text:
    No. 84.
    Jonas Platt v. John L. Maples.
    A receipt which acknowledges payment is merely jmma facie, evidence of payment, font is not conclusive
    Where the consideration of a contract is unlawful on its face, it cannot be ratified, so as to authorize the Courts to enforce it. A contract of saléis incomplete until the delivery of the thing sold. C. O. 2150.
    A PPEAL from the District Court, Parish of Bossier, Weems, J.

      L. B. Watkins, for plaintiff.

      R. W Turner, for defendant.
   Hyman, C. J.

Plaintiff brought suit on a written instrument, in the' following words, to wit:

“Beceived from Jonas Platt, the sum of twenty-seven hundred and eighty-seven dollars and twenty cents, in full payment of thirty bales of cotton, weighing 13,936 pounds, at twenty cents per pound. I agree to keep said cotton protected from the weather, and to deliver the same in good order at the Dorehete landing, near the town of Minden, when ordered so to do by the said Platt, all loss by fire or capture at the risk of the purchaser. This the 30th day of January, 1864.

John L. Maples, by Emma Maples.”

Which he alleged to be a written obligation, and asked for judgment against defendant for thirty bales of cotton, or their value.

Defendant, in answer, admitted that he executed the instrument, but averred that he received Confederate treasury notes for the cotton mentioned therein.

Judgment was rendered in favor of defendant and against the plaintiff for cost of suit, and the plaintiff has appealed from the judgment.

’ On the trial of the case in the lower Court, defendant offered to prove by oral evidence that the amount stated in the instrument to have been paid, was paid in Confederate treasury notes.

Plaintiff objected to the introduction of this evidence, on the ground that parol evidence could not be received to contradict the written obligation.

The Judge admitted the evidence, and the plaintiff filed a bill of exception to its reception.

The instrument sued on is not a contract of sale of the cotton, though it fully proves that a sale was made of the same.

It is a receipt for money paid on the cotton sold, coupled with an agreement to take care of and deliver the cotton.

It is clear that, that part of the instrument, which acknowledges the payment of money, may be controverted by parol evidence, as it in no manner contradicts the agreement to take care of and deliver the cotton. A receipt which acknowledges payment is merely prima facie evidence of the fact of payment, and is not conclusive. See Greenleaf on Evidence, vol. 1, l 305.

The facts of the case do not require of us to decide, whether or not an acknowledgment of payment in a written contract of sale could be contradicted by the jiarties thereto, with parol evidence.

The evidence in the case satisfies us, that by the contract of sale, the jirice for the sale of the cotton was to be paid in Confederate treasury notes, issued by the so-called Confederate States of America, to enable them to carry on war against the Government of the United States, of which the parties to the suit were citizens.

The dealing in and contracting for these notes gave credit and confidence to them, and assisted the rebels in the war against the government.

The consideration of the sale of the cotton was unlawful. Such dealing had a tendency to disrupt the government, and can have no effect. See Civil Code, 1887 and 1889.

It is contended that as the defendant delivered a part of the cotton, he ratified the contract.1 Such contracts cannot'be the foundation of a natural obligation, and cannot be ratified. See Civil Code, Article 1751, 11.

They are immoral.

Plaintiff contends that the instrument sued on, was an executed contract.

Under a contract of sale the vendor is obliged to deliver the things sold, and the contract cannot be fully executed until the things sold are delivered. See Civil Code, 2450.

Courts will not require such a contract to be enforced, at the suit of one of the parties thereto, against the other. JSm lurpi causa non oritur aclio.

Let the plaintiff’s suit be dismissed.


source: Caselaw Access Project

author: Tahiarebro, J.

license: Public Domain

text:
    No. 87.
    John H. Lewis v. Henry Boyce.
    This case presents only questions of fact.
    A PPEAL from the District Court, Parish of Rapides, Cooley, J.

      J. Or shorn, for plaintiff.

      IT. A. Boyce and J. Q. White, for defendant.
   Tahiarebro, J.

This suit is brought to recover from the defendant twelve hundred and forty dollars, with interest, claimed by plaintiff to be owing him for overseer’s wages. He alleges that his salary, as overseer of two plantations from 4th day of June, 1864, to 14th June, 1865, amounts to the sum claimed, at the rate of one hundred dollars per month.

The answer denies the allegations of the petitioner. The defendant specially avers, that his engagement with the plaintiff, was to pay him at the rate of eight hundred dollars per annum, as long as plaintiff remained with him in that capacity, and that payment was to be made in Confederate money. He alleges partial payments made to the plaintiff, and claims the value of a mule belonging to one of the plantations, averring that plaintiff disposed of said mule on his account. He states an account-far exceeding the plaintiff’s claim, and pleads it in reconvention.

Judgment was rendered in favor of the plaintiff for six hundred dollars,1 with interest, from 6th of October, 1865, at five per cent, per annum, until paid, subject to a credit of eighty-five dollars. The defendant has appealed. No contract is proved. Services in the capacity stated arc admitted. The value of these services is the only matter of inquiry. Several witnesses testify on the subject. A review of the evidence induces us to think that it does not justify so large a sum as that awarded by the judgment. A part of the time it is shown there were but few laborers on one of the plantations; that the employe, a portion of his time, seemed to bo doing but little. It is shown by the concurrent testimony of all the witnesses, who testified on the point, that plaintiff is only a second-class overseer or manager on plantations; that no cotton was cultivated on the defendant's premises, and that services of the kind were not worth so much as previous to the war. One witness states that he managed the “ Ulster ” plantation (one of those in charge of plaintiff) at six hundred dollars a year, before the war.

We think the plaintiff’s services would be well compensated by four hundred- dollars.

It is therefore ordered, adjudged and decreed, that the judgment' of - the District Court be annulled, avoided and reversed; it is further ordered, adjudged and decreed, that the plaintiff recover from the defendant the sum of four hundred dollars, subject to a credit of eighty-five dollars, with interest, at the rate of five per cent, per annum, from the 6th day of October, 1865, until paid, with costs in both courts.


author: Ilsley, J.

text:
    No. 22.
    Clapp & Co. v. Phelps & Co.—Griffen & Co., Intervenors.
    An intervene»!’ cannot, without the consent of the plaintiff, substitute himself in the placo and stead of the defendant. C. P. 389, 390.
    An intervenor stands in the character of plaintiff before the Court, as to (he nature of the title, and the object of his demand, and is governed in his pleadings by the rules of practice which apply to plaintiffs in principal demands. O. P. 172.
    "Where the defendant, in his answer, filed in the cause, neither denies the legal right of the plaintiff to recover nor the truth of the allegations of the petition, they are taken by the Uourt to be'confessed, and the plaintiff is dispensed from the necessity of adducing proof in support* of his demand.
    An intervenor cannot be permitted to bond property in the custody of the sheriff under asequestration: The right to bond is only given by law to the parties to the action; first, to the defendant; and if he neglects to exercise the privilege in ten days after the seizure, then to tho plaintiff.
    The order to bond property under sequestration must be rendered by the Judge.
    (Jlorks of Courts have no authority to render such orders.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      T. T. c6 A. D. Land, for plaintiffs.

      Hides <& Hall, for defendants.
   Ilsley, J.

Prom a judgment rendered in favor of the plaintiffs for the cotton claimed in their petition, the intervenors, Griffen & Co., have appealed, and in this Court have filed an assignment of errors, on which they rely for a reversal of the judgment.

We shall consider the errors assigned in the order of assignment:

1.That the Court below erred in refusing to permit the intervenors to appear and plead as defendants in the action, in the place and stead of the defendants, Phelps & Co.

I. An interven or may join either plaintiff or defendant in the principal action, or he may oppose both when his interest requires it, but he cannot, without the consent of the plaintiff, substitute himself in the place and stead of the defendant. C. P. 389, 390, and amendment. If the law were otherwise, the legal rights of a plaintiff might be entirely defeated. A demand in intervention is but an accessory to a main action. Todd v. Spouse, 14 An. 427.

' 2. That the Court erred in dismissing the petition of intervention, on an .exception filed by the plaintiff.

II. The exception was to the petition, on the ground that it did not disclose the origin and nature of the pretended title of the intervenors, the name and residence of the vendor of the intervenors, nor the place, price, or any other circumstance of a contract of sale, or other mode of acquiring title to property. The plaintiffs, in their exception, prayed the Court to order the intervenors to amend their petition, in the particulars or circumstances mentioned, and in default, to dismiss it, on the ground of vagueness and uncertainty in its allegations. The Court sustained the exception, and granted leave to the intervenors to amend their petition, but they refused to amend, and the petition was dismissed as prayed for in the exception. An intervenor stands in the character of plaintiff before the Court, as to the nature of his title, and the object of his demand, and is governed in his pleadings by the rules of practice which apply to plaintiffs in principal demands. C. P. 172. Hennen’s Digest, Verbo Pleadings, v. (a) (3.)

3. That the Co.urt erred in rendering judgment in favor of plaintiffs, lipón the answers filed by the defendants, Phelps & Co.

III. The answer of the defendants was a disclaimer of any title or ownership of the cotton on their part, and as a disclaimer of title and ownership the answer neither denied nor put at issue any of the allegations of the plaintiff’s petition.

The object of pleading is to present an issue, either of law or of fact, on which the Court can pass a judgment between the parties to the suit, and when a defendant, in his answer, filed in the cause, neither denies the legal right of the plaintiff to recover, nor the truth of the allegations of his petition, they are taken by the Court to be confessed. Nennier v. Coist, 5 M. 56. 4 N. S. 615.

The plaintiff, in such a case, is dispensed from the necessity of adducing or administering proof in support of his claim or demand.

4. That the Court erred in refusing to set aside the judgment, dismissing the petition of intervention; and also, in refusing to set aside the judgment rendered in favor of the plaintiffs, on the answer filed by the defendants.

IV. For the reasons stated in considering second and third assignments of errors, the Court below did net err in refusing to disturb the judgment; and

5. That the Court erred in permitting tlio plaintiffs to bond the cotton, after the intervenors had obtained an order from the clerk of the Court, authorizing them to bond it.

