source: Caselaw Access Project

author: Howei/d, J.

license: Public Domain

text:
    P. Cazelar, Jr., v. A. W. Walker.
    Where a damaged article has been received and used by the contractor, knowingly, he cannot repudiate his contract, much less claim damages arising from injury sustained by its use.
    xA PPEAL from the District Court of Parish of Placquemine, Foulho 'ize, J.

      F. Augustin and A. Gharvet for plaintiff. A. Sambola and P. A. Fueros for defendant and appellant.
   Howei/d, J.

Plaintiff, in this action, claims $600, as the price of two hundred cords of wood at $3 per cord, sold and delivered to defendant, who admits the sale, but alleges that the full quantity was not delivered; and that, in violation of an express stipulation of the contract, the plaintiff sent him seventy-five cords of overflowed and damaged wood, which, in using it, caused delay in the process of sugar-making, and a depredation in the quality of the sugar made with it, for which he claims damages, in reconvention, to the amount of $690.

Judgmeiit was rendered in favor of plaintiff for $514 28, with interest, and dismissing the reconventional demand.

Defendant appealed.

We concur in the opinion of the District judge that, under the circumstances, the defendant is not entitled to any damages that may have resulted from using the overflowed wood. He knew its condition and was not bound to use it. And, although our calculation, as to the deficiency in the quantity actually delivered and the deduction in the total price, differs, by a few dollars, from that of the lower court, we think substantial justice has been done between the parties, and we see no cause for disturbing the judgment.

It is therefore ordered that the judgment be affirmed, with costs.


author: Hsman, O. J.

text:
    P. R. Fell v. J. C. Darden & Co—H. H. Hicks & Co., Intervenors.
    A sale which is valid by the laws of the country where it is made, is valid everywhere. The lex loci contractus must govern.
    from the Sixth District‘Court of Hew Orleans, Howell, J.

      Favidson for plaintiff. Furanl & Hornor for Intervenors.
   Hsman, O. J.

H. Darden, transacting business in the State of Tennessee, under the name of H. Darden & Oo., sold his stock of goods by act of sale, passed in that State, to H. H. Hicks & Oo. Vendor and ven-dees resided there.

At the timé, a part of the goods thus sold was in transitu, shipped from Liverpool to New Orleans.

Immediately after the goods arrived in New Orleans, and before the agent of the vendees could get possession, plaintiff, a resident of this State, as a creditor of Darden, had them attached.

The vendees then intervened, and claimed them as owners, by virtue of the sale aforesaid.

The court gave judgment in vendee’s favor, and dismissed the suit as to defendant.

Plaintiff appealed.

By the laws of Tennessee, as proven, a sale without delivery of property sold, is valid against vendor’s creditors; and the question is, whether the property sold while in transitu can be attached by Darden’s creditors, when brought here ?

Had the goods been in this State, at the time of the sale, an attachment of them would have been sustained: there being no delivery, and, until delivery, creditors have a right to seize and attach property sold by their debtor. See Art. 1917 Civil Code. The court would then have protected the citizen in his claims, as no nation is bound by comity to recognize or enforce, to the injury of its citizens or in violation of its positive legislation, contracts on property situated within its jurisdiction; but the goods not being within this State at the time of sale, our laws had no control over them, and their subsequent removal here cannot change acquired rights.

The contract was complete by the laws of Tennessee, and the general principle is that a sale which is valid by the laws of the country where it is made, is valid everywhere.

The lex loci contractus must govern this case, as it presents no exception to this general principle. See Civil Code, 10; Code Prac. 13; 7 Mar. B. pp. 213 and 355; 8 Bob. B. p. 262.

No citation was served on defendant, an absentee. No property is shown, belonging to him in this State, on which a judgment can operate. No suit is pending where the absentee might, from necessity, be made a party in furtherance of justice. The appointment of an attorney ad hoc for defendant, and service on the attorney thus appointed, is insufficient to bring the defendant into.court. See 2 An. B. pp. 562 and 1010.

Judgment affirmed.

Howeicd, J., recused.


author: Howeee, J.

text:
    John Morgan Hall v. E. W. Beggs—W. W. Handlin, Warrantor.
    No appeal will lie, except as regards minors, after a year lias expired, to he computed from the day on which the final judgment was rendered.

    A second appeal may lie granted when the first has been dismissed without a decision on its merits.
    Where an appeal was taken in the court a quo, the fact that no appellate court existed would not interrupt the prescription. It might be otherwise if there had been no judge in the lower court to grant an appeal.
    Ü. P'PKATi from the Fifth District Court of New Orleans, Theard, J.

      Boberi Mott for plaintiff and appellant. G. Boselius and W. W. Sand-lin for defendant.
   Howeee, J.

A motion is made to dismiss the appeal in this case, on the ground that more than one year had elapsed from the signing of the judgment, before the order of appeal was granted, said judgment having been signed on the 24th January, 1863, and said appeal granted September 7th, 1865.

A former appeal was takep on 1st June, 1863; and on the 6th June, 1865, upon a motion to dismiss, this court rendered a judgment dismissing the appeal, on the ground that the record did not contain all the evidence adduced on the trial in the lower court, an omission attributable to appellant; which decree was, on the 25th of the same month, duly recorded in the District court.

Plaintiff, after obtaining an order, on 7th September following, for a second appeal, instituted proceedings contradictorily with the appellee to perfect the record, and he now contends that the first appeal was erroneously dismissed, because it was shown in those proceedings that the defect in the transcript of appeal arose from the act of the appellee, and not the appellant; and that the prescription of one year, established by Art. 593, C. P. did not begin to run until the date of filing the record in the first appeal in 1865, because there was no Supreme Court.

It is clear that we cannot now revise the judgment of this court dismissing the first appeal, as it has become final. The appellant failed to avail himself, at the proper time, of the remedies which the law afforded him, and he cannot get the benefit of them in this proceeding.

