author: Howell, J. Taliaferro, J.,

text:
    No. 2301.
    T. Micou et al. v. J. P. & J. Benjamin and L. Madison Day.

    Under the act of Congress, July 17,1862, known as the confiscation act, and the joint resolution of the same date, explanatory of it, only the life estate of the person for whose offense the land has been seized, is subject to condemnation and sale.
    When such person has, previously to his offense, mortgaged his land to a bona fide mort* gagee, the mortgage is not divested. His estate and property in the land being but the land subject to the mortgage, any sale made in pursuance of the act passes the life estate subject to the charge.
    Appeal from the Second Judicial District Court, parish of Jefferson. Pardee, J.

      Campbell, Spofford & Campbell, for plaintiffs and appellees. L. Madison Pay, defendant and appellee, in propria persona.

       Carried by writ of error to the Supreme Court of, the United States and affirmed. See 18 Wallace’s Reports, page 156. — Reporter

   Howell, J.

This is-a hypothecary action, instituted to subject certain property to a mortgage granted by J. P. & J. Benjamain to plaintiffs’ ancestor in the year 1858.

The only defense to the suit is made by the third possessor, who claims that he is a bona fide purchaser for value, without notice, from the United States under a decree of condemnation and sale, made by the United States District Court in New Orleans, in the case of the United States v. Two squares of Ground, the property of J. P. Benjamin, under the provisions of the confiscation act of July 17, 1862, (12 Statutes at Large, page 589)„and which decree of condemnation and sale is relied on as a complete bar to plaintiffs’ action.

Passing over the questions relating to the jurisdiction of the United States District Court, arising from alleged irregularities in the proceedings and" the effect of the decree upon the rights of the alleged joint owner, and conceding the constitutionality of the act of July 17, 1862, to be authoritatively determined by the Supreme Court of the United States, we will direct our attention to the scope and effect of the said decree and sale under the terms and provisions of the said act, and on the hypothesis that J. P. Benjamin was the sole owner of the property at the date of the sale.

It is strenuously contended by the third possessor, who is appellant from a judgment in favor of the plaintiffs, that the sale by the marshal vested in him, as purchaser, a complete title in fee simple to the whole of the land sold, free of all incumbrance, because in a proceeding m rem it was condemned as enemy’s property and not as the property of an offender against the municipal laws of the United States, and because under a rule of the United States District Court, adopted by authority of the confiscation act, all mortgages and incumbrances were canceled and erased by the marshal, and in support of his position he invokes many authorities relating to the validity and effect of proceedings in rem in admiralty and revenue cases, and the recent decisions in 11 Wallace U. S. R. upon the said confiscation act.

We readily grant the correctness and force of the authorities quoted in regard to proceedings in rem in admiralty and revenue cases, and might admit their-application, as claimed, in this class of cases, did we not think the interpretation given by the United States Supreme Court, in the cases of McVeigh v. United States, 11 Wallace 266, and Bigelow v. Forrest, 9 Wallace 339, to the said act of Congress and the joint resolution (No. 63, 12 Statutes at Large 627), passed in connection therewith, modifies and limits such application to a material extent. In the former case, similar to the one against Benjamin’s property, the court held that it was so unlike a proceeding purely in rem, where no claimant is named and none appears until after the final decree or judgment is entered and the case has terminated, that the party whose property is proceeded against is entitled to appear and to contest the charges upon which the forfeiture is claimed, and that his guilt and ownership are fundamental in the case. In the latter ease it was held: “ That the act and resolution are to be construed together, and they admit of no doubt that all which could, under the law, become the property of the United States, or could be sold by virtue of a decree of condemnation and order of sale, was a right to the property seized, terminating with the life of the person for whose act it had been seized,” and that the estate acquired by .the purchaser at the marshal’s sale expired at the date of the death of the said person. The point was plainly and fairly presented on behalf of Bigelow, “that the decree of confiscation in the district court of the United States is conclusive that the entire right, title, interest and estate of French Forrest •was condemned and ordered to be sold, and that as his interest was a fee simple, that entire fee simple was confiscated and sold.” But in reply the court says: “ Under the act of Congress the district court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest. Had it done so it would have transcended its jurisdiction. * * * The argument assumes what can not be admitted, that the decree of the district court established a . confiscation reaching beyond the life ot French Forrest, for whose offense the land was condemned and sold.”

Taking these decisions as authority binding on us in the interpretation and construction of the legislation of Congress on this particular subject, we must conclude that the purchaser in this instance acquired only a right to the property sold, which is to terminate with the life of.Benjamin, for whose act it was confiscated, and we think it follows as a legal consequence that the mortgage, granted by him prior to the passage of the confiscation act, was in no manner affected or impaired by the sale. The law itself makes no provision for the extinguishment of mortgages on real property. It makes no reference whatever to the subject of mortgages, and as it authorizes the sale of only a life interest in the real estate and not the property in fee simple, which is the subject of the mortgage, it seems clear that the mortgage still exists on the property unimpaired. “ The mortgage is a real right on the property bound for the discharge of the obligation,” (R. C. C. 3282), and is extinguished only in the modes prescribed by law or the consent of the parties. In some instances, specially provided by law, where mortgaged property is sold for specific purposes and under certain formalities, the mortgage attaches to the proceeds and the property passes to the purchaser free. But this result is expressly provided for as declared by special enactment, and only in regard to mortgages created after the law is enacted. Hence we are nob lightly to presume that a law is intended to work such a result, when such intention is not clearly expressed. But this principle does not apply in this case, for the statute does not so direct, and the property in full ownership was not sold under its provisions, but in imperfect ownership — the life interest of the mortgageor — his use, enjoyment and dominion thereof for life, without injury to the rights of those who had real rights to exercise thereon.. Nor can it be successfully asserted that the mortgage was extinguished by reason of the proceeding being one purely in rem, and thus conveying a title good against all the world, because, according to the doctrine in Bigelow v. Forrest, no such title was conferred. The title acquired by the purchaser is nob good against the heirs of Benjamin, and it can not be pretended that, had he died soon after the sale, his heirs would have taken the property free of the mortgage, which he had imposed on it. It was never contemplated that the confiscation of an enemy’s property should operate the extinguishment of his obligations and transmit Ms property to his heirs in a better condition than he himself could have done. No construction of the act of Congress which works such results can be accepted.

The estate acquired by the appellant may be assimilated to the usufruct under our system of laws, by which the property in usufruct passes to the usufructuary with all the burdens imposed by the owner. R. C. C. 557, 582, 583. If it be an estate for life, as shown to the common law, the mortgage created by the original owner still exists, and the tenant for life — the life of Benjamin — is in no better condition under the confiscation law than if Benjamin had voluntarily put Mm in the position in which the United States have put him. Under this system the rule is that the tenant for life shall keep down the interest due upon the mortgages and other incumbrances, though he is not bound to pay off the principal. Bisset on Estates for Life, 273; 4 Kent, § 74 to 75. Tnis implies of course the existence of the mortgages. Again, it is said: “ If the estate is sold to discharge incumbrances, the income of the surplus beyond what is necessary to discharge the incumbrances, is to go to the tenant for life during his life, and upon his death the capital is to be paid out to the remainder man, or reversioner.”. Bisset on Estates for life, 274.

Here the right of the mortgagee to sell the property held as a life •estate, in order to pay oil his mortgage, is clearly recognized.

It is, however, unnecessary for us to determine precisely the nature, character and conditions of the estate conveyed to the purchaser under this act of Congress. It is sufficient to know that a complete, absolute, indefeasible title was not conveyed, and that without such and without some express provision or direction in the law, or some necessary effect in the judicial proceedings for the removal of the real right resting on and inhering in the property itself, the mortgage, which was duly recorded, is not invalidated.

The authority granted in the act to the United States District Court to make such orders and establish such forms of decrees of sale, and direct such deeds and conveyances to be executed, where real estate shall be the subject of sale, as shall fitly and efficiently effect the purposes of the act, and vest in the purchaser good and valid titles, does not, under the limitation contained in the joint resolution, extend to the removal of incumbrances on the property, for the plain reason that it was not the purpose of the act, under said limitation, to sell that part of the estate, the fee simple, which was affected by the mortgage. And hence the act of the marshal in removing the mortgage was ineffectual.

But it is argued that the case of Bigelow v. Forrest is overruled by the later cases of Miller v. United States, 11 W. 268, and Tyler v. Defrees, ib. 331. In this we are not prepared to concur.

An examination of these several cases is necessary to ascertain what was decided in each, and it will, we think, be apparent that they do not conflict.

In the first case, Douglass Forrest, the defendant in error, was the sole heir of his father, French Forrest, whose property (real estate) had been confiscated, and he was claiming, in an action of ejectment, the property from Bigelow, the vendee of the purchaser at the marshal’s sale. The parties were such as; necessarily and appropriately, to raise the question as to the nature and quantity of the real estate conveyed by the confiscation sale, and to determine the purview of the act and joint resolution in this regard. In the discussion of the question, the court referred to the history of the joint resolution, and the conSuitutional difficulty, suggested by. the President, which it was intended to obviate, and held that its legal effect was to restrict the operation of the act to the sale of only a life interest in real estate seized under its provisions. The court deliberately declared that under the said “act of Congress the district court had no power to order a sale which should confer upon the purchaser rights outlasting the life of French Forrest. Had it done so it would have transcended its jurisdiction.” And the judgment restoring the property to the heir was affirmed by a unanimous court.