V. The intervenors had no right to bond the cotton under the provisions of the law, and in no case could they be permitted to do so when in the custody of the sheriff under a sequestration, in the absence of a decree or order of the Judge rendered contradictorily between the plaintiffs and the intervenors.

The right to bond property sequestered, is only given by the law to the parties to the action; first, to the defendant; and, if he neglects to exercise the privilege within ten days after the seizure, then to the plaintiff. C. P. 279, and amendments. The order of the clerk, authorizing the intervenors to bond the cotton, was without warrant or authority of law, and was therefore without any legal effect, and it was the duty of the District Judge to disregard the action of the clerk, and to grant an order to bond in favor of the plaintiffs, the parties legally entitled to it.

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


author: Taliaeerro, J.

text:
    No. 105.
    Edward Benton v. Hope & Tally.
    Steamboats and other water-crafts, navigating the waters of the United States, are prohibited by* act of Congress from transporting freight or passengers, without first obtaining the necessary license or inspection papers from the collector of customs. Contracts of insurance of affreight? ment, made with any steamboat navigating any of the waters of the country in direct violation of law, are null, and cannot receive judicial sanction.
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      Henderson & Lacey, for plaintiff.

      Wright & Duncan, for defendants.
   Taliaeerro, J.

The plaintiff, as endorsee of W. A. Benton, brings this suit against the defendants in solido, on a promissory note drawn by them for §509, and payable on demand to W. A. Benton or order.

The defendants admit the signature of the note, but aver that it was given to the payee upon false and fraudulent representations of his, that he was authorized by the---Insurance Company to give or sign blank policies of insurance on freights shipped on boats that had failed to obtain inspection papers, and that if loss had occurred, the insurance company would not have been responsible.

It is contended also, on the part of the defendants, that the obligation is one made in violation of a prohibitory law, and null on that account. The plaintiff obtained judgment, and defendants have appealed. It appears that the insurance was taken by defendants on cotton shipped on a steamboat called the “Dillard,” which had at the time neither' the license from the custom-house nor the certificate of inspection, in default of which the boat could not legally navigate the waters of the United States.

There is no doubt that this boat had been owned in whole or in part by defendants at, or at least a short time before the execution of the note sued upon, which was given in payment of the premium of insurance, taken by them on a load of cotton.

The act of Congress approved July, 1838,---rigidly prohibits, under heavy penalty, boats of the character of the Dillard from transporting goods, wares and merchandise or passengers. There is no doubt that the condition of the boat was fully known to the plaintiff as well as to the ptayee of the note, at the time the contract was entered into.

We are of opinion that contracts of insurance upon boats so rigidly, prohibited from transporting freight or passengers, made by parties with full knowledge of the prohibition, become affected with the nullity resulting from engagements entered into in direct violation of law. The taking risks, under insurance upon boats navigating the waters of the country, in express violation of law, is an encouragement to violate law; and contracts of that kind should not receive the sanction of judicial tribunals.

The conclusion we have arrived at renders it unnecessary for us to consider the several bills of exceptions we find in the record.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; it is further ordered, adjudged and decreed, that judgment be rendered in favor of defendants, the plaintiff and appellee paying costs in both courts.


author: Labatjve, J.

text:
    No. 95.
    Alexander Norton v. John H. Dawson and John Bogan.
    Confoderato Treasury notes were issued to assist the rebellion against the Government of the United States, and the circulating them as money was immoral and against public policy.
    Parol evidence is admissible to vary or contradict a written contract that is reprobated by law.
    A PPEAL from the District Court, Parish of Rapides, Lewis, J.

      Lewis & Hunter, for plaintiff.

      Ryan & White, for defendants.
   Labatjve, J.

This suit is brought on a promissory note for $1,000, the consideration of which is proved to be treasury notes of the so-called Confederate States.

Judgment was rendered in favor of plaintiff for $500 in gold, and tho defendants appealed.

Parol evidence was properly admitted, to prove the consideration of the note, although excepted to, and to show that it was Confederate money. This kind of currency was created to assist the rebellion against the Government, and the giving circulation to it was immoral and against public policy, and it is well settled that in immoral and reprobated contracts, parol evidence is admitted to vary and contradict written contracts. We cannot enforce this obligation, according to many decisions of this Court. 5 R. 101. 1 A. 192. 10 A. 199. 12 A. 151.

It is therefore ordered that the judgment be reversed, and the suit dismissed at the costs of the plaintiffs, in both courts.


author: Ht&ian, C. J.

text:
    No. 106.
    J. J. Hope v. J. W. Howard.
    Compensation takes place where the demand of plaintiff and defendant are equally liquidated. O. O. 2205. O. P. 368.
    Where the law authorizes the plea in compensation to be made, evidence is admissible to establish the demand.
    A . PPEAL from the District Court, Parish of Caddo, Weems, J.

      J. W. Duncan, for plaintiff.

      Land & Land, for defendant.
   Ht&ian, C. J.

Plaintiff sued defendant to recover of him $600 for rent of land.

The contract sued on by plaintiff was, that defendant should enjoy for one year certain landed property belonging to plaintiff, and that he should pay plaintiff for its enjoyment $600, less the value of improvements that he should put on the land.

Defendant, in his answer, pleaded in reconvention and compensation, the value of the improvements put by him on the land, and also the price of some cord-wood sold by him to plaintiff.

The Judge rendered judgment, allowing to plaintiff his claim of six hundred dollars against defendant, and to defendant, on his plea in reconvention and compensation, the value of the improvements put by him on the land let, and the price of the wood sold by him to plaintiff.

Prom the judgment plaintiff has appealed.

Plaintiff relies on one ground only for the reversal of the judgment.

The ground is, that the District Judge erred, in receiving evidence on the plea of reconvention and compensation, set up by defendant for the price of the cord-wood sold by him to plaintiff.

Plaintiff filed a bill of exception to the admission of the evidence, and the objections in the bill are, that his claim was a liquidated one, having been liquidated by the acknowledgment of the defendant, in his answer, and that an unliquidated claim, as was defendant’s for the sale of the wood to plaintiff, could not be pleaded in compensation against it, nor could defendant’s claim be pleaded in reconvention, because it was not connected with his, plaintiff’s claim for rent, and because both parties were residents of the same parish.

The reason of the Judge for admitting the evidence is embodied in the bill of exception; and is, that the demand for the price of the wood claimed by defendant was liquidated, as to the price to be paid, and as much so as plaintiff’s demand for rent, and that the answer of defendant does not admit any certain sum to be due to plaintiff

The defendant had no right to set up the plea in reconvention, as both plaintiff and defendant reside in the same parish, and as the claims were not connected with each other. On that plea defendant had no right to introduce evidence. See Code of Practice, Art. 375, and amendment to the article.

The indebtedness of plaintiff to defendant for the wood was under an agreement at a fixed price, for the cords which defendant might deliver to plaintiff, but there had been no settlement or adjustment as to the number of cords delivered by defendant, consequently, like the claim for rent by plaintiff, the amount due to defendant for wood was not liquidated.

The evidence shows that the claim of the plaintiff for rent and the claim of defendant for the price of the wood were equally liquidated, and the plea of defendant in compensation for the price of the wood was authorized by the law. See Civil Code, Art. 2205; Code of Practice, Art. 368.

It is not seriously contended by plaintiff that the claim for the price of the wood by defendant, was not as liquidated as his, plaintiff’s claim for rent, before defendant filed his answer, but he contends that the effect of defendant’s plea of compensation, in his answer, acknowledged his, plaintiff’s claim to be due, and fully liquidated it, while defendant’s claim remained unacknowledged and unliquidated.

The plea of compensation may have had the effect plaintiff contends for, but the law authorized the defendant to make the plea in that manner, and, consequently, gave him the right to introduce evidence to establish his plea.

The strange position is assumed by the plaintiff, that the adoption by the defendant of a plea in his defence allowed by law to secure his rights, has caused him to lose his rights.

Let the judgment of the District Court be affirmed, with costs.


text:
    No. 27.
    Taylor, Knapp & Co. v. W. T. Hancock & Co.
    All writs of fieri facias issued from any of the Courts of this State, must be made returnable into Court by the clerk thereof, in not less than thirty nor* more than seventy days from the date of issue. Revised Statutes, page 529.
    Where the sheriff omits to return theyici-i facias, within the time fixed by law, without showing tho consent of the party in whose favor it issued, he becomes, personally, liable for the debt, which may be recovered on rule alter ten days’ notice.
    The fact that the defendant in execution is insolvent, does not excuse the sheriff from calling on the plaintiff to point out property. He might be insolvent, and still have property liable to seizure.
    Where the liability of the sheriff is prima facie shown by the return, it is incumbent on him to show a legal excuse for his neglect.
    A PPEAL from the District Court, Parish, of Bossier, Weems, J.

      Jl. B. Levisee, for plaintiffs.

      L. B. Watkins and J. JR. Griffin, for defendant.
   Labatjve, J.

On the 15th of September, 1858, the plaintiffs obtained judgment against the defendants, W. T. Hancock & Co., for $631 78, with eight per cent, per annum, from the 30th of March, 1858, which, on appeal, was affirmed by this Court. On the 20th of August, 1859, a fieri facias was issued, and put in the hands of the sheriff, who, through his deputy, made the following return upon it:

“I certify that I received this writ on or about the 20th of August, 1859, and the defendants, having no property out of which I could cause to be made the amount of money in this suit; and the plaintiffs and their attorneys, failing to show or point out property, I hereby return this writ of fieri facias not satisfied, the return-day having long since expired,.

(Signed) “O. O. Nowell, Deputy Sheriff.”

“Filed January 17th, 1860.”

On the 20th of May, 1861, plaintiffs took a rule on Austin Miller, administrator of the succession of L. F. Steele, the sheriff, then deceased, to show cause why the said succession should not pay said judgment, because of the neglect of said sheriff, to return the said writ of fieri facias within the legal delay. •

On the 22d of March, 1862, plaintiffs amended their rule, and extended it to Bobert T. Stinson and Austin Martin, as sureties of said sheriff.

