source: Caselaw Access Project

author: Lea, J. Sfoffokd, J.

license: Public Domain

text:
    Nicholas and Jane Barton v. Thomas Kavanaugh.
    An appeal will not be dismissed, in a case where the Clerk has notice that citations are necessary, by the filing of the petition of appeal but fails to issue them. It is not indispensible that the petition of appeal should contain a prayer for a citation to the appellees.
    The husband has under his control personal actions to which his wife is entitled, but the joinder of the wife in the suit does not destroy the action.
    In an action for damages for a malicious arrest, the following instructions to the jury were asked by the defendant: “That the plaintiff must not only prove malice, but must also show that there was no probable cause for the prosecution, and that the defendant is not bound to prove probable cause until the plaintiff has shown the absence of it, and that if the plaintiff show malice and not the want of probable cause, the defendant cannot bo condemned,, as it is just as necessary to show the want of probable cause as it is malice, before a recovery can be had. Held: that the charge asked for was proper, and should have been given to the jury.
    "Where a person maliciously and without probable cause procures the arrest of another, the error of the magistrate in ordering the arrest on an affidavit which charged no act or offence punishable by law, will not absolve the party procuring the arrest.
    The court did not err in declining to instruct the jury that the mere belief of the affiant in the truth of the charges would exonerate him, but it would have been proper to instruct the jury that “ probable cause does not depend upon the actual state of the case in point of fact, but upon the honest and reasonable belief of the party prosecuting.
    Evidence of malice on the part of the defendant towards other persons than the complaining parties is inadmissible.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      W. Piles & Wooldridge, for plaintiff.

      J. J. LugenbvM, and O. Redmond, for defendant and appellant.
   On the motion to dimiss the appeal :

Lea, J.

The plaintiffs have moved to dismiss the appeal taken in this case, on the grounds:

1st. That they have not been cited to answer the appeal.
2d. That the evidence adduced on the trial was not reduced to writing, and no statement of facts accompanies the record.
3d. That there being no statement of facts, the court cannot, under the circumstances, determine whether the District Judge erred in the instructions and rulings embraced in the bills of exceptions.

The order of appeal was granted upon a petition filed for that purpose which, however, contains no prayer for citation to the appellees. The appellees not having been cited, contend that the omission is fetal, as being, under the circumstances, attributable to the fault of the appellant. It was not indispensiblc that the petition of appeal should contain a prayer for a citation to the appellees. The husband and wife joined in the suit as plaintiffs, uniting in a common demand ; the Clerk could not have been at a loss to know to whom citations should issue. There are undoubtedly cases in which it is the duty of the appellant to designate to the Clerk the names of those who are to be cited, and where this has been omitted through the fault of the appellant, the appeal will, on motion to that effect, properly made after due notice given, be dismissed.

But we think the appellant is not in fault for not designating the appellees, about whom there could be no mistake, in a case where the Clerk has notice that citations are necessary hy the filing of the petition of appeal. See Ludeting v. Frellsen, 4 An. 534; Broussard v. Broussard, 2 An 769.

As respects the other points urged in support of the motion to dismiss, it may be sufficient to remark, that though the case cannot be examined upon its merits, there is nothing to prevent the court from examining and deciding the questions of law presented by the bills of exceptions taken in the course of the trial.

It is ordered that the rule be dismissed.

On the merits:

Sfoffokd, J.

The defendant has appealed from a judgment awarding damages against him for the malicious arrest of Jane Barton, wife of Nicholas Barton.

The suit is brought in the name of both spouses, and the defendant excepted to this joinder of parties.

The husband, perhaps, had the right to sue alone for reparation; G: P. 107; Holmes v. Holmes, 9 L. 350. But we do not think that the joinder of the wife in the suit destroys the action. It may be disregarded, as surplusage.

The counsel for the defendant asked the court to charge the jury as follows: “ That the plaintiff must not only prove malice, but must also show that there was no probable cause for the prosecution, and that the defendant is not bound to pi'ove probable cause until the plaintiff has shown the absence of it; and that if plaintiff show malice and not the want of probable cause, defendant can-mot he condemned, as it is just as necessary to show the want of probable cause as it is malice, before a recovery can be hadwhich instructions the court declined to give, and the defendant excepted.

These instructions were appropriate to the case as charged in the petition, and are correct in law. It was, therefore, error in the Judge to refuse to give them. He has assigned no reasons for the refusal. If he had already given them in substance, it should have been so stated in the bill. A suggestion of counsel for the appellee cannot eke out the record. “ To maintain an action for this injury the plaintiff must prove : 1st, that he has been prosecuted by the defendant, either criminally or in a civil suit, and that the prosecution is at an end; 2d, that it was instituted maliciously, and without probable cause; 3d, that he has thereby sustained damage.” 2 Greenleaf Ev., §449. “The plaintiff must show that the prosecution was instituted maliciously, and without probable cause; and both these must concur. If it were malicious and unfounded, but there was probable cause for the prosecution, this action cannot be maintained. The question of malice is for the jury; and to sustain this averment the charge must be shown to have been wilfully false. In a legal sense, any unlawful act, done wilfully and purposely to the injury of another, is, as against that person, malicious.” 2 Greenleaf Ev. §453.

We also think that the Judge might with equal propriety have instructed the jury, as requested, that the affidavit of the defendant did not charge Mrs. Ba/rton with an act or offence punishable by the laws of this State, and that the magistrate erred in ordering her to be arrested thereupon; but the Judge should add, that if they found that the defendant nevertheless had maliciously, and without probable cause procured her to be arrested, the error of the magistrate would not absolve the defendant. For it is not material though the plaintiff was prosecuted by an insufficient process, or before a court without jurisdiction.

The court did not err in declining to instruct the jury that the mere belief of the affiant in the truth of his charges would exonerate him ; but it would be proper to instruct them that “probable cause does not depend upon the actual state of the case, in point of fact, but upon the honest and reasonable belief of the party prosecuting.” 2 Greenleaf Ev. § 455.

It is true, as contended for by the appellee’s counsel, that “ malice mcmj be inferred by the jury from the want of probable cause.” But the jury are not bound so to infer malice.

The court should not receive evidence of malice on the part of the defendant towards other persons than the complaining parties.

It is, therefore, ordered, that the judgment of the District Court be avoided, the verdict of the jury set aside, and the cause remanded for a new trial according to law and to the principles announced in this opinion, the costs of this appeal to be borne by the plaintiffs and appellees.


author: Buchanan, J. Merrick, O. J.,

text:
    Succession of Hiram J. Grover.—On Opposition to Account of Tutor and Executor.
    Under a clause in a will by which the testator constituted his executor detamer of liis estate, held, that the seizin of the executor did not embrace the testator’s interest in property belonging to a particular partnership, which the will provided should be continued in accordance with the contract of partnership.
    The executor is entitled, however, to his commissions on the net proceeds of the crops received by him from the surviving partner.
    APPEAL from the District Court of West Baton Rouge, Bobertson, J.

      Thomas Gibbes Morgan, for plaintiff and appellant.

      David N. Bannow, for defendant. '
   Buchanan, J.

Hi/i'am J. Grover, of the parish of West Baton Rouge, made his will on the 19th September, 1846, which contained, among others, the following clauses:

“ That the partnership existing between me and Dr. Nolan, in the plantation on which we reside, be continued in accordance with the contract entered into between us, and if Dr. Nolan is willing, that additional negroes be purchased with the earnings of the plantation, (after the payment of debts and legacies) and placed on it until the joint force amounts to sixty working hands.
‡ ‡ ;J< sfi ‡ >¡s sH if?
“I hereby appoint Samuel M. D. Glande, tutor to my children, Han'riet Pauline, Hiram Justus, James Hamilton and Man'ij Estelle, and desire that he will have my children raised in a proper manner, and educated in a manner to make them useful citizens.
“ I appoint Samuel M. D. Glande executor of this my will and testament, to settle up and have all my just debts paid, and all the provisions of this will carried into effect, and to be testamentary executor and detainer of my estate.”

Shortly after making this will Grover died. The will was admitted to probate, and letters testamentary were issued to Glande, a* Iso letters of tutorship.

The inventory of Grover's estate was made on the 31st October, 1846, with the following result:

Amount of property held in partnership by the deceased and John T. Nolan..................................................
Estimation of share of deceased..............................$19,759 75
Amount of deceased’s individual property...................... 21,099 00
Total...................................$40,858 75

According to the terms of the will, and of the contract of partnership between the testator and John T. Nolan, referred to in the will, Nolan administered the sugar plantation, owned in common by himself and the testator, during the period of nine years from the 26th December, 1845 ; before the expiration of which period Glande, the executor of Grover's will and tutor of Grover's children, died.

It is very clear, therefore, that although the will, in,gencral terms, constituted Glande “detainer” of Grover's estate, yet this seizin must be considered as limited to that portion of the estate, as inventoried, which was held by Grover in his separate and individual right, not that which formed Grover's capital in the sugar planting partnership of Grover & Nolan.