As to his second position, the Code of Practice provides that “no appeal will lie, except as regards minors, after a year has expired, to be computed from the day on which the final judgment was rendered,” and we can see no reason for exempting this case from the operation of this law. A second appeal may be granted, when the first has been dismissed without a decision: on the merits, provided it is claimed within the year after the judgment became final in the lower court. 11 L. 380.

The rule “ contra non valerdem agere nulla currit prescriptio ” does not apply in this case, as plaintiff did act, in taking his appeal to the Supreme Court, within the legal delay, and citing the appellee to appear here and answer to said appeal; and the fact that there were no judges of the Supreme Court under commission to hold court, or clerk to file the record, does not interrupt the prescription in question. The appellant had al-ieady exercised Ms right of appeal. In the case of Griffing v. Bowmar, 3 R. 115, the court say: “We know of no law that recognizes an interruption of the prescription of one year against an appeal; nor do we think the general doctrines in relation to the interruption of prescription apply to such a case.” We do not wish to be understood, however, as holding that prescription would not be interrupted, had there been no judge in the lower court to grant an appeal.

The motion must prevail.

It is therefore ordered and decreed, that the appeal herein be dismissed at appellant’s costs.


author: Howell, J.

text:
    John C. Smith v. J. L. Thielen, Executor of Lucy A. Caldwell, Deceased.
    Tile measure of damages is fclie amount of loss tlie plaintiff lias sustained, and the profit of which he has been deprived, with the qualifications stated in Article 1928 O. 0.
    To recover damages plaintiff must make his claim certain ; to make it only probable is not enough. $ut, when this is not done, the judgment below should not be final, but one of non-suit.
    from the Second District Court of New Orleans, Moi'gan, J.

      Budd & Lambert for plaintiff, and appellant. Alfred Hennen for defendant.
   Howell, J.

The plaintiff having leased from the deceased, for a term of years, the establishment known 'as the United States Hotel, in the Third District of this city, brought’ suit against her succession for damages to the amount of one thousand dollars, for an alleged violation of the following clause in the act of lease between the parties, to wit: “And the lessor binds herself, her heirs and assigns, not to rent out the house on the corner of Victory and Elysian Fields streets, adjoining said United States Hotel, for the purpose of having therein any hotel, or any similar business, nor to keep therein any such business for herself.”

It is alleged in the petition, and established by the evidence that plaintiff, as well as those who preceded him, carried on in the leased premises, the business of keeping boarders and lodgers, a bar room and billiard tables; and that some time after he had taken possession, a billiard saloon was opened in the ttpper part of said corner house, and a bar-room opened, and a few boarders kept in a building on Victory street, in the rear of and adjoining this corner house, and which was once the kitchen to said house.

A general denial was pleaded, and the judge of the District court rendered judgment in favor of defendant, for the reason that there was no such evidence of damages as to justify a judgment in favor of plaintiff, and expressed a doubt as to whether or not there was a violation of the contract.

Construed with reference to the allegations and proof, it is fair and legitimate to hold that the expression, “any hotel or any similar business,” used in the restrictive clause, referred to the business, which wstó to be and had been conducted in the United States Hotel, which was the keeping of boarders, a bar room and billiard tables; and that it was the intention of the parties that no such business, or any branch thereof, should be carried on, during the continuance of the lease, in the adjoining house, in competition with plaintiff, in whose favor the stipulation was made. In this sense, there was evidently a breach of this covenant by the deceased.

We agree, however, with the judge a quo, that the evidence does not enable the court to fix accurately the damages resulting from this violation of the contract.

The measure of damages is the amount of loss the plaintiff has sustained and the profit of which he has been deprived, with the qualifications stated in the Code. C. C. 1928; 9 An. 294.

The statements of the witnesses, that the daily receipts of plaintiff fell off, or decreased a certain named amount, after similar business was opened by the deceased in the adjoining buildings, because the customers who frequented plaintiff’s house resorted to the other, do not meet this standard. They do not show the profit which plaintiff would have made out of those customers who left him. Their aggregate of the decrease or falling off in the receipts is not shown to be exclusive of the expense of conducting the business, the costs of materials, etc. These are left to arbitrary calculation or assumption.

In addition to these considerations, the difficulty of showing that plaintiff would have received the benefit of the patronage of these customers, had the adjoining establishments not been opened, contrary to the contract (which has not been attempted), inclines us the more readily to strictly apply the rule that, “ to recover, one must make his claim certain; to make it only probable is not enough.” The plaintiff has not established, with legal certainty, the amount of damages actually sustained by him. We cannot assume that the whole or any given part of the amounts named by the witnesses, as the diminution of receipts, is the amount of the loss he has sustained and the profit of which he has been deprived.

But we think the lower court erred in giving final judgment against the plaintiff: it should have been one of nonsuit.

It is therefore ordered, adjudged and decreed, that the judgment of the District court be avoided and reversed; and it is now ordered and decreed, that there be judgment against the plaintiff as in case of non-suit, and that he pay the costs of the lower court, and the defendant pay the costs of this appeal.


author: Labauve, J.

text:
    Woodlief & Legendre v. H. W. Moncure.
    No man ought to bo held responsible for the acts of another done to his prejudice and against his will. Thus it is held in regard to the negoiiorum gestor, that the latter must have intended to act in the interest of, and to manage the affairs of another, and not his own; and the management must have been useful at the time.
    from the Third District Court of New Orleans, Duvigneaud, J.

      Kennedy c& Miles for plaintiffs and appellants.

      Durant & Horno)'for defendants.