The case of Miller was a proceeding under the act of August 6, 1861, and the above mentioned act of seventeenth July, 1802, to confiscate personal property, and consequently the question in the Bigelow case, in regard to real estate, could not and did not arise. The questions raised and discussed related to the jurisdiction, sufficiency of proof, necessity of trial by jury and the constitutionality of the acts of Congress, under which the proceedings then before the court for the confiscation of Miller’s property were had, and they were all decided by a majority of the court in favor of the United States. The contest, apart from the mode of procedure, was in regard to the right to confiscate the property, and not to its restoration after confiscation — to the constitutional power of Congress to confiscate the property of offenders as a punishment for crime — it being contended that the purpose of the act of 1862 to punish offenses against the sovereignty of the United States, and that it is in conflict with the fifth and sixth amendments of the constitution, which require a finding by a grand jury and a speedy trial by a jury in the State and district wherein the crime shall have been committed. The court held that in this respect the act had two distinct purposes, to wit: To provide, first, as it did in the first four sections, for the punishment of treason, inciting or engaging in rebellion or insurrection, or giving aid and comfort thereto, which was an exercise of the sovereign, and not the ’belligerent rights of the government; and secondly, in the subsequent sections, which have in view a state of public war, for the seizure and sale of the property of public enemies, which was the exercise of the war power of Congress, to which there is no restriction in the constitution. It was declared that those engaged in the rebellion were enemies as well as offenders, and that without reference to their liability to punishment for crime, their property could be seized as enemies’ property, under the conceded right of the government to confiscate the property of all-public enemies. As to what this right is, the court say : “ It may be remarked that it has no reference whatever to the personal guilt of the owner of confiscated property, and the act of confiscation, is not a proceeding against him. The confiscation is not because of crime, but because of the relation of the property to the opposing belligerent, a relation in which it has been brought in consequence of its ownership. It is immaterial to it whether the owner be an alien or a frieud, or even a citizen or subject of the power that attempts to appropriate the property.” T.ie case of the Yenus, 8 Cranch 255, is quoted as establishing this doctrine.

This and much more is said arguendo, to maintain the constitutional right of Congress, under the war power, to confiscate the property of all enemies, including the inhaLitants'of the insurgent States, but not to determine to what extent that power had been exerted in the confiscation of real estate. That point had been settled in the Bigelow case and was not in the case then beiore the court, and was not alluded to in the opinion of the court or the dissenting opinions. Nor is there anything in the whole case, as we understand it, inconsistent with the reasoning and decision in the Bigelow case on the point as to the limitation on the power of the court to sell real estate. It is well to remark-further that the opinion of the court in each of these two cases was delivered by the same justice, and it can hardly be imagined that under the circumstances the earlier case would have been deliberately overruled without some allusion to the fact, or that it eould have been overruled by mere inadvertence.

The case of Tyler was an action of ejectment, instituted by the party himself, whose real property had been confiscated, to recover it from the vendor of the purchaser at the marshal’s sale; and here again, the question of fee simple or life estate was not involved nor referred to. The proceedings as to Tyler Were final and conclusive, just as, they are in the Benjamin case as to him, and it can make no practical difference to either, whether it was his fee simple or his life estate, which was seized and sold, and hence the point was irrelevant. The doctrine in the Miller case was affirmed and held to govern the case of. Tyler — the principal question being a jurisdictional one, growiug out of the mode of seizing real estate. In this case also there was a dis-. senting opinion, and no allusion whatever was made in either of the opinions to the Bigelow case or the main question decided in it.

Until deliberately overruled we must accept the Bigelow case as the'. law on the question material to the decision of the case at bar. The question then, as now, was not what Congress might have done in the way of confiscating enemies’ property, but what Congress actually did. We may concede that under the war power Congress had the right to order the seizure and sale of the fee simple of all enemies’ real estate, but it by no means follows that Congress has done so in the act of July, 17, 1862. On the contrary, as construed by the United States Supreme Court, the language of the joint resolution, by which Congress chose to limit the operation of the act, clearly refers to and controls the whole act. It does not refer merely to the punishment of offenders. for it s iys, punishment or proceedings under said act.” It does not refer merely to the first four sections, for it speaks of the act as a whole.

We are constrained therefore to conclude that the sale made by the marshal, under the order of the United States District Court, did not vest in the purchaser a fee simple title to the land in question and did not extinguish the mortgage existing on it at the .time, and that the plaintiffs have established the legal right to enforce their mortgage upon said property in his hands.

Judgment affirmed.

Rehearing relused.

Taliaferro, J.,

dissenting. I dissent from the opinion of the majority of the court for the following reasons :

The act of Congress of July 17, 1862, was enacted for several purposes, and embraces different and distinct objects. Among these objects, two are prominent:

First — To punish treason and rebellion.

Second — To seize and confiscate the property of rebels.

The first three sections declare the punishment to be inflicted upon persons convicted of treason against the United States, or of inciting, assisting or engaging in rebellion against the United States. Persons convicted of either of these offenses incur pains and penalties that are to affect them personally. In the case of treason they are to suffer death or imprisonment not less than five years, at the discretion of the court; to be fined not less than ten thousand dollars, and to be deprived of the ownership of slaves, if they own any, the fine to be levied and collected on any or all of the property, real and personal, excluding slaves. In the case of inciting to rebellion, or aiding or assisting therein, etc., imprisonment not to exceed ten years, a fine not exceeding ten thousand dollars, liberation of slaves, if owning slaves, etc., at the discretion of the court. In either case, the person convicted to be forever incapable of holding any office under the United States.

Let it be observe l that the provisions of these three sections of the act apply to any and all persons without distinction.

The fourth section has no immediate bearing on the subject of the penalties prescribed for offenses under the act.

• The filth section makes it the duty of the President of the United States to cause the seizure of all the estate, property, etc., of every kind of certain persons designated therein in six different classes, and to apply and use the same and the proceeds thereof for the support of the army of the Uuited States.

The succeeding sections provide the mode by which the provisions of the fifth section shall be carried out. The proceedings are to be M} rent. The courts to be vested with power to make such orders, establish such forms of deeree and sale, and direct such deeds and conveyances, where real estate is sold, as shall vest in the purchasers ol such property good and valid titles.

Here, then, we have by this fifth section an entirely different purpose of the legislator. He does not appear here as the avenger of wrongs, nor does he evince the disposition to punish the wrong doer corporeally or by fine or disabilities. That, he has already done in his sovereign capacity by the provisions of the first three sections. He now, by the right which belongs to him by the established rules of war, avails himself of the property of those who have assumed toward the nation the attitude of public enemies, to obtain means to help support his own armies by depriving his enemies to that extent of means to support theirs. That Congress possesses this right under the war power there is, I conclude, no doubt whatever. It is a right' inherent in the nation from the order and fitness of things, and which I can not clearly perceive how it can divest itself of. Unless there be something clearly and directly indicating that Congress has ignored this right or absolutely refused to exercise it, I must think the provisions of the fifth section show that it did exercise it. There is certainly no good reason why Congress should deprive itself of that important power, and more especially when the same power was resorted to by the formidable coalition then raised against the very life of the nation.

The resolution bearing the same date with the act, provides that no “punishment or proceedings under said act shall be so construed as to work a forfeiture of the real estate of the offender beyond his natural life.”

It is referred to as matter of history that this resolution was passed in conformity with the views of Mr. Lincoln to relieve his doubts of the constitutionality of the act. That being the avowed purpose for which the resolution was passed, the proviso it contains should bear only against that part of the act, if any, which is obnoxious to the objection raised by the President. A fair interpretation, then, of the resolution, it would seem, would restrict it to those sections which provide for the punishment of offenders. The fifih section of the act provides for the exercise of rights arising from the war power, and are clearly free from constitutional objections. If, then, under proceedings authorized by the sixth, seventh and eighth sections of the act, property owned at the time of its passage by persons designated under the fifth section has been sold, what is to prevent the purchaser from getting a fee simple title? He acquires, as the law declares, a good and valid title, and this must mean a title in fee, unless the qualifying terms of the resolution limit it to a lifetime estate; and it clearly appears to me it does not in this case, as the property was not sold under fieri facias to satisfy a personal judgment against Benjamin, imposing a fine or forfeiture, but the proceeding was in rem, anil assimilated in all respects to admiralty proceedings. The case of Bigelow v. Forrest, 9 Wallace 349, seems at variance with the views here taken, which, however, I think, are sustained by the subsequent decisions of the Supreme Court of the United States, and especially the cases of Miller’s Executor v. the United States and Tyler v. Defrees, reported in II Wallace. If these cases conflict with the views expressed in Bigelow v. Forrest, the authority of the latter case would seem to be overruled. But the plaintiffs hold that whatever be the effect of the decree as to Benjamin, their rights are not impaired; that their mortgage follows the property; that it was not the purpose of the act of Congress of July, 1862, to.involve the innocent with the guilty, and that no condemnation of the latter can affect the former. This plea I think entitled to but little consideration. The action was in rem, purely an admiralty proceeding in form. The usual monition was published. All persons were notified to come forward and make known their objections, it any existed, why the sale should not be made. This stood in the place of personal citation, and was equivalent tp it. It was then incumbent upon the plaintiffs to have made objection, or to have claimed priority in the distribution of the proceeds. The purchaser obtained the property free of all claims or liens whatever, and I think judgment should be given in his favor.

. Rehearing refused.


source: Caselaw Access Project

author: Wyly J.

license: Public Domain

text:
    No. 4944.
    State of Louisiana v. S. W. Edgar.
    This suit having been brought in October, 1873, and the judgment rendered on the second October following, it was an error to allow a penalty, because until the fifteenth of December, 1873, the defendant was not a delinquent taxpayer for the year 1872.
    That the defendant’s property was not accurately described on the tax roll, is no reason why he should except to the suit, or escape the payment of his taxes to i he State. The court a qua. did not err in treating his exception as an answer and proceeding with the trial.
    The judge a. quo erred when he permitted a witness at the trial to prove the contents oí the tax roll in regard to the assessment of defendant’s property, because the roll itself* was the best evidence o: the tax due by defendant.
    APPEAL from the Superior District Court, parish of Orleans. Baw1tins J.

      A. F. field, Attorney General, F. If. Butler, for plaintiff and appellee. L. F. Bimonds, lor defendant and appellant.
   Wyly J.