The general expressions in the will must be considered as controlled by.the ■ clause above quoted, in which the testator declares his wish that the partnership between Nolan and himself should continue in accordance with the contract of partnership. Had the will even been silent on that subject, Nolan could have resited the executor, had he attempted to take possession of Grover’s interest in the plantation and its appurtenances. But, in point of fact, there was no such pretension asserted by the executor. Nolan always possessed and administered the partnership property without opposition from the executor, to whom he rendered an account yearly, and paid over the net proceeds of the crops. The opposition concedes the right of Glande's estate to a commission upon the amounts so paid to Ciarle by Nolan, a right which is evident from Article 1677 of the Givil Code.

The claim of the estate of Glande to ten per cent, upon the gross incomes of his wards, as commissions of tutor, was opposed, and has been abandoned in argument in this court. See case of Succession of Hargrove, 9 An. 505. Our conclusions upon the law of the case are entirely in accordance with those of the District District Judge. But we are requested to give a money judgment, which he has omitted to do, and thus settle the balance between the parties, and prevent further litigation.

Proceeding to do so, in conformity to the principles herein expressed, we find that the account of executorship and tutorship rendered by the widow and representative of & M. D. Ciarle, shows a balance in his favor of............................. §5,321 16

From which deduct, being a charge of 10 per cent, upon the gross proceeds of the crops from 1847 to 1853, inclusive.........................................$5,529 48

Also commissions of 2$ per cent, upon total of inventory, being $40,858 75, say........................... 1,021 46

- 6,650 94

Balance against Olas'h's estate................................ §1,329 78

But credit Glares estat^with 2& per cent, commission on Grover's separate estate, as inventoried, say $21,099 o $527 47

Also with like commission on amount of crops actually paid over to Cla/i'lc by Nolan from 1847 to 1852, inclusive, say $18,864 15.......................... 471 60

- 999 07

True balance against Clas’lc's estate............................ $330 71

It is, therefore, adjudged and decreed, that the judgment of the District ■Court be affirmed, and that William B. Chamberlain, as tutor of the minors, Hcarriet Pauline, Hiram Justus and James Hamilton Gs'over children of Hiram J. Groves' and Margaret Hasnilton, both deceased, recover of the succession of Samuel M. D. Glarh, formerly tutor of said minors, represented by the widow of said Ciarle, and tutrix of his minor children, the sum of three hundred and thirty dollars and seventy-one cents, with legal interest from judicial demand, (14th June, 1854,) with the privilege and general mortgage accorded by law to minors upon the estate of their tutors; the costs to he home by the estate of Grover.

Merrick, O. J.,

«dissenting. The testator has three modes of compensating the executor.

Ho may give him a legacy, in which case the executor will receive no commissions. O. O. 1679. He may make him simply executor, and then he will receive only commissions of two and a half per cent, on the estimated value of the object which he has had in bis possession and on the sums put into his hands for paying legacies and other charges. O. O. 1677.

The testator may give the executor the seizin or detainer of his estate. In this last ease the executor is entitled, for his trouble and care, to a commission of two and a half per cent, on the whole amount of the inventory, making a deduction for what is not productive and what is due by insolvent debtors. C. '0. 1676.

The testator is presumed to have known the law, and it strikes me that we ought to suppose he used the term “detainer” with reference to. its legal signification, and in order to confer a power upon the executor to protect the entire estate, the interest in the partnership, as well as the individual property, and also to fix a standard by which the executor should be rewarded, and which should he sufficiently liberal to secure his services.

I am, therefore, inclined to think that the executor is entitled to commissions upon one-half of the partnership property.

Lea, J., concurred in this opinion.


author: Voorhies, J.

text:
    Succession of Samuel Harrell, deceased—Opposition of Jacob Harrell.
    The heirs must be cited and made parties to an account rendered by an administratrix and homologated, or they will not be concluded thereby, except as to passive debts of the estate; for the payment of which, the administratrix is entitled to be credited.
    The Code of Practice, Art. 1027, and Civil Code, Arts. 1267 and 1259, expressly require the Judge to direct the manner in which the partition shall be made and to refer the parties to a notary, whom he shall appoint to make the partition.
    If any question be raised in relation to the separate property of the spouses and collations between the heirs of the deceased, such questions should be determined by the Judge, before referring the partition to a notary.
    The question touching the liability of the administratrix for any damage which the estate may have sustained in consequence of her negligence, should be determined by the court, previous to the reference of the partition to a notary.
    ** Any co-heir of age, at the sale of the hereditary effects, can become a purchaser to the amount of the portion owing to him from the succession, and he is not obliged to pay the surplus of the purchase money, over the portion coming to him, until this portion had been definitively fixed by a partition.”

      ¿Télcl: That when the other assets are sufficient to pay all the debts and charges due by the estate, the administratrix is not bound to take any steps to enforce the payment of the purchase money due by the heirs, and consequently cannot be held liable for any loss or damage which may arise from such purchases by insolvency or otherwise.
    APPEAL from the District Court of East Feliciana, Ratliff, J.

      Muse & Iia/rclee, for the administratrix, appellant.

      J. O. Fuqua and J. B. Smith, for opponent and appellee.
   Voorhies, J.

Samuel Harrell died in the parish of East Feliciana in 1837, where his succession was opened, leaving seventeen children as his legal heirs, six by a former marriage and eleven by his surviving spouse, Scvrah Harrell. The effects of his succession, inventoried and appraised in January and February, 1837, amounted to the sum of $33,634 76, and those in the parish of Livingston, inventoried in January, 1839, to the sum of $1,690.

Jacob Harrell, one of the heirs, claiming also to be the transferree ,of the hereditary shares of the other children of the first bed, alleges in his opposition that Sarah Harrell, the surviving spouse of the deceased, instituted an action in the late Probate Court of the parish of East Feliciana for a partition of said estate, which was ordered; that the experts having reported that the property could not be conveniently divided in kind, a sale was ordered and carried into effect; and that she was subsequently appointed administratrix of said estate.

An account or statement of receipts and payments and of her claim as surviving spouse in the community, was filed by her, and after the usual advertisements, was duly homologated by the judgment of the Probate Court rendered on the 2d of May, 1845.

On the 11th of October, 1848, Jacob Harrell brought suit against the administratrix to compel her to render an account of her administration, in which he prayed that the heirs bo cited and made parties, and that a full and final settlement and partition be made of the estate. On the 12th of January, 1849, during the pendency of this suit, the administratrix filed another account of her administration. Jacob Harrell opposed not only this but the former account, alleging that he had never been legally notified of the filing of said accounts, and was consequently not concluded by the judgment homologating the same. This opposition, so far as the same related to the first account, was, on motion of the administratrix, ordered to be stricken out and rejected. After the assignment of the cause for trial, an amendment to the opposition was allowed notwithstanding the objection of the administratrix. A bill of exceptions was taken to this as well as to the ruling of the court below on the motion to strike out, but it is immaterial from our conclusion in the case to pass upon either.

From the last account filed it appears that the administratrix has received, since the homologation of her first account, the sum of $88G 80, and that she has discharged debts alleged to be due by the estate to the amount of $160 G6, leaving a balance of $722 24 to be applied in part payment of her claim.

It is alleged, as one of the objections to both accounts, that the active debts carried on the inventory of the estate and certain portions of the price of the property thus sold, amounting together to upwards of $10,000, have not been accounted for. .

Upon the issues thus made up between the parties, the court below decreed that Jacob Sm'rell and the other heirs recover of the administratrix the sum $2,796 64, with interest; that the item No. 1 on the credit side of her account be rejected; that a full and final account of her administration, exhibiting- all the assets of the estate as inventoried, be rendered by her on or before the 1st of October, 1856 ; that her account be corrected and amended by rejecting her claim of $3,137 08, and so amended, that the same be homologated; and that she pay in due course of administration the sum thus awarded in favor of the heirs. From this judgment the administratrix has appealed.

From this statement of the case, we think it is apparent that the judgment of the court below must be considered erroneous. It appears that, in order to effect a judicial partition between the parties, the property of the estate was sold at auction on certain terms of credit, in accordance with an order of the court, and that the greatest portion thereof was adjudicated to the widow and heirs of the deceased; and that the widow was subsequently appointed administratrix of the succession. As the heirs were not cited or made parties to the account thus rendered and homologated, it is clear that they are not concluded thereby, except as to the passive debts of the estate, for the payment of which the administratrix is entitled to be credited. O. O. 1168, 1172-3. It follows, therefore, that all the other matters were improperly embraced in her accounts and should have been reserved to be passed upon in the action of partition. The Code of Practice, Article 1027, expressly requires the Judge to direct the manner in which the partition shall be made, and to refer the parties to a notary whom ho shall appoint to make a partition. The Civil Code also contains the same provision. Articles 1267, 1259; 5 An. 208. If any questions bo raised in relation to the separate property of the spouses and collations between the heirs of the deceased, such questions should be determined by the Judge before referring the partition to a notary.