    As to plaintiffs being .negoliorum ges-tores, the law is plainly against them. Defendant had no need of a nego-liorum gestor; he was here in town, and had the matter been communicated to him, which there was nothing to prevent, he could have attended to it himself. ■ See Dig. b. 8, tit, 5. Hoc edicium neeessarhvm, etc. Inst. b. 3, tit. 28. Igilur cum qiiis, etc.
    The payment by plaintiffs was of no advantage or profit to defendant. See 5 Mareadé, p. 252. Pour que le maitre soit oblig-é, etc.
    The payment was made entirely for plaintiff’s benefit. See Dig. b. 3, tit. 5, sec. 6, £ 3. Bed si qyds negoiia mea, etc.
    The payment was made against the will of Moncure, who always declared he would never pay it; it was in violation of the maxim, inviii nut contrcidiceniis negoiia non geruntur. See Mackeldey, sec. 459; Tuclcer v. Gorlin, 14 An. 734.
   Labauve, J.

This suit is brought to recover of the defendant the sum of ¡5534 50. The plaintiffs say that Hopkins had sold said Moncure sugar and molasses, deliverable on the plantation on Bayou Black; that said Moncure had received said sugar and molasses, and paid on account $14,992 80, leaving abalance due said Hopkins of $534 50; and that they paid said balance to said Hopkins as the negoliorum gestores of said Mon-cure, taking, at the same timo, a transfer.

The defendant answered by a general denial; and, in substance, denied that said plaintiffs acted as negotiorum gestores of defendant, and that, on the contrary, they had acted in their own interest, and for themselves, in effecting, as brokers, a sale of Wvndham Bobertson’s plantation and crop to Alfred Hopkins ; that, in order to close the said sale and realize fclieir commission as brokers, petitioners advanced the sum now claimed, etc.

The judge below, after hearing the testimony, gave judgment in favor of defendant, and plaintiffs appealed.

.The testimony shows that the defendant had agreed to buy the crop at city prices ; that the sugar and molasses amounted to $15,527 38, and that the estimated freight from the plantation to New Orleans was $534 50 ; that the defendant paid $14,992 80, and refused to pay the balance of $534 50, on the ground that he took the sugar and molasses on the plantation, and tlie probable freight must be deducted. The plaintiffs were not the brokers in selling' the crop, but they were so in the selling of the plantation for $180,000. The commission was two per cent, on the whole amount, and they received $3,600 for brokerage. The cash payment on the plantation was $50,000, to be made up in a certain way ; and it required this disputed balance of $534 50 to complete the cash ; and it is in evidence that, if this disputed balance had not been paid, there would have been no sale. The plaintiffs paid the disputed balance to make up the deficit, and said they intended to sue the defendant for it.

The plaintiffs predicate their demand on two grounds : 1. They acted as negotíorum gestores for defendant in paying said balance. 2. That they took, at the same time, a subrogation from Hopkins to all his rights against said Moncure.

There is no evidence in the record showing the alleged subrogation.

The question, whether the plaintiffs acted, as alleged, as negotíorum ges-tores or not, depends on facts. Did the plaintiffs act as friends, and for the interest and advantage of the defendant, in taking upon themselves to pay this disputed balance ? If the answer be in the affirmative, they must recover; and, if it be in the negative, there must be judgment for the defendants. It requires no argument to demonstrate that they acted for themselves, for their own advantage and interest, well knowing that the defendant objected to pay said balance, and giving- his reasons for his refusal. When they paid this balance, they said they would sue the defendant for it. The defendant had no interest in the change of creditors. The plaintiffs, as it seems, paid this balance to conclude a sale, and to receive a commission of $3,600. For these reasons, and those given by our learned brother below, the judgment must be affirmed. 14 A. 734.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, with costs.


author: Labatjve, J.

text:
    Thomas J. Earhart v. New Orleans and Carrollton Rail Road Company.
    The aot of ISfch. March, 1855, for a suit in damages, under Art. 2294, is a legal subrogation in favor of the persons there designated, to the right of action of the deceased sufferer, and the plaintiff must allege his cause of action as derived from the deceased.
    1 -Li PPEAL from tlio Sixth District Court of New Orleans, Howell, J.

      Durant <& Ilornor for plaintiff.

    This is an action for damages, brought by the father of a child tilled at the Carrollton railroad depot, on. the 31st of January, 1860, from being knocked down by a locomotivo engine and run over. Both legs of the boy were crushed, and amputation ineffectually resorted to to save his life.
    The defendant first filled an exception, that the petition set forth no catLse of action; and, in case this was overruled, a general denial, ij
    There can be no doubt of the correctness of the judgment of the lower com-t on the exception. See act of 15th March, 1855, pp. 270' and 271.
    The case was tried before a jury, who gave a verdict for one thousand dollars; and defendant has appealed.
    "We will first call attention to the bills of exception in the record.
    The plaintiff’s counsel offered to prove by a witness, Thomas Gleary, who had charge of the engine when the event occurred, that he, the said Gleary, while in the defendants’ employ, had run over other persons and inflicted other injuries. This testimony the court rejected; and in so ruling the court erred, for the testimony was admissible to show the character of the witness, that ho was a reckless and unskillful man, and that, knowing him to be such, the defendants kept in their employ.
    The next bill of exceptions is on page 45. The plaintiff put upon the stand the brother of the deceased boy, and his own son, who being objected to by defendants, was rejected as a witness by the court. In this the court erred. The suit is not really that of the father; but of the deceased child. The statutes says, act of 1855, p. 270 : “ The right of this action shall survive.” What action ? That which the injured party had. The right of action not being in the parent, those who are deemed incompetent by reason of their relation to the latter, in his own case, cannot bo deemed incompetent in this. The tendency is to admit, not to exclude witnesses; and this is sustained by reason. Suppose the action commenced during the lifetime of the child, the brother would then be a competent witness. Suppose the child to die while the trial was going on, before or after the brother was sworn, how could the death render him incompetent ? The wdtness was not offered “with respect to his father, ” as prohibited by L. C. Article 2260, but with respect to his deceased brother.