Austin Miller, having died, the rule was revived against Mattie Steele, surviving widow of Steele, and administratrix of his succession.

The principal defence is, that the defendants in execution were notoriously insolvent at the date of the issuance of said fieri facias, to the knowledge of plaintiffs’ counsel, etc.

Judgment was rendered against plaintiffs, and they appealed.

This case must be tested under the following statute:

“That all writs of fieri facias, issued by the clerks of the several Courts throughout this State, shall be made returnable by them in not less than thirty days nor more than seventy days. It shall be the duty of each of the sheriffs of the different parishes in this State, to return all writs directed to them, into the clerk’s office from which they issued, on or before the return-day mentioned therein, and also to pay over any moneys received thereon to the party entitled to the same, or their attorneys; and in default of any of the duties imposed on him in this section, he shall become liable to the party entitled to the benefit of the writ for the full amount specified therein, which shall be recovered, on motion, before the District Court in the parish in which said sheriff resides, after ten days’ notice.” Bevised Statutes, p. 527, <S 2.

The sheriff’s return does not show that he ever called, either on the defendants in execution or on the plaintiffs, to point out property as indicated in Arts. 726 and 727 of the Code of Practióe. The sheriff, on the face of his return, shows his responsibility under the law; although, the defendants in execution were insolvent, this did not dispense the sheriff from calling on the plaintiffs to show property; the judgment debtors might have been insolvent, and yet have had property which could be seized and sold to satisfy the execution. The seizure of property gives a privilege to the seizing creditor.

The liability of the sheriff, being prima facie established on the face of his return, it was incumbent on him, in order to avoid responsibility for the amount of the writ, to show a legal excuse, and the plaintiffs were not bound to prove that they had been damaged, notwithstanding the insolvency of the defendants in execution.

We are of opinion that the sheriff made himself liable, and that the defendants in the rule have failed to show a legal excuse. 11 An. 273. 12 An. 419. 13 An. 153, 329.

It is therefore ordered and decreed, that the judgment of the District Court be annulled and avoided; it is further ordered and decreed, that the rule be made absolute, and that the defendants in the rule pay in solido to the plaintiffs, Taylor, Knapp & Co., the sum of six hundred and thirty-one dollars and seventy-eight cents, with interest at eight percent, per annum, from the 30th of March, 1858, till paid, and costs of suit in both courts.


author: Labauve, J.

text:
    No. 111.
    Levy & Dieter v. M. Baer.
    Defendant executed Wo promissory notes for $4,000 each, dated February 1860, secured by special mortgage on real estate m Shreveport; W A. Violett & Oo., of New Orleans, afterwards became the holders of these notes. In the month of December, 1865, defendant drew two drafts, for the amount, of the two notes and interest, in favor of *VV. A Violett & Co., on Messrs. Levy & Dieter, \utli stipulation in the drafts, that on payment they would become subrogated to all the rights and privileges of W. A. Violett & Co., to the two mortgage notes held by them. The drafts were accepted and paid at the time fixed, 18th of March, 1866, and the mortgago notes delivered to them: llckl—That, by the holders of the notes, W. A. Violett & Co., endorsing on the back “received payment as stated,” they adopted all the conditions in the drafts, as much as if they had repeated the expression of subrogation in the receipt, and that a complete subrogation took place at the time of payment.
    Damages cannot be allowed defendant, as attorney’s fees, where the judgment is in favor of plaintiff
    A PPEAL from the District Court, Parish of Caddo, Weems, J.

      Land <& Land, for plaintiffs.

      Looney & Wells, for defendant.
   Labauve, J.

On the 15th of February, 1860, the defendant executed his two promissory notes in favor of Autrer, Harrison & Co., each for $4,000, with eight per cent, interest, from maturity, payable, respectively, eleven and thirteen months after date, and secured by a mortgage on certain property in Shreveport, Louisiana, with a stipulation in the act of mortgage, that the debtor should pay three per cent, as attorney’s fees in case executory proceedings should be resorted to for payment. The notes were endorsed in blank by the payees, one to Violett & Co., and tho other, to the Union Bank; Violett, afterwards became holder of both notes.

On the 4th December, 1865, M. Baer, tho maker, drew a draft for each of said notes, in favor of said Violett & Co., the holders, on the plaintiffs Levy & Dieter; both drafts being of the same tenor, accept as to amount and time of payment, as follows:

“$5,497 95. New Orleans, Dec. 4th, 1865.

On or before the 18th day of March next, fixed, jiay to the order of Messrs. W. A. Violett & Co., five thousand four hundred and ninety-seven dollars, and ninety-five cents, which will subrogate you to all the rights and privileges of the said W. A. Violett & Co., in and to a certain mortgage note drawn by me, for four thousand dollars, with eight per cent, per annum interest, from maturity until paid, bearing date, New Orleans, 15th February, 1860, and payable thirteen months thereafter, which they now hold, and which will be surrendered to you at the time of the above payment. It is distinctly understood that the above arrangement is not made in novation of the last-described paper, but it is to remain in full force until paid off by me, whether it be held by the said W. A. Violett & Co., in default of payment of the above amount or transferred by them, to the acceptors of this instrument, in consideration of payment of the same.”

(Sign ed) “ M.. Babb. ’ ’

“ To Messrs. Levy & Dieter, New Orleans.”

Both of said drafts were paid by the drawers to the payees, and a receipt of the following tenor, is entered on the back of each of them, as follows:

“ Deceived payment of Messrs. Levy & Dieter, January 18th, 1866.”

(Signed) “ W. A. Yiolett & Co,”

The two mortgage notes were delivered to the plaintiffs and exceptors, at the time of payment.

The plaintiffs in injunction, then sued out an order of seizure and sale, which was granted on the grounds:

That he never made in favor of Levy & Dieter any act of mortgage whatever, and that said Levy & Dieter have no mortgage enabling them legally to procure and execute executory process of said Court, they having no mortgage in their favor, and no authentic evidence that they are the owners of any such mortgage; that the granting of three percent, for attorney’s fees, is illegal, etc. He claims damages for attorney’s fees, and also general damages.

The executory proceedings were changed into the via ordinaria..

The District Court gave judgment in favor of plaintiffs, for the amount of the notes and interest, and recognized the special mortgage to secure the payment of said debt, interest and costs, including three per cent, for attorney’s fees. The Court also gave judgment in favor of defendant against plaintiffs, for $500, as damages for attorney’s fees. The defendant appealed.

The plaintiff's have asked in this Court that the judgment be amended, by rejecting that part of the clause allowing $500 to the defendant.

The main question presented is, whether or not, the plaintiffs, on paying the said drafts were subrogated to the creditor’s mortgage securing the payment of said notes, as required by Art. 2156, No. 1, Civil Code, reading thus:

“ When the creditor, receiving his payment from a third person subrogates him in his rights, actions, privileges and mortgages against the debtor, this subrogation must be expressed and made at the same time as the payment. ” ;

It is contended by defendants’ counsel, that there is no express subrogation, and that the receipt goes no further than to acknowledge that the drafts have been paid.

The parties to these drafts are M. Baer, the drawer, W. A. Yiolett & Co., the payees and holders, and Levy & Dieter, the acceptors.

We view and consider these drafts as agreements entered into by all these parties, stipulating that on payment of said drafts, the plaintiffs and acceptors were to be subrogated to the rights and mortgage existing in favor of the payees and holders of the mortgage notes, who, by receiving payment as stated on the back of said drafts, adopted virtually all the clauses and conditions stipulated in the said drafts, as much so as if they had repeated the expression of subrogation in the receipt. The subrogation was conditioned upon the payment of the drafts, and, therer fore, took place by and at the time of payment. The evidence shows that the notes wore delivered to the plaintiffs. We are of opinion that the article of the Code was complied with, and that the plaintiffs were duly subrogated.

As to the allowance of $500 in favor of defendants as damages for attorney’s fees, we know of no law authorizing it, and the judgment must be amended in that respect; otherwise, we are of opinion that the judgment is correct.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be so amended as to strike out that part of the decree allowing the defendant $500 as damages for attorney’s fees; and it is further ordered, that the judgment as amended be affirmed, at the costs of the appellant, M. Baer.


author: Labadve, J.

text:
    No. 88.
    R. C. Hynson v. Thomas J. Texada.
    The answers of defendant to interrogatories propounded by plaintiff, can only be destroyed by the oatli of two witnesses,or one witness corroborated by strong circumstantial evidence, or by written proof. O. P., Art. 354.
    A PPEAL from the District Court, Parish of Rapides, Cooley, J.

      Lewis & Iiunler, for plaintiff.

      Ryan & While, for defendant.
   Labadve, J.

The plaintiff, as transferree of Rhorer & Zunts, claims of the defendant the sum of $1,258 12, with interest. The defendant pleaded the general issue and prescription of three years. This suit is brought on an open account for plantation supplies, moneys, etc., commencing on the 27th February, 1861, and ending 24th February, 1862.

Judgment was rendered in favor of plaintiff, and the defendant appealed.

The plaintiff propounded the following interrogatories to the defendant:

. 1. Did you order and receive any of the articles mentioned in the account upon which suit is brought ?

2. Examine the account herewith filed, and state whether the items are correctly charged, and if not, which are correct and which are incorrect.

1st Int. Answer.—During the year 1861, I remember to have had no dealings with Rhorer & Zunts that were not settled by draft or note, and feel certain, from examination of memorandum in my possession, that I owe them nothing on an open account. I did order sujjplies for my plantation during that year, but they failed to furnish them; I was compelled to obtain them elsewhere, consequently I do not think that I received any of the articles charged in the account.

2d Int. Answer.—My first answer is responsive to this question; I am satisfied that none of the items are correctly charged as being due ; one item of insurance on sugar-house, and another, on gin-house, are certainly incorrect; and so I regard each and every one.”

It is clear that these answers negative the indebtedness of the defendant upon the account sued on.