The defendant, who was sued for $752 50, the amount of his State taxes for 1872, appeals from the judgment condemning him to pay said amount, with five per cent attorney’s fees and twenty-five per cent, per annum penalties, from fifteenth December, 1871.

The suit was brought in October, 1873, and the judgment was rendered on the second December following. It was therefore an error to allow a penalty, because until the fifteenth December, 1873, the defendant was not a delinquent taxpayer for the year 1872.

Because the defendant’s property was not accurately described on the tax roll is no reason wliv he should except to the suit or escape the payment of his taxes to the State. We think the court did not err in treating his exception as an answer and proceeding with the trial.

There was error, however, when the court permitted a witness at the trial i-o prove the contents of the tax roll in regard to tlie assessment of defendant’s property, because the roll itself was the best evidence of the tax due by defendant.

It is therefore ordered that the judgment, herein be annulled, and that this cause he remanded for new trial, and to be proceeded in according to law, appellee paying costs of appeal.

Rehearing refused.


author: Howell, J.

text:
    No. 5156.
    Elizabeth Crofts v. Jeremiah Moynihan and Patrick Irwin.
    Damages are considered an equivalent for the loss sustained by the delay consequent on the appeal. Hence no damages can be awarded when, it does not appear that an appeal delayed plaintiff in executing or collecting his judgment.
    Appeal from the Fifth District Court, parish of Orleans. Gullom, J.

      F. T. Merrick, Race & Foster, for plaintiff and appellee. T. Gilmore t& Sons, for defendant and appellant.
   Howell, J.

The only matter before us is plaintiff’s right to damages for a frivolous appeal. Judgment was obtained against Moynihan as the maker of a note, and afterwards against P. Irwin as indorser and surety, from which he appealed. .After the appeal was taken, Moynihan paid the judgment, including interest, attorneys’ fees and costs, the receipt given by plaintiff containing a reservation of her “interests in the appeal taken by P. Irwin herein.” Damages are considered an •equivalent for the loss sustained by the delay consequent on the appeal. C. P. 907. It does not appear that the appeal taken by Irwin from the judgment against him delayed plaintiff in executing or collecting the judgment against Moynihan, from which no' appeal was taken, but which has been fully paid and satisfied, as shown by plaintiff’s receipt. The most we can do is to dismiss Irwin’s appeal at his -costs, there being no judgment for us to revise.

It is therefore ordered that the appeal herein be dismissed at costs of appellant.


author: Wtlt, J.

text:
    No 4941.
    Antonio Partegas et al. v. State National Bank.
    J. M. Alva, as administrator of tiie estate of widow iForneret, opened an account in the Louisiana State Bank, which being balanced, July 31, 1862, showed to his credit the sum of $6038 60 ior deposits alleged to revert back to 1858.^ On the twenty-seventh October 1865, said administrator gave a check for said amount in favor of the State Treasurer, which was accepted by the Bank. On the twenty-fifih March 1873, suit was brought by the heirs of Widow Porneret to recover the said balance of deposits in gold, without, making any reference to the check for said amount. On the ninth April 1873, they filed a supplemental petition making the accepted check the basis of the action;
    Held — That the judgment of the court a qua, ordering the check to be paid in United States currency^ and not in gold, was correct. But the defendant is only liable for interest from the ninth of April 1873, the day of judicial demand on the check.
    Appeal from the Sixth District Court, parish of Orleans. Saucier, J.

      JS. Bermudez, for plaintiff and appellee. James McOonnell, for defendant and appellant.
   Wtlt, J.

On thirty-first July 1862, the Louisiana State Bank was owing a balance of deposits of $6038 60 to J. M. Alva, administrator of the succession of Widow E. J. Porneret.

On twenty-seventh October 1865, said administrator gave a check for said amount in favor of the State Treasurer, which was accepted by said bank.

Subsequently, to wit: On twenty-fifth March 1873, the plaintiffs, the heirs of Widow Porneret, joined by J. M. Alva, administrator, brought this suit against the defendant, the successor, to Louisiana State Bank, to recover the said balance of deposits, $6033 60 in gold, without making any reference to the check for said amount, which had been accepted by the Louisiana State Bank, and they prayed judgment therefor, with legal interest from twenty-ninth April 1870.

On ninth April 1873, they filed a suplemental petition making the-accepted check the basis of their action.

The court gave judgment for the amount claimed, with the interest prayed for, payable in United States currency.

The defendant appealed, and the plaintiff prays for an amendment of the judgment by allowing them to recover in gold the amount thereof.

We think the check accepted by the Louisiana State Bank can be discharged in United States currency, and that the judgment'of the court in this respect was correct.

There is error, however, in that part of the decree allowing interest from twenty-ninth April 1870.

There is no evidence that the check accepted by the Louisiana State Bank was ever presented to the defendant for payment, or that there was any demand thereon prior to the ninth April 1873, when in the supplemental petition it was made the basis of judicial demand.

The rule taken on the Louisiana State Bank to pay the $6038 60 in gold into court was never brought to trial, and that was a demand which did not put the defendant in default, because after accepting the check of their depositor, J. M. Alva, administrator, the Louisiana State Bank was only bound thereon, and it is not shown that plaintiffs in rule ever presented that check to defendant for payment.

Tiie defendant is only liable for interest from ninth of April 1873.

It is therefore ordered that the judgment herein be amended by allowing interest to run only from ninth April 1873, and as amended that the judgment be affirmed, appellees paying costs of appeal.


author: Morgan, J.

text:
    No. 3572.
    Horatio Weedon et als. v. Arthemise Landreaux et als.
    A party can not be permitted to allow bis property to be sold under a judicial process and then claim the procee Is under the allegation that be did not owe the debt which the property was sold to pay.
    Appeal from the Sixth District Court, parish of Orleans. Gooley, J.

      Thomas J. Gooley and Ed. Phillips, for plaintiffs and appellants. Boselhis & A. Philips, for defan dan ts and appellees.
   Morgan, J.

In May 1857, plaintiffs purchased from Sosthene Roman a plantation and slaves. The price was $270,532 39, of which $50,001) were paid in cash. For the balance they gave their promissory notes, payable in six annual installments.

Iu May, 1861, four of the notes then due and unpaid were protested, and a writ of seizure issued at the instance of Sosthene Roman to enforce their payment. This writ was returned, and an alias writ issued in July 1865, Under this writ the property was sold, and was purchased by the defendants (the heirs of Sosthene Roman, he having died in the meanwhile) for $120,000.

Plaintiffs claim that this $120,000 was in excess of the amount remaining due by them, and they say that inasmuch as the original sale was for land and slaves, and as it is admitted that the slaves purchased were properly valued at $120,000, and inasmuch as that portion of the contract was void, they are entitled to recover the $120,000.

The exception of res judicata is opposed' to the demand. The plea is based upon the executory process which issued from the Second District Court. If we.admit that the plea can not be set up against the plaintiff, upon which point, however, we express no opinion, still we think that a party can not be permitted to allow his property to be sold under a judicial process and then claim the proceeds, under tiie allegation that he did not owe the debt, .which the property was sold to pay.

Judgment affirmed.


text:
    No. 3583.
    Mrs. C. Desormeaux, widow of S. B. Smith, v. John Moylan.
    Where the proceedings in a tax suit are against a person who is not the owner of the property taxed, the sale in which they eventuated, can not affect the title of the real owner. Besides, it is seldom that more glaring irregularities and defective proceedings in other respects are ever exhibited.
    Appeal from the Sixth District Court, parish of Orleans, Cooley, J.

      T. & E.J. Ellis, ior plaintiff aud appellee. B. King Cutler and Alex. F. Steele, for defendant and appellant.
   Howell, J.

This is a suit by plaintiff a resident of this State, to be declared the owner of certain lots of ground in the late City of Jefferson, now New Orleans.

She exhibited title in her mother, in 1853 and mortuary proceedings, showing herself to be the only heir to,aud in the possession of the property.

The defendant set up title under a tax. sale at the suit of the City of Jefferson, but the proceedings were against John Doraneourt and are in themselves so irregular as to have no legal effect. Being against a person not the owner of the property, they did not transfer or affect the title of the plaintiff. The defendant, as well as the officers making the alleged sale, must have known the irregularity and delects of the proceedings, as the mortgage certificate obtained and read at the offering, was in the name of Mrs. Clementine Desormeaux, wife of S. B. Smith, and not of John Doraneourt the defendant in the execution. It is seldom that more glaring irregularities and defective proceedings occur.

Judgment affirmed.

Rehearing refused.


text:
    No. 4712.
    State of Louisiana v. Francis Vallette.
    When default was entered, aud confirmed in this case, exceptions filed in due time were pending and not disposed of. This was irregular and entitles the defendant to a reversal oi the judgment, and an opportunity to be heard on his exceptions.
    APPEAL from the Superior District Court, parish of Orleans. Huw1ji Icins J.
    A. P. Field, Attorney General, for plaintiff and appellee. A. <& W. VoorMcs, for defendant and appellant..
   Howell, J.

When default was entered and confirmed in this case, exceptions, filed in due time, were pending and not disposed of. This was irregular and entitles the defendant to a reversal of the judgment and an opportunity to be heard on his exceptions.

It is therefore ordered that the judgment and default herein be set aside, aud this cause remanded for trial according to law.


author: Taliaferro, J.

text:
    No. 3616.
    Mrs. Louisa French, Executrix, v. John M. Bach et al.
    The ruling in this case of the court a qua, permitting the introduction of parol proof that one McMichael never owned the property in dispute, and that Spiller did, was clearly wrong.
    McMichael having sold the property in dispute to French, and received one thousand dollars cash in consideration for it, executed his bond fi.r title, and French, taking possession of it, expended eight hundred dollars in repairs. There was no obligation resting upon McMichael iurtber than to execute a deed when called upon. The property belonged to French to all intents and purposes, and whether McMichael objected or not to the subsequent probate sale of the property, as part of the estate of one Fancy Spiller, did not in any manner afiect the rights ot French. Forris bought the property as belonging to said estate, and Bach bought it from Forris. After these transactions, French sued McMichael on his title bond, and cited both Bach and Forris as parties;
    Held — That Bach had made hiraseli liable, under the circumstances of the case, for the value of the rent of the property from the date of the service oi the citation upon him in the suit of French against McMichael. \
    APPEAL from the Sixth Judicial District Court, parish of Tangipahoa. JS. D. Graig, judge pro tern., in the place of the district judge, recused.