      G. Roselius for defendant and appellant-

    No action can be maintained by the father for the death of his minor child, unless he sets forth and claims specific actual damages. The present is simply an action sounding in damages for an alleged tort. He avers that by reason of this heavy calamity, he, himself, his wife, the mother of the said Osborne, and the whole of petitioner’s family, were and remain plunged in the deepest grief and affliction, and your petitioner has suffered damages from the illegal and wrongful conduct of the company, as above set forth, to the extent of twenty-five thousand dollars.
    It seems clear to me that the plaintiff’s action thus brought for damages sustained by himself can derive no support from the act of the 15th March, 1855 (see Revised Statutes, p. 271), for that law merely provides that, “in case of the party in whose favor the right to claim damages for a tort has arisen should die before exercising, it, the action for enforcing it shall survive in favor of the minor children and widow of the deceased, or either of them; and in default of these, in favor of the surviving father or mother, or either of them, for the space of one year from the death. ”
    There is no obscurity nor ambiguity in this language. It has a clear, obvious meaning, and that is, that the surviving relatives, here spoken of, may bring an action for the recovery of the damages suffered by the deceased by reason of the tort committed by the defendant. If there existed any right of action resulting from facts alleged, it clearly belonged to the sufferer, and not to Ms father, except by transmission at his death, under the statute above referred to, amendatory of the 2294th Article of the Code. It is therefore respectfully submitted that the exception to the petition should have been sustained, and the suit dismissed.
    But even if the action in its present form can be maintained, it is confidently submitted that under the evidence in the record, the verdict should be set aside and the judgment reversed. There cannot be any doubt that the unfortunate young boy met with this sad misfortune through his own imprudence. Every care and precaution was taken by the servants of the defendants to avoid this accident. Under such a state of facts, he could not recover any damages if he were living, nor can his father recover any after his death. 17 L. E. p. 361; 18 L. R. p. 339; 6 A. E. p. 496; 9 A. E. p. 441; 11 A. ». p. 292; 1 A. R. p. 374; 3 A. E. p. 48; 3 A. E. p. 441.
   Labatjve, J.

The plaintiff alleges, in substance, that the New Orleans and Carrollton Railroad Company is legally indebted unto him in the sum of @25,000; that, on the 31st January, 1860, petitioner’s son, Osborne C. Earhart, was thrown down and run over by a locomotive steam engine, driven on the track of said company by persons in its employ; that petitioner’s son was between ten and eleven years old, and standing then and there quietly, looking at the cars and train, when, suddenly and without giving any warning, one of the locomotives and trains backed and struck' the said Osborne, who was standing with his back to the said locomotive and train, crushing both Ms legs, which were amputated in the hope of saving his life, but that the operation was ineffectual; and soon after, on the 5th day of February, after having endured the most intense suffering, the said Osborne died; that the servants of said company, then in charge of said locomotive and train, managed them in a careless and unskillful manner, and that, by reason of this carelessness of said servants, his son Osborne suffered a cruel and painful death.

Tour petitioner further shows that, by reason of this heavy calamity, lie himself, Ids wife, tlie mother of the said Osborne, and the whole of petitioner’s family were and remain plunged in the deepest grief and affliction; and your petitioner has suffered damages from the illegal and wrongful conduct of the company, aboye set forth, to the extent of $25,000.

He prayed accordingly.

The defendant filed the following exception :

The defendant herein, the New Orleans and Carrollton Railroad Company, excepts to plaintiff’s petition, and for cause of exception represents to this honorable court that said petition sets forth no lawful or valid cause of action; prays that said exception be sustained and plaintiff’s demand rejected.

The District judge overruled the exception; verdict and judgment having been rendered on the merits, in favor of plaintiff, the defendant took this appeal.

Before the passage of the act of 15th March, 1855, amending Art. 2294 of C. C., it was considered as settled that actions like the one at bar were purely personal, and not transmissible with the succession of the party sufferer, but died with him. The Supreme Court had said that it required a special statute to give this right of action to other parties. C A. 495. 11 A. 5. It is, in consequence of this, it is supposed, that the act above referred to was passed, reading as follows :

“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive in cases of death, in favor of the minor children and widow of the deceased, or either of them, and, in default of them, in favor of the surviving father or mother, or oither of them, for the space of one year from the death.”

The plaintiff, to bring his case within the provisions of the statute, should have alleged the cause of action in, and the damages suffered by, his deceased child, and survived under the statute, in himself, plaintiff. But, on the contrary, he alleges the cause of action in himself as the sufferer of damages, to wit: “ He avers that, by reason of this heavy calamity, he himself, his wife, the mother of said Osborne, and the whole of petitioner’s family, were and remain plunged in the deepest grief and affliction, and your petitioner has suffered damages from the illegal 'and wrongful conduct of the company, as above set forth, to the extent of $25,000.”

In the words of the statute, it is a legal subrogation in favor of the persons designated, to the right of action of the deceased sufferer; and, in case of a suit under that subrogation, the plaintiff should allege his cause of action as derived from the deceased, under the statute.

It is therefore, ordered and decreed, that the judgment of the District court be annulled and avoided; it is further ordered and decreed, that the exception bo sustained and the petition dismissed, as in a case of non-suit; the plaintiff and appellee to pay costs in both courts.

Howekd, J., recused.


text:
    Laurent Millaudon v. Alexander Lesseps.
    In general, all personal actions, excopfc tiloso oxpressly enumerated, are prescribed by ten years, if tho creditor bo present, and twenty years, if be bo absent.
    The claim of an agent against bis principal for services is not embraced in the words “open accounts,” which, by the statuto of 1852, are prescribed against in three years. Ten years is the only prescription against such a demand.
    The plea in compensation lias a retroactive effect from the time when the plaintiff and defendant became indebted to each other. Hence, the plea of prescription must be overruled where tho debts existed simultaneously.
    Tho mandatory, or attorney, is answerable for the interest of any sum of money he has employed to his own use, for the time ho has so employed it; and for that of any sum remaining in his hands, from the day he become a defaulter by delaying to pay it over.
    li. PPEAL from the-Fourth District Court of New Orleans, Price, J.

