established by law.”

The allowance, by judgment, in the mortuary proceedings, of compensation not paid, but to be paid, was clearly prohibited by the Constitution. 1st Ann. 21, 206, 224.

The defendant contends, that the plaintiff consented to the judgment of homologation, and might waive her constitutional right to oppose the allowance. Then, the case would stand before ns on contract, or the demand of a reasonable compensation for his services. The evidence satisfies us, that so far from there being a contract, there was a misunderstanding between the parties.

As to the value of the defendant’s services, we concur with the district judge, that the two hundred dollars paid was a reasonable compensation. The deceased left an estate of about $>10,000. His debts, principally for medical services and funeral expenses, did not exceed a thousand dollars. There was no dispute or litigation about them, or any thing else in relation to the estate. The statement of the widow’s dotal and paraphernal claims, in the account of her administration, was well enough, but immaterial, and is not binding upon her child, as it was not approved contradictorily with the undei'-tutor. There was neither intricacy nor litigation in the administration of the succession; and we are unable to say, therefore, that two hundred dollars was not a fair compensation for the defendant’s professional services.

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

Slidell, J., dissented; not being satisfied that an action of nullity would lie; at least, to the extent of annulling the entire judgment, and beyond the minor’s interest in the matter; being also of opinion, that the proof of fraud was not clear.


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    J. B. A. Dorville v. Joseph Amat.
    Where a person rents a house with a partition wall on one side of it, and the adjoining proprietor liuds it necessary to demolish this wall, in order to erect a more substantial one, to suit the character of the building he is about* erecting; this does not authorize a suit on the part of the tenant against his landlord, for a dissolution of the lease. He can only claim a reduction of the rent, proportioned to the inconvenience he has suffered.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.

      Lewis and Bermudez, for plaintiff.

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

Slidell, J.

The plaintiff, as agent of Saint Geme, leased to the defendant a house in New Orleans for one year, commencing from 1st September, 1849. The defendant continued to occupy it until about the middle of November, 1849, when he abandoned the premises. He paid the rent only for the month of September. This suit is brought to recover the rent for the months of October and November, 1849, and to have the lease annulled. Amat defended the suit, upon the ground that the lessor’s obligation had been violated by the pulling down of one of the walls of the house, and he claimed a large sum in damages.

One of the walls of the house was a party-wall. The proprietor of the adjoining house, being desirous to erect other buildings, demolished the party-wall, erecting, however, a temporary wooden partition, shoring up the wall of the plaintiff’s house, and making such other temporary arrangements as are usual in such cases ; so that it was possible and safe for the defendant to remain in the house while the new wall was in process of erection, although in doing so, he would have been subjected to some inconvenience. The demolition of the wall commenced on the 6th November, and the defendant abandoned the premises on the 16th November. It is proved, that it is quite a common occurrence, that the inhabitants of a house continue to occupy it, while a party-wall is in process of demolition and erection.

This wall being the separating wall of adjoining houses in a city, was not only a party-wall in fact, as proved at the trial, but was a common wall, by presumption of law, under the art. 673 of the Civil Code. Its position and character being apparent, the lessee may be considered as having notice of it at the execution of the lease, and therefore having notice of the legal rights of the adjoining proprietor. One of these rights was, to demolish and rebuild the wall anew, if necessary in the erection of a new building, whose weight it would be insufficient to support. C. C. 677, 678. When the adjoining proprietor chose to exercise this right, its demolition was not an active violation, by the lessor, of his contract as landlord ; nor did it authorize the lessee to abandon the premises, and claim damages ; for the house was still susceptible of occupancy, and the inconvenience was temporary. The extent of relief to which the lessee was entitled, was a reasonable reduction of the rent during the continuance of the inconvenience. We consider the relation of landlord and tenant towards each other, in a case of this kind, as analogous to that which they occupy where repairs are required. See C. C. 2670. Inasmuch as the premises were in such a condition during a portion of the month of November, as to produce inconvenience to the tenant, we think some abatement should have been made on that score.

It is therefore decreed, that the amount of rent allowed by the district court be reduced from the sum of $160 to the sum of $110, and that in other respects the judgment be affirmed; the costs of appeal to be paid by the plaintiff and appellee.


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    H. H. and S. F. Slatter v. Charles Tiernan & Co.
    The plaintiffs, on an execution, had garnisheed A. He filed his answers to the interrogatories. Six years after, the plaintiff's took a rule against the garnishee, to show cause why judgment should not be entered against him upon his answers. The grounds of the rule were, exceptions to the manner in which the interrogatories had been answered. Held: That a final judgment could not be entered against the garnishee.
    APPEAL from the Fourth District Court of New Orleans, Straiubridge, J.