      S. D. Allis and John W. Addison, for plaintiff and appellee. G. W. H. Mari', Wm. Duncan and L. D. Smonds, for defendant and appellant.
   Taliaferro, J.

This is a petitory action to recover a house and lot lying in Amite Cify, and rent for its use and enjoyment during the alleged illegal possession and detention of the same by the defendants.

The answer specially denies ownership of the property in plaintiff, and avers title to the same in John M. Bach, derived from the succession of Nancy Spiller, through one Norris, the purchaser at the succession sole of the effects of Naucy Spiller, in July, 1863; the defendant Bach having purchased the property from Norris on the twenty-fourth of July, 1866. There was judgment lor the plaintiff, decreeing the property to belong to the estate of Anson J. French, deceased, but relusing the plaintiff’s demand for rents. The defendant Bacli appealed. Buttman, the other defendant, was a mere nominal party. In this court the plaintiff prays that the judgment of the lower court be amended by allowing the rent claimed in her petition.

The plaintiff, we think, presents a perfect title, commencing with the patent to the land from the State of Louisiana to one George Richardson, dated nineteenth December, 1854, and followed by the successive conveyances of the property down to the completion of the title in Anson J. French, by deed executed under a judgment and decree of court, by the executrix of G. P. McMichael ou the-day of July, 1871.

The defendant shows that he bought from Norris in July, 18 6, and that Norris bought at the succession sale of Nancy Spiller a short time previous. There is no showing as to how or when Nancy Spiller acquired title to the property. The chain of title exhibited by the plaintiff is unbroken, and there is no evidence that Nancy Spiller acquired any right from either of the former owners. McMichael, the vendor of French, bought the property at the succession sale of Flynn, and executed a bond for title with Levi Spiller as surety. This bond, containing the usual stipulations of instruments of that kind, closes with this recital: “ There is some probate proceedings to be had in regard

to the succession of Mrs. Nancy Starns, wife of the said Levi Spiller, lately deceased, which the said Spiller promises to urge and perlect as soon as possible, with the free and full concurrence of said McMichael.” We find nothing in the record that explains this clause in the bond. An effort was made to introduce parol proof that McMichael never owned the property, and that Spiller did ; and to the ruling of the court admitting witnesses to establish that statement, the plaintiff reserved several bills of exceptions. The ruling was clearly wrong, the testimony being exclusively parol, was inadmissible to destroy Me-Michael’s title and establish title in Spiller, who had no vestige of title. It appears from a peiusal of the record that Anson J. French, a resident of New Orleans, bought the property in question on the third of March, 1862, from Gr. P. McMichael, who, it has been seen, purchased it. at a probate sale of the succession of Flynn. French paid McMichael one thousand dollars for the property, as recited in the bond. Under this act French took possession of the property and put repairs upon it to the value of eight hundred dollars. Soon afterwards French returned to New Orleans and remained there until after the end of the war in 1865. He left an agent in possession, who soon afterwards, upon the capture of New Orleans by the United States army, returned to the city, leaving the property with no one to take care of it. Upon the return of French alter the war, he found the property in possession of the defendants — that on the twenty-eighth of July, 1863, it had been exposed to sale as belonging to the estate of Nancy Spiller, deceased, and that Gr. W. Norris had bought it for eight hundred dollar.*. in Coniederate money. French thereupon brought suit upon the bond against McMichael, and alter the decease of the latter soon after, he obtained a judgment against his executrix, decreeing that the estate of McMichael, through his executrix, should perfect the title to the property in the estate of French, who also died pending these proceedings. To this suit Bach and Nortis were both made parties. It is objectt d that the bond is not translative of property. It is further objected by them that McMichael was present at the sale in July, 1863, and made no opposition to the sale, and therefore the plaintiff was estopped from afterwards claiming the property. We do not see the force of these objections. McMichael had sold the property to French in 1862, received one thousand dollars cash as the consideration for it, executed his bond for title, and French went into possession of it and expended eight: hundred dollars upon it in repairs. There was no obligation resting upon McMichael further than to execute a deed •when called upon. The property belonged to French to all intents and purposes, and whether McMichael objected to the sale or not, did notin any manner affect the rights of French.

We must regard the proceeding set up by the defendant as a probate sale of the property in dispute, in July, 1863, pretended to belong to the estate of Nancy Spiller as a mere nullity and without any legal effect. Nothing in the record, as before remarked, shows that the property ever was the property of Nancy Spiller. It is shown, moreover, that the price of adjudication was paid in Confederate money. The sale of the property of another is null, Civil Code, article-. This alleged sale, with all its surroundings, we cannot regard as having been made in good faith, and therefore that it is not covered by the immunity granted by article 149 of the constitution of this State. Norris having acquired no title, could transfer none to Bach, his vendee. Besides the bills of exceptions taken by the plaimiff to the admission of parol evidence to destroy McMichael’s title, and to establish title in Spiller, which we have already considered, there are several other bills of exceptions by both parties in the record, but we do not deem it important in deciding this case to pass upon them.

It remains to consider the question of rent. The Civil Code, article 503, [495] declares that “ he is a bona fide possessor who possesses as owner by virtue of an act sufficient in terms to transfer property, the defects of which he was ignorant of. He ceases to be a Iona fide possessor from the moment these defects are made known to him, or are declared to him by a suit instituted for the recovery of the thing by the owner.” It is shown that at the sale made in July, 1863, doubts were openly expressed among the persous present of the validity of the sale, on the ground that the property belonged to French. One or two bidders ceased bidding through fear of the title being defective. The sheriff who made the sale testified that he was impressed with the belief that Bach and Noriis were in partnership in the purchase, and that Bach afterwards told him so. In March, 1866, French sued McMichael on his title bond, and cited both Bach and Norris as parties. After this judicial notice of French’s title, Bach bought the property, from Norris in July following for |500, far below the price paid for it by French, besides the value of the improvements placed by him on it after his purchase. No depreciation in the value of the property is shown to have taken place between the time French bought if, and the date at which Bach purchased it from Norris. It is to be noticed, too, that when Bach was sued for the property he did not call Norris in warranty; nor did he on the trial testify against the charge made against him of bad faith. We think the defendant Bach has rendered himself liable for the value of the rent of the property from the date of service of the citation upon him in the suit of French against McMichael, to wit: ninth of April, 1866, at the rate of twenty dollars per month, that being the rate which Bnttman was paying Bach in the year A. D. 1871, and had previously been paying him since July, 1869.

It is therefore ordered, adjudged and decreed, that the judgment of the district court, in so far as it fails to award the plaintiff rent for the detention and use of the property in litigation, and reserves to the defendant Bach the.right to recover for improvements, if any, put by him on the property, be annulled and reversed. Itisnow ordered that the plaintiff recover from the defendant, John M. Bach, rent for the property in controversy at the rate of twenty dollars per month from, the ninth day of April, A. D. 1866, (eighteen hundred and sixty-six), until full possession of the property aforesaid be delivered to the plaintiff. It is further ordered, that as thus altered and amended, the judgment of the lower court be affirmed with costs.


author: Wyly, J.

text:
    No. 4751.
    State of Louisiana v. A. De Monasterio.
    Where there is no note of evidence in the record, this court is hound to presume that the judge a quo did his duty and had sufficient proof before him to justify his decree.
    The complaint that the judgment i* 82 25 in excess of the allegations of the petition is not ■well fouuded. It is claimed as due the tax collector; and under section 75 of act 42 of acts of 1871, it should be recovered against the defendant.
    There is error in the judgment of the court below in allowing the penalty of twenty-five per cent, from the fifteenth of December, 1871. It can only run from the fifteenth of December, 1872, because until then tbe defendant was not in default for tbe taxes of 1871.
    Appeal from the Superior District Court, parish of Orleans. Eaw-Jcins, J.

      A. P. Field, Attorney General, for plaintiff and appellee. Felloius (& Milts, Julien Miehel, for defendant and appellant.
   Wyly, J.

The defendant appeals from the judgment for taxes rendered against him for the year 1871, with a penalty of twenty-five per cent, from fifteenth December, 1871.

The plea of prematurity of the action having been overruled, the defendant answered to the merits without reserving the benefit of the exception, which must be regarded as abandoned. The numerous constitutional objections raised in this case were all disposed of in the case of the State v. Maginuis, 26 An., and several other decisions. We, thereiore, decline to reopen the discussion thereof. The defendant, however, contends that judgment was rendered against him without proof of the indebtedness. There being no note of evidence in the record, we are bound to presume that the judge did his duty and had sufficient proof before him to justify his decree.

The plaintiff complains that the judgment is |2 25 in excess of the allegations of the petition. Such is not the fact. It is claimed as due the tax collector; and under section 75 of act No. 42 of acts of 1871, it should be recovered against the defendant. There is error, however, in the judgment in allowing the penalty of twenty-five per cent, from fifteenth December, 1871. It can only run from the fifteen til December, 1872, because until then the defendant was not in default for the taxes of 1871.

It is therefore ordered that the judgment herein be amended by allowing the penalty of twenty-five per cent, only from fifteenth December, 1872, and as amended that it be affirmed,'appellee paying costs of appeal.


author: Wyly," J.

text:
    No. 3584.
    George Jacobshagen v. John Moylan.
    The plaintiff shows a jnst title to the property which lie claims, and which was not divested" hy the pretended sale to the defendant, under a personal judgment of the City of Teller-son, now a part of Now Orleans, v J\ J. Scharge. The plaintiff was neither a party to the suit nor the sale, and the writ was not directed against him. Besides, the sale was made after the return day of the writ had expired, and the constable iailed to return it and retain a copy as required hy law.
    Appeal from the Seventh District Court, parish of Orleans. Oollens, J.