The plaintiff has introduced letters of the defendant, to show that he had requested Rhorer & Zunts to send him articles charged in the account; such letters, although asking for the articles, do not prove that the demand was complied with, and do not contradict the answers of the defendant. . This is all the testimony in support of the account. The answers of the defendant cannot be destroyed, except by the oath of two witnesses, or of one single witness, corroborated by strong circumstantial evidence, or by written proof. C. P. Art. 354. Besides, we have been unable to find in the record a transfer by Bhorer & Zunts to the plaintiff.

We are of opinion that plaintiff has failed to make out his case.

The defendant has not called our attention to the plea of prescription; we have, therefore, not thought necessary to pass upon it.

It is therefore ordered and decreed, that the judgment appealed from be annulled and avoided; it is further ordered and decreed, that plaintiff’s demand be dismissed as in a case of nonsuit, and that he pay costs in both courts.


author: Tabiaeebbo, J.

text:
    No. 102.
    B. McFeeley v. John Osborn et al.
    The act; of the Legislature, approved February 28th, 1866, prescribing the mode by which the records of the parish of Rapides, destroyed by fire in the year 186d, may be reinstated, does not permit -the question of the invalidity of a judgment, the record of which has been destroyed, to be inquired into, in the suit for its restoration.
    Only the question of fact, as to the existence of such judgment and its destruction, can be made the subject of examination in such suits. Session Acts, 1866, page Í9.
    A PPEAL from the District Court, Parish of Bapides, Lewis, J.

      Lewis <& Hunter, for plaintiff.

      J. Orsborn, for defendants.
   Tabiaeebbo, J.

The defendants appeal from a judgment rendered by the District Court, decreeing the restoration of a judgment alleged to have been obtained against them by the plaintiff at the October term of the Court, either in the year 1861 or the year 1862. The proceeding is taken in this ease under an act of the Legislature, approved February 28th, 1866, prescribing the mode by which the records of the parish of Bapides, destroyed by fire in 1864, may be reinstated. The defendants answer the plaintiff’s petition, by admitting that a judgment as set forth by the plaintiff was rendered against them at the October term, 1862, of the District Court of the Ninth Judicial District, but aver the invalidity and nullity of the judgment on several grounds.

We think the declaration, in the plaintiff’s petition, supported by his affidavit, that such a judgment existed, and that it was destroyed by fire, coupled with the admission of the defendants, fully authorized the judgment of the Court. The act of the Legislature referred to, expressly limited the defendants to the simple issue of the previous existence or non-existence of the alleged judgment, and it was not admissible for them, in this case, to raise the question of its validity. The testimony shows that a District Court was held in the parish of Bapides, in the years 1861 and 1862, at the October term. The allegation of the plaintiff, under oath, is, that the judgment was rendered at either the October term, 1861 or 1862. The decree of the Court establishes that the judgment was rendered in 1861.

We see no objection to the judgment appealed from on this account, especially as the allegation of defendants, that the time of the rendition of the judgment sought to be restored, was October, 1862, is not supported by oath.

There is no force in the exception, that the case was not decided in open Court.

The act of the Legislature, on the subject, expressly authorizes the Judge to decide such cases in Chambers.

It is therefore ordered, adjudged and decreed, that the judgment of District Court be affirmed, -with costs in both courts. '


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    No. 49.
    John Bogan, Administrator, v. William S. & Meredith Calhoun.
    Parol evidence is inadmissible to change the parties to a written instrument, by showing that the party who signed the note did so as the agent and surety for another, whose name does nob appear on the note.
    A promissory note, payable on timo with interest, bears interest from date.
    A PPEAL from the District Court, Parish of Rapides, Lewis, J.

      M. Ryan and H. S. Losee, for plaintiff.

      T. G. Manning, for defendant.
   Labauve, J.

The petition alleges that William Smith Calhoun and his father, Meredith Calhoun, are indebted in solido to the plaintiff, in the sum of $8,302 50, upon a note of the following tenor:

“Alexandria, La., January 17th, 18G1.

$8,302 50. In twelve months, I pi-oaiise to pay to the order of John Bogan, Sr., the sum of eight thousand three hundred and two dollars and fifty cents, for value received, bearing eight per cent, per annum interest.” (Signed) “William Smith Calhoun.”

Judgment was rendered against William Smith Calhoun alone in favor of plaintiff, and against plaintiff in favor of Meredith Calhoun, as in a case of nonsuit. The plaintiff appealed.

The case was taken up on a default, defendant having failed to answer.

On trial plaintiff offered to prove, by competent witnesses, that Meredith Calhoun was really the borrower of the money, and that William S. Calhoun acted as his agent as well as surety. The Court ex propria niotu refused to admit the testimony, on the grounds that the note is not signed by Calhoun, as an agent, etc.

Wi/are clearly of opinion that the Court did not err. Had the evidence offered been received, it would have changed and disnatured the note sued upon by parol evidence (C. C., Art. 2256) so much so that the maker, who is a simple debtor on the face of the note, would have been changed into a surety and agent, and another debtor substituted in his stead; the defendants having made default, the Court was bound to receive only legal testimony. 10 A. 76G.

William S. Calhoun, the appellee, prays that the judgment be amended by allowing interest only from the time the note became due. It has been decided by this Court, that a note payable on time, with interest, bears interest from date, because the stipulation of interest is not made in default of payment; it is presumed that the maker intended to pay the note when due; and had he done so, could ho have said: I owe but the principal ? We think not.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, and that the plaintiff and appellant pay costs of appeal.


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    No. 1039.
    Mrs. Mary Luzenberg v. A. P. Cleveland.
    Where the holder of a promissory note permit's a payment to be endorsed on the note in Confederate treasury notes, (on unlaxofvl issue) Courts "will not interfere, but will leave the parties where their conduct has placed them.
    A PPEAL from the Fifth District Court of New Orleans, Leaumont, J.

      Geo. L. Bright, for plaintiff and appellee.

      Lacey <& Marks, for defendant and appellant.
   Ilsley, J.

This is an action to recover the sum of four thousand seven hundred and five dollars and seven cents and interest in current notes, the amount of a promissory note, drawn by the defendant to the order of the plaintiff.

The defendant, for answer, says that the note was given to the plaintiff for and in consideration, and to cover an equal amount of Confederate bills belonging to the said plaintiff, and which she turned over to him, and that there was no other consideration fpr the said note.

This defence is not sustained, for,' in her-answers to interrogatories on facts and articles the plaintiff, in substance, says, that the defendant held for her two notes, each for five thousand dollars, which he caused to be discounted, but that she.never authorized the defendant'to'receive as the proceeds thereof Confederate money, nor did she know that he had received such money. That the.amount of the note sued on, resulting from the proceeds of said discounted notes, were in his hands unaccounted for, and that she permitted him to use it, taking for it the defendant’s note.

Prom this statement of th,e transaction; it is perfectly immaterial■■what the defendant received as the proceeds of the two notes, each for'$5,000. If he took Confederate money for them, and returned a part of it as the consideration of the note now in suit, he has no cause for complaint, as he was bound to account for the amount of the discounted notes in current funds, and he cannot maintain against the plaintiff the defence he now seeks to set up.

There is a credit on the note of two thousand dollars, endorsed on the note on the 23d November, 1863, in Confederate notes; and the plaintiff, in her answer, says that - she did- not take these notes as an equivalent for that amount in currency of the city of New Orleans, which was worth at the time ten times more than Confederate notes. Be this as it may, the plaintiff permitted a payment of two thousand dollars to be endorsed on the note, and this Court will not inquire into a transaction in regard to Confederate notes—an unlawful issue, in which, she admits, she freely entered and voluntarily participated. In such cases, Courts leave parties where their own conduct has placed them.

It is therefore ordered that the judgment of. the District Court be reversed, cancelled and annulled; and it is ordered, adjudged and decreed that judgment be and it is hereby rendered in favor, of the plaintiff and against the defendant, for the sum of four thousand- seven hundred and five dollars and seven cents, with interest, at the rate'of five per cent, per annum, from the eleventh of May, 1863, the said amount to be credited with two thousand dollars, endorsed on the note as paid on the 23d November, 1863; the costs of the lower Court to be paid by the appellant, and those of the appeal by the appellee.


author: HowEim, J.

text:
    No. 247.
    State of Louisiana v. Louisiana Mutual Insurance Co.
    By an act of tbe Legislature, approved March 15th, 1855, to regulate corporations generally, the officers of each insurance company are required to publish annually a full statement under oath of the business of the company, etc.; and, on the estimate thus made and published, the assessor is. authorized to make his assessment for the year.
    A party objecting to the assessment roll on the ground that it is incorrect, must resort to the mode pointed out by law, and within the time prescribed, to have it corrected; otherwise, he will be bound by it.
    Where the tax-payer omits to furnish the assessor with á statement of his property taxed in the manner and within the time prescribed by law, the assessor is authorized and required to make the assessment from the best information he can obtain.
    A PPEAL from the Fourth District Court of New Orleans, Price, J.

      T. J. Semmes, Attorney-General, for State.

      Race, Rosier & E. T.Merriclc, for defendants and appellants.
   HowEim, J.

The State claims the sum oí $2,524 20, as the tax legally-assessed, for the year 1869, on the capital stock of the defendant, amounting to $865,435, and not exempted from taxation by its charter.

The defence is, that the capital amounts only to $573,500, of which the sum of $149,436 68 is invested in real estate, otherwise taxed, and stocks not subject to taxation, leaving the amount of $424,063 32, on which the company is, and has always been, willing to pay the State tax.

From the evidence' in the record, it appears that the assessor did not include in his estimate the amount invested in real estate, and bonds claimed in the answer to be exempt from taxation as capital, and the only question is, whether or not the amount of the capital was properly' fixed by the assessor.

The revenue law, in force in 1859, (see Acts 1855, p. 509, l 31) made it the duty of an officer of the company to furnish the assessor, on or before the let-day of March eaoh year, a statement under oath, specifying the real estate owned by the company, the capital stock actually paid in and not vested in real estate, and the place in which it is liable to be taxed. By another section (34) of said law, the assessor is authorized, in case of failure to get the list required of tax-payers, to make the assessment according to his own knowledge, and the best information he can obtain.