The question touching the liability of the administratrix for any damage which the estate may have sustained in consequence of her negligence, should have been determined by the court below previous to the reference of the partition to a notary. “ Any co-heir of age, at the sale of the hereditary effects, can become a purchaser to the amount of the portion owing to him from the succession, and he is not obliged to pay the surplus of the purchase money over the portion coming to him, until this portion has been definitively fixed by a partition.” O. O. 1265 ; 2 An. 412; 12 R. 666. As the other assets were sufficient to pay all the debts and charges due by the estate, it follows that the administratrix was not bound to take any stops to enforce the payment of the purchase money due by the heirs, and consequently cannot be held liable for any loss or damage which may arise from such purchase by insolvency or otherwise. It appears to us, that the legal rights of the parties litigant can only be ascertained and determined in accordance with the views wrhich we have expressed.

It is, therefore, ordered and decreed, that the judgment of the court below be avoid and reversed; that the cause be remanded for further proceedings according to law; and that the costs of this appeal be paid by the appellee, Jacob Sa/rrell.

Merrick, O. J., recused himself in this case, he having been of counsel.


text:
    City of New Orleans, v. W. W. Vaught.—J. B. McLin, Intervenor and Appellee, R. Y. Charmbury, Appellant.
    The landlord has a privilege upon the property of the defendant not yet removed from the leased premises. His privilege is continued in force by the order of the court directing the Sheriff to retain in his hands the proceeds of the property seized.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Dura/nt & Somov, for appellant.

      A. W. Jowdan, for intervenor.
   Voorhies, J.

On the 4th of February, 1851, James B. McLin leased several lots of ground to the defendant for the term of five years, at $400 per annum, payable in advance, for which the latter furnished his four promissory notes, and stipulated to pay besides all the city and State taxes on said property until the expiration of the lease.

On the 3d of April, ] 855, an execution in favor of the plaintiff against the defendant was levied on certain movable effects found on the property thus leased. James B. McLin thereupon filed an opposition, in which he claimed to have a privilege for rent, amounting to the sum of $1092 50, which entitled him to be paid in preference to the plaintiff out of the proceeds of the sale, and prayed that the plaintiff and defendant be cited to answer his demand, and for judgment in his favor, &e.

An order directing the Sheriff to retain in his hands the proceeds of the sale until the further order of the court, was granted on the 28th of April, 1855. On the 11th of the same month, the same property was seized under an execution against the defendant in favor of R. Y. Charmbwy.

The movable effects thus seized continued to remain on the property leased until the 4th of June, 1855, when the same were sold at twelve months’ credit under the plaintiff’s execution, for the price of $3525, for which the purchaser executed his twelve months’ bonds in favor of the Sheriff.

On the 9th of May, 1856, James B. McLin obtained a definitive judgment in his favor for the amount of his claim, with privilege as prayed for. On the 5th of July following, he took a rule upon the Sheriff and R. C. Ghwmbwy, to show cause why his judgment should not be paid by preference out of the proceeds of the effects thus sold. GTiarnibury answered by denying the existence of any such right of preference, and is appellant from a judgment making the rule absolute.

As the proceeds of the sale are shown to be sufficient to satisfy the claims of the plaintiff and the appellee, consequently the controversy in this case is only between the latter and Gha/rmbwry.

Two questions are submitted by the appellant for our decision :

“1st. Had M'cLin any landlord’s privilege, as against Ghwmbury, on the 28th of April, 1855, when he filed his intervention and third opposition ?
“ 2d. If he had, had his said privilege been confined in force since that date by the order of court directing the Sheriff to retain in his hands the proceeds of the property seized ?”

We are of opinion that both these questions must be decided affirmatively. When MoLin asserted his privilege, it is clear that the defendant in execution had not been divested of his title to the property thus seized, and that said property had not been removed from the leased premisos. C. P. 063 ; 8 N. S. 361; 1 R. 41; 6 R. 100; 5 An. 112.

The appellee’s opposition, claiming his privilege as lessor, was in our opinion seasonably made in order to secure his right to the same, under Articles 395 and 401 of the Code of Practice. As the property was seized and sold under the plaintiff’s writ, we do not think the appellee was bound to make a similar opposition in regard to Chcn'mbury’s execution.

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


author: Spom’okd, J.

text:
    John M. Bell, Sheriff, v. T. Keefe and J. Maillot.
    The Sheriff has a right to sue in his official capacity on a bond executed for the price of property-sold by the Sheriff, and for which the bond had been executed in favor of his predecessor.
    ■When an instrument offered in evidence is not objected to, any indorsement on it is considered as proved.
    APPEAL from the Fourth District Court of N®w Orleans, Reynolds, J.
    Bmgamin, Bradford & Finney, for plaintiff.

      Race & Foster and Mott S Fraser for defendants and appellant.
   Spom’okd, J.

The Sheriff sues on the bond in his official capacity. If he has authority to receive the money on it, he has the authority to sue, as the defendants executed the bond in favor of the Sheriff. See Buisson v. Hyde, 17 La. 19.

If a transfer to the present plaintiff from his predecessor in office, by whom the bond was taken, were necessary, there is an endorsement which imports such a transfer upon the instrument; and the whole instrument was offered in evidence, without objection on the part of the defendants. Under the ruling of this court in the case of Maxwell v. Kennedy, 10 An. 798, the endorsements must be considered as proved.

Judgment affirmed.


author: Yooehies, J.

text:
    Espriu Romagosa & Co. v. Mateo de Nodal.—Pedro de Nodal, Opponent.
    The remedy given to third persons by opposition is limited to the cases specified in the Code of Practice. Such third persons may, as in a separate action, obtain an injunction and arrest the seizure of the property he claims, but he cannot assail the regularity of the plaintiffs proceeding against the defendant in the the seizure.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      OolUns and Woold/ridge, for plaintiffs and appellants.

      P. 8. Biron, for intervenor and appellee.
   Yooehies, J.

This is an attachment suit, in which Pedro de Nodal filed an opposition, alleging that the Sheriff, at the instance of the plaintiffs, illegally-seized and took into his possession, under the writ, the contents of store No. 135, on Royal street, property which he had purchased in good faith, and of which he was in possession previous to the seizure. That the attachment thus issued is illegal and void, and should be set aside, because the bond signed by Puig, Mir & Go., a commercial firm in this city, is insufficient, as one partner cannot bind another on an attachment bond; that in consequence of the damage which he has sustained in his business, he has a right to question the validity of these proceedings. Subsequently a rule was taken by him to dissolve the attachment, on the ground of the insufficiency of the bond, as stated in his opposition. The rule was made absolute, and the plaintiffs appealed.

We think the Judge a quo erred. The remedy given to third persons by opposition is limited to the cases specified in the Code of Practice: 1st. “When the third person making the opposition pretends to be the owner of the thing which has been seized2d. “When he contends that he has a privilege on the proceeds of the thing seized and sold.” Art. 396.

Where the opposition has for its object to set aside the order of seizure as having been effected on property claimed by a third person, such opposition is considered as “a separate demand, distinct from the suit in ivhich the order was granted.” O. P. 398. Hence the opponent must be considered as a plaintiff in an action of revondication. In order to give effect to his demand, he may obtain an injunction, and thus arrest the seizure of his property. Ibid, 399. His right to assail the validity of proceedings in a suit in which his demand is considered separate and distinct, appears to us to be inadmissible. The object of a bond in attachment cases is to secure the payment of such damages as the defendant may recover from the plaintiff, resulting from the wrongful issuing of such attachment.

It is clear that the opponent can have no recourse on such bond to secure the payment of damages which he may have sustained in consequence of the illegal seizure of his property under the plaintiff’s attachment. As this is a right which the law intended to secure to the defendant, consequently he alone can either waive it or insist upon it.

It is, therefore, ordered and decreed, that the judgment of the court below be avoided and reversed, and that the rule bo dismissed at the appellee’s costs in both courts.


author: Lea, J.

text:
    State of Louisiana v. The Judge of the Sixth District Court of New Orleans.
    "When a party lias an adequate remedy by appeal, an application for a writ of mandamus will be refused.
    The refusal of the District Judge to allow the attorney in fact of the relator to represent him upon the trial, is a matter which could be presented to this court for revision by a bill of exceptions.
    APPLICATION for a writ of mandamus to the Judge of the Sixth District Court of New Orleans.

      T. W Oollens and G-. & <7. B. Schmidt, for the relator.
   Lea, J.

The relator prays for a rule upon the Judge of the Sixth District Court to show cause why a writ of mahdcmm should not issue, requiring him to allow the attorney in fact of the defendant to appear and defend liis interests in a suit pending in said court, in which said relator is the defendant.

He alleges that a vessel belonging to him having been sequestered, he employed the services of Bmile Houillion to represent and defend his rights in said suit; that said Houillion took a rule upon the plaintiff to show cause why the writ should not be set aside; that on the trial of said rule, the court refused 'to allow the said Houillion to introduce evidence in support of the rule, or to argue the same, on the ground that said Houillion had not received a written authority to act for the relator at the time the rule was taken upon the plaintiff, and that the court persisted in such refusal, although the petitioner declared in open court that he had authorized the said Houillion to take the rule and to act as his attorney in fact throughout the case, and that notwithstanding the offer of the petitioner to execute a written power of attorney to said Houillion, the court refused to allow him to appear on his behalf, dismissed the rule taken by him, and maintained the sequestration.