      A. J. Leivis, for plaintiff and appellee. B. King Gutter, for defendant and appellant.
   Wyly," J.

The plaintiff, the owner of two lots of ground formerly in the City of Jefferson, now in the city of New Orleans, sues to annul the sale thereof by the constable, on the second of April, 1870, under a judgment of the Eighth Justice’s Court, parish of Jefferson, for taxes in the suit of the City of Jefferson v. J. J. Scharge, and to recover said property from the defendant, the purchaser at said sale.

The court gavé judgment for the plaintiff, and the defendant appeals.

The plaintiff shows a just title to the property, which was not divested by tbe pretended sale to the defendant, under the personal judgment of the City of Jefferson v. J. J. Scharge. The plaintiff was neither a party to the suit nor the sale, and the writ was not directed against him. Besides, the sale was made after the return day of the writ had expired, and the constable failed to return it aud retain a copy as required by law. In this pretended forced sale there was no divestiture of title.

Judgment affirmed.

Rehearing refused.


text:
    No. 4340.
    Citizens’ Bank of Louisiana v. J. Strauss.
    The challen go of a juror by the plaintiff because lie could not read or write the English language, was not a good ground of challenge, but as it is not contended that defendant has suffered by the ruling of the judge a quo, it caunot be declared a sufficient reason for reversing the judgment and verdict, and ordering a new trial.
    While a party is before the court in ttía attitude of the bona fide holder of a note, he can legally object to any inquiry into the consideration of the note.
    Appeal from the Fourth District Court, parish of Orleans. Théard, J.
    Jury trial. A. Pitot, Semines & Mott, for plaintiff and appellee. W. W. King, A. Robert, John Ray, for defendant and appellant.
   Howell, J.

This is a suit by a third holder against the maker of a promissory note, to which the defense is that the plaintiff is not the bona fide holder, but is suing for the benefit of the payer, against whom the defendant has a valid defense, to wit: want of legal consideration, in this, that defendant and the payer, S. Friedlander, as partners, purchased certain State warrants which were discovered to be forged and worthless, and by agreement the interest therein of said Friediander was transferred to defendant, for which the note in suit, with others, was given. The case was tried before a jury, and after verdict and judgment in favor of plaintiff, and failure to obtain a new trial, the defendant appealed.

Two bills of exceptions were taken by the defendant, the first to the exclusion of a juror on the challenge of the plaintiff that he could not read or write the English language. This was not a good cause of challenge, but as it is not contended that defendant has suffered by the ruling of the judge, we cau not declare it a sufficient reason for reversing the judgment and verdict and ordering a new trial.

The second bill was taken to the refusal of the judge to admit two documents, annexed to the bill, and which were offered to establish the illegal consideration of said.note, and were ruled out on the ground that they were inadmissible until the defendant had first proved that the plaintiff was not the bona fide owner of the note, counsel for defendant contending that he could not be controlled in the order of introducing evidence, and declined to offer any other.

The rule invoked by defendant’s counsel is correct, but it did not apply in this case, as the evidence offered is not admissible against a bona fide third holder, and while he is in that attitude before the court he can legally object to any inquiry into the consideration of the note.

We are of opinion that the rulings and judgment of the judge a quo were correct.

Judgment affirmed.

Rehearing refused.


text:
    No. 4894.
    Ferdinand Koechlin v. Mrs. Louisa Thontke, wife of F. J. Lorber.
    The defendant, a married woman, is sued on three mortgage promissory notes drawn hy her. It being in evidence that the defendant executed said mortgage on her separate property in favor of a firm of which her husband was a partner, to seoure the payment of a certain sum of money which had always appeared in the books of the firm as the debt of her husband, who, to the knowledge of the firm and without their objection, was in the habit of drawing largely in excess of the amount he was authorized by the articles of partnership to withdraw annually, and which sum invested by her in the mortgaged property, sought to be seized, was given to her at a time when he was indebted to her in a greater amount for the restitution of paraphernal funds:
    Held — That said mortgaged property can not be seized by the holders of the notes, on the ground that she can not bind herself for her husband’s debts.
    Appeal from the Fourth District Court, parish of Orleans. Lynch, J.
    J. L. Tissot, Lea, Finney & Miller, for plaintiff and appellee. Boselius, A. Voorhies and A. Philips, for defendant and appellant.
   Howell, J.

Plaintiff, as holder of three notes for $6000 each, secured by mortgage, caused executory process to issue and the mortgaged property to be seized. The defendant, a married woman, separate in property and maker of said notes, injoined the writ on the ground that the debt, for which the notes and mortgage were executed, was the debt of her husband. The theory of the plaintiff, based on and supported by the act of mortgage which so declares and which he is seeking to enforce, is, that the defendant on the fifteenth November, 1865, borrowed $18,000 from the firm of Leisy & Lorber, (Lorber being her husband) to pay for a house and lot. The notes and mortgage for this sum'were given on the eighth June, 1870, to the plaintiff as a creditor of said firm, then and now in liquidation, upon a certificate of the judge of the Second District Court for the parish of Orleans, authorizing the defendant to execute a mortgage to secure the sum which she had borrowed. It is urged by plaintiff that this certificate is conclusive against the defendant, but there is evidence in the record, introduced by the plaintiff himself, that the sum in question was charged to the husband of defendant and continued from year to year by charging him with the interest thereon. Tbis with the proof that the defendant’s husband was, at the time, indebted to her in a much larger sum and that she used the money in buying a residence in her own name, makes it clear that the firm of Leisy & Lorber did not consider it a debt of the defendant. It was the restoring to defendant, by her husband, of her paraphernal funds received by him and which she invested in separate property. But it is contended by plaintiff, who is the subrogee of Leisy & Lorber, that Lorber could not legally and properly use a check of his firm, as was done, in paying his individual debt and that the firm or its creditor can pursue the individual creditor, so paid, and recover back the money. Conceding this to be a eorrect legal proposition (upon which we express no opinion), the dealings of the firm with the partner, in this instance, would take this case out of the operation of the rule. The partner was allowed, prior and subsequent to this transaction, to draw sums largely in excess of the amount, which by the articles of partnership he was authorized to withdraw annually, and the taking of this money and the use made of it was known to the other partner and still the same course of dealing and conduct was continued, and more than two years after such definite knowledge the partnership was renewed for a year. It was after all this that the defendant executed the mortgage to secure said sum of money, which appeared always in the books of the firm as the debt of her husband which was given to her at a time when he was indebted to her in a greater amount. Under these circumstances she can not, according to the law and jurisprudence of this State, be made to pay the debt.

It is therefore ordered that the judgment appealed from be reversed, and that there be judgment in favor of the defendant with costs in both courts.


text:
    No. 5007.
    Charles Donnelly v. St. John’s Protestant Episcopal Church.
    Tlie objection to tbe testimony of a witness on tbe ground that it could not be introduced to establish a fact wliicli could only be shown by the minutes themselves of a corporation, was not well taken. It has been determined that tlie neglect, incompetence, not to say-dishonesty of a corporatian in making up its minutes, can not exclude an interested third party from proving the truth by parol.
    In this instance it is clear that the aot of executing the note sued upon was ratified by the vestry, and it is unimportant whether, at the time of executing it, the persons who did so had a special authorization or not.
    Appeal from the Pourth District Court, parish of Orleans. Lynch, J.

      Bice & Whitaker, for plaintiff and appellee. James Brewer, Lacey & Butler, for defendant and appellee.
   Taliaferro, J.

This suit is brought on a promissory note for $800 dated tenth of August, 1872, payable six months after date to James McCloskey or order, with eight per cent, interest from date, being drawn by the senior warden and junior warden of the church, and purports to have been given for material and labor furnished in the erection of said church.” The plaintiff alleges that he is the owner and holder of this note, under the indorsement of the. payee. He prays judgment for the amount of the note with recognition of the builder’s privilege on the church building and the lots of ground upon which it stands, according to the provisions of law.

Payment of this note is resisted on the ground that William C. Mc-Cracken and George J. Vincent, the wardens who executed it, were without power or authority to draw promissory notes, or in any manner to bind the defendant. The defendant further pleads failure and want ot consideration, of which the plaintiff was notified before he became the owner and holder of the note. The plaintiff had judgment as prayed for and the defendant has appealed.

The plaintiff contends that the wardens who signed the notes were appointed a building committee by the vestry, and superintended the matter of the building it was determined by them to erect. That the building committee were charged solely with the power of contracting for the work, and had impliedly the right to execute the note to effect the object for which they were appointed. He refers to 19 An. 203, where it is said that “ even without a specific power .the agent can bind his principal by drawing bills and signing notes when it is necessary to raise funds to carry into effect the main object of the agency.” The original minutes of the vestry of the St. John’s Church, as contained in a bound book, are in evidence. The minutes show that a committee called “the building committee” was appointed, consisting, as it appears, of three persons, the two who signed the note and another who took but little concern in the business; the parties who signed the note were the active business men of the committee. A report was presented to the vestry giving a full account of the proceedings of the committee, and detailing the circumstances under which they had given the note for $800. A difficulty had arisen with the builder who had undertaken the work, and in renewing the contract, or in making some modification of it, they found it necessary to execute the note. One of these committee men was on the stand as a witness. He swore that the report of the committee was adopted. His testimony was objected to on the ground that parol evidence could not be introduced to establish a fact which could only be shown by the minutes themselves, and a bill of exceptions was reserved.