By section 4, 6f “ an act to regulate corporations generally,” approved 15th March, 1855, (Session Acts, p. 486) the officers of each insurance company are required to publish.annually a full statement under' oath of the business of the company, which shall contain the amount of premiums received during the previous year, the amount of losses sustained, and the amount of capital; stating the portion- of the same invested in securities, and the nature thereof.'

In conformity with this law; and its charter (as represented) the defendant published a statement on 16th March, 1859, for the year ending 28th February, 1859, showing the assets to be $997,227 02, from which it appears the assessor made the assessment in question.

The-District Judge held thó'.company liable for the tax-on the sum thus ascertained by the assessor, and referred to two cases reported in 8 N. S. pp. 629, 680, as defining what constitutes capital,- viz: “That'which the company uses to accomplish the purp'ose'for which it was formed.” """

Under the circumstances,'we-think;the Judge- did not err. The assessor, not-having been furnished-w'ith-'thé'Statemgnt-required, on or before the . 1st March, pursued thé mo'dó ’abbvé indicated to ascertain .the capital d'f the company. The 37th'¥ébtiptí-'of'--the revenuémcf provides thé'ínáím'ér'' in which errors in assessments may be corrected, and, the defendants, not having 'follówed that course, it requires something'more than we find in the record to be relievéd of the assessment, which 'seems to have been made as direoted by law.

The secretary of the company testifies that he addressed a communication on 28th June, 1859, to the assessor, setting forth the capital of the’ company subject to taxation on the 1st May, 1859, as'shown by the books and balance sheet of that date, and consisting of “ scrip certificates for profits, ” which, after corrections made by him on the witness stand, fixed the-capital-at $476,500. But the assessor did-not adopt this statement in place of the estimate and assessment already made by him, and we see no' reason why we should.

The charter of the company is not before us, and we are not informed why .these “ scrip certificates for profits ” should any more constitute the entire capital of the company than the items taken by the assessor from the sworn published statement of the company, made at the time and in the fiianner prescribed by law, and which it is presumed afforded the best-information the assessor could obtain for making the assessment.

, - It will be. observed that the law requires the assessor to make the assessment “ according to his own knowledge, and the best information he can obtain in-relation to it,” in case the tax-payer does not furnish the statement within the time prescribed, and the evidence in this case does not show such error,in the action of the assessor, as to authorize the intervention of the judicial power.

The defendant did not adopt the mode prescribed by law, to have the roll corrected, if erroneous.

,.. Judgment -affirmed, with costs.

■JReliiionfor Rehearing.—Counsel for appellants petitition the Court for a'rehearing in this case, from the conviction that there is error'in the judgment of the Court, and trusting that a reconsideration -of the case will 'lead to a different' result. •. '

i-In-.their:brief, counsel, failed, perhaps, to set forth clearly to the minds' of- the Court, the principles on which the business of mutual insurance companies is carried on.

As- regards capital, the system of mutual insurance differs very'materially from the old system of joint-stock insurance companies. The latter have.a capital stock, the property of the various stockholders, which is increased by the current yearly profits of the business of the company, while under the mutual system of insurance, there is no joint-stock capital, and the business of the company is commenced without capital, and for a time carried on upon the pledges of its friends of future premiums.

-v The profits, resulting from the business of the company engaged in mutual insurance; belong to the various parties insured, and are returned to them in form of scrip certificates, which are from time to time redeemed by the company. The only capital which the mutual insurance company, possesses is the profits of the company, thus represented by scrip certificates issued to the various patrons or parties insured by the company.

-By. the charter of the Louisiana Mutual Insurance Company, the amount of scrip certificates, which alone constitutes the capital of the company, is fixed at five hundred thousand dollars ; whenever the net profits exceed this sum of five hundred thousand dollars, the excess is employed from year to year in redeeming the scrip certificates issued, while new certificates are annually issued for the current net profits of the year. Charter, Art. 10.

The trustees of the company have never varied from the terms of the charter, and the net profits have annually been distributed to the parties insured in scrip certificates, and the capital kept, as nearly as practicable, • at the amount fixed by the charter.

As, under the terms of the charter, certificates are not issued for fractions under ten dollars, it is impracticable to preserve the scrip capital always at any precise given point, but the charter has been the law of the trustees to guide them in their administration, and they have never materially departed therefrom.

In 1859 the capital was $573,500, as shown by the sworn statement of the company, in accordance with the requirements of law, represented by the scrip certificates of 1858 and 1859.

Notwithstanding, that in the annual statement of the company, made March 1st, 1859, the assets figure up to a much higher amount, the capital of the company remains the same, and is not materially changed.

The assets may be increased, so may the liabilities, while the capital. remains unchanged.

The lower Court erred in the confusion of terms, and considering assets and capital synonymous and convertible terms.

The authorities referred to by the lower Court, 8 N. S. 638 and 681, do not warrant the confusion of terms, nor support the conclusions of- the Court. ;•

The terms assets and capital are neither of them found in any part, of the opinion of the Court in the latter case, and in both cases, the question is, whether the entire capital of the company, as fixed by their charter, is subject to taxation, though but a portion thereof has been paid in. The insurance company claimed, that as but one-tenth of their capital was paid in, it alone constituted their stock in trade, and was subjeot to taxation. The Court decided that their stock in trade was their capital, as fixed by their charter, and subject to taxation, whether paid in or only secured.

If these cases apply in any manner to the case at bar, the force of the decision is in favor of defendants, and goes to the effect that Courts will be governed by the capital fixed by the charter of the company.

We desire, particularly, to call the attention of the Court to the consideration of this point—the difference between the assets and the capital of the company—which has been overlooked by the assessors and the Judge of the lower Court, who, in his reasons for judgment, evidently confounds the terms, and we beg to refer the Court again to onr brief already filed herein, pages 3, 4 and 5. i

The assessor was furnished by the company a full statement of their affairs, by the sworn statement of March 1st, 1859, made and published in .accordance with the requirements of law.

Nothing could be more full and explicit, nothing further could be required. . He was in error in throwing this aside, and making up an amount suited to his own liking. We submit his error should be corrected, and the judgment of the lower Court reversed, and counsel, therefore, respectfully pray for a rehearing of the case.

Rehearing refused.


author: Howell, J.

text:
    No. 736.
    R. Means et al. v. Hyde & Mackie.
    Where a party brings suit for the possession of property unlawfully taken away from, him, with a claim for damages for such unlawful detention, the Court will restrict the judgment for'damage» to the amount actually proved.
    A . PPEAt from the Fourth District Court o£ New Orleans, Thcard, J.

      J. Ad. Bozier, for plaintiffs and appellees.

      Buchanan & Gilmore, for defendants, and appellants.
   Howell, J.

Plaintiffs allege that they are the owners of three certain lots of ground in McDonoghville, parish of Orleans, right bank of the Mississippi river, having a front on said river of about 120 feet, on which they conducted the business of blacksmithing, the repairing and manu- ■ facturing of boilers, and speculating in wrecked and damaged vessels, and for which purpose they required the constant and uninterrupted use of their premises fronting on the river; that the defendants, a commercial firm, own property near theirs, separated therefrom by Market street, and -have built on the whole width ■ of said street a wharf, which (since September, 1860, and up to filing this suit, April 8th, 1861) covers a portion, of plaintiffs’ land, and is occupied by defendants, thus obstructing and interfering with plaintiffs’ business, by which they have suffered damages.to the amount of $5,000. They pray, in general terms, for the possession of their property, and said amount as damages.

Defendants pleaded the general denial; judgment was rendered against them for the possession sought, and $1,500 damages, and they appealed.

. It is shown that in 1846 and 1849, plaintiffs bought three lots of ground, fronting on Market street, in McDonoghville, and that by the caving in of the bank, they eventually obtained along the side of their property an angular, and oblique front on the river; that in 1860, defendants built a wharf at the end of and on Market street, for the purposes of their drydock business, and, in the progress thereof obstructed plaintiffs’ business at times, by.mooring vessels along their front; but the only instanees in which actual damage is shown, the loss to plaintiffs amounted to $100/

Several witnesses state that at different times defendants kept vessels moored along the front of plaintiffs’property, and that boats could not then approach plaintiffs’ shop for repairs without moving said vessels, but' they do not say that any boats made an effort, and were actually prevented' from doing-so,'except in the instances above referred to. They state, besides, that plaintiff's themselves had vessels there during some of these occasions, and they do not distinguish between- them, so as to enable the' Court to determine the extent of the obstructions thus caused by defen- ■ dants. And in addition to this, the data as to the amount of work, business or profits of which plaintiffs were deprived, if any, beyond what we have stated, are not furnished with any accuracy. The amounts mentioned by one or two witnesses are merely conjectural, and not such as to warrant an estimate for a judgment.

It is shown that the wharf erected by defendants encroaches, at one corner thereof, upon plaintiffs’ land; but it is also shown, that the defendants were at one time about to remove that portion where plaintiffs objected; and it is shown that the latter have been in the habit'of making use of the wharf. But, as they are not bound to allow this private wharf to remain permanently on their land, they have the right to have it removed, and the possession of that portion of land restored to them, upon giving reasonable notice, which it appears they have done.

It is therefore ordered, that the judgment appealed from be amended so as reduce the amount of damages awarded from $1,500 to $100, and that as thus amended it be affirmed, defendants to pay the costs of the lower Court, and plaintiffs those of appeal.

Rehearing refused.


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    No. 1008.
    Jose Domingo v. The Merchants’ Mutual Insurance Co.
    Where the Merchants’ Mutual Insurance Company of New Orleans, having insured the steamship Cornudella to navigate the waters of the gulf between certain ports named in the policy, seek to avoid payment of the insurance, when the vessel has been lost by being wrecked on the bar, while attempting to enter one of the ports named, they must show by evidence that the loss ocourred through the negligence and fault of the master of the vessel.
    It is sufficient for the master to place the vessel in charge of a pilot familiar with the bar and channel, who has been in the habit of piloting sea-going vessels across the bar, where the contract shows no stipulation to the contrary.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      W. H. Hunt and T. L. Bayne, for plaintiff and appellee.

      A.. & M.. Voorhies, for defendant and appellants.

