text:
    R. D. Blossman v. Thomas Mather.
    Where a debt has been due for the lapse of time necessary to bar it bj prescription, and there is no evidence justifying the presumption of the relinquishment right acquired to plead prescription, that plea must prevail.
    If a debtor abandons his residence for the purpose of avoiding the pursuit of his creditors, prescription does not run in his favor.
    The fact that a bill is dated at New Orleans, in the absence of any proof as to the place of acceptance, raises the presumption that it was accepted in New Orleans.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      A. A. Mellaerts, for plaintiff,
    contended, in reply to defendants counsel: Defendant does not refute plaintiff’s argument to show that prescription was suspended for several years by the non-residence of the defendant. He contents himself by saying, that “ your honors have repeatedly decided, that the prescription applicable to bills of exchange, promissory notes, &e., as established by arts. 3505 and 3506, does run in firvor of the absent debtor, and that no suspension of its course takes place by reason of the absence of the debtor.” And he cites 3d Ann. 508, Hatch v. Gilmore, and Luncan v. Ford, decided same day, but not reported; McMaster v. Mather, 4th Ann.; and goes on to say, that “ there is nothing in this case to distinguish it from those cases.”
    I do not find in the cases cited any such general rule laid down by the court. On the contrary, in Hatch v. Gilmore your honors say, speaking of the maxim, contra non valentcm, “ it is not our purpose, on the present occasion, to attempt to lay down any rules for its application, except so far as is indispensable for the case before us. To do so would be a task not free from difficulty ; and it is better to leave various cases as they arise to be considered upon their proper merits.” The case at bar differs entirely from any to be found in our reports. This is a suit brought against the acceptor of a bill of exchange. The bill is drawn in Mississippi, addressed to the drawee at New Orleans, and accepted by him in New Orleans. The defendant, in his brief, says : “ it is admitted that the defendant, at the time of the creation of the debt, resided out of this State, at a place called Tchula in the State of Mississippi, and that he continued to reside there until some time in 1844, when he removed to this city and made it is residence for about eighteen months.” This is a mistake. The admission in the record, is, that “ the defendant resided out of the State of Louisiana* from the time the bill fell due to some time in 1844, and that from some time in 1844 the defendant resided in New Orleans for about eighteen months, and that after that he went to Mexico, and has not resided in Louisiana since.”

      Hatch v. Gilmore w'as a suit against the endorser of a promissory note, dated at Vicksburg, Mississippi. The defendant continued to reside there more than five years after the maturity of the note, and the court say, “ in the absence of evidence to the contrary, it is presumed that the defendant endorsed the note in Mississippi.”

      Duncan v. Ford (not reported,) was decided on the reasons assigned in the preceding case. It was a suit against the endorser of a bill of exchange, drawn at Vicksburg, Mississippi. Both plaintiff and defendant resided in Mississippi.

      McMaster v. Mather was a suit on a promissory note, subscrided in New Orleans by E. Morehouse, the partner of the defendant in the name of the firm of Morehouse Sf Mather. In McMaster v. Mather the obligation was, indeed, contracted in New Orleans, but the case is distinguishable from that at bar, in this : that in McMaster v. Mather the defendant did not himself contract the obligation, he may have been ignorant of its existence; whilst in the case before the court the obligation was contracted in New Orleans by the defendant, in propria persona.

      Tyson v. McGill, 15 L. R. 145, not cited by the defendant, was a suit against the maker of two promissory notes, not subscribed in Louisiana.
    This is the first case in which the acceptance is a Louisiana acceptance. There has never been another case like this before the court.
    There is one case in L. R. 215. Kers et als. v. Erwin, in which the defendant was' the acceptor of a bill; but that bill was payable at Savannah, Georgia. The plaintiffs in that case did not contend that prescription had been suspended, but that it had been interrupted; and their grounds on that point were untenable. Besides, it was proved that since prescription had begun to run, the whole of no one year had passed without an opportunity being afforded the plaintiffs to prosecute a suit against the defendant, in consequence of his being every winter in New Orleans. But the court intimate, that the decision might have been otherwise if the acceptance had been made in Louisiana. They say, “ the decision of the present case does not require from the court any opinion as to what would be the effect produced on the situation of the debtor who has contracted a debt in this State to one of its citizens, and immediately removes out of its jurisdictional limits, and remains five years where the legal process of the State could not reach him, in relation to his discharge from the defendant under a plea of prescription.” That is exactly the case which this court has now to decide.
    In regard to renunciation, the only question is, whether the debt has been acknowledged within the five years preceding the institution of this suit On that subject there can be no doubt.
    Pothier’s Oblig. No. 700, says : “ La préscription quoique ac.complie se couvre lorsque le débiteur a reconnu la dette, bien que ce soit depuis l’accomplissement de la prescription. Cette reconnaissance l’exclus de pouvoir opposer an créancier la fin de non récevoir qui resultait de l’accomplissement du temps de la préscription et par conséquent la couvre et l’anéantit.”
    Article 3424 L. C. says : “ Such renunciation of prescription is either express or tacit. A tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.” This article is a literal transcript of article 2221 of the French Code. All the French commentators say, unanimously, that the acknowledgment of a debt operates as a tacit renunciation, and the reason they give is that the subsequent acknowledgment rebuts the presumption raised by prescription, to wit, that the debt has been paid. Durunton, vol. 21, No. 120, says : “ Quant á la rénonciation tacite elle peut résulter d’une foule de faits suivant les circonstances, nous allons parcourir quelquescas; ainsi le débiteur qui depuis la préscription acquise demande un tenue á son créancier pour la paiement de la dette, soit judiciairement, soit extra-judiciairement, par exemple, par une lettre, renonce par cela méme au droit qu’i) avait de lui opposer la préscription. II en est de méme lorsque depuis la méme époque il recommit simplement la dette.”
    Troplong, No. 65: “Non seulement le débiteur renonce illa préscription lorsqu’il paie, mais encore lorsque par un acte quelconque il recommit l’existence de la créance.” There is no dissenting voice on that subject among the French authors, before and after the code.
    The defendant, in his brief, says, that the letters do not contain a promise to pay. They do not contain it; if they did, the renunciation would no longer be a tacit one ; it would then be express. Nor is a promise necessary. When the debtor acknowledges the debt, the law itself raises the promise to pay. On that subject, Troplong, Pres. No. 15, says: “La rénonciation du débiteur ne constitue pas en general un titre nouveau; c’est l’obligation primitive qui reprend vigueur, et se presente purgée d’une exception qui pouvait la paralyser ; c’est une continuation de ce qui existait auparavant dans les termes du droit.” Dalloz Jurisp. du Royamme, vol. 2, p. 239, is to the same effect. If the doctrine that a new promise is necessary was admitted, article 3424 would thereby be virtually stricken from our code, and then only express acknowledgments could avail creditors.
    The defendant, in his brief, says : “ To establish a renunciation the proof must be unequivocal and irrefragable,” and cites Troplong, No. 56. The doctrine there laid down is fully admitted. That eminent jurist says: “ Tout ce qui portera avec loi la conséquenee nécessaire que la préscription a été abandonnée, sera une preuve suffisante qu’il y a eu renonciation tacite. La loi n’a pas tracé au juge de procédés artificiéis pour former sa conviction, elle s’en rapporte á sa prudence, á sa justice, áson bon sens ; eliene donne qu’un conseil, c’est de n’admettre comme rénonciation que ce qui fait supposer nécessairement un abandon du droit acquis; mais c’est en definitive sa conscience et ses lumiéres qui sont ici l’arbitre.” As has already been stated, the acknowledgment of the debt is considered as a tacit renunciation by all the jurists. Defendant calls the attention of the court to a quotation from Curasson, found in a note to Troplong, in the Brussels edition. Who that Curasson is, I don’t know, I never saw his name before.
    The doctrine laid down in 12 Rob. Rep. 254, cited by the defendant, is also fully admitted. In that case, the defendant, in a conversation with the witness, acknowledged that he was largely indebted to the plaintiff, and the court say that “ to interrupt or renounce prescription the acknowledgment must be of a particular specific debt.” In this case the acknowledgment is of a particular specific debt, and is in writing. Defendant also cites Troplong, No. 524. This is probably- a misquotation. What the- author there says can have nothing to do with this case. He comments on article 2240 of the French Code, the same as article 3480 of our code, which says, that “ one cannot prescribe against his own title, in this sense, that he cannot change by his own act the nature and the origin of his possession.”
    Defendant, in his brief, says: “ Prescription once accomplished, extinguishes the debt as effectually as payment or novation and he contends “ that prescription does not only take away the remedy, but extinguishes the right and he cites articles 2126 and 3494, La. Code, and Troplong, Nos. 29 and 30. Those articles of our code, when construed in connection with each other, do not support the doctrine contended for, and in 2 La. Rep. 389, Nichols v. Hanse and Hepp, it was held, that if a claim by prescription, it still may be offered in compensation. Troplong, loco citato, contends, indeed, that prescription extinguishes as well the natural as the civil obligation. But, of all the commentators on the code, he stands albne of that opinion. However, whether he be right or wrong, as regards the French law, is of little importance to us ; his solitary opinion cannot do away with a positive article of our code on the subject-. Article 1751 says : “ When the action is barred by prescription, a natural obligation still subsists, although the civil obligation is extinguished.”
    That, if the appellee ever acquired prescription, he renounced it by acknowledging the debt within five years preceding the institution of this suit. See letter of appellant of the 4th of May, 1844, and letter of the appellee of the 16'th of May, 1844, in answer to that of the appellant. Also, letter of the appellee of the 9th of January, 1845, deed of trust, and the confessed interrogatories. The above mentioned letters and interrogatories are printed in the appellants original brief.
    As to the renunciation of prescription, the attention of the court is called to the following authorities : C. C. 3423 : “ One cannot renounce a prescription not yet acquired.” See also C. C. 3424. Troplong, Pres. 1, No. 65 : “ Non seulement le débiteur renonce á la préscription l’orsqu’il paié, mais encore l’orsque par un acte quelconque il reconnait 1’existence de la créance.” Pothier’s Oblig., No 700 : “ La préscription, quoique accomplie, se couvre l’orsque le débiteur a reconnu la dette, bien que ce soit depuis l’accomplissement de la prescription. Cette reconnaissance l’excifit de pouvoir opposer au créancier la fin de non récevoir qui résultait de l’accomplissement du temps de la prescription, et par conséquenl la couvre et l’anéantit.
    In conclusion, the appellant hopes to have shown, that prescription was never acquired by the appellee, because the appellant never had five years during which he had a right to act, and could act; and, that if prescription should have been acquired by the appellee, he renounced it by his letters of the 16th of May, 1844, and 9th of January, 1845, and that the present action having been brought within the five years since the acknowledgment, it has been brought in time.