Assuming this statement of the case to be correct, it appears to us that if there be any error in the action of the District Judge the relator has a full and adequate remedy by appeal. The refusal of the District Judge to allow the attorney in fact of the relator to represent him on the trial of the rule is a matter which could be presented to this court for revision by a bill of exceptions, in the same manner as could the refusal of the Judge to receive testimony when offered.

We can see no reason for granting a writ of mandamus in this case which might not be extended to every supposed error in the ruling of a District Judge on the trial of a cause. Such a precedent would lead to embarrassment and delay in the administration of justice.

The application is refused.


author: Merrick, O. J

text:
    The State v. Rufus Waples.
    The Act of 1855, entitled “ An Act to provide a revenue and the manner of collecting the same,” is not unconstitutional.
    The practice of the profession of law is not shielded from taxation.
    APPEAL from the Second Justice’s Court of New Orleans, O. M. Bradford, Justice of the Peace.

      B. W. Moise, Attorney General, for the State.

      Waples and Bustis, for defendant and appellant.
   Merrick, O. J

This is an appeal from the decision of a Justice of the Peace, in a suit brought against the defendant to recover of Mm the sum of ten dollars, assessed against Mm as an attorney at law.

The account on which the suit was brought is in these words:

“R. Waples to the State of Louisiana, To State License on profession, as attorney-at-law, for the year 1856, $10.”
“New Orleahs, December, 1st, 1856.”

It is urged that the collection of this sum, as a license, violates Article 105 of the Constitution, because it impairs a contract, and that defendant having’ been already licensed to practice law by the Supreme Court under a former law, cannot be deprived of that right without adequate compensation previously made.

It is evident that the suit is brought to collect a tax under sec. 3d, paragraph 2d of the Act of 1855, 504. The fourth section of the same Act, imposing a penalty and making it illegal to carry on or practice any of the trades or professions, specified in the third section, previous to obtaining a license so to do, is only a mode of enforcing collection. The argument, that the permission or license to practice law is a contract between the State and the attorney at law, which shields him from taxation, and which cannot be regulated in any manner during his life time by the legislature, merits no serious reply. It is further urged, that the Act of 1855 violates Article 61 of the Constitution, because it is an encroachment of the executive upon the judicial department. We think, by the Act in question, the legislature has adopted stringent measures to compel the payment of taxes by those exercising trades or professions, but in what manner it limits the power of the courts we are yet uninformed.

It is further urged, that the Act of the Legislature is unconstitutional, because it embraces more than one object, and those objects are not expressed in its title.

The title of the Act is, “ An Act to provide a revenue and the manner of collecting the same.”

The object of the sections of the law which levy the tax of ten dollars upon attorneys, and provides the mode of enforcing the collection of the same, seems to be cleariy embraced within the title of the Act. It will be proper to consider the constitutionality of other portions of the Act when they are shown to affect the rights of the defendant.

Judgment affirmed.


author: Merrick, O. J.

text:
    State of Louisiana v. J. Q. A. Fellowes.
    An attorney-at-law may be taxed as well as persons pursuing any other employment.
    APPEAL from the Second Justice’s Court, Bradford, J.

      J. Q. A. Fellowes, in propria persona, appellant.
   Merrick, O. J.

This case presents the same questions as the case of the State y. Waples, just decided.

It also presents the further objection to a recovery by the State, viz: that the claim as a tax is not applicable to the defendant, who, being an attorney, is an officer of the State, and not subject to taxation for exercising the duties of his office.

We know no reason why attorneys-at-law may not be taxed if such be the pleasure of the Legislature, as well as persons pursuing any other employment.

Eor this, and the reasons given in the case of the State v. Waples, the judgment appealed from must be affirmed.

Judgment affirmed.


text:
    James Carl v. Peter Poelman et al.
    Under the ruling of the court in the case of Walworth v. Ballard, 12 An., in an action to render a party liable for a debt due by an estate, on the charge that he had taken possession of the property of the estate without authority, and with the view of appropriating the proceeds to his own use, no recovery can be had without proof of a previous conviction under the penal laws of the State.
    APPEAL from the Sixth District Court of New Orleans, Cotton, J.

      Coxe & Breaux, for plaintiff and appellant.

      Face & Foster, for defendants.
   Lea, J.

The plaintiff alleges that the late Peter Bitter died indebted to him in the sum of $714 67, and that the defendants have become liable to pay this debt, as intermeddlers in the affairs of the succession of said Bitter, “they having taken possession of his estate, consisting of personal property, and sold and disposed of the same without due and legal authority, with a view to appropriate the proceeds of the same to their own use and benefit.” No other cause of action is alleged against the defendants, they are sued merely as inter-meddlers.

To this petition the defendant Poelman excepted, on the ground that he could not be held liable as charged and demanded, until after due conviction under the penal laws of the State. Under the ruling of this court in the case of Walworth v. Ballard, recently decided, this defence must prevail; and though not urged by way of exception, on the part of Mrs. Bitter, it is, nevertheless, a necessary part of the plaintiff’s case to prove such previous conviction, and without such proof no recovery can be had against either of the defendants. See Act of 1820, 96; Greiner’s Digest, No. 8548, also Act of 1855, 400, sec. 9. Judgment affirmed.


author: Buchanan, J.

text:
    McCalop v. Fluker’s Heirs.
    Where proceedings are instituted via emecuUva against the widow in community and tutrix, who takes a suspensive appeal in her capacity as admi/iiistratrim of her deceased husband's estate1 she is not entitled to a delay in the Supreme Court to have the heirs of her husband made parties to the appeal. If the heirs ought to have been made parties, and were not, the appellee might have moved to dismiss, but the appellant could not have been permitted to take advantage of her own laches. But it was not necessary to join the heirs in the appeal, for the purposes of which the administratrix had full capacity to represent the whole estate.
    APPEAL from the District Court of East Feliciana, Merrick, J.

      Smiley & Perrin, for plaintiff.

      B. G. Han'dee, for defendants and appellants.
   Buchanan, J.

Plaintiff instituted proceedings in the Seventh District Court against the widow in. community and tutrix of the minor children of D. J. Pluker, deceased, in the via executivei, upon an act importing confession of judgment signed by said PInker. The widow Pinker took a suspensive appeal from the order of seizure and sale, in her quality of adminisPraPrix of the succession of D. J. Pinker.

The appeal was taken in the month of March, 1855, and filed in this court on the 27th of February, 1856. On the day of its filing, the appellant, by counsel, on affidavit of the birth of a posthumous child of D. J. F Juicer, since the appeal taken, to wit, in June or July, 1855, moved the court for a continuance of the cause in order to make said posthumous child a party to the appeal, and to give appellant time to qualify as tutrix of said child. An order of continuance for said purposes was made on the 29th February, 1856.

At the present term, the appellant by counsel again moves for a continuance, on a suggestion supported by affidavit, that another of B. J. Flukw's heirs has attained the age of majority and has married, and should be made a party appellant.

On the other hand, the plaintiffj appellee, moves to rescind and set aside the order of the 29th of February, 1856, on the ground that it was made in error, the appeal being taken by the administratrix alone; and furthermore, that the appellant has had ample time to qualify as tutrix of her posthumous child, and should not be allowed to profit by her own laches.

Upon the foregoing statement of facts, it is very plain that our order of the 29th February, 1856, was made unadvisedly, and that the appellant is not entitled to the further delay which she prays for, to make her married daughter party to the appeal. The «rule of this court of the 29th May, 1854, provides for continuances to make parties in the place of appellants or appellees who have died pending the appeal. But such is not the case here. The heirs of B. J. Pinker were never parties to this appeal, although parties defendant to the suit. If they ought to have been made parties to the appeal, and were not, that would have been a good ground for dismissing the appeal on the motion of the appellee; but should not be used by appellant as a means of delaying the decision of the cause. But we are of opinion that it was not necessary to join Plukm’s heirs in the appeal. The administratrix had full capacity to represent the whole estate for the purposes of the appeal.

It is ordered that the order of the 29th February, 1856, be set aside and rescinded, and that this cause be placed on the trial docket with preference.


text:
    Samuel Jamison v. The City of New Orleans.
    A judgment homologating the assessment for expense of opening a street, voluntarily executed, has the force of the thing adjudged.
    APPEAL from the Sixth District Oourt of New Orleans, Gotton, J.

      T. Gilmore, for plaintiff.

      J. Livingston, for defendant and appellant.
   Merrick, O. J.

The plaintiff having been assessed four hundred dollars for the opening of Benton street, after the homologation of the assessment, paid the same.

Mcmnsel White, against whom there had also been an assessment, appealed, and the Act of 1832, under which it was made, was declared to be unconstitutional, and the judgment was reversed. 9 An. 44C.

The plaintiff, who had not appealed, brought this suit to recover back the money paid by him under the assessment.

It is urged by the defendant that the judgment voluntarily executed by the plaintiff has the force of the thing adjudged.