      Brief of Wm. H. Hunt and Thos. L. Bayne, for plaintiff and appellee.

    * * * But it is said that Cromer was taken aboard the Oornudella at New Orleans, and had not visited Bagdad for “ four or six weeks previous” to the loss of the steamer. It is asked: “Taking this in connection with the shifting character of the quicksand bar ‘and channel at the mouth of the Rio Grande, and with the well-established custom of bar pilots (whether regular pilots or captains of lighters) to sound constantly, daily, if possible, in order to keep the run of these changes, did not the assured commit a breach of warranty, in taking as pilot to cross the bar, a lighterman who had been so long absent ?”
    The answer to this inquiry is obvious. If the law or usage at Bagdad required a vessel about to cross the bar to take even a regularly licensed pilot offering himself, the master of the vessel would be compelled, according to this doctrine, to ascertain before he took him, whether such pilot had sounded the bar on that day or the day before, in order to come up to the standard of seaworthiness here contended for! Such a requirement would be unusual, and is not in accordance with any system of law. “If a person, representing himself and believed tobé a qualified pilot, is taken, the warranty of seaworthiness is satisfied, though he is not in fact qualified. ” 1 Phil., $ 714, p. 888. Law v. Hollingsworth, 7 T. R. 160.

      It was enough for the assured to know that Cromer was familiar with the bar; that his reputation, as a pilot, was unexceptionable, and that he was in the constant habit of taking other vessels over the bar. The plaintiff had no right and no reason to believe, that if the bar required to be sounded before attempting to cross' it, he would omit to perform ■ his duty. Indeed the evidence of all the witnesses concurs in showing that Cromer, after first surveying the bar, took the correct channel over it, and that had he sounded for the channel he would not have run more directly through its centre.
    But it is said that “ the loss of the vessel was the result of stubborn mismanagement on the part of the master, thereby discharging the insurers from all liability. ” The only evidence referred to in proof of this ground of defence is that of James Hill. He seems, from his own account, to have boarded the steamer after she got aground, and to have ■been quite officious in at once volunteering advice as to the means of saving her. He recommended to the captain to engage an anchor and cable that were in the small boat on which he had come out to the steamer.
    He is particular in the avowal of his disinterestedness, in giving this advice; and adds: “the boat and cable did not belong to me.” “Capt. Sheldon positively refused, saying he could save the boat without it. ” He . further told Capt. Sheldon “ she must be rescued by anchors and ropes, and not by working her machinery. Capt. S. persisted in working the machinery.”
    Unfortunately for the defendant’s case, the correctness of Hill’s advice is not shown by the testimony of other witnesses; and the fact that the captain persisted in attempting to save her by means of working her machinery instead of by anchors and ropes, is not demonstrated to have been a mistake. The opinion of Hill seems to have been in opposition to that of the captain and pilot of the steamer; and there is nothing in the record to prove that Hill’s method of saving her would have been more successful than theirs.
    In conclusion, the plaintiff submits:
    . That the loss of the Cornudella, by an event within the policy of insurance, is shown by the evidence and admitted by the pleadings;
    , That the presumption of law is in favor of her seaworthiness. 2 Gren. Ev., §401. Hen. Dig., p. 715, and the burthen of proof of unseaworthiness rests upon the defendants;
    That the testimony shows that she was seaworthy, and that the proof of unseaworthiness has signally failed;
    That the port of Bagdad was in no sense a well-appointed port; that lightermen were the most competent and experienced pilots, and were generally employed as such, even in preference to the two or three parties spoken of by a. few witnesses as pilots, and who derived their pretended authority from irresponsible and irregular sources;
    That the Cornudella, when lost, was in charge of a pilot of established reputation and entire .competency; and
    That every act was done by the master and crew of the vessel to avoid the disaster which befell her, and which resulted in a loss, now sought to be entailed entirely upon the plaintiff, in spite of the defendant’s solemn contract of partial indemnity in the event of its occurrence.
   Howell, J.

This is au action on a policy of insurance taken out, by plaintiff on a steamship, to run from New Orleans to the Rio Grande, and there navigate between Bagdad and Oamargo ; the defence to which is, that the ‘1 loss was caused by the master’s failure to employ a pilot' to navigate the vessel on coming upon pilotage ground, at the mouth of..the, Rio Grande, where custom and usage required .said vessel to be s.o nayi7' gated ; * * * and that the doings and actings of the master, and crew, at the time of, and after the loss, further occasioned said loss.’ ?.

Judgment was rendered in favor of the plaintiff for the amount of-the, policy, and defendant appealed. . . . . '.

The evidence shows that the master of the steamship took on at New, Orleans a pilot, who was a captain of a lighter used at, and was familiar,, with, the bar at the mouth of the Rio Grande, and who, upon arriving.;there, and after examination, informed the master that it was safe then, to cross, although the water on the bar was quite rough ; but after, pas-; sing over the shoal portion of the bar, the vessel struck some hidden-, object in the channel, supposed to be ananohor or a sunken vessel, whicR, broke one of the wheels, and caused the boat to sheer to the northward, and run on the bar on the Texas shore. In backing her 'off, the other, wheel was also disabled, and she drifted seaward upon the bar, broadside;, to the channel, where she became a wreck. ... ...

It is contended that the custom required the vessel to be put under i;h®.. charge of a licensed pilot in crossing the bar, and a large number of wib, nesses on each side were examined as to the existence of such a.custom ; but we think the preponderance of evidence is with plaintiff—that it ie; sufficient to place the vessel in charge of a pilot familiar, with, the bar, and channel, and in the habit of piloting sea-going vessels.across the bar, ,, and that the person employed by the master was such a pilot. The-, argument, that it is necessary, from the shifting nature of the-bar, for, the pilot to examine it daily, and that the pilot on this boat had been; absent a few weeks, does not seem to possess much force, as it appears, that the vessel was steered in the right channel. It seems, also, that one of defendant’s witnesses, who claims to be a licensed pilot, had his, .boat sunk in attempting to go out to plaintiff’s steamer on the occasion.

It is by no means satisfactorily shown that Bagdad was a well-appointed port, with regular pilots commissioned by public authority.

It is said, by some of the witnesses, that there are some “licensed pilots ” there, but the sources'from which they obtained license, if it be in any manner a formal license, are vague and irregular. Ve are left to, conjecture, in regard to the duties and authority of the captain of the port, and any established power to control the affairs óf the port, -.

The evidence is insufficient to establish such a custom as the defence relies on, and which it was incumbent on them to prove. 2 Green. Ev,,„ i 401.

When lost the boat was in charge of a pilot of established reputation and entiro competency—one of that class to which it was customary to intrust vessels in crossing the bar at the Rio Grande, although there were some of this class, who seem to have been favored in some way by some of. the various authorities, which, existed from time to time in that and adjacent localities.

From the testimony of those who had the best opportunities of knowing, we think the master and crew did all in their power to avoid the loss.

Judgment affirmed, with costs.

Rehearing refused.


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    No. 1003.
    Jose Domingo v. The Union Insurance Company.
    The docfcrine in the case of Domingo v. Merchants’ Mutual Insurant Company (ante page 479) reaffirmed.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      W. H. Hunt and T. L. Bayne, for plaintiff and appellee.

      Bradford, Lea <& Finney, for defendants and appellants.
   Howell, J.

The pleadings, evidence and points involved in this case are identical with' those of the same plaintiff against the Merchants’ Mutual Insurance Company, just decided, and for the reasons therein assigned the judgment is affirmed, with costs.

Rehearing refused.


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    No. 1337.
    P. H. Monsseaux et al. v. G. Urquhart et al.
    Where the charter of an incorporated company has fixed fche qualification of voters, by declaring that each share of stock shall be entitled to one voto, which may be cast by the stockholder in person or by proxy, any vote or votes cast by a party at any election of the corporation, without the qualifications named, is null and void, and the election will be declared and enforced without counting such votes.
    The right of voting, conferred by the charter, is nob to be tested by the mere ownership of stock, but the transfer of it must be patent on the stock-book.
    Where stock of the company stands on the books in the name of an individual, as president, and has not been transferred by him on the books of the company, he has no right to vote on it, or for it, at any election.
    Stock, or shares standing on the books of the company, in the name of the corporation itself, cannot be voted for by one of its officers.
    An agent or mandatory, intrusted with the management and control of real estate here for his principal, who resided in one of the Northern States before and during the late war, was not absolved from his obligations to his principal by the breaking out of hostilities between the two sections of the country. The agency continued during the war, and his acts, as such, were binding on his principal.
    The doctrine, that astate of war dissolves or suspends all commercial partnerships existing between citizens or subjects of the belligerents, does not apply to agents or agencies.
    A PPEAL from the Fifth. District Court of New Orleans, Leawnonl, J.

      J. Livingston, for plaintiffs and appellants.

      Cyprien Dufour, for defendants and appellees.
   Ilsley, J.

This is a proceeding by (puo warranto, in which the plaintiffs, alleging themselves to have been duly elected directors of the Carondelet Canal and Navigation Company of New Orleans, contest the legality of the returns of the commissioners, by which the defendants appear to have, been eleeted, and are accordingly acting as directors.

The grounds upon which the plaintiffs impeach the validity of the commissioners’ returns are the following, to wit:

1. That Louis Gagnet was allowed to vote for the defendants on forty shares, which he had transferred to and which stood in the name of R. M. Davis, President. :

2. That R. M. Davis, through his agent, P. H. Monsseaux, was, denied the right to vote on these forty shares.

3. That J. Llambias, executor of E. Marquez, was denied in person, and through his agent, P. Saloy, the right of voting on twenty-five shares.

4. That L. Gagnet was admitted to vote on five shares, as agent of L. Surgi.

5. That P. H. Monsseaitx was denied the right of voting on these five shares as agent of L. Surgi.

6. That L. Gagnet was allowed to vote as agent on twenty-five shares of A. Mclntire, and on forty shares of A. Culbert.

I. The plaintiffs’ first objection appears to us well founded. ,

By section 8 of the act incorporating the company (Sess. Acts 1857, pi 146) it is provided that “at all elections of directors, and at all other meetings of stockholders, each share of stock shall be entitled to one vote. ”

“ The votes in all cases may be cast by the stockholders in person, or by proxy.” And section 15 of the same act provides, that “no transfer of stock shall be binding on the company, until made in its stock-book, * * and no stockholder shall be permitted to vote at any meeting of the stockholders unless he became a stockholder on the books of the company at least thirty days previous to said meeting.”