      John Finney and 0. I)vfour for plaintiff.

    We have before remarked that there is no evidence to show that the plaintiff was bound to account for the proceeds of tho note in question. But even if he were, Ms obligation was not that of a depositary. Tho relation between Mm and the defendant was simply that of 'debtor and creditor. Few Orleans & Car-rollton Railroad Company v. T. B. Harper, 11 A. B. 212; Matthews, Finley & Co. v. Their Creditors, 10 A. R. 342; Sims v. Blean, 10 An. 346.
    Nor can the plea of prescription be defeated by the rule “yuca tempo-ralia sunt ad agenchm sunt perpetua ad excipiiendum. ” That rule only applies where the claims sought to be compensated are connected together and grow out of the same affair. Boeto v. Laine, 3 An. 141; Girocl v. His Creditors, 2 An. 546; Troplong, de la Prescription, No. 833.
    The judgment of the court below was for the amount demanded by the plaintiff in his petition. We respectfully refer to the judgment and opinion of the lower court.
    We respectfully pray for an affirmance of tho judgment and costs.
    There is a paper pasted on the first page of the transcript, wMeh, your honors will perceive, forms no part of it. This paper bears no date, but was filed in this court on the 13th of November, 1861, the day after the transcript was filed. And the certificate. of the clerk, bearing date the 29th of October, 1861, certifies that the transcript contains a full and complete transcript of all the proceedings had, documents filed, and testimony adduced, on the trial of the cause. No statement of facts was therefore admissible, and if so, it was not made in the manner, nor within the time required bylaw. O. P. 602, 603; 8 N. S. 305; 3 L. R. 455; 16 L. R. 137; 10 An. 554.

      L. Costera and P. H. Morgan for defendant.

    This plea of prescription is untenable. L. MiUaudon was either a depositary or an agent. If depositary, the law does not allow him to set up the plea of prescription. If an agent, he is in no better condition.
    The Civil Code, Art. 3476, says: “Those who possess for others, and not in their own. name, cannot prescribe, whatever may be the time of their possession; thus, former tenants, depositaries, usufructuaries, and all those generally who hold by a precarious tenure in the name of the proprietor, cannot prescribe on the thing thus held.”
    Commenting upon Art. 2236 of the Napoleon Code, which corresponds to the above quoted article of the Louisiana Code, Troplong says:
    “ Lo mandataíre a une possession précaire, puisqu’il reconnait un mai-tre ii qui il doit rendre compte.
    “Mais une possession ammo domini courra-t-elle pour lui h compter de la cessation légale du mandat, .ou. bien a compter de la reddition de compte?
    “ Je pense que pour que le Yice de précarité soit purge, le mandataire doit presenter une décharge de son mandant. ALors seulement il y a intervention par le fait d’un tiers, conformément a l’article 2238 (Lord-siana Code en 3478), sans quoi la possession continue á rester une possession pour autrui.
    “S’il n’y avail pas eu une reddition de compte, on se déciderait par les principes exposes au numéro precedent. Trente annees écoulées depuis la cessation légale du mandat feraient supposor que le compte a été rendu a lo moment, ot que le mandant s’en est contenté; on en conclurait done que la possession bonne pour précaire, apres son point initial, parcequ’il y a eu interversión réelle ou présuméo par le fait de celui qui y était intervene. Troplong, Prescription, p. 490.
    Thus, as your honors perceive, a mandatory who, under our laws as well as those of Prance, has a precarious possession of what belongs to his principal, can only plead prescription in two cases, viz:
    1. When he can show a discharge from his principal.
    2. When thirty years in Prance and ten years in Louisiana have elapsed since the cessation légale of the mandate, and no account has been rendered; and in this latter case, prescription is based upon a supposed interversión, originating from the silence and inaction of the interested party (that is the principal) during the time fixed by law; which necessarily implies that the principal was aware of the cessation of the mandate.
    Your honors’ predecessors have adopted these views of Troplong, and even have gone further in the much litigated case of McDonogh v. DeLas-sus et at, 10 R. R.; they say, on page 487:
    “It seems to us that the law does not, by the contract of agency, establish at once the relation of debtor and creditor, between the agent and principal. That the former may easily become a debtor and the latter a creditor is undeniable; but not, wo suppose, until the dissolution of the contract, and the neglect or refusal of the agent to account and pay over the funds and property in his hands.”
    And on page 488 : “We are not prepared to establish, as a general rule, that the relation of principal and agent is that of creditor and debtor; as soon as the latter receives money or property for the former, we regard it as something more. It is a trust, and the receipt of money or property does not give the agent a title to it, which would be the case if he be regarded as a debtor alone.”
    Now, if the mandatory does not become the debtor of his principal upon receiving money or property belonging to the latter; if he is a mere trustee and acquires no title to the money or property thus received by Mm, the inevitable consequence is that Ms possession continues to be precarious, and be cannot set up the plea of prescription, whatever maybe the time of that possession.
    But it may be objected that the prescription, nevertheless, runs according to Troplong, from the cessation legale of the mandate ; and, according to the Supreme Court, from the dissolution of the contract; and that, in this particular case, the cessation legale or dissolution of the contract had taken place more than ten years before our plea of compensation was set up. There might be some force in the objection, if the mandate in this case had had, either by the will of the law or the agreement of the parties, a fixed period of duration ; for then, it might very properly be contended, that the principal know or was bound to know the precise time when the contract was dissolved, or. had legally ceased to exist. But, in this case, the mandate had, neither in law nor by the will of the parties, any determinate period of duration; until the note was collected, the agency was in force. It only ceased to exist when the money was received by L. Millaudon. In other words, the mandate ceased to exist upon the happening of a fact, that of payment, which Millaudon was necessarily aware of, which it was his duty to bring home to our knowledge, but which he concealed from, or, at least, failed to communicate to us.
   Labatjve, J.