On the other hand, it is urged by plaintiff that the judgment in favor of Maunsel White enured to the benefit of all the property holders who were assessed, and that it is unjust that the city should retain plaintiff’s money while the other parties in interest were discharged by the judgment from all liabilities, and while there was no liability on the part of the city to open the street.

We think that the exception taken by the defendant must be sustained. The appeal of White and others from the homologation of the assessment under the Act of 1832, could only benefit the appellants. Aside, therefore, from the recent decisions overruling the case of White v. Municipality No. Two, 9 An. 446, the homologation of the assessment must be considered as having the force of the thing adjudged, as between the present parties. See Yeatman v. Cramdell, 11 An. 220, and the case of The Draining Company, 11 An. 370.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment against the demand of the plaintiff, and that he pay the costs in both courts.

Buchanan, J., took no part in this decision.


author: Spoeford, J.

text:
    T. B. Harper v. Municipality No. One et al.
    The petition charged that the defendants had unwarrantably and illegally destroyed a certain railroad ; that the iron and materials of the road were the petitioner’s property, and that the iron and materials were kept from the petitioner by the defendants, and claimed the value of said materials. Held: That the action was one of damages for a tort, and the prescription of one year applicable
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      T. 3. 3owa/rH, for plaintiff and appellant.

      J. J. Michel, for defendant.
   Spoeford, J.

This is an action for the alleged unwarrantable and illegal destruction of a railroad belonging to the plaintiff, of which the iron and other materials are declared to be worth $7500, for which sum the suit is brought.

The injury is said to have been done in 1840, and the suit was instituted in Juno, 1850.

We concur with the District Judge, that the action must, on the whole, be considered as an action in damages for an alleged tort.

The plea of prescription was, therefore, properly sustained.

Judgment affirmed.


author: Spofford, J.

text:
    Brown & Johnson, Appellants, v. Kendall, Yoe & Co., Third opponent, Carl Kohn, Appellee.
    A Sheriff’s deed is a title translative of property, and the title and possession under it cannot he treated by a third person as a nullity.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      A. T. Steel, for plaintiffs and appellants.

      Glandee & Bayne, for third opponent.
   Spofford, J.

In January or February 1856, the plaintiffs, under a judgment against Wm. G-. Kendall, seized in execution a plaining-mill and its apparatus, which had been adjudicated to Gcurl Kohn, on the 17th of November, 1855.

Ga/el Kohn opposed the seizure, and claimed the property as his own. His opposition was filed on the 29th February, 1856.

In support of his allegations he produced all the proceedings under an order of seizure and sale issued at his instance against a certain square of ground and all its appurtenances, as the property of Wm. G. Kendall, mortgaged to himself. In the advertisement of this sale the plaining-mill and apparatus, now seized by the plaintiffs as still the property of Kendall, were described as composing part of the property seized, and to be sold under the order in favor of Garl Kohn. They were so sold, and Kohn became the purchaser of the whole; and the plaining-mill, &c., are particularly described in the Sheriff’s deed to himself. He is in possession under a title translative of property, to wit: a Sheriff’s deed. Kendall, the judgment debtor, has acquiesced in the sale.

Under these circumstances, a third person cannot treat the title and possession of Kohn as mere nullities, and seize the property as if it were Kendall’s. It is unnecessary to inquire whether the plaining-mill, &c., had become immovable by destination.

Judgment affirmed.


author: Spokford, J.

text:
    Robert Ferguson v. Laurent Millaudon.
    Damages will not be allowed for delay when no time was specified in the contract within which the work was to be completed.
    APPEAL from the Sixth District Court of New Orleans, Gotten, J.

      JDunaa/n & HcGonnell, for plaintiff.

      Benjamin, Bradford & Finney, for defendant and appellant.
   Spokford, J.

The plaintiff sues for the price of four boilers manufactured by him for the front plantation of the defendant in the fall of 1854.

The answer is a demand in reconvention for a very large amount of damages alleged to have been sustained in the loss of a portion of a sugar crop that year, by reason of delay in the delivery of the boilers and their bad construction.

The value of the materials and workmanship (supposing the work to be good work) are established.

The only controversy springs out of the reconventional demand.

We do not find that the plaintiff is liable for damages in consequence of delay. No time was specified in the contract within which the boilers were to be completed. The defendant. alleges that the contract was made on the 13th August, a very late period. He took upon himself to deliver to the plaintiff some of the materials of his old boilers to be incorporated into the new ones. This was not done until the 21st of August. The plaintiff objected that it was late in the season to undertake such a job, but the defendant insisted on his doing so, and seems to have been cognizant of the impossibility of completing the work by the time he now contends it should have been done. And: we think the correspondence of Millaudon with the plaintiff shows that there was no violation of even an implied contract as to the time of finishing this job. His complaints at the time were confined to the quality of the work.

That was unquestionably defective. But as the boilers, though leaky, made steam enough to run the engines used by the defendant, we do not think that the loss of a portion of the crop was attributable to the defective work of the boilers. At any rate, no such precise data are given in evidence as would enable the court to say that any particular sum was lost to the defendant by reason of the bad workmanship of the boilers, save that which he spent for their repairs. It seems from the correspondence between the parties, that the plaintiff was to put them in good order if they did not work well during the first season, when they were obliged to be used. He failed to do so. The defendant employed a competent mechanic to do this work at the price of twelve hundred dollars. We see no reason why this sum should not be deducted from the plaintiff’s demand, instead of six hundred dollars which the District Judge allowed, because one or two of the witnesses thought the repairs might have been done for that sum.

It is, therefore, ordered that the judgment of the District Court be reversed; and it is now ordered, adjudged and decreed, that the plaintiff recover of the defendant the sum of two thousand and one dollars and fifty-six cents, with legal interest from the 26th December, 1854, until paid, that being the balance due the plaintiff, after deducting from his demand so much of the defendant’s claim in reconvention, as should have been allowed in the court below; it is further adjudged and decreed, that the defendant pay the costs incurred in the District Court, and the plaintiff those of this appeal.


author: Sfofford, J.

text:
    The State v. Charles Smith et al.
    The surety in an appearance bond cannot be held liable when it does not appear that there was any order of court admitting the accused to bail, fixing the amount of the bail bond, or authorizing the Sheriff to take the same.
    The judicial acts of a court of record are evidenced by the record alone.
    Parol evidence was improperly admitted to show that a verbal order had been given in open court to take a bon<i.
    An order rendered, but not entered at the time, may be entered nwicpro tuno in proper cases,
    APPEAL from the First District Court of New Orleans, Robertson, J.

      M. A. Route, District Attorney, for State.

      Rield and Wooldridge, for appellant.
   Sfofford, J.

For the reasons given in the case of the State v. Oole et al., just decided, the motion to dismiss is overruled.

The appeal is taken by Buelc, surety for the defendant, James Hubert, on an appearance bond, from a judgment forfeiting the bond.

It suffices to say that there appears in the record no order of court admitting the accused to bail, fixing the amount of a bail bond, or authorizing the Sheriff to take the same. See State v. Gilbert, 10 An. 532, and cases there cited.

There was not, therefore, any evidence before the court upon which the bond in question could be treated as an authentic and valid bond.

On the motion of the surety to set aside the forfeiture, the District Attorney offered the Deputy Sheriff Robre as a witness to prove that the District Judge gave him a verbal order in open court to take the bond. The Judge admitted the evidence against the objection of the appellant, who took a bill of exceptions.

The ruling was erroneous. . The First District Court of New Orleans is a court of record; the orders of that court relative to the admission of accused parties to bail are judicial acts ; the judicial acts of a court of record are evidenced by the record alone; if the record is lost or destroyed its contents may be proved, as in other cases, by secondary evidence. But what was never of record cannot be supplied by parol in such a proceeding as this. See State v. Longineau, 7 An. 700. An order rendered, but not entered at the time, may be entered nune pro tunc in proper cases.

The Deputy Sheriff also testified that he had been in the practice for many years of taking bail bonds without a judicial order. The practice of ministerial officers cannot control the statutes relative to bail. Upon this subject the law is clear, and there is no doubt or discordance in the judicial interpretation of it. It is the duty of ministerial officers throughout the the State to act in conformity to the law, as expounded in the courts, and no practice of theirs, however long continued, can justify a departure from settled rules.

It is, therefore, ordered and decreed, that the judgment of the District Court against J. A. Buelc, as surety on the bond of James Hubert, he avoided and reversed, and that the State take nothing by its motion.


text:
    Jean Sarran v. Auguste Regouffre and Wife.
    When, during the existence of the community, a stock of goods was bought in the name of the wife but it was not shown that she had been a public merchant, either before or since the sale — ZTeld : that the purchase must be considered as having been made by the husband, and the debt incurred by it a debt of the community.
    APPEAL from the District Court of Ascension, Duffel, J.

      ’A. Gentile, for plaintiff and appellant.

      Eewry Duffel, for defendant.
   Buchanan, J.