      J. and J. Henderson, for plaintiffs.

      John JR. Grymes, for appellant.
   The judgment of the court (Preston, J., declining to sit in this cause, having been of counsel,) was pronounced by

Eustis, C. J.

This is an appeal taken by John R. Grymes, Esq., as curator ad hoc of Thomas Penny, garnishee, from a judgment rendered against the garnishee, personally, and in favor of the plaintiffs, for the amount of a judgment which they had obtained against Charles Tiernan, individually, and as the surviving partner of the late commercial firm of Tiernan, Cuddy Co.

The judgment in favor of the plaintiffs was obtained on the 27th May, 1843; an execution was issued on it, on the 27th March, 1844; under this judgment and execution, plaintiffs took out process of garnishment against Thomas Penny, then in the city of New Orleans, but residing in the State of Mississippi; and interrogatories were served on him, under the act of the 20th of March, 1839. He filed his answers on the 24th of April, 1844. No action appears to have been, taken in relation to these answers, until the 8th of November, 1850, when the plaintiffs took a rule against Penny, to show cause why a judgment pro confesso should not be rendered against him for the amount of the judgment, for certain reasons, stated by way of exceptions, specified in the rule which the plaintiffs then, for the first time, made to the answers of Penny to the interrogatories propounded to him.

Penny, it is stated by the plaintiffs’ counsel, is a resident of the State of Mississippi. Mr. Grymes was appointed curator ad hoc to represent him; time was given the curator to correspond with the absent defendant. An answer was filed by the curator, in which he stated, that the means that he had taken to reach Penny, by correspondence, were unsuccessful; that he had not been able to ascertain where Penny could be found; and he had been informed by one person, in this city, that Penny was dead. Under the circumstances, he applied to court for further time to communicate with Penny. On the disavowal of this, the curator pleaded to the jurisdiction of the court, and to the mode and regularity of the proceedings against the defendant garnishee. The rule was taken up, upon the answer of the curator, on the 11th January, 1851, and judgment was rendered against him; on which, the present appeal was taken.

We consider, that the proceedings in garnishment, under a fieri facias, are assimilated to those in cases of attachment, and ought to be governed by the same rules, in relation to the protection of garnishees who are in good faith and without laches. The reasons of the district judge for rendering judgment against Penny were, that he had not answered the 4th and 5th interrogatories propounded to him by the plaintiffs. These interrogatories, the respondent Penny states, he was unable to answer, for the reasons given by him. The whole subject matter of the interrogatories, and the answers, appear to be dependent on a certain deed of trust referred to in the answers, and prayed to be considered as a part of the same. The deed is described to have been passed on the 8th June, 1841, before William Christy, a notary public, in the city of New Orleans. This deed, the district judge thought the garnishee was bound to have produced, and to have furnished his accounts, as required by the plaintiffs’ interrogatories.

It is clear to us, that the court could not proceed, understandingly, against the garnishee, without having this deed of trust before it, or having the default fixed on the garnishee for not producing it. Our impression is, that if the plaintiffs required the garnishee to produce this deed, they ought to have given the garnishee notice, by way of exception to the answers. It often happens, that parties in their answers, under oath, refer to matters which are of record, and that the opposite party acquiesce in the statements of the answers: thus avoiding trouble and expense of procuring copies. We held, in the case of Woodruff v. French, ante, p. 62, that where the garnishee referred to certain judicial proceedings in Missouri, the plaintiffs, if they were not satisfied with the answers in this respect, ought to have excepted to them ; and thus given the garnishees notice, that their answers, in relation to the judicial proceedings, were not acquiesced in.

We do not find that the plaintiffs, in the present case, produced themselves the deed of trust; but the action of the court appears to have been based on the garnishee’s not having produced the deed of trust.

The circumstance, that the answers remained in the clerk’s office, without any action having been taken in relation to them for more than six years, and the residence of the garnishee in another State, coupled with the fact, that the general tenor of the answers appears to be fair¡ have great Weight with us in relieving the absentee against any proceedings which may bear the appearance of being hard or precipitate. As we said in the case of Woodruff, the district court will be enabled to take such future action in the case, as will secure their just rights to the plaintiff, and protect those of the garnishee. The exceptions specified in the rule can stand as exceptions to the answers, and the court render such decision thereon, as the justice of the case requires. But we think no final judgment ought to be rendered against the garnishee, as the case stands before us. The garnishee is undoubtedly in court, by his answers, and is amenable to its jurisdiction. The appointment of a curator ad hoc, we consider regular and proper, and the only means by which the garnishee can be reached, unless he elect to appear in person or by attorney.

The judgment of the district court is therefore reversed, and the case remanded for further proceedings; the plaintiffs and appellees paying the costs of this appeal.