This suit is based upon the folio-wing- written promise of the defendant :

“ Je m’engage par ce present éerit á régler la reclamation de Mr. Laurent Millaudon, montant a la somme de $3,996 50, a la date du 7 Décem-bro, 1852, pour la reclamation du syndicat provisoire, en billets endorsés par mon fils Auguste, lesquels billets seront faits a un, deux et trois ans, avec les intérets de 7 pour cent.”

The defendant, in his answer, admitted the execution of this obligation, and alleged that the plaintiff was indebted to him in the sum of $7,310 12, composed of $2,605, the half of attorney’s fees paid by Mm and Ms syndic, for the defence of suits in which plaintiff was jointly interested with him, and $4,695 12, principal and interest of a note owned by defendant, and which was paid by the makers to plaintiff for defendant, all of which he plead in compensation.

The plaintiff pleaded prescription against defendant’s demands in compensation. The district court sustained the plea of prescription, and gave judgment against the defendant, in favor of plaintiff, for the amount claimed, and the defendant took this appeal.

The defendant failed to establish the first item of his demand, being- for one-half of attorney’s fees.

The only things remaining to be examined are relating to the note, said to have been collected by plaintiff for defendant, and the plea of prescription filed by plaintiff.

R G. Bebreuil, sworn, says : In looking over the books,- he finds that the note of the tobacco warehouse, in favor of Alexander Lesseps, was paid to Mr. Millaudon; the entry showing said payment reads as follows, in the books of F. de Lizardi & Cfo., on credit side of Millaudon’s account:

September 30, 1843. By M. de Lizardi & Co., in liquidation lor note of the tobacco warehouse company, in favor of Alex. Lesseps, protested ; but paid by Mr. Millaudon, as per judgment obtained.§3,395 00

At 8 per cent, per annum, add interest eighteen days, to 30th September, 1842.,.•. 10 18

§3,405 18

This witness further says, that he recollects the transaction weE; knows that the tobacco warehouse owed Lesseps for bricks furnished by him, and for which they gave him their note, which note was given by Lesseps to MiEaudon for coEection ; and, from the entries in the books in court, he supposes it is the same note, and that it was paid. * * *

Defendant introduced in evidence the entry in Millaudon’s account current books, called for and produced by him, which reads as foEows, to wit:

Dr. Cr.

F. de Lizardi & Co. in account current, with interest to 30th September, 1842, with L. MiEaudon.

1842. Sept. 12th. Note of tobacco warehouse of A. Lesseps, charged by agreement to this account.§3; 395 00

Interest. 10 18

Offered also the foEowing entry, same book, page 440 :

October 30, ’43. Mr. L. MiEaudon, to F. de Lizardi & Co., Cr.

1842. Sept. 30. To this sum charged in his account current of 30th Sept. 1842, as amount of note of tobacco warehouse company, to Alexander

Lesseps, with interest.§3,395 00

Should be as foEows :

Note due 4th June, 1840.§2,600 00

Interest from 4th June, 1840, to 12th Sept., 1842,

830 days, at 5 per cent. 299 71

-§2,899 71

Due F. de Lizardi & Co., cash, 12th Sept., 1843. §495 29

New Orleans, 9th December, 1843.

(Signed) F. de Lizabdi & Co., in liquidation.

The above entry shows that it is an account rendered by F. de Lizardi & Co. to L. Millaudon, and the latter entered it in his own books.

Defendant also offered the entry in the journal of F. de Lizardi & Co., in liquidation, at page 120 :

Dec. ’43. Laurent MiEaudon, on account No. 2, to M. de Lizardi & Co., in account for this sum charged in his account current, 30th September, 1842, journal, p. 101, note of A. Lesseps.§3,395 00

Which should be note due 2d June, 1840, tobacco warehouse company to A. Lesseps.§2,600 00

Which should be interest from 4th June, 1840, to 12th Sept. 1842, 820 days, 8 per cent. §299 71.... §2,899 71

§495 29

From the testimony of Déb'reuil, and the entries in the books of plaintiff and of de Lizardi & Co., we are satisfied that the note due by the to-baeco warehouse company was held by defendant and eolleoted by plaintiff, by being placed to Ms credit in Ms account current with de Lizardi 6 Oo. It appears that, in an account current of 30th September, 1842» the plaintiff had been credited for said note, with ¡fi!3,395 instead of $2,600- and interest to that date; the error having- been discovered, de Lizardi & Oo. made an entry in their books showing and correcting this error, and charging Millaudon with the difference as a balance due, cash, 12th September, 1843, with $495 29. This entry or amount is dated New Orleans, 9th December, 1843, and signed by F. de Lizardi & Oo. in liquidation. This rectifying amount was entered in Millaudon’s books as of October 30, 1843; by this entry it is clear that the plaintiff acknowledged the error, and that he owed said balance to de Lizardi & Oo., and also that he had received and had in his hands on that day, for defendant, as proceeds of the note due by the tobacco warehouse company, in principal and interest, the sum of $2,899 71; and that he had not accounted to-the defendant for his agency. O. O. Art. 2974; 10 B. 481.