We agree in the conclusion of the elaborate and ably reasoned opinion of the District Judge, that the note of Madame Regouffre, and mortgage upon her separate estate, were given in reality for a debt of her husband ; although the transaction was clothed with the form of a contract of sale of a stock of goods by plaintiff to Madame Regouffre individually, Madame Regouffre is not proved to have been a public merchant, either before or since the sale in question. The Article 128 of the Code does not, therefore apply. On the contrary, the business of the store was carried on in the joint name of her husband and the witness Vigné. The purchase must he considered as having been made by the husband, and as a community debt, for which the separate estate of the wife was not bound, (0. C. 2371,) and no action could be maintained against her while the community existed. 6th Annual, 87.

Judgment affirmed, with costs.


author: Merrick, C. J.

text:
    Louis V. Porche v. A. Ledoux.
    The new tutor is the proper person to call on the former tutor to aecount, and has the faculty of staúding in judgment for the minor, as regards that cause of action.
    Art. 015 0.1?., as amended by the Act of 1820, does not imply the nullity of a judgment when a minor has been regularly represented according to law.
    The Art. 615 finds its application in the case (among others) where the tutor renders his account to the under tutor, the minor in this instance not being fully represented on the rendition of the accowni.

    A judgment regularly rendered between the new tutor and the former tutor of a minor, will sustain the plea of res judicata, in an action brought by the minor, arrived at his majority, against his former tutor.
    APPEAL from the District Court of West Baton Rouge, Robertson, J.

      TJ. B. & E. Phillips, for plaintiff and appellant.

      A. Provosty, for defendant.
   Merrick, C. J.

Madame O. Porehe, the mother of the plaintiff, was confirmed as his tutrix in 1834. She continued as such until 1841, when she resigned her office on account of her health, and the defendant was appointed dative tutor to the plaintiff. She rendered her account to the new tutor, and the same was homologated. The defendant acted as tutor until 1846, when he resigned, and Madame Porehe was reappointed. He rendered his account in the District Court to Madame Porehe, the tutrix, and this account was also homologated.

In 1852 the plaintiff having arrived at the age of majority, instituted his action against his mother, as tutrix, calling upon her to render her account. In accordance with his demand she rendered an account, wherein she credited the plaintiff with the amounts received from the defendant under his account.

The minor opposed the account of the tutrix, which was amended by the decree of the court, and so homologated.

The plaintiff in his petition alleges that the account of the defendant, Ledoucc, rendered in 1846, is erroneous, and contains illegal charges which are set forth at length in the petition. He prays that the account be amended, so as to increase the amount of capital charged to the tutor ; that the items of credit allowed him be stricken out, and that plaintiff have judgment for such amount as may be found due him upon such final settlement.

To this petition the defendant pleaded several exceptions, the only one which it is important to notice is that of res judicata.

In the case of Monget, tutor, v. Walker, 3 An. 214, it was held that the new tutor was the proper person to call the former tutor to account. If so, he has power to stand in judgment at it regards that cause of action, and it must have that effect upon the rights of the minor which a judgment between any other person and the new tutor would have.

It is provided by Article 615 of the Code of Practice, that “ A judgment rendered against a minor may be rescinded, if such minor show either that his cause has not been well defended, or that he has been aggrieved by such judgment. But, that action shall be prescribed if four years have elapsed after the minor has arrived at the age of majority: nor can it be brought by the curator or tutor during the minority of their ward.” This Article was amended by the statute of 1826, which declared, that “ Art. 615 shall not be taken or construed to imply the nullity of a judgment where a minor has been regularly represented according to law.” Acts 1826, 72, §12.

The minor was properly represented in the rendition of the account of Ledoux by the new tutrix, because there was no other person competent to receive or contest it except the tutrix, and it would be um-easonable to hold that the account between a former tutor, or the succession of a former tutor and the new tutor must remain open until a minor, perhaps of tender years, arives at the age of majority.

The case is different when the tutor renders his account to the under tutor. There the minor is not fully represented in the rendition of the account, and no doubt the Article 615 finds its application in that event as well as in other cases where the minor has not been regularly represented in the proceeding.

We think the plea of res jadicata was properly sustained, and it is evident, from the foregoing reason, that if the amendment praying for the nullity of the judgment of 1846 had been allowed it would not have changed the result.

Judgment affirmed.


text:
    Henderson & Gaines v Ship Maid of Orleans.
    Where goods are injured on shipboard the measure of damages is the difference between their value in their damaged state, and their value at the port of destination if they had been delivered in good order, which should be ascertained by a public sale to the highest bidder.
    The doctrine of abandonment for a constructive total loss, does not appear to apply to a contract of affreightment.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Benjamin, Bradford & Finney, for plaintiffs.

      JDwrnt & JETomor, for defendants, appellants.
   Buchanan, J.

This is a suit for damages upon a shipment of clocks inboxes from New York to New Orleans. The clocks were shipped in good order, as appears by the bills of lading, and were delivered in New Orleans to the plaintiffs, consignees and owners of the same. The packages being stained by water when delivered, were opened and their contents examined by disinterested and competent judges called for the purpose, who testify that they were damaged by salt water to such an extent as to make them worthless; but that they might have produced, at auction, from thirty to forty per cent, of their invoice price. The plaintiffs have sued the ship for the total value of the goods, as in case of non-delivery. This course of proceeding is unusual and not warranted by precedent. The measure of damage is the difference between the value of the goods in their damaged state, and their value at the port of destination had they been delivered in good order. Rathborn v. Neal, 4 An. 566. That difference in value should have been ascertained by a public sale to the highest bidder. Greenwood v. Cooper, 10 An. 796. It was in the power of plaintiffs to have subjected them to this test, as the clocks have always remained in their possession in the warehouse. It was their duty to have done so. It is plain that plaintiffs cannot keep the clocks and also recover their invoice price as damages. Neither can the plaintiffs be considered as holding the clocks for the account and risk of' the common carrier. The doctrine of abandonment for a constructive total loss has never been applied, that we are aware of, to the contract of affreightment.

The proper judgment in this case is a nonsuit, in order that plaintiffs may take stops to liquidate the damages.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; and that there be judgment for defendants as in case of nonsuit, with costs in both courts.


author: Merrick, O. J. Merrick, O. J.

text:
    David Aiken v. James Ogilvie.
    "Where several persons buy a tract of land, in the name of one of themselves, for the purpose of dividing it into lots and squares, and selling the same at a profit to be shared among them, the notes and assets, as well as the unsold lots, are subject to the action of partition, and a suit by one of the partners against the other, to compel him to account for sales made by him, will not be barred by the prescription of ten years.
    Where it does not appear to have been more the duty of one partner than another to collect debts due to the partnership, and the partner who undertakes to collect them has placed them in the hands of a competent attorney, and has acted in good faith, he ought not to be held responsible for the negligent or irregular acts of such attorney {or other competent agent) although the suit was brought in the name of the individual partner instead of the names of the joint owners.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      J. Livingston, for plaintiff.

      C. Boselius and P. A. Duen'os, for defendant and appellant.
   Merrick, O. J.

“On the 27th day of February, 1836, James Ogibie, OMver Aiken and John Oreen made an agreement by private act, in which it was set forth that James Ogibie had on that day purchased a plantation, jointly with Oliver Aiken and John Green, each one-third, from Mr. Louis Fred. Foueher, that each party had paid his one-third of the cash payment thereon; and which further stipulated that said Gh'een, Ogibie and Aiken were joint proprietors of said property, in the proportion of one-third each, and entitled to one-third of the same, with all the rights and privileges, interests and profits, and to demand the same of James Ogilvie; each to bear one-third of all expenses and losses on the same; that either two should have a controlling power in the management of the plantation, to sell or otherwise, as they shall think fit, and the third shall conform to the wishes of the other two on all lawful matters, &c.

“On the same day was purchased the plantation of Foueher, for the price of $70,000 — $15,000 cash, and the balance, $55,000, on a credit of one, two and three years, secured by mortgage, with the right to the purchasers to redeem the same at any time, at a deduction of seven per cent, per annum. Subsequently the front portion of this property was surveyed and divided into squares and lots, and now constitutes what is known as the town of Greenville. This front portion, for the most part, was sold at public auction, by Isaac L. Me Coy, auctioneer, on the 27th April, 1836, The sales, which were actually completed at that time, amounted to the sum of $226,770, on which there was collected in cash $300 for buildings. The balance was sold on a credit of six, twelve, twenty-four and thirty-six months from day of sale, and secured by mortgage.

“ On the 11th of July, 1836, most if not all the notes, the proceeds of Me Coy's sales, remaining undisposed of, were divided among the partners. On the 15th of October, 1836, Oliver Aiken departed this life, and by last will and testament constituted David Aiken and other parties (plaintiffs by supplemental petition) his only heirs.”

In March, 1837, a verbal division took place of the unsold lots in Greenville. The rest of the purchase appears to have been laid out in a town called Friburg, and was sold the 8th of February, 1839, at auction, for $8,596.

This suit is brought to compel the defendant to account for all sales made by him, and to render him accountable for certain debts alleged to be lost through his neglect; and to compel him to render an account of all the lots on hand, and prays for a judgment and interest for the several sums claimed, and for final partition and liquidation of the partnership. The action was commenced in July, 1852.

The defendant filed an answer and an account, in which he claimed, by way of reconvention, a balance against the plaintiff.