We think the testimony was properly admitted. It has been determined that the neglect, incompetence, not to say dishonesty of a corporation in making up its minutes, can not exclude an interested third party from proving the truth by parol. 11 An. 649 ; 2 An. 939. In this case it would seem to appear incidentally by the minutes that the report was adopted. In some remarks made by the rector he said: “ As the vestry has accepted the report, and as the resignations of the committee as wardens was embodied in the report, it was necessary to fill their vacancies.” It seems clear that the act of executing the note was ratified by the vestry, and it is unimportant whether at the time of executing it they had a special authorization or not.

We think the decree of the lower court correct.

Judgment affirmed.


text:
    No. 3395.
    B. O. Meritz et al. v. H. Marks et al.
    H. Scott, one of the defendants, was a non-resident and was not cited. The rule wliicli he took to set aside the attachment on the supplemental petition was not an appearance subjecting him to tbe jurisdiction of the court on the merits. He was not represented by an attorney ad hoc appointed by the court, and the judgment maintaining the attachment of his property was erroneous.
    The reconventional demand of the defendant Marks was not passed upon in the judgment. It was an irregularity.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      T. tT. Oooley & F. Phillips, for plaintiffs and appellees. Pace, Foster & F. T. Merriclc, tor defendants and appellants.
   Wyly, J.

The defendants were sued as commercial partners for $5913, and from'the judgment condemning them to pay plaintiffs that sunt they have appealed. The defendant, H. Scott, was anon-resident and was not cited. The rule which he took to set aside the attachment on the supplemental petition was not an appearance subjecting him to the jurisdiction of the court on the merits. 5 N. S. 427; 10 An. 334.

He was not represented by an attorney ad hoc appointed by the court, and the judgment maintaining the attachment of his property was erroneous. The reconventional demand of the defendant Marks was not passed upon in the judgment, which was an irregularity. 17 An 153. Justice requires the case to be remanded.

It is therefore ordered that the judgment herein be annulled, and that this case be remanded for new trial and to be proceeded with according to law, appellees paying costs of appeal.

Rehearing refused.


text:
    No. 3549.
    Canal and Carondelet Navigation Company v. Commissioners of First Drainage District of New Orleans.
    It is impossible to consent to the x>roposition that, because private property may not be in use by the owner, it may be violently and illegally taken from him by another, with the view even of subserving the interest of said owners.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J'.

      H. D. Ogden, for plaintiff and appellee. Geo. 8. Lacey, City Attorney, and H. Tl. Walsh, assistant City Attorney, for defendants and appellants.
   Howell, J.

The city of New Orleans, as successor to the Commismissioners of the First Drainage District, has appealed from a judgment in favor of the plaintiffs for the rent of two dredge boats, taken from them by virtue of an order of the Provost Marshal in 1862, and used by the said commissioners in their work of draining the city.

It is contended on behalf of the city, that the boats were not in use at the time of the seizure; that they were an expense to the owners,, whose interests were subserved by the seizure, and that the condition of the boats was improved by the repairs put on them by the commissioners, and hence no rent should be allowed.

We can not consent to the proposition that, because private property may not be in use by the owner, it may be violently and illegally"taken from him by another, with the view even of subserving his interests. In this case we think the plaintiffs’ property was improperly taken from them and used without their consent in making improvements which have inured to the benefit of the city, which has succeeded to the commissioners of the draining districts and that the value of the use of said property is shown to be what the lower court allowed plaintiffs. The repairs made by the commissioners to one of the tracts are more than offset by those necessary when the bonds were returned.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 5127.
    Jules A. Florat, Tutor, v. Alfred Marchand and M. F. Michel in solido.

    Michel, one of tbe defendants, in paying to Marchand, the holder of his negotiable note acquired before maturity, did, voluntarily, only what Marchand could have compelled him to do; and the plaintiff, who was defrauded of said note by his brokers, has no right to demand from him payment a second time. His recourse is against his unfaithful agents.
    When one of two innocent persons must suffer, he whose act contributed to the loss must suffer rather than the other, who only discharged a legal obligation.
    Appeal from the Fourth District Court, parish of Orleans., Lynch, J.

      Fellows & Mills, for plaintiff and appellee. Honor & Benedict, for defendant and appellent.
   Ludeling, C. J.

The plaintiff sues the maker of a note which was indorsed in blank under the following state of facts: The plaintiff, Florat, deposited the note with Voisin & Livaudais. He agreed with Michel, the maker, to renew the note on condition that interest should be paid, and he authorized his agents, Voisin & Livaudais, to renew the note on the said condition.

The note was renewed, and afterwards it was pledged by Voisin & Livaudais to the Teutonia National Bank. Buck, in due course of business, then acquired the note and sold it to Marchand for a valuable consideration and before maturity. Florat then called upon Voisin & Livaudais for his note, and they failed to deliver it to him under subterfuges. Becoming alarmed, Florat went to the maker, Michel, and notified him not to pay the note, as it was lost or stolen. Whereupon Michel informed him that Marehand had informed him that he held the note. Florat then saw Marehand and Buck, who stated to him they had bought the note in due course of business for value and before maturity. On the day succeeding this interview, Michel, the debtor, gave the mortgaged property in payment of the note to Marehand.

Michel, in paying to Marehand, the holder of his negotiable note, did voluntarily only what Marehand could have compelled him to do, and •the plaintiff has no right to demand from him payment a second time. His recourse is against his unfaithful agents. Where one of two innocent persons must suffer, he whose act contributed to the loss must suffer, rather than the other, who only discharged a legal obligation.

It is therefore ordered and adjudged that the judgment of the lower court be reversed, and that there be judgment in favor of the defendant against the plaintiff, rejecting his demand witli costs.


text:
    No. 3530.
    Jean Segassie v. Antoine Piernas et al.
    The surety on a release bond is responsible only for tlie value of movables, when not delivered according to tlie stipulations of tlie bond after judgment in favor of tlie plaintiff. It is only wlien tlie property is land tliat tlie law fixes responsibility for revenues.
    Appeal from the Sixth District Court, parish of Orleans. Cooley, J.

      W. JE. Murphy, for plaintiff and appellant. Bightor & McCollum, for defendants and appellees.
   Howell, J.

This is a suit against the sureties on a release bond, and the principal question as stated by plaintiff’s counsel is whether said sureties are liable for the fruits and revenues of movable property sequestered and released on bond.

Article 280, C. P., says: The security thus given by the defendant, when the property consists in movables, shall be responsible that he shall not send away the same out of the jurisdiction of the court; that he shall not make an improper use of them; and that he will faithfully present them, after definitive judgment, in case he should be decreed to restore the same to the plaintiff.

Article 281. As regards landed property, this security is given to prevent the defendant, while in possession, from wasting the property, and for the faithful restitution of the fruits that he may have received since the demand, or of their value in the event of his being cast in the suit.”

The bond required is to be for the amount fixed by the judge, as equal to the value of the property to be left in the possession of the defendant. Article 279.

From these provisions of the law we conclude that the surety on such bond is responsible only for the value of movables, when not delivered according to the stipulations of the bond after judgment in favor of the plaintiff.

It is only where the property is land that the law fixes the responsibility for revenues.

In this case the value of the property was established to be .$1025 when taken from the plaintiff in sequestration, and the portion returned to him is shown to have been only three hundred and thirty-five dollars, from depreciation and death, and it is not satisfactorily proven that the defendants in the sequestration took the care of the property which the law imposed on them.

It is therefore ordered that the judgment appealed from be set aside, and that plaintiffs recover of the legal representatives of the defendants in their virile proportion the. sum of six hundred and ninety dollars, with five per cent, interest from first March, 1870, subject to a credit of seventy dollars deposited in court on twenty-eighth April, 1871. It is further ordered that defendants pay costs in both courts.


text:
    No. 3579.
    John Spalding v. J. J. Kreider et als.
    This is a suit against the defendants, Mayor and Aldermen of the city of Jefferson, for damages resulting from the infliction of a wound on plaintiff by a mob of rioters composed, in part at least, of thepolice of the city of Jefferson officially appointed by defendants;
    Held — That as it is not alleged that defendants were present, aiding, abetting the so called rioters, or that they, or either of them, inflicted the wound, which is the basis of plaintiff’s claim, there is no cause of action.
    Appeal from the Eighth District Court, parish of Orleans. Dibble, J.
    F. N. Sutler. W. H. Sogers, for plaintiff and appellant. Fellows & Mills, for defendant and appellee.
   Morgan, J.

Defendants were respectively, Mayor and Aldermen of the city of Jefferson. Acting in their official capacities they appointed, as is alleged, several persons on the police of that city.

There was a question whether the city of Jefferson was under the police jurisdiction of the Metropolitan Police. The Metropolitans attempted to assert their rights. It is alleged that these were opposed by a certain mob composed, in part at least, of the police of the city ■of Jefferson. A riot ensued. Plaintiff was on the Metropolitan side, and was wounded. He sues the defendants for $50,000 damages. As it was not alleged that they were present aiding and abetting the so •called rioters, or that they or either of them inflicted the wound Which is the basis of plaintiff’s claim, we agree'with the district judge that the petition sets forth no cause of action.

Judgment affirmed.


text:
    No. 4759.
    Commercial Press, Smith & Goldsmith, Proprietors, v. Crescent City National Bank, Schultz, Warrantor.
    Where it is proved that the indorser of a check indorsed it for no other purpose than to identify the person who presented it to the bank, and who was in the habit of collecting • for the parties to whose order the check was drawn:
    Held — That the responsibility of the indorser was as to the identity of the collector, but not as to his authority to sign the check for the parties to whose order it was given. The question is to be decided by taking into consideration in what manner and for what purpose he bound himself. Por as he bound himself, so will he be bound.
    Appeal from the Sixth District Court, parish of Orleans. Semoier, J.

      Babatt & Aroni, for plaintiffs and appellees. Randolph, Singleton & Browne, Hudson & Fearn, for defendant and appellant.
   Morgan, J.