      Prentiss and Finney, for defendant,
    contended : The defendant is sued as the acceptor of a bill of exchange which fell due on the 3d of July, 1838. He relies upon the plea of prescription of five years, based upon the articles 3505 and 3506 of the Louisiana Code. It is evident the prescription was accomplished on the 3d of July, 1843, unless something had occurred previous to that date to suspend or interrupt its course. And, if at that date the prescription was accomplished, the defendant cannot be held liable for the debt, unless he has subsequently renounced the benefit of the prescription. So that the cause presents two questions for your consideration, viz : 1. Was there any suspension or interruption of the prescription prior to the 3d of July, 1843? 2. Has there been any renunciation since? It will not be pretended that there was any interruption of prescription prior to July 3, 1843.
    The counsel for the plaintiff has made an elaborate argument to show that the course of the prescription was suspended for several years by the non-residence of the defendant. Your honors have repeatedly decided that the prescription applicable to bills of exchange and promissory notes, &c., as established by articles 3505 and 3506, does run in favor of the absent debtor, and that no suspension of its course takes place by reason of the absence of the debtor. Match v. Gilmore, 3d Ann. 508 ; Duncan v. Ford, decided same day, but not reported; McMaster v. Mather, 4th Ann. 418.
    There is nothing in this case to distinguish it from those cases. It is admitted that the defendant, at the time of the creation of the debt, resided out of this State, at a place called Tehula, in the State of Mississippi, and that he continued to reside there until sometime in 1844, when he removed to this city, and made it his residence for about eighteen months. 2d. Has there been a renunciation of the benefit of the prescription since its completion ? The plaintiff relies upon two letters, copies of which he has furnished in his brief, as establishing a renunciation of prescription. The letter of the 16th of May, 1844, is principally relied on. Wo beg leave to observe of that letter, that it contains no promise of payment, nor indication of an intention to pay, nor even an acknowledgment of the debt, except so far as it may be inferred from the excuse given for not paying.
    The writer first states his poverty, andr making that his apology, proceeds to tell his creditor to dismiss all hopes of payment. “ It is of no use,” he says, “ to hold out expectations when there is no chance of their being realised.” It is true, he expresses his regrets; but no well-bred man could do less. The whole letter is but an exceedingly polite refusal to make any provision whatever for the debt, or to commit the writer to any efforts to make such provision at any future period.
    Does that letter amount to a renunciation of the prescription ? Such a ' renunciation must be either express or tacit. “ A tacit renunciation results from a fact which gives a presumption of the relinquishment of the right acquired by prescription.” La. Code, 3424. If there be any renunciation in this case, it must be a tacit one. It is at best but a weak inference from the acknowledgment, which is itself but an inference from the defendant’s apology for not paying — a very questionable inference from an equally questionable inference. Such a series of inferences, one resting upon another, are not admissible to charge a man with a debt which has been absolutely extinguished. Prescription, once accomplished, extinguishes the debt as effectually as payment or novation. Vide La. Code, 2126, 3494. Troplong on Prescription, Nos. 29 and 30.
    The letter, we think, would suffice to interrupt the course of prescription not yet acquired, but does not support an inference of renunciation. Much weaker evidence establishes interruption of prescription than is requisite to establish a renunciation. A man may be easily supposed to recognise the existence of a debt while it in fact does exist. But we must be cautious in concluding that he intends to revive and re-fasten on himself a debt from which he has been entirely released. To establish a renunciation, the proof must be unequivocal and irrefragable. Troplong, Nos. 56, and note 7, Brussels edition. 13 R. R. 251. Troplong, No. 524.
    We beg leave to call the particular attention of your honors to the quotation from Curasson, in the above cited note to Troplong. It lays down the doctrine distinctly, that a simple recognition of the debt suffices for interruption of prescription; but that it is different with regard to renunciation; that it is necessary that the fact from which we infer the tacit abandonment of prescription should be positive, and not susceptible of explanation in any other manner. Now, what does the author mean when he says that the fact should not be susceptible of explanation in any other manner 1 We understand him to mean, that in order to justify the inference of renunciation, the fact from which the inference is drawn should be such as to infer necessarily an intention to renounce the prescription. Now, the fact from which the inference of renunciation is attempted to be drawn in this case is susceptible of explanation on a wholly different hypothesis. The writer of that letter never dreamed of renouncing prescription. All he meant was to refuse payment, and to give the best excuse fox-doing so in his power. Again, renunciation of prescription is an act of alienation, and must be made with a full knowledge of the cii-cumstances. It must proceed from a will well advised. It must be deliberate. Troplong, No. 55. No man can be deemed to have alienated his rights, unless the act which is relied upon as the proof of the alienation indicates an intention of alienation. To alienate neeessax-ily supposes an intention to do so. And in order to ascertain the alienation the intention must be ascertained.
    As renunciation is, in the language of Troplong, “ une véritable aliénation,” we may well apply to it the same reasoning; and we hold, that no renunciation can be ascertained, unless the act from which the x-enunciation is inferi-ed indicates an intention to renounce. Now, is therein this letter any indication of that deliberate, well advised intention to renounce, which Troplong seems to consider necessary to operate a renunciation ? The most that can be said on the other side of the bearing of the letter on this question of the intention, is simply that the letter uses language which implies the existence of. a debt; but, in common parlance, a debt barred by prescription, or discharged by bankruptcy, is still spoken of as a debt; and a debtor may well mention either in terms strictly applicable only to an existing’legal obligation, without being supposed to renounce the release operated in his favor by the accomplishment of the px-escription or the discharge in bankruptcy. In ox-der to ascertain the intention, we must look at the context and general scope of the whole writing. The whole burthen and object of this lettei-, patent upon its face, was merely to answer a dun with as good a grace as possible, without committing the writer to any efforts to provide for the debt either then or afterwards. We have found a decision by the Court of Cassation, in a case precisely like the one at bai-, fully sustaining our position. Vide 26 Journal du Palais, Bracket v. Mazile, decided March 10, 1834.
    We are unable to furnish your honors adjudicated cases on this point. The common law books can afford us little assistance, for the common law statutes of limitation are wholly unlike our law of prescription, in effect and opex-ation. The fox-mer only bar the remedy and leave the right intact. 5 Buxtow’s Rep. 2630 ; and Tillinghasts’s Ballantine on Stat, Liixx. 17, note, 188, note 1. But prescription goes deepex-, it not only takes away the rexxxedy, but extinguishes the right. La. Code, 2126, 3494. Troplong, Nos. 29 and 30. Cases, therefore, of actions barred by the common law statutes of limitation and by the prescription of our law are not analogous. If your honox-s fee'l 'inclined to examine how far an acknowledgment will revive a debt already barred by the’ statute of limitations at common law, we can refer you to 1 Pet. 309 ; Angelí on Limitations, edition of J846,, 223, et seq.

    We repeat, however, that those cases cannot be deemed analogous to the one now at bar; and if they are, even if they be authoritative precedents binding upon your honors, we do not believe their spirit and fair application would condemn the defendant in this case. But we will not trouble your honors with ax-gument on this point. The only analogous cases furnished by the common law reports, that we can call to mind, are those which involve the liability of a party discharged in bankruptcy, resting upon an alleged renewal after the discharge, to pay a debt provable under the commission. The cases of a cex-tificated bankrupt and of a debtor discharged by prescription under our law, appear to us precisely analogous. In both cases there remains an obligation in conscience, although the legal obligation is extinguished. It is well settled, that to bind a certificated bankrupt for a debt px-ovable under the commission there must be a new and positive promise to pay. A mere acknowledgment is not sufficient. 5 Espinasse, 198; 1 Stark 370.