Prom these plain provisions of the act of incorporation, and from an inspection of the record, it is manifest that the votes of Louis Gagnet on the forty shares of stock registered in the stock-book in the name of R. M. Davis, President, should have been rejected. The right of voting, conferred by the charter, is not to be tested by the mere ownership of stock, but the transfer of it must be patent on the stock-book.

It is the registry which is the sine quit non for the right to vote on stock; and as these forty shares were not at the time of the election, duly registered in the name of Louis Gagnet, or in that of his principal, his vote on it cannot therefore be counted.

II. Was R. M. Davis properly denied the right to vote on these forty shares ? It is not pretended that R. M. Davis, individually, was the registered transferree of these shares, nor that at the time of the election he was the president of the.company. But, it is contended that inasmuch as the stock stood in the name of R. M. Davis, President, and had not been transferred by him, Davis only, whether president or not, had the right to vote on it.

This position, if correct, might give to one who had ceased to have any interest whatever in the affairs of the corporation, a controlling vote in its management. We would be loath to assent to the correctness of such a proposition, unless imperatively demanded by the express provisions of the law.

In support of their objection, the plaintiffs rely upon the case of the Mohawk' and Hudson 11. 11. Go., 6 Cowen. 135, the facts of which are as follows:

Certain shares of stock stood inscribed on the transfer-books of the company in the name of Samuel Jaudon, cashier.

Samuel Glover, under a proxy from Y. Cowperthwaite, cashier of Philadelphia, appointing him his substitute to vote, etc., and executed thus: “J. Cowperthwaite (L. S.) acccompanied by an affidavit by the said Glover, that' Cowperthwaite was the successor of Samuel Jaudon, as cashier of the United States Bank, attempted to vote on the shares standing in the name of Jaudon, cishier, but his vote was rejected.

The Court, independently of the glaring deficiencies of the instrument alleged to be a proxy of the United States Bank, held, that the adjunct cashier showed no trust in Jaudon, for any certain person—the bank of the United States not being named; that the trust was a matter between Jaudon and the bank, with which the corporation had nothing to do; that the addition of the word cashier was a mere description of the person, and that in view of the provisions of a special statute of the State of New York, the attempt to vote in the name of Cowperthwaite could not be sustained'.

There is evidently a marked difference between the facts of that case and those of the one now under consideration. Jaudon was an officer of a corporation domiciled out of the State of New York, and the inspectors of election could not be expected to take notice ex officio of the fact that he had been cashier of the United States Bank of Philadelphia, and that the addition cashier to his name indicated that he held the1 stock as cashier of that particular bank. But we do not doubt that had Jaudon undertaken to vote on the strength of his nominal title, in opposition to the wishes or without the assent of the proper representatives of the United States Bank, that a Coifrt of equity would readily have interfered, either to enjoin him from so doing or to defeat any legal object he might have sought to attain.

Here, the transfer by Gagnet of this stock on the stock-book, was properly made to its president. The designation of Davis as such on the books could not be treated as a mere descriplio persones.

Neither the shareholders nor the commissioners were at liberty to disregard the official designation of the head officer of the company. Whatever, for instance, might have been said about a transfer to R. M. Davis, treasurer or cashier, he not being at the time treasurer or cashier of the company, could not apply to the present case.

The official designation of its chief officer could not be ignored by the other officers, or by the members of the company.

If 'R. M. Davis had undertaken, without the assent of the directors, to transfer the stock standing in his name as president, could the secretary of the company have honestly complied with a request to enter such a transfer on the books after Davis had ceased to be the president of the corporation ? If not, what right has Davis to act so far as relates to voting, or to any other privilege attached to a title to stock, standing in the name of the president of the company, as if it were entirely under his control, when in truth and in fact, he had no title or claim whatever to it.

And here it may be asked, can stock, standing in the name of and for the corporation itself, be voted upon by one of its officers, at his own discretion ? On this point we adopt the opinion expressed in a New York case, in 5 Oowen, p. 434, ex parte Holmes, in which the Court said : “If there could be a vote at all upon such stock one would suppose that it must be by each stockholder of the company, and in proportion to his interest in it. This brings us to the important difficulty in the case, which is whether stock thus held can vote at all; and we think it is not to be considered as stock held by any one for the purpose of being voted upon. No doubt the company may, from necessity, as in this case, take their own stock in pledge or payment, and keep it outstanding in trustees1' to prevent its being merged, and convert it to their security. But it is not1 stock to be voted upon, within the meaning of the charter or the general act upon which we are proceeding.

It is not to be tolerated, that a company should procure stock in any shape, which its officers may wield to the purposes of an election, thus securing themselves against the possibility of removal.

Monsseaux, therefore, as the proxy of Davis, had no right to vote on these forty shares.

The conclusion we have reached on the sixth objection, urged by the relators, dispenses us from passing upon the third, fourth and fifth objections, as in our opinion, these would not affect the decree we have to render.

YI. This sixth objection is, that Gagnet was allowed to vote as agent on twenty-two shares of A, Mclntire, and on forty shares of A. Culbert.

It is urged that the signatures, both of the parties granting the proxies and of the attesting witnesses should have been proved, and that the testimony adduced by Gagnet is insufficient in law to establish the genuineness of the proxies which he produced on the trial.

It appears that ever since the year 1859, Gagnet has been voting on these proxies in behalf of McIntyre and Culbert.

Independently of the fact that he established the genuineness of the signature of McIntyre to the proxy purporting to be signed by the latter, as well as to the attestation of that purporting1 to emanate from Culbert, he shows that he has been in correspondence with those parties, and that they have apparently acquiesced in his acts for a number of years.

The proxies having been executed, one in Pennsylvania, the other in New York, the difficulty of securing the evidence called for by the plaintiffs in a proeeding conducted in so summary a manner as that resorted to in this case, would perhaps entitle the defendant to an abatement of the rigor of the rules applicable to ordinary cases.

But the presumption, arising from the length of time during which Gagnet has been acting as the agent of the two parties named, is such that, in the absence of any evidence whatever to disprove his agencies, the proof adduced by him must be deemed sufficient.

It is, however, confidently maintained by the plaintiffs, that Gagnet’s agency, having been created prior to the late civil war, the occurrence of that war had the effect of dissolving his agency, inasmuch as his principals resided in the North. It is argued that war between two nations operating a dissolution—not a mere suspension—of all commercial partnerships between the residents of the one and those of the other belligerent country, agencies or mandates must, under the same circumstances, be dissolved for like reason.

Conceding the application of the doctrine, with reference to commercial partnerships, to the belligerent parties in the late civil war, is it true that that'war did- have the effect of putting an end to the agency conferred upon an individual residing here by a party residing in one of the Northern'Statés ? We do not perceive any such analogy between commercial partnerships and agencies of the kind now under consideration, as to induce us to hold that war would, for the same reasons, put an end to both. The continuance of commercial partnership between residents of the belligerent countries would require or encourage active communication or locomotive intercourse between individuals of the belligerent States—intercourse inconsistent with actual hostility, and might foster the resources or increase the comforts of the army. But could, for instance, an agent intrusted with the management of the real estate here of his principal, residingina country atwar with this, be authorized to consider his agency at an end, and abandon the management of the property intrusted to him, on the pretence that the war had freed him from his obligation as agent? Such a doctrine can be sanctioned neither on principle nor authority.

In' the case of Conn v. Penn, 1 Pet. C. C. Rep. p. 523, where an abatement of interest on certain debts during the wars of the revolution, and of 1812, was claimed on the ground that the creditors were subjects and residents of Great Britain, and that payment could not legally have been made to them, Judge Washington said: “This Court, finding itself unshackled with authorities is left to form its own opinion of this question upon general principles, and we feel no hesitation in deciding, that the mere circumstance of war existing between two nations, is not a sufficient reason for abating interest upon the debt due by the subjects of the one belligerent to those of the other. * * *

■ A prohibition of all intercourse, with an enemy during the war, and the legal consequences resulting therefrom, as it respects debtors on either side, furnish a sound, if not in all instances, a just reason for the abatement of interest until the return of peace. As a general rule, it may be safely laid down that wherever the law prohibits the payment of the principal, interest, during the existence of the prohibition, is not demand-able. * * * But the rule can never apply in cases where the creditor, although a subject of the enemy, remains in the country of the debtor, or has a known agent there authorized to receive the debt, because the payment to such creditor or his agent could, in no respect, be construed into the violation of the duties imposed by a state of war upon the debtor. The payment in such cases is not made to an enemy, and it is no objection that the agent may possibly remit the money to his principal; if he should do so, the offence is imputable to him, and not to the person paying him the money.

The same Judge again recognized the right of the agent to act for his , principal, though an alien enemy, in the case of Denniston v. Imbise, 3 Wash. C. C. Rep. page 396. And in the very case of Griswold v. Waddington, relied on by the plaintiff in support of a contrary doctrine, Chancellor-Kent, at page 486, 16 Johns! Reports, quotes with approbation the two cases just referred to, and admits that if a creditor, though a subject of the enemy, have a Icnown agent here, the payment may be made to him, although the agent cannot lawfully remit the money to his principal.

It is clear then, from these authorities, that the agency of Gagnet was not, as supposed by counsel for the plaintiffs, dissolved, or even suspended by the occurrence of the late war.

We conclude then, that there was no error in allowing Gagnet to vote on the twenty shares of Mclntire, and on the forty shares of Culbert.

The twenty-five votes of Llambias and five of Surgi, if conceded to the plaintiffs, would not affect our decision.

Eor, of the nine defendants, all received 1013 votes or more, except J. L. Gubernalor, who only received 963.

Deduct from 1013 the forty shares on votes standing in the name of R. M. Davis, President, and illegally voted upon by Gagnet, and the five voted on by him for Surgi, there still remains for the defendants (Gubernator alone excepted) a total of 968 votes.