The matter was referred to an auditor, who found, in favor of plaintiff, $20,196 69, and five per cent, interest thereon from 18th December, 1839. This account was opposed by the defendant, and amended by the District Judge so far as to award to the plaintiff certain unsold squares of ground, and decreeing the plaintiff $16,285 18, with five per cent, interest on $10,943 15 from the 14th day of April, 1849, until paid.

Erom this judgment the defendant has appealed. "We consider the matter stated in the motion for an appeal as descriptive of the judgment appealed from.

Defendant relies on two grounds:

1st. The action, so far as it has its object to call upon Ogihie for an account, is prescribed. The transactions, out of which the alleged liability to account arose, took place in 1836, and the present action was commenced in December, 1852, more than fourteen years after the obligation which is sought to be enforced originated. It is a personal action, and is prescribed by the prescription of ten years.

2d. That the defendant is erroneously charged $19,160 and interest, the amount of the purchases by Rillieux.

I. The plea of prescription cannot be maintained. The contract between Ailcen, Oreen and Ogihie was for the purpose of buying a plantation in Ogihie’s name, dividing it into lots and squares, and selling the same at a profit and sharing the same equally among them. The land remaining in Ogihie’s name, and the notes and assets in the partners’ hands, as well as the unsold lots, were subject to the action of partition. We do not think the informal and provisional partitions, if such they may be called, changed the character of the possession of the parties so as to give rise to the prescription of ten years.

II. We are of the opinion that the defendant ought not to be charged with the amount of the purchases of milieux.

We do not know that the defendant was under any greater obligation to collect these notes than either of the other partners. It is unreasonable that they should stand by twelve or fourteen years and leave their associate to struggle with the collection of the debts, and after it has become difficult to make the proof in justification, step forward and hold him responsible for the oversight of his lawyer in compromising with an insolvent debtor.

For all that appears, the claims were in the hands of a competent lawyer, and we are not disposed to hold the defendant responsible for his acts, although the suit was brought in his name instead of the names of the joint owners. If the defendant’s name was used it was for the benefit of his partners. As we hold that the action is not the action of mandate, and therefore not prescribed, hut the action of partition, so we think that where it appears that the partner has acted in good faith in matters of business which it was no more his duty to attend to than his co-partners, that he ought not to he held for the negligent or irregular acts of such competent agents in the ordinary discharge of their duty as he may be obliged to employ.

Moreover it does not appear that the plaintiffs have been in any manner injured by the compromise, as it has not been shown that the judgment, even for the amount rendered, could have been satisfied out of any property owned by Billieux.

If this is the only considerable debt which these partners have lost, they have exhibited one of the most fortunate speculations of the inflated period of 1836 which has come under our observation.

As the defendant does not complain of the judgment in any other respect, it will be amended so as to deduct the one-third of the milieux debt and interest, and the error in the numbers of the squares corrected, as conceded by defendant, and so amended the judgment must be affirmed.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended in favor of the plaintiff, so as to order the defendant to make a title to the plaintiff of squares Nos. 55, 61 and 48, instead of 51, 65 and 48, as mentioned in the said decree; and that said judgment be also amended in favor of the defendant, so as to reduce the sum awarded the plaintiffs by said decree from sixteen thousand two hundred and eighty-eight dollars and eighteen cents, with five per cent, interest on ten thousand nine hundred and forty-three dollars and fifteen cents from the 14th April, 1849, to six thousand eight hundred and ninety-two dollars and twenty-five cents, with five per cent, interest on the sum of four thousand six hundred and twenty-three dollars and sixty-five cents, with five per cent, interest thereon per annum from said 14th day of April, 1849, and that said judgment so amended be affirmed, the plaintiffs and appellees paying the costs of appeal, and the defendant the costs of the lower court.

SAME CASE ON A RE-HEARING.

Merrick, O. J.

In this case the parties, plaintiffs and defendant, consent that the judgment rendered in this case be amended, so far as relates to the squares to be conveyed, so as to conform to the judgment of the court below, after the correction of the errors in the numbers of the squares, and so as to read thus:

It is ordered, &c., that the judgment heretofore rendered by this court be amended so as to read as follows: It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be amended in favor of the plaintiffs, and that Devoid Aiken be and is hereby decreed to be the owner of one-half of the property hereinafter described, and that Frederick W. Aiken, Flecmor O. Aiken, Helen Aiken, Mcvrfha Aiken and Caroline Aiken be considered and they are hereby decreed to be the owner each of one-tenth of the same property, viz: squares Nos. 55, 61 and 48 in the town of Green-ville, and squares Nos. 2, 3, 4, 5, 6 and 11 in the town of Friburg, according to a plan drawn by B. Buisson, surveyor of the parish of Jefferson, on the 15th of April, 1836, and deposited in the office of W. 7. Lewis, notary public; and that said plaintiffs be put in possession of the property aforesaid.


author: Cole, J.

text:
    R. A. Stewart et al. v. Henry Marston. Appellant—John Kernan, Intervenor and Appellee.
    In assumpsit of a debt GoncUtionaVy^ prescription does not commence to run until tlie condition is accomplished.
    from the District Court of East Feliciana, Bailiff, J. Tried by a Jury.

      J. MeVea, W. F. Kernan, for intervenor.

      Fuqua & Killbovrne, for defendants and appellants.
   Cole, J.

The Cashier of the Branch of the Union Bank at Clinton was a defaulter, and suits were instituted against his sureties to make them responsible on their bonds.

While these suits were pending1, viz, the Union Bank v. L. Andrews, and same v. Nichols & Morris, the court apppointed' George O. Oomstoelc and L. Stu/rges, auditors in the two cases to examine the books and accounts of the cashier, and allowed each of them two hundred1 dollars in each case.

L. Stwrges transferred to intervenor on the 19th of April, 1843, the amount awarded to him by the court.

After this transfer was made, B. A. Stewwt issued a fi. fa. on a judgment due him by L. Sparges, and made a pretended seizure of the claim in the hands of the bank, and caused it to be seized and sold, and purchased it. He subsequently institutes this suit to recover the claim from Henry Marston, as cashier, and prays for judgment against him in that capacity. In his amendment, however, he prays for judgment against him individually, alleging that he had purchased the assets of the bank and assumed its liabilities, and bases his right to recover upon this alleged assumpsit..

John K&t'nan, the intervenor, alleges that the claim of Lewis Spurges was transferred to him prior to the seizure and sale of Stewa/rt. He avers that Marston is not liable as cashier; because, before the institution of this suit, the branch had ceased to exist in Clinton, and' Mwston, of course, ceased to be cashier, but he also avers, that Mwston had purchased the assets of the branch and assumed all its liabilities ;. this among the rest.

The plaintiff, upon the trial below, took a judgment of nonsuit; the claim of the intervenor was tried before a jury, and he obtained a verdict for his demand.

It is urged by appellant that Kernan cannot recover, because the assumpsit of Mwston is limited to debts created during his administration as cashier, and the allowance to the arbitrators was made anterior to that epoch. This objection is invalid, because a draft was given by Sturges for the $400, the amount allowed him as expert, on the cashier of the Branch of the Union Bank at Clinton, and was left for consideration by the board. The bank considered it was the intention of the court to allow the arbitrators but two hundred dollars in each case. HwdesPy, in his testimony, says: “ That George O. Oomstoelc, one of the auditors, owed a note in the bank for $400, on which the bank brought suit, and in defence to the suit of the bank, Oomstoelc pleaded the award of $400, which had been allowed him as one of the auditors.

“ It was the understanding in the Board of Directors, and with those connected with the amount in document K (the draft), that the action of the board should be determined by the decision of the suit between the Union Bank and Oomstook. Witness so advised Stewart, who was the claimant of the award to Sturges by virtue of his seizure, and John Keman was also apprised of it, as the transferee indirectly of Lewis Sturges.”

The testimony establishes that the bank was to pay the $400, the amount of the draft, in the event their view of the compensation to the experts was determined to be erroneous by the decision in their suit with Oomstook, who was sued on a note due by him to the bank, and filed his fees of $400 in compensation. This case was decided adversely to their view; the plea of compensation was allowed, and their liability to pay became at once fixed.

It is true that the obligation of the bank to pay the fees of Sturges was created before the administration of Marston as cashier, but the promise of the bank to pay them to a third person, in the event of the occurrence of a certain contingency was an obligation created during the period that Marston was cashier.

Although the bank refused to accept absolutely the draft, there was an understanding that the amount of the fees should be paid on the happening of a certain event; Marston was certainly aware of this convention, and it is not equitable that the intervenor should lose them, inasmuch as Marston assumed to pay all the obligations created by the bank during the period that he was cashier.

The plea of prescription cannot prevail, because the assumpsit of the bank could only be prescribed by the lapse of ten years, and it only began to run from the time when the condition, on which the liability of the bank depended, was accomplished, viz, the decision of the suit in the case of the Union Bank v. Comstook.

This suit was decided on the 25th January, 1850, and the service of the petition of Keman was accepted the 21st June, 1855.

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

Chief Justice Meerick took no part in this case.