      After these decisions, in the time of George IV, a statute was passed, declar*n§ no cert^cntec' bankrupt should be liable to pay any debt from which j]e sjlou],] have been discharged by his certificate, upon any contract, promise, &c., unless in writing. See extract from the statutes in 1 Harrison's Digest, 1098. The doctrine of the English courts before this statute has been maintained in the United States. 9 Ala. Rep. N. S. 320.
    We need not apply the analogy of those cases to the one before your honors. The judge below sustained the prescription, and we beg leave to refer your honors to his opinion. We pray an affirmance of the judgment-
   The judgment of the court (Rost, J. being absent,) was pronounced by

Eustis, C. J.

The defendant is sued as the acceptor of a bill of exchange which fell due on the 3d of July, 1838. It is dated Tchula, Mississippi, February 15th, 1838, and is drawn on Thomas Mather, New Orleans, and is accepted by him, payable at the Commercial Bank, New Orleans. The judgment of the district court was in favor of the defendant on the plea of prescription, more than five years having elapsed since the maturity of the bill. The plaintiff has appealed.

It is contended, that the prespriptipn, if ever acquired by the debtor has been renounced by his subsequent acknowledgment of the debt; and two letters and a deed of trust executed by another party have been referred to as proving the acknowledgment. We think the letters speak of this debt as any conscientious man would be at liberty to speak of a debt, from which he had been discharged by lapse of time, without reviving the obligation. Of this we find no intention on the part of the writer in either of the letters. We find no fact affording the presumption of the relinqpishmpnt of the right acquired by prescription, still less any express declaration to that effect. Code, 3424. Troplong on Prescription, § 156, and cases there cited.

The defendant’s acceptance bears the date of New Orleans, and it is admitted that he resided out of the State from the time the bill fell due to some time in 1844; and that from some time in 1844 the defendant resided in New Orleans for eighteen months, and that after that he went to Mexico, and has not resided in Louisiana since.

The indefinitiveness of the admissions on the record, as to the place of residence of the defendant, renders the application of the law of prescription in reference to it exclusively almost impossible. But it does not appear that the defendant abandoned his place of residence for the purpose of avoiding the pursuit of his creditors, which, if proved, would have avoided the effect of prescription in his favor. It does not appear that the residence of the defendant was in the State of Louisiana at the time of the acceptance of the bill; nor is there any evidence of the acceptance having been made in New Orleans, except its being dated there, which raises a presumption to that effect. Under the decisions of this court in the cases of Boyle v. Mann, 4th Ann. 170, and McMaster v. Mather, Ibid 418, we consider the debt sued for as prescribed by the lapse of five years.

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


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    The State v. Thomas Smith.
    An indictment for “breaking and entering a store,” will justify a conviction under a statute against “ breaking and entering a shop."

      If the statement of the real facts in an indictment or information constitutes a substantial violation of the statute, it is the duty of the court to sustain the indictment or information
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the State,
    contended: 1. The endorsement on the indictment. — What is an indictment 1 and what renders it a complete accusation 1 Arch. Cr. Pleading, 1, 63, 64. State v. Howell, 3d Ann. 52. The jury make the only necessary endorsement on the bill. Wharton’s ■ American Criminal Law, 128.
    In this case, the grand jury verified the accusation in the bill, and not the description of the offence on it. The prisoner’s counsel has misconceived the finding and the endorsement of the grand jury.
    2. Indictment charges defendant with breaking and entering the store of Ambrose Hortigues, No. 9 Front Levee, in the day time, with intent to steal. B. & C. 260, sec. 7th. Store is not, but shop is, mentioned in this section. It is contended, on the authority of 1st Mass. Rep. 517, that the indictment is bad, because it did not allege that the store was a building. But the words store and shop are used indiscriminately by the people, and both words are not used otherwise than as and for the name of a building. Store includes, but has, perhaps, a more extensive signification than shop; if so, the indictment is good. Archbold, 52.
    E. Abell, for defendant,
    contended: This is an appeal from the honorable First District Court of New Orleans. Accused begs leave to assign three legal grounds of error apparent on the face of the record in this case, either of which is deemed sufficient to reverse and set aside the verdict of the jury and judgment of the court below. 1. The court below erred in overruling the motion made in arrest of judgment. 2. The indictment is endorsed on its back “ a true bill for burglary,” and on its face it purports to be a bill for entering a store in the day time with an intent to steal. A fatal defect! Respectfully referred to 1 Chitty’s Criminal Law, 325; 4th Bacon’s Abridgment, 301, D. State v. Howell, 3d Ann. 52. 3. That the indictment charges the accused with entering a store in the day time with intent to steal, when, in fact, the statute does not mention store, and the indictment is silent as to whether it was a building or not. See B. & C. Digest, 261, art. 103; IstB. Com. 88; Commonwealth v. William M. Mona-gate, 1 Mass. Rep. 517.
   The judgment of the court (Rost, J. being absent,) was pronounced by

Preston, J.

The defendant is accused of breaking and entering a store in the day time with intent to steal. The grand jury endorsed on the back of the ’ indictment “a true bill,” dated and signed by the foreman. An erroneous memorandum on the back of the indictment, made probably by the clerk or prosecuting officer, indicating that the charge was for burglary is not, as contended, a part of the finding of the grand juiy. The authorities cited to show that the finding a true bill for a crime not charged would be vicious are not applicable to the case.

The indictment charges that the accused broke and entered a store with the feloneous intent; the statute makes it a crime to break and enter a shop, with such an intent. And the Supreme Court of Massachusetts, in the case of the Commonwealth v. Monagle, inclined to the opinion that the substitution of the word store in the indictment for the word shop in a similar statute was fatal on a motion in arrest of judgment. We think not. Mr. Webster, the best of lexicographers, defines a shop to be a building in which goods, wares, drugs, &c. are sold by retail; and states that, in the United States, shops for the sale of goods of any kind, by wholesale or retail, are often called stores. Indeed, ip this city, in common parlance, in speaking of going to places, known by no other names than stores, to purchase goods, we speak of going a shopping.

In the case of the United States v. Bachelder, 2d Gallison’s Rep. 18, it was held by Judge Story, that if the offence prohibited by statute was set forth with substantial accuracy in the indictment, it was sufficient, and that it was not necessary to follow the exact wording of the statute.

It is the duty of a prosecuting officer to state the precise facts with which he charges the accused, and, in doing so, to use the words of the statute if possible; and if the statement of the real facts constitutes a substantial violation of the statute, and can be so construed without departing from the true meaning of the words, it is the duty of the court to maintain the information dr indictment.

Guided by these rules, we are of opinion that the judgment of the First District Court of New Orleans should be affirmed, with costs.


text:
    The State v. Samuel Shaw.
    Whore the plea of autre fois acquit is set up, and the record shows on its face that the offence plead to was not the same of which the prisoner was before acquitted, the plea may be demurred to, and it is not necessary to submit it to a jury.
    The objection to any informality in drawing the jury should be made on the first day of the term
    Such allegations as that the whole proceedings are “informal, illegal and insufficient,” are too general to be noticed by the court.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Isaac Johnson, Attorney General, for the State.

      J. M. Wolf, for defendant.
   The judgment of the court (Rost, J. being absent,) was pronounced by

Preston, J.

The defendant is accused of entering a dwelling house in the day time with intent to steal. lie plead that he had been accused of the same offence; had been tried and acquitted, as appeared by a record which he made part of his piea.

The court overruled the special pica. Pie was then tried and convicted on the general issue, and has appealed. Elis counsel insists that the attorney general should have joined issue on his plea of autre fois acquit, and that the court ' should have directed a jury to try it.

The defendant made the record of the prosecution against him for larceny a part of his plea, and showed that he had not been tried in that case for entering a dwelling house with intent to steal — the crime of which he is now accused. Entering a dwelling bouse with intent to steal differs from larceny iu name, character and punishment, and is an entirely different crime. The evidence necessary to support an accusation for the one is entirely different from the evidence necessary to support an indictment for the other; which affords the true test to judge whether the piea be well founded or not. Archbold’s Criminal Pleadings, 82, and the authorities there cited.

Where the plea shows on its face that the offence plead to was not the same of which the prisoner was before acquitted, the plea may be demurred to. The State of Tennessee v. Hite, 9th Yerger’s Rep. 357. This was substantially done; the parties submitted the plea to the judgment of the court, who properly overruled it ; and the accused was tried and convicted upon his piea of not guilty.

The accused challenged the array of jurors on the ground that the record did not show that the sheriff was present when the list of jurors was drawn, and that the record is defective in omitting it.

The objection to any informality in drawing the jury should have been made the first day of the term; which was not done in this case. Acts of the 6th of March, 1846. Moreover, the record of the drawing of the jury is not annexed to the bill of exceptions, nor copied into the transcript of the record, so as to enable us to know that the informality alleged existed, and to judge what should be the effect of it.

It is further assigned for error, that the indictment is defective and insufficient; it is not stated in what particular. It is further alleged that the whole proceedings are informal, illegal and insufficient. These allegations are too general to be noticed by the court. We have examined the proceedings and do not find any material defect. It is assigned for error, that the judgment and sentence of the court was not pronounced in open court.