The plaintiff, having taken charge of the collection of the note in question, became a special agent of defendant in regard to it, and in correcting the error by this entry in his books he acted as agent; and perhaps his agency ceased here, say on the 30th October, 1843, according to the entry in his books; and prescription may have commenced to run from that day; the action that defendant had against plaintiff was a personal action which could be prescribed only by ten years. C. C. Art. 3508; Cooper v. Harrison, 12 A. 631; Troplong, Prescription, vol. 2, Art. 490. According to the written obligation sued upon, the defendant became indebted to the plaintiff, on the 7th December, 1852, for $3,996 50, with 7 per cent, interest per annum from that date. The plea in compensation has a retroactive effect to the time when the plaintiff and defendant became indebted to each other. C. O. Art. 2203. Now, sup|)ose that prescription commenced running in favor of plaintiff from the 30th October, 1843, the ten years prescription was not acquired on the 7th December, 1852. The plea ;of prescription must be overruled, and the compensation allowed. O. O. Art. 2204; 10 E. 196.

The proceeds of the note were received by the plaintiff by being placed to Ms individual credit in his current account with de Lizardi & Oo.; having employed them to his own use, he owes legal interest on the same, say from the 30th October, 1843, to the 7th December, 1852. O. O. Art. 2984.

The plaintiff was indebted to the defendant, on the 7th December, 1852, in principal and interest, in the sum of $4,219 40, exceeding, by $222 90, the amount claimed in the petition. The defendant has not prayed judgment for any excess or balance.

It is therefore ordered, adjudged and decreed that the judgment of the District court be annulled and reversed; that the plea of prescription to the demand in compensation be rejected; that the respective claims of the parties be declared compensated and 'extinguished to the sum of $3,996 50; that the defendant pay costs incurred prior to the 16th January, 1860, and all subsequent costs, and those of this appeal to be paid by plaintiff and appellee. O. P. Arts. 370, 371.


author: Jones, J.

text:
    William Baker v. F. Michinard.
    A party cannot be callod into court ancl then have his capacity to stand in judgment questioned.
    irom the Sixth District Court of New Orleans, Duplanlier, J.

      A. Saucier for defendant.

      E. Cambray and II. Train for plaintiff.

    In this case, an order of seizure and sale was issued in the court below, upon a promissory note for SI, 500, evidenced by a notarial act of sale to defendant of one lot of ground with the buddings and improvements thereon.
    The defendant enjoined the sale on the ground that plaintiff is not the bona fide owner of the note, and that he has the right to set forth against him the equities he had against Eliza Piet, the original owner thereof; said equities being: That at the time of the maturity of the note, to wit: on or about the 13th May, 1862, he tendered the amount thereof in the only funds then current, meaning, no doubt, Confederate money.
    Defendant also avers that he verily believes that he is, and, for nearly two years, has been deprived of the civil possession and of the right of dominion over the property seized; and that his, petitioner’s title and right of ownership in the same, is doubtful, and held in suspense by the government of the United States, through the combined action of the military authorities and of the United States treasury department.
    A rule was taken by defendant in injunction (the plaintiff in the original suit), on the plaintiff in injunction, to have the injunction dismissed on the ground that plaintiff in injunction being not a loyal citizen, ho cannot claim any relief at the hands of a loyal court.
    The court ordered him to produce his oath of allegiance; and, having not complied with the ruling of the court, his injunction was dismissed; whereupon, the very judge who signed that dismissal, because plaintiff in injunction was not a loyal citizen, granted the present appeal to that disloyal citizen.
    Now, defendant in injunction and appellee contends :
    1.That, by his own allegations, plaintiff in injunction and appellant has shown no right of action, he having no real and actual interest in the case. C. P. 15.
    2.That he is an enemy to the United States and cannot claim relief at the hands of this honorable and loyal court.
    3.That, even if he was a loyal citizen, no legal ground for injunction is shown; as Confederate money „has nevor been held, even by the so-called Confederate government, as legal tender; and this is the very ground upon which he relies to enjoin the sale, and therefore he is not within the purview of C. P. 739.
    The motion to dismiss ought to be maintained.
   Jones, J.

This is an appeal from the Sixth District Court of New Orleans. The defendant, Francois Michinard, being sued via execuiiva, enjoined proceedings on the ground set forth in his petition of injunction. A rule was taken by the defendant in injunction on the plaintiff to show cause why said injunction should not be set aside, on the ground that plaintiff, not being a loyal citizen of the United States government, “has not the right to stand injustice, nor capacity therefor. ” The rule was tried contradictorily; and, after argument, made absolute.

The injunction was dismissed with twenty per cent, damages on the amount of judgment enjoined against plaintiff in injunction; Francois Miehinard and his surety on the injunction bond; Alice Caraters in solido.

The court below erred in dismissing the injunction. Whatever may have been the political status of plaintiff in injunction, who was really a defendant, contesting by that mode the claim of the original demand of the plaintiff in the executory proceedings, that is not a means to be used to deprive plaintiff in injunction of urging any legal defence he may have. To call a party into court and then object to his capacity to stand in judgment, is so inconsistent with every principle of justice that it cannot be tolerated by this court.

Therefore, it is ordered, adjudged and decreed, that the judgment of the lower court be reversed, the rule setting aside the injunction be dismissed, and the cause remanded-for further proceedings, and the costs of appeal be paid by plaintiff and appellee.


author: Hyman, C. J.

text:
    State of Louisiana, ex relatione of Mary E. Tooreau, v. Hon. R. T. Posey, Judge of the Fifth Judicial District.
    A judge cannot exercise his discretion relative to the time of the trial of cases. The legislature has established the terms of the courts. Neither can he refuse a judgment by default at the proper time; or grant a continuance, without the forms of law being strictly complied with. The judiciary is not invested by the constitution with legislative powers, and cannot deprive the citizen, by its rules, of his legal rights.
   Hyman, C. J.

The relatrix, Mary E. Tooreau, avers that iu September, 1865, she, as tutrix of her minor children, instituted suit in the Fifth Judicial District Court, for the parish of East Feliciana, against David S. Rhea, for $2,851 95, with interest.