       The Hon. J. L. Colb was elected on the 6th of April and toolc his seat on the 4th of May, in place of the Hon. J. N. Lea, whose time had expired.


author: Meeeick, C. J.

text:
    Joseph E. Wilson v. Peter McGreal.
    Prior to the Act of 183T the office of curator of a vacant estate terminated in one year from the date of his appointment. The action to compel the curator of a vacant estate to render his account seems to be of the nature of the action of mandate, and subject to the prescription of ten years from the expiration of his office.
    The character the plaintiff has given to his action by his pleadings must determine the prescription applicable to it.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      L. Janin, for plaintiff and appellant.

      O. W. Ghristnj and P. E. Bonford, for defendant.
   Meeeick, C. J.

Peter MoGreal, the defendant, was appointed curator of the vacant estate of Francis MoGreal, deceased, on the 19th day of September, 1833, and letters of curatorship issued to him after the completion of the inventory, on the 6th day of November of the same year. The inventory was formed of the one undivided half of the goods in a clothing store, held by the deceased in partnership with one Southworth, under the style of Soutlmorth & MeGreal, and the sums due that firm. The debts due by the partnership, if any, were not deducted. The one undivided half was estimated at $17,656 56.

On the 30th day of August, 1834, the curator filed his account, showing a balance in his hands, including bad debts, of $1160 13.

This balance was formed by crediting the estate with the following items:

By amount due per balance sheet, being one-half profits gained by Soutlmorth & MeGreal up to 1st September, 1833.............$2,347 38
By amount of judgment against Thomas McAdams............... 130 00
By cash.................................................... 40 50
$2,517 88

and deducting the payments made by the curator therefrom.

The Judge ordered public notice to he given the creditors, and all persons interested in the succession, to show cause within ten days why the account presented by the curator should not he homologated.

Nothing further appears, from the documents and records extant, to have been done with the account. The defendant removed to Texas in 1836, where he has since resided, the plaintiff also being a citizen of the same State. On the 13th day of February, 1857, more than twenty-two years after the filing of his account, the defendant was found in this city, which he is in the habit of visiting, and it was made the occasion for the commencement of the present action by Wilson, who married a daughter of Owen MeGreal, a brother of the deceased. Wilson alleges that Owen MeGreal, who is a citizen of the State of California, addressed a letter to him, and requested and authorized him to take all necessary measures to recover his share in the estate of Frcmeis MeGreal, and also declared that he made a donation of whatever he may receive to his daughter, Wilson's wife.

He alleges that the account rendered by Petes' MeGreal is not binding on the heirs, though he is not willing to contest the items of the account for which vouchers have been filed; that soon after Peter MeGreal had been appointed curator, he formed a partnership with Southworth, the former partner of Francis MeGreal, deceased, and that he treated the interest of the estate in the partnership as his own property, converted it to his own use, and availed himself of the absence and dispersion of his co-heirs to deprive them of their rights in the estate.

The petitioner claims the balance of profits which he alleges the curator acknowledged to have in his hands on the 31st of August, 1834, $1160 13, and the interest of said Francis MeGreal in the partnership, estimated in the inventory at $17,656 56J; in all $18,816 69£ and twenty per cent, interest.

The prayer of the petition is that defendant be condemned to pay the heirs of said Frcmeis MeGreal, deceased, $18,816 69|, with five per cent, interest up to 13th March, 1837, and with twenty per cent, interest afterwards, and that he may be particularly condemned to pay your petitioner Owen MeGreal’s share, to wit: one-third of the estate, and that said Owen he recognized as one of the heirs of the deceased.

PaVrick, MeGreal, also of Texas, who alleges that Owen MeGreal, the defendant and himself are the only surviving heirs of Francis, intervenes in the suit and adopts the allegations and conclusions of Wilson’s petition, and prays substantially for the same relief.

The defendant pleaded the prescriptions of one, three, five, ten and twenty years. The plea of prescription haying been sustained, the plaintiff has appealed.

According to the law prior to the Act of 1837 the office of a curator of a vacant estate terminated at the expiration of one year from the date of his appointment. All that remained for him to do afterwards was to render his account. The action to compel him to render the account appears to us to be one in the nature of the action of mandate, and subject to the prescription of ten years against the parties present, and twenty years against those who were absent as the law then stood. C. C. 3508; 3 N. S. 601.

This case does not come within the rule laid down in the case of Comstock v. Chamberlain, 4 An. 368, for the curator of the vacant estate prior to the Act of 1837, was functus officio at the end of the year of his appointment. He could not, therefore, be considered as in court by virtue of his office after that office had expired. Hence his obligation to account after the expiration of his office became the subject of an action, and that action, like all other actions, was subject to the laws regulating prescription.

But an attempt has been made to take this suit out of the rules of law as to the prescription of the action for the rendition of the account, by showing that it is really an action of partition. In this we think the plaintiff has failed. The suit is brought against the defendant, as the curator of the vacant estate, to compel him to render his account, and to charge him with $18,816 92J, the amount of the inventory and profits. It is not brought against him as heir, and the co-heir was not made a party to plaintiff’s petition, (although he has intervened in the suit,) and there is no prayer for a partition.

We think the character the plaintiff has given his action by his pleadings must govern us in determining the prescription applicable to it.

Whether an action of partition would lie against the defendant as heir for the division of the balance shown by the account of 1834 to be in his hands, ■or for any other sum, is a question which we do not consider ourselves called upon to determine. ,

Judgment affirmed.


text:
    Maunsel White v. J. B. Wilkinson.
    Where the book-keeper of a commission merchant, offered as a witness to prove his accounts, swears to their correctness, hut it appears, on cross-examination, that he made no original entries on the day book, cash book and invoice book — saw none of the goods purchased, and only knows that u he kept the ledger correctly from the entries furnished him by the partners and other clerks”_ Held: That the proof was insufficient. The clerks who made purchases for defendant ought to have been examined, and the drafts and receipts ought to have been produced.
    APPEAL from the District Court of Plaquemines, Pousseau, J. Tried by a Jury.

      J. Q. Bradford and K D. Ogden, for plaintiff and appellant.

      C. B. Penrose, for defendant.
   Merrick, C. J.

This is an action upon an account of a commission merchant and factor. The balance claimed is $10,184 20 as due at the institution of the suit in November, 1852, on accounts running back as far as 27th April, 1844, and embracing numerous transactions between the firm, of which the plaintiff is the assignee and liquidating partner, and the defendant. The case was tried by a jury in the lower court, who found for the defendant.

After an ineffectual attempt to obtain a new trial, the plaintiff appealed from the judgment rendered against him.

The case has been argued in this court almost entirely upon the question of the sufficiency of the proof offered by the plaintiff. His proof consists in a letter of the defendant, dated June 1st, 1849, (after the receipt of an account current,) acknowledging his indebtedness, as shown by the account, of $19,285 08, the testimony of the book-keeper who swears that the accounts are correct, and the report of auditors appointed by the court to report upon the state of the account between the parties. We will consider the effect of this proof in its order.

The letter of the defendant certainly shows an indebtedness to the plaintiff in June, 1849, of $19,184 20, hut unfortunately for the plaintiff’s case the accounts are continued down to January, 1850, at which time it appears that he had in the interval received, on the other side of his account, more than sufficient to compensate the liquidated balance of June 1, 1849. The letter dispenses the plaintiff from the necessity of proving the correctness of his accounts prior to the 17th of May, 1849, throwing upon the defendant the burden of proving errors if it be alleged that the account is erroneous. But the plaintiff is obliged to establish his account since that period, by legal and sufficient evidence. The proof offered is insufficient.

The book-keeper, who is shown to be an excellent book-keeper, swears that the accounts presented are correct, but when interrogated as to his means of knowledge, we find that he never made an original entry in the day book, cash book and invoice book; that he never saw any of the goods purchased; and, in fine, knows nothing about the correctness of the account, except that he kept the ledger correctly from the entries furnished him by the partners and the other clerks. The clerks who made the purchases of goods for the defendant ought to. have been examined, and the drafts which the plaintiff took up, as well as the defendant’s receipt for money, ought to have been produced.

The proof of the witness that accounts current were furnished the defendant is found also, on a cross-examination, to he as uncertain as his testimony as to the correctness of the account. At what time and what accounts were delivered to the defendant, the witness is unable to inform us. The witness says, that he merely presumes that the defendant got copies of all of the accounts current. He knows he got some of them, for he handed them himself. Thus it does not appear that any account current was delivered defendant after the letter of June 1st, 1849, and he cannot be bound as for an account stated after that period, without such showing.

The reports of the auditors, aside from the irregular manner in which they are made out, possess no more value as evidence than do the accounts.

The auditors took no testimony and confined their labors to an examination of the accounts furnished by the plaintiff and annexed to the petition. As these accounts have not been proven, the structures built by the auditors upon them must fall with them. Plaintiff’s case is without testimony to sustain it.

We think, however, that the judgment should he only one of nonsuit.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court he avoided and reversed, and that there be judgment in favor of the defendant as in case of nonsuit; the defendant and appellee paying the costs of the appeal, and the plaintiff those of the District Court.