The transcript having been amended by direction of this court, we find a formal judgment pronounced in open court and entered upon the records, which is affirmed, with costs.


author: Slidell, J.

text:
    Lee and Ritchie v. R. W. Galbraith et al.
    The vendor’s privilege is lost by the property passing out of the possession of the vendee. C. C. 3194.
    The holder of a tobacco warehouse certificate, who has made advances upon it, is entitled to retain the tobacco even without a formal act of pledge as against the original vendor who delivered the tobacco without being paid for it.
    It is more equitable that the vendor who delivers possession of his property to the vendee without being paid for it, should suffer by the acts of the vendee, than that third persons who made advances upon the faith of the vendees possession should lose by it.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Benjamin and Micou, for plaintiffs,
    contended : It is perfectly manifest that there exists no lien nor privilege on this tobacco in favor of Warneken and Kirchhoff. The lien of the consignee does not exist, because the merchandise was not consigned for sale. The privilege of the pledgee does not exist, because the act required by article 3125 was not made; so that, in the language of that article, the privilege against third persons has not taken place.
    The judge of the court below agreed with the plaintiffs that Warneken and Kirchhoff had no claim valid against third persons; but decided that plaintiffs had lost'their privilege, because he was of the opinion that the property had “ passed out of the possession of the purchaser.” C. C. 3194. With due respect, we think Ihis an example of that mode of interpretation which is reprobated by jurisconsults as an adherence to the letter of the text, whilst it corrodes its spirit,. If the articles 3194 and 3195 are read together, and they are connected by the conjunction “but,” it will be seen that it was the will of the legislator that the privilege should exist, until the conflicting rights of third persons were concerned. The privilege is to last whilst the goods are in possession of the purchaser; but, if he allows the thing to be sold confusedly with a mass of other things, without making his claim, he shall lose the privilege. If the judge below be right in his literal construction, then a vendor, in case of the death or insolvency of the purchaser, loses his privilege, because the purchaser is no longer in possession; which amounts to determining that the privilege ceases to exist, by the fact which alone renders its existence of any value.
    But in the present case it. is plain, that the possession was not lost to the purchaser. The delivery of the goods to Warneken and Kirchhoff had taken place' it is true, but this was in execution of an agreement which, under the law, was of no effect against third persons, which, so far as we are concerned, was as if it had never taken place. Possession may have been lost, to Galbraith as between himself and Warneken and Kirchhoff. because his pledge was binding on himself, but when we, third persons, are concerned, the possession was not lost, because the pledge as against us is of no effect. It is clear that the judgment of the lower court, whilst it professes to consider the pledge null, really gives it full and entire effect against us.

      The intervenors in the court below relied upon the cases of Fetter v. Field, 1st Ann. 83, and Laughlin v. Ganahl, 11 R. R. 183. The judge says that the only authority on the subject thathe discovered was the case of Erwins. Torrey, 8 M. R. 90. We propose to make some comment on the series of decisions found in our reports, including not only the cases just named, but'that of Leverich v. Richards, 1st Ann. 357, and that of Willard s. Parker, 7 N. S. 483.

      Erwin v. Torrey, 8 M. R. 90, is the case of a conflict of privilege between a vendor and a factor who had made advances. Judge Martin expressly puts his decision on the ground that the claimants “had, as factors, a lien on the cotton for their advances.” The cotton was consigned to them for sale through their correspondents abroad, ns shown by the statement of facts. In the preséntense no lien whatever is shown to exist in favor of Warneken and Kirehhoff. The case quoted by Judge Strawbridge is therefore not applicable as authority to the point now at issue.

      Willard s. Parker, 7 N. S. 483, was the case of are-sale by the vendee to a third person; it is quoted by the court in the opinion rendered in Robinson s. Ganahl, but its application is not readily perceived either in this last mentioned case or in that now before the court. Wo could not think of maintaining the legal heresy, that the vendor’s privilege continued to attach on the moveable after it had been sold and delivered to a third person.

      Laughlin s. Ganahl, 11 R. R. 183, was identical in principle with Erwin v. Torrey. It was the case of cotton shipped for sale, and advances made by the consignee on the faith of the shipment. The cotton had passed into third hands by a valid and legal transfer in regular course of business, and therefore binding on third persons.

      Fetter v. Field, 1st Ann. 83, we consider to be directly in point in favor of our pretensions in this case. In this case, Corning ép Co. had possession of the merchandise under bills of lading; the possession had passed out of Field the purchaser. Yet the court gave judgment for the vendor’s privilege against Corning 8f Co., on the ground that under the circumstances they had not acquired any lien or privilege on the goods, that the transaction was not according to the usual course of trade, but was partly a security for a pre-existing debt. The court uses very guarded language, to which we in vain called the attention of the judge below. It says, “ our enquiry is confined to the fact of possession, and the change of possession according to the usual course of business.” It goes on to declare of art. 3194, that it appears “ to contemplate the conflicting claims of other creditors as opposed to the rights of the vendor, and not of those who have their claims as a want of possession in the vendee.” Finally, “that where any rights are acquired in relation to the. change of possession, it is our duty to give effect to them whenever the usages of commerce are observed, and the transaction is in other respects regular and unimpeached.” If this language has any meaning, its plain and obvious import when applied to our case is, that the article 3194 does not give the right to Warneken and Kirehhoff to interfere with our privilege, because, as they have no privilege on the tobacco, they are not parties presenting “ the conflicting claims of a creditor butpersous who base their claims on a want of possession in the vendee;” and because “ their transaction is not regular and unimpeached,” being made in disregard of the provisions of our law on the subject of pledge.

      Leverichv. Richards, 1st Ann. 357, bears adose analogy to this casein many of its features. In the statement of facts in that case the court say: “ Richards was a cotton broker, known generally and doing business as such, and having no credit except that which he derived from doing the business of other persons. Spence, up to the time of Richards’ absconding, had extensive dealings withhim, on his own account and on account of others; Richards sometimes trading in cotton in his own name.” Now this is the precise description given of Galbraith’ «.business in tobacco by the witnesses in the present case. The court then say that “ Spence did not purchase the cotton; he made an advance on it and took it in pledge.” The cotton had been regularly consigned to Spence, who had made advances on it; it had gone out. of the possession of Richards; but the latter was a broker, known to be such, and the court say “the whole affair originated and was carried through in the confidence which Spence thought proper to place in Richards, and if it is thought that such transactions are in the usual course of business, and can be supported by courts of justice, it is time that such an error should be dispelled.”
    ItAs true that the court in the last mentioned case considered Richards as a fraudulent purchaser, because he represented himself as a broker, although in reality purchasing for his own account; but in the case before the court, the fraud of the purchaser and irregularity of the transaction are still more glaring than in the other. Here the purchaser, although acting for himself, buys for cash, and immediately raises money on the goods without paying for them : an offence expressly by statute declared to be a fraud on the vendor. Act 1840, sec. 10. And the contract by which he raised the money, instead of being the regular and usual consignment for sale as in Spence’s case, is made in a form declared by positive provision of the code to be of no effect against third persons.
    We think that we have shown conclusively, under our Slate jurisprudence, that the claim of Warneken and Kirchhoff must yield to the vendor’s privilege, but beg leave to tax the patience of the court whilst we refer to authorities derived from the country on whose code our own is based.
    The Napoleon Code, art. 2102. gives a privilege on the price of moveables sold and not paid for, “s’ils sont encore en la possession du débil eur.” The same article gives a privilege to the pledgee, “ sur le gage dont le créancier est saisi.” These clauses correspond, almost in words: the first with our article 3194, and' the second with our article 3187. But our code, in excess of precaution, has provided in article 3188, that “fot'the exercise of this privilege it is necessary that all the requisites stated in the title of pledge should be fulfilled. The judge below, in defiance of this provision, has given effect to the pledge of Warneken and Kirchhoff in point of fact, although in words he says they are not entitled to it. In order to reach this strange result he says that Galbraith, had lost possession. We now affirm that this is not true in point of law ; that the principle of the civil law is that possession is not lost by the giving in pledge.
    Our code, art. 3389 et seq. defines possession and its different species, and recognises the distinction made by the civilians between natural and civil possession. It also speaks of the legal possession. Article 3396 recognises the possession of the owner as still existing, although the natural possession, i■ e. the corporeal detention (art. 3393) may be in third hands. It gives as examples the case of the tenant whose possession is that of the landlord, and the case of the depositary : “ and in general every proprietor may possess by the persons who hold th,e thing in his name.” The question then arises, whether the pledgee is in the class of precarious possessors, who possess on account and in the name of the owners.
    Merlin, Rep. verbo Précaire, says: “C’est ainsi que celui qui posséde ;\ titre de prét, d’usufruit, de nantissement, sont dits n’avoir qu’une possession précaire.” Our code, article 3522, No. 27, defines the word “ precarious” thus: “That possession is called precarious which one enjoys by leave of another, and during Iris pleasure. The title which excludes the ownership, such as a lease, is also called precarious.” Savigny, in his Treatise on Possession under the Roman law, examines at length the question whether the pledgee has the civil possession of the pawn, and determines that he has not; that it remains with the owner of the thing. Indeed the simple reflection that a pledgee cannot acquire by prescription under his possession, and that the possession of the pledgee counts in favor of the pledger for that purpose, would seem at once to establish this principle. Savigny, Traité de Possession, 65.
    So that, if all that is wanted to establish our rights is to show a possession in vendee, we are literally within the purview of article 3194. We feel sensible, however, that this is not the true point before the court, but that, in its own language, this is a conflict of privileges between creditors, and he whose title to a privilege is regular must prevail over the other. If Warneken and Kirchhoff have no privilege in the tobacco which belongs to the defendant, they have no right to contest our claim. If they have, then our privilege must yield to their’s.
    This is also the manner in which the question is treated by Troplong. In his Traité des Priviléges, he says, Nos. 184 bis. 185, that the privilege can only be exercised whilst the m'oveable is in possession of the vendee. So, if the purchaser had re-sold and delivered the article bought, by him, the privilege would be at an end. He then says, “How is it with regard to Pledge.” In a previous number (No. 49) he had explained that the vendor’s privilege continued, although the property had been delivered by the purchaser to a common carrier, because the purchasers civil possession still existed although he had lost the corporeal detention, or natural possession. He refers back to No. 102, where he had also established the same principle, and to article 169, bis., which he says might be construed as an opinion in favor of the vendor. He then goes on to show that where there is a pledge, the purchaser has parted wifh the possession towards one Who has an interest in, and right to, the possession, and that no sufficient posS6SS'on remains ¡n fhQ purchaser to entitle the vendor to claim the privilege. But he considers the case as a conflict between two privileges, and does not hint at the possibility of the strange doctrine asserted in the judgment of the court below, that the possession, when the vendor is asserting his privilege, is lost to the purchaser by a contract which in law is not a pledge. His reasoning in No. 169, bis., will be found very satisfactory; and we will close this brief by praying the attention of the court to the whole course of his reasoning in the Nos. 49, 101, 102, 16'9, bis., 184 bis., and 185. above quoted.