Smith & Goldsmith are the proprietors of the Commercial Press. A. J. Buck was their collector. As such he was authorized to collect their bills. He did not, however, hold their power of attorney. He was their servant therefor, and not their mandatory. On the sixth of April, 1872, he presented a bill for the compressing of cotton by the Commercial Press to A. K. Miller & Co. It is not denied that Buck was authorized to present the bill. The authority to. receive payment thereof must be conceded. It would have been a thing done in the regular service for which he was employed.

Instead of paying in cash, they gave him a check on the Crescent City National Bank, payable to the order, not of Smith & Goldsmith, but to the order of the Commercial Press. Buck indorsed it “ Smith & Goldsmith per A. J. Buck,” and presented it to the bank for payment. The paying teller of the bank refused to pay the check. He says: It was presented to me by one A. J. Buck, representing himself to be the collector of the Commercial Press. I did not know him, and I sent him back. I asked him to be identified, and he named me several well known houses, and asked me if I knew the house of Meeker, Kdox & Co. I told him yes, and he went out. He came back and told me that Mr. Knox was out. I told him if he would have the check indorsed I would pay him. He asked me if I knew Mr. Schultz” (an employe of Meeker, Knox & Co.) I told him yes. He had the check indorsed” ( by Schultz) “and I paid him.”

1 Buck absconded. It may be assumed that he took with him the entire proceeds of this check.

The plaintiffs sue the bank for the amount thereof, on the ground that the check was paid to a party not authorized to sign for them. The bank called Schultz in warranty, as indorser. Schultz answers, that he placed his name on the back of .the check at the request of the proper officer of the baDk, for the express and only purpose of identifying Buck as the collector of the Press. There was judgment infavor of the plaintiff against the bank, and in favor of the bank against Schultz. Schultz alone has appealed.

It may be assumed that the case in 14 An. p. 481 (Van Bibber v. the Bank of Louisiana), correctly applied the law to the case before it. Irt that case it was decided that a bank is liable to the payees of a check made payable to their order when the check is paid on a forged indorsement made by the collector of the payees, who receives the check in payment of a bill of merchandise intrusted to him for collection by his employers. The Crescent City Bank practically concedes the applicability of this authority by not appealing from the judgment upon which it stands. We are not therefore called upon to examine its correctness. The question to determine is, not whether the bank is responsible to the plaintiffs, but whether Schultz is responsible to the bank?

In our opinion this question must be determined by answering another, viz: In what manner, and for what purpose did Schultz bind himself? For as he bound himself, so will he be bound. We can not find from the testimony that he intended any thing more than to identify Buck as the collector for the Commercial Press. We think this results from the testimony of Reed, the paying teller of the bank, which we have quoted; from.the testimony of Marie, a clerk in the same house with Schultz, who says that he went to the bank with Buck to identify him, and to whom the teller said he was very sorry, but that he could not pay it upon his recognition, but added get any member of the firm to come over, or any one with a power of attorney and I will pay the check; ” and by the testimony of Schultz, who swears that he was only asked to identify Buck as the collector for the Press, and we think this is all he guaranteed. That Buck was the collector for the Press is not disputed. Reed, the paying teller of the bank himself, being asked, “ If you had known him (Buck) as a collector of the Press for many years, would you have paid it ” (the check?), answered, “Yes, as the rest have done.” It is true, he says he would not have paid him the check unless he had been identified as the collector of the Press, with the power to indorse, but he also says that he does not know what he told Buck at the time, and that he wanted “somebody that would vouch for him or indorse for him as being the proper person to whom he could pay.”

Under these circumstances, admittingthe liability of the bank to the plaintiffs, we do not think there is any liability from Shultz to the bank.

It is therefore ordered adjudged and decreed that the judgment of the District Court be avoided, annulled and reversed, as to the appellant Schultz, and that there be judgment in his favor, with costs.


author: Taliaferro, J. Taliaferro, J.

text:
    No. 5044.
    Thomas A. J. Richardson v. Levin P. Smith et als. R. A. Hunter, Warrantor.
    Execution having issued on a judgment obtained by R. A. Hunter in a former suit against Richardson, the plaintiff in this case, a tract of land belonging to said Richardson was sold, and Benjamin K. Hunter, the principal defendant in the present suit, became the purchaser. On a devolutive appeal taken by Richardson, the judgment thus obtained against him was annulled by this court on the ground that the citation was null, having issued in the parish of Rapides and been served upon Richardson in the parish of Sabine, the parish in which ho resided and had his domicile. This action is brought by Richardson against said purchaser of the land at sheriff's sale in the suit of Robert A. Hunter against Richardson.
    In so far as Benjamin K. Hunter is concerned, the proceedings in the case of Robert A. Hunter v Richardson are regular. There was a petition, citation, answer and judgment. Notice of seizure was given and notice to appoint appraisers, and an appointment of an appraiser by the defendant followed by a sale. Under these circumstances the sale, as to third persons, transferred the title to the property sold. The plaintiff’s recourse, if he have any, is against Robert A. Hunter.
    Appeala from the Ninth Judicial District Court, parish of Rapides. Orsborn, J.

      J. JP. Smith, W. A. Seay, for plaintiff and appellant. Jt. J. Bowman, for defendants and appellees.
   Taliaferro, J.

In 1665 Robert A. Hunter brought suit in the parish of Rapides against the present plaintiff and obtained judgment, issued execution, and in April, 1869, a tract of land belonging to Richardson was sold and Benjamin K. Hunter, the principal defendant in this case, became the purchaser. Prom the judgment obtained against him by R. A. Hunter, Richardson took a devolutive appeal and the judgment was annulled by this court ou the ground that the citation was null, having been issued in the parish of Rapides and served upon Richardson in the parish of Sabine, the parish in which he resided and had his domicile.

The present suit is brought by Richardson against Benjamin K. Hunter, who purchased the tract of land aforesaid at sheriff’s sale, in the suit ol R. A. Hunter v. T. H. J. Richardson. Judgment was rendered in the court below restoring the plaintiff to his rights in the land on reimbursing the defendant the sum paid by him for it. Prom this judgment the plaintiff appeals.

In so far as B. K. Hunter is concerned, the proceedings in the case of R. A. Hunter v. Richardson, are regular. There was a petition, citation, answer and judgment. Notice of seizure was given and notice to appoint appraisers, and an appointment of an appraiser by rhe defendant followed by a sale. We think, under these circumstance's, that the sale, as to third persons, transferred the title to the property sold. The plaintiff’s recourse, if he have any, is against R. A. Hunter.

It is therefore ordered that the judgment of the district court be annulled and reversed, and that there be judgment in favor of defendants, with .costs in both courts.

On Rehearing.

Taliaferro, J.

We are not inclined, after a review- of this case, to change our first decree.

It is therefore ordered that the judgment rendered in this case remain undisturbed.


author: Morgan, J. Morgan, J.

text:
    5056.
    Citizens’ Bank of Louisiana v. H. Ruty. F. J. Gallagher, actual possessor. Frances J. Jones, wife, v. Henry Ruty, husband. B. Marionneaux, third opponent. Consolidated.
    In this instance the application tor an appeal was made in writing, and the time for the return thereof by the judge, was the day asked for by the appellants. If they erred, the error was their own, and they must bear the consequence thereof.
    APPEAL from the Fifth Judicial District Court, parish of Iberville. A dole, J.

      Samuel Matthews and Benjamin BebUeux, for Prances J. Jones, plaintiff and appellant. Barrow & Pope, for Marionneaux, third opponent. A. Pitot, d. S. Bousseau, for Citizens’ Bank.
   Morgan, J.

The third opponent moves to dismiss this appeal as to Charles Lozano and Mrs. Prances Jones, on the ground that the appeal Is made returnable to the May term of this court, and that the fault lies at their door. We have searched the record in vain to find any petition of appeal, or motion for appeal, or order of appeal in their favor. Consequently we can not notice them.

As to Mrs. E. M. Jones, executrix, she moved for a suspensive appeal upon her furnishing bond as required by law. The judgment is for $528 50, with five per cent, interest from first January, 1872, to the twenty-sixth January, 1874, the date of the judgment. The interest amounted to $81 40, and should have been added to the principal. 2 La. 86 j 9 An. 310. The appeal bond, therefore, should have been for $914 85. It is for $792 25, and is therefore insufficient for a suspensive appeal. If not a suspensive appeal it is not any appeal, as the amount of the bond is not fixed by the judge.

It is therefore ordered, adjudged and decreed that the appeal be dismissed.

On Rehearing.

Morgan, J.

As to Frances J. Jones, wife of Henry Ruty, and Charles Lozano, sheriff, the appeal must be dismissed. The petition^of appeal was filed on the thirty-first January, 1874. They prayed that the appeal be returnable on the next return day for trial of appeals from the parish of Iberville. The next return day was' the ninth February, 1874.

“The appellee must be cited to appear before the court of appeal at its next term, if there be sufficient time for doing so after allowing the same delay which is granted to defendants in ordinary suits; and if there be no sufficient time to admit of the appellee having this delay, owing to the distance from his domicile to the place where the court of appeal is held, he shall be cited to appear before the same at the subsequent term.” C. P. 583.

“The delay to be expressed in the citation consists of ten days, to be counted from the time the citation has been served, which are allowed to the defendant to comply witli the demand of the petition, if the defendant reside in the place where the court is held, or within ten miles from such place. If the defendant reside at a greater distance the aforesaid delay shall be increased by one day for every ten miles that his residence is distant from the place, of holding the court before which he is cited to appear. In counting the ten days neither the day when the citation has been served, nor the day when the delay expires, are included.” C. P. 180.