Seven of the defendants received 916 votes; one 913, and another, B. Saloy, 934.

Add to 916 the 25 votes claimed for Llambias and five for Surgi, we have a total of 946, which is insufficient to change the result as to eight of the plaintiffs. But the vote in favor of Gubernator, being reduced by our rulings to 923, and B. Saloy, having received the highest number of votes cast for any of the candidates except eight of the plaintiffs, should have been returned as duly elected.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court, in so far as relates to J. L. Gubernator, be reversed; he not having been elected one of the directors of the Carondelet Canal and Navigation Company of New Orleans at the election held in January last; that B. Saloy be recognized as having been duly elected at that date as director of said company, and entitled as such to the rights and privileges of the office; that the costs of these proceedings in this Court, and in the lower Court, be paid by J. L. Gubernator, in the proportion of one-ninth of the whole; that in other respects, the judgment of the lower Court be affirmed, the costs of appeal, exclusive of those decreed against Gubernator to be paid by the appellants, excepting B. Saloy, the costs of whose application are to be paid as aforesaid, by Gubernator.


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    No. 1051.
    D. G. Thomas v. Thompson & Barnes.
    Where defendants sold goods for account of plaintiff, and received in payment Confederate notes, without plaintiff’s authorization to do so, they will be liable to him for the proceeds of the sale in legal currency.
    A PPEAL from the Sixth District Court of New Orleans, Duplanlier. J.

      J. H New, for plaintiff and appellee.

      E. W. Huntington, for defendants and appellants.
   Labauve, J.

The plaintiff claims of the defendants $357 15, net proceeds of sales of butter as per account rendered 26th March, 1862.

The defendants pleaded the general issue. They admit that they received and sold for account of plaintiff sixteen tubs of butter, netting $357 15, but that the sale was made for Confederate notes of the late so-called Confederate States of America, which, at that time were current in this city, and that said notes were tendered by them in payment of a draft drawn on them by the plaintiff for the amount of said proceeds, and that they were refused, and that they have always been ready to settle with plaintiff, in manner and form as they have herein above alleged.

Judgment was rendered for plaintiff, and the defendants have appealed.

According to the settled jurisprudence of this State, in regard to Confederate notes, it is evident that the defendants, under their own allegations, admitting them to be true, are liable to the plaintiff.

Judgment affirmed, with costs.


author: Ilsuev, J.

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    Nos. 1066 & 856.
    Succession of Mrs. T. Bachemin.
    Where a succession o£ the wife has been regularly opened and administered, and a tableau of distribution among the creditors and heirs has been filed and homologated, the heirs can only claim the residue after deducting the amount of the succession liabilities and expenses incurred in the administration.
    If the heirs have a judgment for their paraphernal rights against the estate of their deceased mother, such judgment is subject to a reduction to the extent of the legitimate charges against the succession ; and the administrator cannot be required to pay more.
    A PPEAL from the Second District of New Orleans, Thomas, J.

      J. J. E. Planchará, for appellee.

      E. Bermudez, for appellant.
   Ilsuev, J.

With a view to coerce payment of the judgment obtained by the heirs of the deceased for the paraphernal rights of their mother, amounting to $2,353 91, they have taken a rule on the administrator to show cause why execution should not issue against him therefor.

The defence by the administrator set up is, that after deducting- from that sum the amount of the succession liabilities $1,036 95, the balance remaining, increased by the share of the deceased in the community residue $120 41, and so forming an aggregate of $1,437 37, constitutes the only funds, which after the payment of certain charges there against, he is ready and willing to pay over to them.

By the tableau filed in the District Court, which, after due legal notice was regularly homologated, the succession of the deceased was charged with certain liabilities, such as the cost of a tomb for her, her funeral expenses and other items, for which the heirs now object t'o.

Their objection to these items as succession debts, which they evidently are, is clearly untenable; besides, as they merely opposed the tableau in one particular only, without in any manner contesting the correctness of these items as charged in the tableau, the decree of homologation thereof has closed the door against any objection which they now urge.

The heirs are entitled to nothing beyond the residue of their mother’s succession, and the administrator cannot be required to pay more to them.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be reversed; and it is further ordered, adjudged and decreed, that the rule herein taken, on June 28th, 1866, be made so far absolute that the administrator be and he is hereby required to pay over to the plaintiffs therein, the said sum of fourteen hundred and thirty-seven dollars and thirty-seven cents, after deducting therefrom such costs and charges as have been incurred since the filing of the tableau of distribution, and that appellees pay costs in both courts.


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    No. 1032.
    Jacob Burckett, Agent, v. William Hopson.—John B. Chandler, Intervenor.
    The answers of a party interrogated on facts and articles form a part of the pleadings, and make a part of the record, and either party may use them without formally introducing them in evidence.
    Where articles of merchandise have been sold for cash and delivered, but not paid for, and a third party has attached them in the hands of the purchaser, the vendor may have the attachment set aside, and recover back the goods, if he make demand and identify the object sold within eight days from the day of delivery. Ü. O. 3196.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      Breaux & Fenner, for plaintiff and appellee.

      Marr & Foute, for intervenor and appellant.
   Labauve, J.

The plaintiff, claiming of the defendant, a non-resident, the sum of $307 15, obtained a writ of attachment, under which certain goods and merchandise, and three bales of cotton, were attached as the property of the defendant. John B. Chandler was also made garnishee to the proceedings, and cited as such, and ordered to answer certain interrog'atories annexed to the petition.

The said JolinB. Chandler came in Court as intervenor-and third opponent, alleging, in substance, that the goods and merchandise attached had been sold by him to the defendant, to be paid for in cash, amounting to $337 49; that said goods were delivered to the N. O., J. & Gr. N. R. R. Co., as carriers, within the last eight days, to wit: on the 12th January, 1866, to be conveyed to the defendant in the State of Mississippi, and that the same were seized in this case; that the price of said goods is still duo and unpaid; that he has the privilege of the vendor on said goods, and the right to reclaim possession of them for indemnity. In a supplemental petition, the intervenor also alleged that the three bales of cotton attached were his property, and the defendant has no title whatever to the same. He prays accordingly.

The Court below, after hearing the parties, dismissed intervenor’s demand and gave judgment for plaintiff, with privilege on the property attached.

The intervenor took this appeal.

The plaintiff annexed to his petition, and propounded the following-interrogatories to the garnishee:

1st. Have you in your possession or under yoiir control, or had you at the time of service of these interrogatories, or since, any moneys, goods, rights, credits or property of any kind belonging to W. Hopson, or in which he has an interest ?

2d. Are you indebted, or were you at the time of service of these interrogatories, or since, indebted in any amount or on any account, to W. Hopson ?

Does not the amount of said debt exceed three hundred and seven dollars and fifteen cents ?

To which he answered as follows:

To the first interrogatory, respondent answers, 1st: to each and every clause of said interrogatory and part thereof, respondent answers, No.

To the second interrogatory respondent answers, to each and every part of this interrogatory, respondent answers, No. And here, respondent will state that the defendant, Hopson, has been indebted to him, respondent, since December, 1865, for goods and merchandise, and cash advanced, all of which was sold, and cash advanced, under the express understanding and stipulation that he (Hopson) should immediately pay for the same, and reimburse respondent in cash, or its equivalent in cotton; respondent refers to the account annexed, marked A, as part of his answer hereto.

On the 11th and 13th of January, 1866, in accordance with the agreement aforesaid, and failing to pay respondent in cash, Hopson sent to your respondent three bales of cotton, to be applied to the payment of his account in lieu of cash, as herein before stated and explained. And further, after deducting the fullest market value of said three bales of eotton, Hopson, the defendant, is now indebted unto respondent in a sum exceeding $500, now due, and owing under the contract and agreement above set forth. Respondent states that these three bales of cotton were delivered by respondent to his factors, J. L. Lee & Co., for sale on his account, and were seized by the sheriff in said factors’ hands, in the above case.

Account annexed—

“ W. Hopson, in account with........................J. B. Chandler.

■ December 6—Invoice rendered............................$1,099 73

“ Cash........................................ 59 55

“ 19—Invoice rendered............................ 90 05

<< a (( (< g yj

$1,255 50

December 6—By cash....................................... 200 00

$1,055 50

“ By three bales of cotton, rec'eived January 11th and 13th.”

The answers, by the garnishee to the interrogatories, have not been excepted to, nor were they offered in evidence, and the plaintiff contends that they are not before us as evidence. The answers of a party interrogated on facts and articles form a part of the pleadings, and make a part of the record, and either party may use them without iormally introducing them in evidence. 5 N. S. 179. 9 R. 19. Augustus Walker v. Etienne Oillavaso, not yet reported. Chandler, garnishee and intervenor, claims the three bales of cotton as owner, and we are satisfied by his own answers to the interrogatories, that they belonged to the defendant, William Hopson, who had sent them to the intervenor to be sold on his account, and the proceeds to be placed to his credit; there was no price agreed on; and the cotton was not weighed; it remained at the risk of Hopson. O. O., Arts. 2414, 2434. If the cotton, had been destroyed, by fire, hpw could Hopson have claimed credit for the value; there was no price agreed on, and the weight was not known? It was not a daiion enpayment for any specific sum. At the foot of the account is the following memorandum :

“By three bales of cotton, received January 11th and 13th,” no amount is carried out as a credit; it is clear that the credit to be given depended upon the sale yet to be made.

Had the intervenor claimed a privilege it would have presented another very different question; but he claims the ownership. We are of opinion that Hopson was owner of the cotton when it was attached.

As to the other goods and merchandise attached, we are of opinion, from the evidence, that the intervenor was the vendor, and had a privilege as such; and, that having identified the said goods, and claimed them within eight days of the delivery, he is legally entitled to claim them back in kind, under Article 3196 of Civil Code.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be amended as follows: That the attachment on the goods and merchandise (other than the three bales of cotton) be dissolved, and that said goods and merchandise be delivered back to the intervenor ; that the judgment as amended be affirmed, the plaintiff and appellee to pay the costs of this appeal.