      L. Hunlon and E. A. Bradford, for intervenors,
    contended : That they come within the clear purview of article 3214 of the code. When they made advances upon the tobacco, it was put into their hands for sale in order to reimburse them. It was agreed between Galbraith and themselves, that the property should be sold for that purpose ; but, for the reason already stated, it was also agreed that the sale should be made by another party, who was to receive the commission for selling, but that the proceeds of the sale should be paid to them. It waB proved by Fisher, who was the person selected by Galbraith to effect the sale, that such an arrangement was not unusual nor irregular.
    On what principle, then, of commercial law, or of public policy, can it be held that the defendants should, on this account, forfeit their privilege on the property ? The object of the law in conceding a privilege to commission merchants for their advances, is to facilitate commercial transactions, by enabling the holders of property to obtain money upon it in advance of the sale, and thus wait a favorable market. The condition of the privilege is, that the advance shall be made upon property placed in the hands of the commission merchant to be sold. The only important question is, was the property held merely as collateral security for money, or was it to be sold for the re-payment of the advance ? If the property was to be sold, it cannot be material whether the sale was to be made by the defendants or by a third person selected for the purpose, either by Galbraith or themselves. May not a consignor lawfully stipulate with his consignee, that he shall be permitted to attend to the sale of his property himself, or to select the broker for that purpose ? Does such a stipulation necessarily involve a forfeiture of the privileges of the consignee ? Does he thereby lose his character as consignee?
    Had not the defendants in this instance a right, as commission merchants, to insist upon the sale of this property ? If Galbraith or his agent had neglected to sell it, would they not have been authorised to proceed to a sale of it themselves, at least to an extent sufficient to reimburse them ? Would there have been any disability on their part to sell, or any necessity for the “intervention of justice,” as in case of a pledge ? Certainly in such an event the defendants might legally have exercised all the rights of a commission merchant over the property. Their character as commission merchants was not lost or merged in that of mere money lenders. By the terms of the contract with Galbraith, they had conceded to him the privilege of selling the property himself or through his agent, but they had also stipulated that the property should be sold, and it would seem to follow that they were entitled to require a sale to be made in the ordinary course of business, or if their advances were not reimbursed to them, to sell it themselves.
    The course of proceeding in this case illustrates the position of the parties, and the nature of the control of Warnehen and Kirchhoff ov&rtiae properly. As the market here proved unfavorable, and no sale could be effected advantageously, the samples were delivered up to Warnehen and Kirchhoff, and the property was shipped by them to a foreign market. But it is insisted, that Warnehen and Kirchhoff are mere pledgees under a contract, not clothed with the legal formalities, and therefore conferring no privilege. It would be difficult, however, to show that the contract in this case was, in any legal sense, a contract of pledge. The tobacco was not placed in the hands of Warnehen and Kirchhoff merely as security for a debt. It was also a part of the contract that the property should be sold for the payment of that debt. Such astipulation is altogether at variance with the articles of our code in regard to a pledge. Yet such contracts are of daily occurrence among commercial men in nil countries. But, however frequent or familiar they may be, if excluded from the benefit of art. 3214, they are wholly unrecognised and unprotected by the code.
    This leads us to the important inquiry, whether the provision of the code in respect to pledges ought qver to be extended to commercial contracts. In the French Code it is expressly declared that they shall not be so extended. There is no similar provision in our code, but it is Well known that at the time our Civil Code was adopted, it was the intention of the Legislature to proceed to the enactment of a Commercial Code. That intention was never carried into effect; and in the absence of a Commercial Code, it has always been held that the general commercial law, the lex mercatoria of the commercial world is in force in this State. Kenner v. Wagner, 2 R. R. 120.
    It will not be denied that it is altogether repugnant to this system to incumber commercial transactions with the formalities of the contract of pledge, as required by the code. It is true that the system has not been fully recognised and uniformly upheld by the courts of this State. In sbipé instances it has been marred and impaired by the application of the provisions of the code to cases, to which it is believed they were never intended to apply, and where such application has produced nothing but mischief and confusion. In other instances, the inconvenience and evil consequences of such an infringement of the commercial law, as recognised by all other States, were so obvious and glaring that even the positive enactments of the code were made to yield to the “customs of merchants.” The result has been that our commercial system, if we may be said to have a commercial system, is deformed and incongruous. But in recent cases the courts have evidently sought to restore our jurisprudence to a conformity with the Commercial Code of the other States. The present case presents another opportunity to decide whether commercial contracts in this State shall be decided according to the Commercial Law, which has been so often held to be in force, or shall continue subject to the doubts and perplexities of conflicting systems of jurisprudence. Under the Commercial Law, it is admitted that this case would be free from difficulty; and even the counsel for the plaintiffs concurred with the judge of the court below, in regretting that it could not be decided by the Commercial Law.
    If, however, this case must be considered solely under the provisions of the code in reference to pledges, still it is believed that the defendants have a sufficient possession of the property to protect them against the claim of the plaintiffs. It is proved that Galbraith transferred the tobacco into their possession on the 7th June, 1849, and that, by the agreement of the parties, it was to remain in their possession till sold to reimburse their advance upon it.
    It is admitted by the counsel for the plaintiffs that even an informal pledge is binding upon the parties to it. It gives the pledgee no privilege, as against third persons, but it gives him the possession of the property, and is conch},, sive as to the right of possession between the parties. This possession of the pledgee is adverse to the pledger, and therefore displaces and defeats the privilege of the vendor. The law has carefully limited the duration of the vendor’s privilege, to the continuance of the possession of the vendee. The policy of this restriction is obvious.
    Under this aspect of the,case, the question is not one of privilege on the part of Warneken and Kirchoff, but one of possession. The privilege of the vendor is conditional upon the possession of the vendee. If, therefore, .the vendee of the plaintiffs had lost his possession, they have lost their privilege. If he had parted with his possession upon certain conditions, their privilege, which cannot exist independently of his possession, is subject to the same conditions and limitations.
    Such is the doctrine of the French law, from which the provisions of our law upon this subject were taken. It is there held that when a creditor has possession of the property of his debtor, and a right, whether derived from the law or from the contract between the parties, to retain that possession as against his debtor, till his debt is paid; even though he may have no privilege upon the property, he can hold it against the privilege of a vendor. Troplong 1, Priviléges et Hypothéques. § 256, 258.
    In this respect it is believed that the position of a vendor, who sequesters property in virtue of a claim of privilege, is different from that of a creditor levying upon property under an attachment or execution. A sequestration confers no privilege, it issues only in virtue of a privilege already existing. But the vendor’s privilege cannot exist after the vendee has parted with his possession. It gives the vendor no right to follow the property, when the vendee could not follow it. Accordingly, although our reports contain frequent cases in which an attaching or seizing creditor has prevailed against a creditor who held the property of his debtor, merely as collateral security, yet no case has been cited, in which a vendor has maintained his privilege under such circumstances.