The return day, fixed by law, for appeals from the parish of Iberville was the ninth February, 1874. The petition, as we have seen, was filed on the thirty-first January. The transcript was filed on the tenth February. The delays in which the appellee had to answer had not expired, even if he had been entitled to none other by reason of1 the distance from the place where the court, which rendered the decision, was held, to the place where the Supreme Court is held. The fault lies with the appellants, as they prayed that their appeal be made “ returnable to the Supreme Court of Louisiana at the next regular return day for appeals from the Fifth Judicial District of Louisiana.” This brings them within the exception provided for by the nineteenth section of the act of 1839, which provides that “ no appeal to the Supreme Court shall be dismissed on account of any defect, error, or irregularity in the petition, or order of appeal, or in the certificate of the clerk or judge, or in the citation of appeal or service thereof, or because the appeal was not made returnable at the next term of the Supreme Court, whenever it shall not appear tllat such defect, error, or irregularity is imputed to the appellant.”

In this case the application for an appeal was made in writing and the time fixed for the return thereof by the judge was the day asked for by the appellants. If they erred, the error is their own. See the case of Trimble v. Brichta, 10 An. 778.

Under these circumstances their case is governed by the cases in 8 La. 220; 12 La. 480, 483.

It is therefore ordered, adjudged and decreed that the appeal of Mrs. Frances J. Jones, wife of Henry Ruty, and Charles Lozano, sheriff, be dismissed at their costs.


text:
    No. 3670.
    George W. Bancker & Co. v. John and Hugh Brady, and Everett Lane & Co. v. John and Hugh Brady, consolidated.
    Brady, a resident of Arkansas, proposed to Phelps & Co., residing in Hew Orleans, to ship them thirty bales of cotton, if they would furnish him fifteen hundred dollars in money and send him certain merchandise. The proposition was accepted and the contract was then formed. It was a sale of personal property perfected in Louisiana only by delivery. Before the delivery, either actually or constructively, the cotton was attached. Heither the cotton nor the'bill of lading was delivered prior to the service under the attachment. Therefore the attachment must be maintained as good and valid.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      A. & IF. Voorhies, for G. W. Bancker & Co., plaintiffs and appellees. jPercy Roberts, for Everett Lane & Co. Semmes <& Mott, for John Phelps & Co., intervenors and appellants.
   Taliaferro, J.

This is a contest mainly between G. W. Bancker & Co. and Everett Lane & Co., attaching creditors, and John Phelps & Co., claiming the possession of the property attached, and a right to it as consignees according to the destination given to it by the owners, to repay advances made to them at their request, in goods and money. John Phelps & Co. intervened in both attachment suits, setting up their claims to the property attached. The material facts seem to bo that in February, 1871, John Brady, one ot the defendants, shipped from their residence in the State of Arkansas, to John Phelps & Co., thirty bales of cotton. This was preceded by a letter of advice, in which he requested them to seud him by the return boat fifteen hundred dollars in money and some supplies and cotton bagging, etc. The request was complied with, and on the fourth of April following the steamer that brought the cotton arrived at the port of New Orleans. At six o’clock A. M. of the fifth of April, the cotton was attached. On the fourth, the day of the arrival of the steamer, application was made on board the boat by the intervenors for che bill of lading, and they were answered that it had been sent around to their counting room. It turned out, however, that Phelps & Co. did not receive the bill of lading until the next day, and after the attachment had been levied. The plaintiffs, Bancker & Co. and Everett Lane & Co., had judgments against the defendants. There was judgment in favor of the attaching creditors in each case, dismissing the intervention, and Phelps & Co., the intervenors, have appealed.

The principal inquiry seems to be, had the intervenors, the consignees, acquired possession of the cotton, and were their rights perfected before the attachment was levied ? The intervenors do not claim a privilege. They-contend that the delivery to the carrier of the bill of lading intended for them, was a delivery to them ; that this delivery of the bill of lading, while the cotton was in Arkansas, where the common law prevails, vested in the consignees the ownership of the property, and in that condition it was brought within the limits of the State of Louisiana, and they maintain that the question is not one of privilege but of ownership, under the laws of Arkansas.

Considered as a sale, and we incline to think the agreement between the parties partakes of the character of a sale, the law of Louisiana would seem to govern. Brady, a resident of Arkansas, proposes to-Phelps & Co., residing in New Orleans, to ship them thirty bales of cotton if they would furnish him fifteen hundred dollars in money and send him certain merchandise. The proposition was accepted and the contract was then formed. It was a sale of personal property perfected in Louisiana only by delivery. Before the delivery, either actually or constructively, the cotton was attached. Neither the cotton nor the bill of lading was delivered prior to the seizure under the attachment.

We think the case is with the attaching creditors, and that the decree of the lower court was properly rendered.

Judgment affirmed.


text:
    No. 5326.
    State of Louisiana ex rel. City of New Orleans et al. v. The Judge of the Superior District Court, parish of Orleans, and W. E. Murphy.
    It lias been invariably held by this court that its jurisdiction can only attach by appeal properly taken, and that it bas not a supervisory control over the inferior tribunals.
    APPLICATION for a writ of prohibition against the Judge of the Superior District Court, parish of Orleans, and W. E. Murphy.

      George S. Lacey, City Attorney, for relator. Alfred Slum, for respondents.
   Howell, J.

The city of New Orleans and the Administrator of Finance allege that the defendant, W. E. Murphy, as transferree of the clerk of the Superior District Court, is attempting, by the process of injunction, to collect from the city of New Orleans the costs in a large number of tax suits, in violation of act No. 5 of 1870, which prohibits the issuance of any summary process against certain officers of the city, the object of which is to enforce the payment of money from the city j that the relators moved to dissolve the injunction on specified grounds and excepted to the jurisdiction of the court; that the motion and exception were overruled and the injunction allowed to remain in force, which will work an irreparable injury to the city, and they ask for a perpetual prohibition against the said judge and the said Murphy, restraining them from further proceeding in said case.

The defendants answer that the injunction issued in accordance with law and is not in violation of the act invoked, and they contend that as the injunction suit has not yet been tried and no judgment rendered from which an appeal has been or may be taken, the writ of prohibition does not lie.

This is the doctrine announced in the case of State ex rel. D’Meza et al. v. Judge of the Fourth District Court, 21 An. 123, which this court has followed since; but the counsel for the relators contends that the present application is not within the said doctrine; that the appellate jurisdiction of this court means its supervisory, as contra-distinguished from its original jurisdiction ; that appellate control is not confined to cases of appeal, but extends to appealable cases actually pending in the inferior courts, and that this court can exercise its power therein by other process thau that of appeal.

This argument has been frequently addressed to this court and we have invariably held that our jurisdiction can only attach by appeal properly taken, and that we have not a supervisory control over the inferior tribunals.

It is therefore ordered that the application be refused with costs.


text:
    No. 3724.
    Parker & Co., for the use of, etc., v. J. P. Harrison, Son & Co.
    The defendants, merchants in Hew Orleans, were instructed to sell cotton, and send the money to care of W. W. Robertson, Glencoe, Mississippi, by the steamer Belle Lee. Defendants put the money in a package directed as advised, and sent it by one of their clerks to be put on board the Belle Lee, then at the wharf in Hew Orleans, and about to . leave port. Within a short distance of the boat the clerk was knocked down, and robbed, while in an insensible condition, of the money and his gold watch. Ho recovery was ever made of the money:
    Held — That, under the circumstances of-the case, the defendants should sustain the loss, because the money was in their custody and under their control when .the robbery occurred. It was out of the plaintiffs’ power to prevent the act of the robber.
    Appeal from the Sixth District Court, parish of Orleans. Oooley, J.

      Lábatt & Aroni, for plaintiffs and appellees. Semmes & Mott, for defendants and appellants.
   Taliaferro, J.

This is a suit to make the defendants liable for the sum of $635 36, proceeds of thirteen bales of cotton sold by them as factors of the plaintiffs, which proceeds, in cash, the defendants, in pursuance of instructions from their principals, did send to be delivered to them, but owing to a casualty happening on the way never came to hand. The plaintiffs had judgment for $601 89. The defendants appealed.

The instructions to the merchants were to sell the cotton and send the money to care of W. W. Robertson, Glencoe, Mississippi, by the steamer Belle Lee. The merchants put the money in a package directed as advised, and sent it by one of their clerks to be put on board the Belle Lee, then at the wharf in New Orleans, and about to leave .port. Within a short distance of the boat the clerk was knocked down, and robbed, while in an insensible condition, of the money and his gold watch. No recovery was ever made of the money. The question is, which party shall bear the loss'?

Under the circumstances of this case we think the defendants should sustain the loss, because the money was in their custody and under their control when the robbery occurred. It was out of the plaintiffs’ power to prevent the act of the robber. Greater caution on the part of the defendants might have prevented it. Had the money reached the boat and been put in charge of the clerk and under his safe keeping, in the usual manner in which remittances of the kind are made, then it would no longer have been in the possession and under the control of the defendants, and their risk would have been at an end. The plaintiffs’ instructions to them to send the money by the Belle Lee would have been fully complied with.

This view of the case is sanctioned by the doctrine held by this court in the case of Johnson v. Martin, 11 An. 27. In that case the plaintiff sent a sum of money in bank notes inclosed in a letter directed to the defendant, which was deposited in his box in the postoffice. • The letter was abstracted from the ppstoffi.ee by a person who had formerly been in the employment of the defendant, but who had been previously discharged by him for dishonesty. The plaintiff sued to recover the amount thus lost from the defendant. Judge Lea, the organ of the court, said: “The plaintiff undertook to send a certain sum of money to the defendant. Until it is received, the latter can not be held accountable for it. At the time the robbery took place, it was no more under the defendant’s control than that of the plaintiff, and though we are not prepared to say that under the peculiar circumstances of this case as disclosed by the'evidence, the plaintiff himself was guilty of neglect, yet nothing in the record justifies the assumption that the defendant was bound to protect the plaintiff against acts of fraud or violence which might be perpetrated upon the postoffice by one who was not in his employ or under his control. We think the plaintiff is not entitled to claim from the defendant a reimbursement of the money of which he has been robbed by a third person, the act by which the loss was occasioned not being one which under the circumstances the defendant could reasonably have anticipated.”

In the case at bar, we think the decree of the lower court in favor of the plaintiff was properly rendered.

Judgment affirmed.