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    James Wright v. Robert Abbott.
    Notice to the opposite party of the taking of the testimony of a witness about to depart from the State, served on the evening of the sixth of a month, to attend on the next morning, at ten o’clock, is sufficient to authorize the reception of the testimony.
    Where a person palls down the barricades, erected on the streets of New Orleansbya paving contractor, and thereby causes the pavement to be injured before it is ready for public use, he is responsible to the contractor for the damage ho has caused.
    Interest cannot be allowed on an unliquidated demand, from the date of judicial demand' It should be allowed only from the date of the judgment which liquidates the debt.
    APPEAL from the Fifth. District Court of Now Orleans, Buchanan, J.

      Lockett and Goold, and C. Roselius, for plaintiff.

      Durant and Hornor, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff contracted with Municipality Number Two of New Orleans, to pave Richard street, in the rear of Annunciation street. He finished two squares; but the work not being yet firmly set, he barricaded the street at the ends of the squares, to prevent vehicles from injuring, by passing over, the pavement.

He complains, that while the work was in this unfinished state, the defendant, owner of a cotton press, caused his barricades to be broken down, letting vehicles and drays pass, and caused his hauling to be done over the pavement, notwithstanding his repeated notices and requests to the defendant to desist from this breaking up and destroying it. By which means, he alleges, the pavement was broken up, and that he was compelled to re-pave it, at an expense of eleven hundred dollars, in order to have his work received by the municipality. There was judgment for the plaintiff for five hundred and seventy-five dollars, with interest; and the defendant has appealed.

The testimony of the late George T. Dunbar was taken under a commission, issued on an affidavit filed, that he was a material witness and about to depart from the State before the trial of the cause. The defendant’s counsel opposed the reading of the testimony, on the ground that sufficient notice had not been given to the defendant, to be present at the execution of the commission.

He alleges, and the notice shows, that it was served upon Mr. McMullen, the defendant’s partner, and at his cotton press, on the 6th of December, (and defendant offered to prove, at six o’clock in the evening,) to attend the taking of the testimony, at ten o’clock, the next day. This was certainly short notice, and more should have been given; still, it afforded time to the defendant’s agent, or his attorney, to have gone to the magistrate the next morning, and have asked a postponement of the examination, if necessary. It is further urged in argument, that there was no necessity for hurry in taking Dunbar’s testimony, as he did not depart from the State for some days afterwards. This, then, afforded the defendant an opportunity to cause him to be re-summoned and cross-examined.' A party should not be so readily heard as to an injury, which he could have easily repaired. Some discretion must be allowed to the courts of original jurisdiction, as to the admission of testimony. The judge might have declined to receive the testimony of Dunbar in this case, thus forcing the plaintiff to a non-suit or continuance, in order to take it again. But Dunbar was dead. We are unwilling to reject the testimony which would lead to remanding the cause for a new trial, in which case it could not be obtained; but certainly would not render judgment, on testimony thus taken, unless strongly corroborated by other evidence.

But every important fact stated by Dunbar is proved, or necessarily inferred, from the testimony of Kirie, Tardé and Barnes, witnesses examined at the trial, for plaintiff. It is true, that the defendant furnished much contradictory testimony. But we deduce from the whole, substantially, as the district court has done: 1. That about Christmas, 1848, the plaintiff, under a contract with the municipality, had completed the pavement of Richard, between Pacaniers and St. John the Baptist streets. 2. That in consequence of the bad weather, the pavement had not become set, and had not yet been received by the surveyor of the municipality, without whose approval of the work, the plaintiff could not receive payment for the same. 3. That the pavement was broken up, in consequence of the defendant breaking down the barricades by which it was protected, and using it for hauling on his drays, and leaving it open to others to do the same. 4. That this rendered it necessary to re-pave the whole before it would be received, which was done by the plaintiff. 5. That the price of doing the work was one dollar a square yard; and it appears, by the pleadings, that there were eleven hundred square yards. 0. We have no reason to believe, that the allowance, for the re-pavement, of one half the whole price of the pavement, was unreasonable. The district judge made his calculation on eleven hundred and fifty square yards of pavement, instead of eleven hundred yards. This was a small error, which probably the defendant might have had corrected in the district court, and for which, alone, we would be unwilling to reverse the judgment. But, 7th, interest should have been allowed from the rendition of the judgment, when the damages claimed were liquidated, and not from the judicial demand. See 1st Ann. 382. 3d Ann. 703. This malíes a difference of fifty dollars in the amount of the judgment rendered, and that for which it Should have been rendered. And considering that there was an error of twenty-five dollars in calculating the principal, the judgment must be amended in these particulars ; and in reducing it seventy-five dollars, we are inclined to think justice will still be done to the plaintiff.

It is therefore decreed, that the judgment of the district court be reversed ; and that there be judgment in favor of the plaintiff, against the defendant, for five hundred and fifty dollars, with interest from this date, and costs in the district court; the plaintiff and appellee to pay the costs of the appeal.