      It has been expressly held, however, in the case of Laughlin v. Ganahl, II '■h* tbe privilege accorded to the vendor subsists only so long as the property sold remains in the possession of the purchaser; that the purchaser, in that instance, had lost the control and possession of it; that he could not have demanded a surrender of it without reimbursing the sums received, and all incidental charges; and therefore the court refused to enforce the vendor’s privilege upon it.
    In the very recent case of Fetter v. Field, 1st Ann. 80, the court say in reference to the claim of a vendor: “It will be observed that our inquiry is confined to the fact of possession, and the change of possession, according to the usual course of business. This is not the case of an attaching creditor, but of a vendor who sues to enforce his privilege, and a party relying upon his rights growing out of the fact of the purchaser’s having parted with his possession.” “This article (3194) provides for the exercise of the privilege only in the case of the property sold being in the possession of the purchaser, and appears to contemplate the conflicting claims of oilier creditors as opposed to the rights of the vendor, and not those who base their claims on a want of possession in the vendee, or an adverse possession. Under a state of facts like this, where any rights are acquired in relation to the change of possession, it is our duty to give effect to them wherever the usages of commerce are observed, and the transaction is in other respects regular and unimpeached.”
    It was urged, however, by the counsel of the plaintiffs, in the conclusion of his brief, that in the case before the court there was no change of possession •within the purview of the article No. 3194; that the purchaser’s civil possession still existed, although he had lost the corporeal detention, or natural possession.” If this argument proved anything it, would prove too much, for it would show that the vendor’s privilege subsisted, even in case of a formal and valid pledge. It is admitted, however, that “where there is a pledge, the purchaser has parted with the possession towards one who has an interest in, and a right to, the possession, and that no suffieient possession remains in the purchaser to entitle the vendor to claim the privilege.” Troplong, Traité des Priviléges. § '165.
    But it is said that Troplong “considers the case as a conflict between the two privilege.s.” That author expressly declares, on the contrary, that the right of possession, unsupported by any legal privilege, “ le droit de retention, privilége proprement dit,” is sufficient to overcome the vendor’s privilege. Nos. 256,257', 258.
    He appears to base his opinion upon the “fact of possession, and the change of possession, according to the usual course of business.”
   The judgment of the court was pronounced by

Slidell, J.

On the 5th June, 1849, the plaintiffs sold to Galbraith twenty-seven hogsheads of tobacco for $1803 60 cash, and delivered to him the warehouse certificates. The nature and effect of such instruments are declared by the act of 1846, p. 127, sec. 14: “This certificate shall be transferable by endorsement or otherwise, which shall be evidence of its delivery. When the legal holder of the certificate shall call for the delivery of the tobacco, it shall be the duty of the inspectors to have the hogsheads promptly delivered.” Two days after the sale Galbraith transferred the certificates to Warneken and Kirchhoff, merchants in New Orleans, and obtained from them cash advances. He neglected to pay his vendors for the tobacco, .although repeatedly called upon, with the exception of $200 paid on the 19th June, 1849 ; and after waiting till the 29th June, the plaintiffs sequestered the tobacco at the warehouse. Subsequently, on the 18th July, 1849, they caused the certificates to be sequestered in the hands of Warneken and Kirchhoff, and cited them to set up any claim to which they were entitled against the tobacco. Warneken and Kirchhoff, appeared and alleged that Galbraith owed them for their advances as commission merchants; that when they made the advances upon the credit of the tobacco he put it in their hands to be sold; that they had a privilege for their advances, and that the plaintiffs had lost their privilege as vendors.

The argument on the part of the plaintiffs maintains that Warneken and Kirchhoff have no privilege as commission merchants on the tobacco, because it was not placed in their hands for sale by them; and that they have no privilege as vendors, because no formal act of pledge, as required by our code, was made; that the possession has not, in legal contemplation, so passed out of their vendee as to destroy their privilege. Wameken and Kirchhoff maintain the opposite propositions, contending that they have a privilege under the art. 3214, and that the privilege is gone by the change of possession.

The facts proved at the trial are, in substance, as follows: when Wameken and Kirchhoff made the advances, the tobacco was put into their 'hands by the transfer of the certificates; and it was agreed that the tobacco should be sold, and the proceeds applied to the payment of the advances; but it was also agreed that Galbraith might attend himself to the sale, or employ some one else to effect it.

The question is not before us, whether the creditors of Galbraith could have reached this properly by fieri facias or attachment, so as to defeat the alleged preference of Warneken and Kirchhoff. The plaintiffs have attackccfthe property by sequestration in virtue of an alleged privilege as vendors. If, under the facts of the case, the vendors’ privilege still existed as against, the defendants Warneken and Kirchhoff, at the date of the sequestration, the action must be maintained i otherwise the judgment of the district court must be affirmed.

The privilege of the vendor rests upon the following article of our code: “He who has sold to another any moveable property, which is not paid for, has a preference on the price of this property over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in the possession of the purchaser.” Art. 3194.

In the present case the possession has passed from the purchaser into the hands of parties, who in good Faith have advanced their money upon the credit of the goods, of which Galbraith was the ostensible owner. Whether the transaction is covered or not by the article 3214, so as to clothe the debt to Warneken and Kirchhoff with a privilege, it is at least clear that Galbraith could not take the property out of their hands without first paying them. He has clearly lost the present right of possession. Do the plaintiffs, as vendors, stand in a better position? We think'not. Under a literal application of the code, it cannot be said that the possession remains in the purchaser; and the well settled principle that privileges are stricti juris, forbids us to give an enlarged and liberal interpretation to its language, especially where the equity in favor of the adverse party is manifestly stronger than the plaintiffs can assert. For by their incautious delivery of possession they enabled Galbraith to appear as the unqualified owner of the goods, and so get credit in the market. It is more just that the consequences of their misplaced confidence should fall upon themselves than upon an innocent third person, whom they enabled Galbraith to deceive.

Judgment affirmed, with costs.


text:
    Austin P. Henning v. Steamer St. Helena and Owners.
    A privilege follows the object to which it is attached, and the creditor may lay hold of that object by the proper writ of seizure, in whatever part of the State it may be found, whether at the owner’s domicil or not.
    'In proceedings in rem personal service upon the owner of the thing seized dispenses with the usual publications.
    The owners and masters of steamboats when sued in this State may plead their domicil in another parish than the one in which the suit is instituted.

      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.
    1-L Elmore and King, for the plaintiff, and C. de Choiseul, for intervenors,
    contended: The plaintiff brought suit in the Fourth District Court of New Orleans against The steamer St. Helena, Captain and Owners, for his services as pilot of the said vessel. He also caused the vessel to be provisionally seized. Ross, one of the owners and the captain, and Drew, who was the other part owner, appeared and excepted to the jurisdiction of the court, upon the ground of their domicils being one of them in the parish of Carroll, and the other in the parish of Franklin, in this State.
    The judge of the lower court upon the trial of this exception dismissed the suit, so far as it bore personally upon the defendants, but maintained the suit so far as it related to the liability of the vessel.
    The plaintiff and some of the intervenors took judgment by default against the vessel, which they subsequently confirmed. From this judgment of confirmation the defendants Ross and Drew have appealed.
    The plaintiff has joined in the appeal, and prays for a confirmation of the judgment of the lower court against the vessel, and for a reversal of the judgment sustaining the exceptions to the jurisdiction of the court, as to the personal liability of the defendants.
    1st. As to the exceptions of the defendants to the jurisdiction of the court: the evidence proved the domicil of Dreiv, when not engaged in boating, to have been in the parish of Carroll. The domicil of the captain, with the same reservation, was in the parish of Franklin. The vessel was enrolled in New Orleans, and traded to this port, navigating the Mississippi and Ouachita rivers.
    On the part of the defendants, it is contended that the suit must be dismissed in toto. That the vessel cannot be proceeded against, unless the owners are sued at their domicils.
    If this position be correct the remedy against the vessel is entirely destroyed. She never touched the parish of Franklin in any of her voyages. It was impossible to seize her in that parish, and writs of provisional seizure cannot be sent from one parish to another.
    If the doctrine contended for be the law, owners and masters of vessels-can easily avoid the liability of their vessels by domiciliating themselves in parishes where their vessels never go. The doctrine leads to consequences ruinous to the commercial interests of the country.
    On the other hand, we contend, the law clearly makes the vessel liable for the wages of the seamen. C. C. 3204, 2726. C. P. 289, 290. Burke v. Clark, 11 L. R. 209. Abbott, on Shipping, 474.
    In the absence of the owners or other representatives, the vessel may be proceeded against in rent. C. P. 290, 291.
    The presence of the owner certainly does not take away the right to make the vessel liable. This right may be exercised wherever the vessel is found, but more especially at her home port, or place of enrollment, which is properly speaking the domicil of the vessel. Any other construction of the law would defeat the undeniable right of privileged creditors, to have recourse to the vessel for the payment of tlioir claims. 'When there is a right, it is the duty of the courts to afford a remedy. C. C. 21. C. P. 14, 15.
    We further contend that the action against the owners and captain in personam should be maintained. Owners of steamboats running them on their own account are commercial partners. Partners in a commercial firm are bound to answer, when sued at their place of business, wherever they may reside. C. P. 198, 165. Hobson v. Whittemore, 13 L. R. 422. Marsh v. Marsh et al., 9 R. R. 45. Bringerv. Griffin, 2d Ann. 154. Service of citation at the domicil of one of the partners is not good, it should be at the store. Abatv. Holmes, 8 N. S. 147. Partners who run steamboats, if they have any place of business at all, certainly the home port may be so considered. Their place of business in fact is wherever the boat does business, and they may be properly sued at every such place. C. P. 165.
    The judgment by default was properly confirmed in the lower court, and should be sustained.

      Wolfe and Singleton, for defendants,
    contended: The plaintiff instituted the above suit to recover the sum of $371 50, alleged to be due him for services rendered on said boat.

      T. N. Drew, the sole owner of said boat, and J. R. Ross, the captain, filed each a plea to the jurisdiction of the court, on the ground that the former resided in the parish of Carroll, and the latter in the parish of Franklin, in this State. The judge of the lower court sustained both exceptions, and dismissed the suit as to the defendants, but maintained his jurisdiction over the boat seized.
    The judge did not err in sustaining the pleas to the jurisdiction of the court. The evidence fully sustained him. It is full, clear and uncontradicted. Richard v. Kimball, 5 R. R. 142.
    We will now consider the legality of the proceedings after the suit was dismissed as to both the defendants. Had the judge of the lower court any light, under the pleadings, to give judgment against the steamer as in an action in rem, after he had dismissed the suit as to the defendants? In order to understand the matter fully, we will here insert the petition and affidavit filed by plaintiff when he instituted this suit: To the Honoxuble the Judge of the Fourtli District Court of New Ox-leans: The petition of Austin P. Henning, who resides in New Orleans, v. The steamer Si. Helena, and J. R. Ross and Thomas N. Drew, owners of the said steamei-, respectfully represent: That the said vessel and owners are justly indebted to him for the sum of three hundred and seventy-one dollars and fifty cents, for his services as pilot on said vessel, as more fully appeai-s from the annexed due bill given him by the clerk of the said boat. That the said sum is due and unpaid, although amicably demanded. Wherefore he prays that the annexed affidavit being considered that the said vessel be provisionally seized, and that after due proceedingshad, that she and her said ownei's be condemned in solido to pay the aforesaid sum and costs, and that he be allowed a pi'ivilege upon said vessel, and for all other relief, &c., &e.
    (Signed) Euimoiu?, and Kins.
    The affidavit is as follows: Austin P. Henning, being duly sworn, states that the steamer St. Helena and owners are justly indebted to him for the sum of three hundred and seventy-one dollars and fifty cents, for his wages as pilot on said steamer. The said vessel is on the eve of leaving the jurisdiction of the court, and that he is apprehensive of loosing his claim, should said vessel depart previous to his demand being satisfied.
    On an examination of the petition, your honoi's will pei'ceive that it is an action in personam, claiming alien on the steamer St. Helena. The petition and affidavit possess none of the requisites of an action in rem. The petition names the pei'sons sued, and asks that they be dealt with according to law.
    A party cannot maintain an action in rem unless he has a lien or privilege on a thing, either lost or abandoned by the owner, or whose owner is either absent or unknown. C. P. 290. Was the steamer St. Helena either lost or abandoned by the ownei's thereof? Certainly not. The plaintiff states in his affidavit that he fears she will be moved beyond the jurisdiction of the court, and therefore asks that she be provisionally seized. Was the owner either absent or unknown? There is nothing in the proceedings to bring us to such a conclusion. The owner and captain both appeared and claimed the vessel. They were cited, as is stated by the plaintiff’s counsel in their motion for judgment by default.
    Had the circumstances of the case really justified the plaintiff in proceeding in rem, the judgment of the lower court is irregular and illegal, and will not be sustained by this court. Among other things, the law requires the creditor proceeding in rem to state under oath, that the thing on which he has a privilege has been either lost or abandoned by the owner, of whoso name he is ignorant, or that it belongs to some person unknown to him or absent. The affidavit contains no such statement, but it does state the name of the owner of the boat, that the boat is not abandoned, and that he feax-s it will be removed from the jurisdiction of the court.
    The law also requires, that the court before which an action in rem has been instituted, to order the sheriff, who has seized the thing proceeded against, to give public notice to all pex-sons intei'ested to appear within fifteen days, to answer to the petition as presented. No such order was ever made by the judge, and no suclx public notice was ever made by the sheriff. C. P. 292, 293.
    The law further provides, that at the expiration of the fifteen days, if no one appear to answer the petition, the plaintiff may X'equii'e that an advocate be appointed to defend the absent owner, &c. In the present suit no advocate was appointed until after the appeal was taken by the defendants, when Wm. Hagan W'as appointed, and for what purpose we are unable to divine. Ve represented the defendants throughout the suit, who were present, and claimed the property seized.

      We think the. judge did not err in admitting the enrollment. It was made under oath, and at a time not suspicious, and corroborated by the testimony of all the witnesses examined.
    For the convenience of the court we will here insert our assignment of errors apparent on the record. 1st. That the exceptions to the jurisdiction of the court being sustained, the court could no longer proceed legally in the cause, and should have taken no further proceedings therein. 2d That the judgment by default taken against the steamer St. Helena, after the suit was dismissed as to the defendants, was irregular and illegal. The action was not in rem, and no default could be legally taken against the boat The writ of provisional seizure issued in the suit was accessary to the action, and could not control it, or give jurisdiction to the court over the thing seized, when the. courtbad no jurisdiction over the persons of the defendants, who were in possession of it. Hollander v. Nicholas, 3 R. R. 7. 3d. The judge erred in giving judgment against the boat in rem, because there was no such action brought, and the court has no power to change an action in personam to an action in rem. 4th Piad the action been really an action in rem, the judgment rendered therein is clearly erroneous, as appears from matters apparent on the record, in the following points : 1st The plaintiff does not state under oath, at the foot of his petition or elsewhere, that the boat was either lost or abandoned by the owner, of whose name he is ignorant, or that the thing (the boat) belonged to some one unknown or absent.. C. P. 291. 2d. The public notice required to be given in case of seizure in rem was never given. C. P. 292. 3d No advocnte was appointed to represent the boat in an action in rem; we represented the owners and captain, who were present and in possession of the boat, and appeared in court and claimed the same. C. P. 294.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff obtained, upon affidavit, an order of provisional seizure of the steamer St. Helena. He also asked a judgment with privilege against the vessel, and a personal judgment against her owner and captain. His claim was for services as pilot of the vessel. The suit was brought in the Fourth District Court of New Orleans. A number of creditors, for wages, supplies, &c., intervened. They obtained judgments against the steamer with privilege for their respective claims. But the district judge, upon exceptions of domicil, dismissed the proceedings in personam, upon the ground that the captain and owner both resided out of New Orleans, the former in Franklin, and the latter in Carroll parish.

The case is presented here by the appellants upon various assignments of error. The plaintiff in an answer to the appeal prays for a personal judgment against the captain and owner.

Our attention will be first directed to the question whether the exception of domicil was properly maintained.

The Code of Practice declares it to be a general rule, in civil matters, that one must be sued before the judge having jurisdiction over the place where he has his domicil or residence. Ait. 162. It then proceeds to enumerate, in articles 163, 164, certain exceptions to this rule. The present case is not covered by the exceptions. There is much plausibility in the argument that the defendants, so far as their personal liability is concerned, are entitled to the benefit of the general rule; and the tendency of our jurisprudence has been to protect, with strictness, the right of the citizen in this particular. See Ricard v. Kimball, 5 R. R. 142.

But in our opinion the question whether the plaintiff shall be permitted to enforce his privilege in any other foruna than that of the owner’s domicil, stands upon a very different footing. The law has expressly given persons employed in navigating vessels a privilege upon them. C. C. 3204. The Code of Practice has expressly provided a form of remedy for its enforcement. C. P. 285, 289. But if the remedy can only be exercised at the domicil of the owner, the strange consequence would result, that in many cases the remedy would be impracticable, and the right useless. A man might employ his vessel in one part of the State, and live in another, which the vessel never visited, and where perhaps it would be physically impossible that she should ever come. We know of no express provision of our Code of Practice which would compel us to adopt a conclusion so unjust and unreasonable; and we therefore feel bound to recognise such a practice as will carry out the intention of the lawgiver when he conferred the privilege, and make it really useful to the meritorious class of creditors to whom it was given. The only way to do this is to consider the privilege as following the object upon which it is by law attached, and permit the creditor to lay hold of that object for the satisfaction of his claim in whatever part of the State he finds it. See Merlin Repert. verbo Action, sec. 3.

W e are aware that this view conflicts with the opinion in Hollander v. Nicholas, 3 R. R. 7; but we think the ground on which the matter is there put too narrow and technical. That was the case of an overseer, who was employed upon a plantation in the parish of St. Mary by the defendant, a resident of the parish of St. James. It was under the law a part of the agreement between the overseer and his employer that his wages should be guarantied by the crop. The defendant, without paying the overseer, was about to remove tho crop out of the parish of St. Mary. As a matter of course it was to go, not to the parish of St. James, but to a market, New Orleans, or the North. The seizure was quashed, and the creditor was ordered to go to St. James. “The privilege,” said Garland, J., “accorded bylaw to overseers to secure the payment of their wages is like all others, an accessory to the principal obligation, and must follow it. The doctrine contended for would make the principal subservient to the accessory, 'lhe exception is not made by law, and cannot be allowed by us. C. C. art. 3153, 3184. C. P. 162, 284.” Undoubtedly, the privilege is an accessory to the principal obligation; but it does not follow that the remedy in rem and the remedy in personam, are inseparable. The mortgage creditor may seize and sell the land without resorting to the personal liability. So the pledgee may proceed to have the thing pledged judicially sold, without cumulating a prayer for personal judgment. And, in the absence of any prohibition in the Code of Practice, we see nothing unreasonable in disconnecting the enforcement of the privilege from the personal pursuit, when it is impossible to pursue both together. Where there is a right there should be a remedy; it would be a mockery to acknowledge the right, and yet send a creditor to another forum, where the enforcement of the right would be impracticable.

The article 290 does not cover the present case. It is provided for in article 289.-

Even if newspaper publications are necessary in a case of this kind — upon which point we express no opinion — the necessity, so far as the defendants are concerned, was obviated by personal notice of the proceedings.

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


text:
    Gardner, Sager & Co. v. O’Connell and Gould.
    The affidavit stands as prima facie evidence to sustain an arrest, but this may be overthrown by proper evidence.

      Where the intentions of a party are sought to be established, as upon a question of residence, he may show what were his intentions by introducing in evidence his own acts and declations made at a time not suspicious.
    A debtor under arrest has a right to have the propriety of the arrest speedily determined, and upon a rule.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Roselius and B. B. Lee, for plaintiff.

      Hunton and Bradford, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

Gould was arrested on the 4th February, 1850. He had been twice arrested in previous suits by the same creditors, and the arrests had been set aside. Upon a rule to show cause why the order should not be quashed, the district judge, as on the previous occasions, decided in favor of the defendant; and the plaintiffs have appealed.

The evidence at the trial of the rule was, to the following effect: Gould had been a merchant in Liverpool, in Great Britain, in partnership with O’Connell. In 1849, the partnership was dissolved, having been unsuccessful in its affairs. He arrived here some time in December last, having previously written from Liverpool to a friend here, announcing his intention of coming to New Orleans in the hope of finding employment. Soon after his arrival, he presented a letter of introduction to the British consul, and stated that his object was to obtain employment in some mercantile house, and to remain in New Orleans. Similar statements were made to other acquaintances resident here, accompanied with the expression of his satisfaction with the place, and desire to remain here permanently. He also made enquiries as to the proper steps to be taken to obtain naturalisation. He appears to have been engaged in looking for employment down to the time of his arrest. The plaintiffs, according to the showing of their affidavit, are creditors of O’ Connell and Gould, and are domiciled in New Orleans. No evidence was adduced on their part, they resting their case on the affidavit made by one of the plaintiffs, which is in the usual form, declaring that “ he verily believes that defendant, Gould, is about to depart from the State permanently, without leaving in it sufficient property to satisfy the demand,” &c.

The 212th article of the Code of Practice, as amended by the statute of 28th March, 1840, declares that any creditor whose debtor is about to leave the State permanently, without leaving in it sufficient property to satisfy the judgment which he expects to obtain in the suit he intends to bring against him, may have the person of such debtor arrested, and confined, &c. To obtain the arrest, he must swear that he verily believes that the defendant is about to depart from the State permanently, &c. Although it is sufficient to obtain the order of arrest, that the creditor should swear that he verily believes that his debtor is about to depart from the State permanently, yet, it is obvious, that the maintenance of the arrest does not depend upon the mere belief of the creditor at the time of taking the oath, however sincere. It depends upon the question, whether the defendant was about to depart from the State permanently; for that is the case in which the right of arrest is accorded. The view, therefore, of the district judge was substantially correct. The creditor is permitted to obtain the arrest on swearing that he verily believes that the defendant is about so to depart, and the affidavit stands as prima facie evidence to sustain the arrest; but upon a rule to show cause, the enquiry is, was the debtor, at the date of the order, about- to leave the State permanently ? If the debtor can overthrow the prima facie showing by proper evidence, then no matter how sincere was the creditor’s belief, the order should be quashed, and the defendant restored to his liberty.

As to the right to take a rule to show cause, there is no question. It is every day’s practice, and nothing can be more obvious than the justice of speedily determining whether the creditor’s belief is consistent with the true state of the case.

Now, the question whether Gould was about to depart from the State of Louisiana permanently, is a question of intention. He was at the time in the State. Did he intend to leave it ? The district judge could not look into the breast of the debtor; he could only ascertain whether such an intention existed by the aid of outward facts and circumstances, Was it admissible for Gould to show his own acts and declarations anterior to the arrest, under circumstances not suspicious, and while he was ignorant that an arrest was contemplated? This is, in reality, the only question in this case which admits of serious discussion ; and it is one which we should dispose of without discussion, were it not for the deference we entertain for the opinions of the learned judge who delivered the decision in Robitailles case, 4 L. R. 226. All considerations of evidence must be pursued with reference to the subject matter to which it is to be applied ; and to weigh the competency or sufficiency of evidence in any given case, it is requisite to discern, with accuracy, the nature of the proposition which it is offered to establish. Evans’s Pothier, Appendix No. 16, sec. 11, p. 216.

If, in order to ascertain the intentions of a party, we are not permitted to look at his conduct, to what other source of information can we resort with safety ? Are we to say that extraneous facts and circumstances are to give us the sole key to his thoughts and intentions ? In some cases they might assist us. In others they would be utterly useless in the search for truth. Now, it is quite true, as a general rule, that a man is not permitted to make evidence for himself. But the principle of this rule is not violated in that large class of exceptions where the act or declaration of the party was not done or made for the purpose of being afterwards used as evidence, and where better or higher evidence, pertinent to the subject of enquiry, is not to be attained in the ordinary course of the affairs of .men. Where, for example, a court is investigating .a question of domicil, what is more common than to hear testimony as to the circumstances surrounding an individual when he came to a certain place, what he said respecting his intentions to reside, and what he did when he came there and afterwards ?

In Thorndike v. City of Boston, 1 Metcalf, 242, the action involved the question, whether the plaintiff, who had left the country with his family, was liable afterwards to be taxed as an inhabitant of the place of his former residence. A letter from him to his agent at that place, expressing his intention to reside abroad permanently was held admissible in evidence, it being written before he knew that a tax had been assessed upon him, though written after the assessment. It was written, says Chief Justice Shaw, before any controversy, and before he had any interest to make evidence for himself on the subject. So in 3 Metcalf, 201, Kilburn, Tax Collector for the Town of Groton v. Bennett, to recover a tax assessed upon defendant for the year 1839, the principal question submitted to the appellate court was, whether the evidence offered by the defendant at the trial was rightly rejected. To establish the fact that the defendant was not an inhabitant of Groton on the 1st May, 1839, he proved that on the 27th April of that year, he went to Tyngsborough, to the house of his brother, where he remained some days after the 1st May ; and for the purpose of showing with what intent he removed to Tyngsborough, he offered to prove that about three weelcs before his removal he told a person, in whose house he resided, that he should leave Groton before the 1st of May, and move with his family to Tyngsborough, to reside with his brother, and make his house a home until he went to Illinois. The court below held that, this being the mere declaration of the defendant, was not competent evidence in his favor, and it was rejected. Shaw, Chief Justice, observed, the general rule undoubtedly is, that a party cannot give in evidence his own declarations in his favour, unless they accompany some act, and are a part of the res gesta. But, it appears to us, that the declarations offered to be proved are within the qualification of the rule. They were made in the ordinary course of business, and in relation to the defendant’s removal; and they were made to the owner of the house in which he was at the time residing. This giving notice of his intended removal, is to be considered an act, which he might prove in any case in which it became material; and if so, all that he said explanatory of his intention in relation to his removal, seems to us to be admissible in evidence.

When important questions of property have, turned upon the questions of the intention existing in the mind of a party, for example, whether a married woman’s property was paraphernal, testimony has been repeatedly received, to show what the party said and did at a former time, and third persons have been subsequently concluded by such acts and declarations. See Routh’s case, 9th R. R. 226. Hayden v. Nutt, 4th Ann., Martin v. Ford.

In Robetaille’s case, the court made no objection to evidence of what he did when he came to the State. His acts were considered in investigating the question of his intentions. But why exclude his declarations ? Both emanated from him. His declaration to a friend in Natchez before he came to New Orleans, that he intended to remove to New Orleans, and do business there, was, in the language of Mr. Greenleaf, “ a verbal act,” indicating a present purpose and intention, and the motive of his conduct. So here, the declaration of Gould that he intended to make his future home in New Orleans is as much an act by him as his crossing the ocean to come to New Orleans, his taking lodgings hero, his presenting his letters of recommendation, his applying to various mercantile houses for employment. Some acts, using the term in its stricter sense, may be more weighty and convincing than declarations ; but to say that the latter are unavailing, when made at a time not suspicious, and harmonising with other contemporaneous conduct, seems to us inconsistent with the authorities in the books and with sound principles of the law of evidence. See Greenleaf on Evidence, § 108.

What then was the intention of Gould at the time when his creditor arrested him ? The reasonable answer is, his purpose was to remain in New Orleans if he could get a livelihood here. For that purpose he left his native country; and in that purpose he still continued after his arrival, and down to the time of his arrest, when he was interrupted in his pursuit of it, by incarceration. The district judge very pithily said, “I ask what brought this man from England to the very domicil of his creditor ? The answer I am called on to make is, he came here to run away from him. The state of the case has made a different impression upon my mind. I see his ability to do it, but I cannot see the intention.”

It was said at bar, the defendant came here to seek employment, he has not succeeded yet, and if he does not succeed, he must go elsewhere to earn his bread. This may be. But the chance that, upon the happening of a contin- Gardner gency yet unascertained, the defendant may leave the State permanently, does 0’jConnei.l. not authorise us to infer the existence of a present purpose to do so.

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