That on the second day of the term of the court, in October, 1865, the case being then ripe for default, she aslced for a judgment by default against defendant, Rhea.

That the judge refused to grant the same, and continued the ease, although defendant had failed to appear, or answer, or make a legal showing for a continuance; and that the court was thus closed against her.

She prays that the judge be ordered to show cause -why he did not proceed to hear and determine the case according to law; and that a mandamus be issued, ordering the judge to try the same without delay.

The judge’s response is, that he had adopted a rule for the term, (and. that under similar circumstances he would renew it at another term), “that no cases should be tried except consent and criminal cases and matters of succession1’; -that he-was induced thereto by reason of the distress of the people, and for the proper administration, of justice; because of a petition of a large majority of the people of the parish, a resolution of the police jury, a memorial of the grand jury, and an application of the members of the bar.

The papers filed by the judge show the deplorable condition of the country, the result of the war; but neither the papers, nor the answer of the judge, show a legal justification for his refusal to try cases.

The legislative power has established terms of courts for the trial of suits.

It has stated, that a plaintiff may, on motion, take judgment by default against a defendant, if he appear not, within a prescribed delay. C. P. 310. The defendant did not appear within the delay, neither did he ask for further time to answer; yet the judge refused the right of judgment by default, accorded by law to plaintiff.

It has also stated, that it is not in the discretion of the court to grant a continuance of a case, except a party applies for it, and alleges sufficient cause to justify the same. See Article of the Code of Practice 468. This Article of the Code does not give to the judge authority to continue a case because a party applies for the same. The party applying must show some justification in his application, that is, some probability that injustice might be done him in the result of a trial, if forced upon him, which he might avoid by having time to prepare.

On such a showing only, of the parties to a suit, does the Article give to the judge the right of deciding in his discretion whether or not a continuance should be granted.

In this case the judge has, without even a request from either party, arbitrarily forced a continuance. He has yielded to solicitations of persons not parties, and deprived relatrix of the legal right of trial of her cause.

The judiciary is not, by the constitution, invested with legislative powers. It has no authority to deprive the citizen, by its rules, of his legal rights. ■

The judge must conform to the law, though he should think that thereby certain citizens would be injured, or that its provisions do not exactly come up to a proper administration of justice. If the citizens desire relief by the alteration of the law, for the administration of justice, they must apply to the law-making power, and not to the judiciary.

The Hon. R. T. Posey, District Judge of the Fifth Judicial District, for the parish of East Feliciana, having refused, in contravention of the legal rights of relatrix, to grant a judgment by default in the case of M. E. Tooreau v. D. S. Rhea, and to try the same, it is ordered in the name of the State of Louisiana, that said judge set aside the continuance, and proceed in the case according to law.


text:
    A. Miltenberger & Co. v. E. T. Parker, Sheriff, et al.
    Where a party comes into possession of property by dation en gaiement, places his own clerk and other employees upon it, although he retains his transferror as a manufacturer, the contract will be valid, and it cannot be seized for the debts of the latter,
    from the Fourth District Court of New Orleans, Price, J.

      H. M. 8pofford for plaintiffs. Benticl: Pegan for J. B. Sawyer, defendant.
   Hyman, C. J.

J. B. Sawyer, one of the defendants, a judgment creditor of Marcelin, Eude & Co., caused, on the 30th day of June, 1860, to be seized under an execution, 250 barrels of bi-sulphate of lime, which plaintiffs claimed as their property.

Plaintiffs enjoined the sale thereof. Defendant denied that plaintiffs were owners, and alleged ownership in his debtors, Marcelin, Eude & Co. The judge perpetuated the injunction, and decreed plaintiffs owners of the lime.

This defendant appealed.

Plaintiffs claim to have acquired title from Marcelin, Eude & Co.; and, to enable them to recover, there should be proof that, at a time before seizure, Marcelin, Eude & Co. had, by contract translation of property, invested plaintiffs with ownership, and that they were in possession ; or, if not, and their transferrors still remained in possession by a precarious title, there should be evidence that the contracting parties had acted in good faith, and that there was a real contract; for, if otherwise, the defendant had the right to seize and sell the property. Civil Code, 1916, 1917, 2456, 2629; 4 Bob. B. 437. 7 Mar. Bep. N S. p. 675.

Marcelin,- Eude & Co. were manufacturers of bi-sulphate of lime, in New Orleans, to whom plaintiffs had made large advances, and on the 2d of April, 1860, as shown by journal of plaintiffs, introduced in evidence at the instance of defendant, they gave to plaintiffs, and put them in possession of same, to pay their indebtedness to them, 450 barrels bi-sulphate lime, 1,127 empty barrels, 113 barrels of lime, 86 barrels of sulphate, 18J¿ hogsheads brimstone, bi-sulphate of lime, apparatus, steam machinery, tools, paints, dray, etc.

Plaintiffs continued to carry on the manufacture of bi-sulphate of lime in the factory, when Marcelin, Eude & Co. had manufactured and expended money for the purpose. They had their own cleric to make sales, who accounted to them. They also employed the cooper who was working in the factory, for them, when the seizure was made.

• There is further proof that the transfer was of all the property in the bi-sulphate manufactory, and at the time of transfer a valuation was made of the property, which was about $8,750.

Eude left the country, and XDlaintiffs employed Marcelin to work in the factory and superintend the same.

It is further proved that the barrels seized were marked in the name of Marcelin, Ende & Co., that other barrels in the factory were so marked, and that some barrels brought there after the seizure were so marked.

We consider that plaintiffs have brought themselves fully within the requirements of the law.

They have proved that they became owners by a contract of elation en paiement, and, from its date, had possession of the property until seized.

The barrels of lime seized being- in the factory when seized, with the name of Marcelin, Eude & Co. on them, is sufficient proof of identity.

The proof that Marcelin worked in the factory and superintended it for plaintiff, does not destroy the evidence that they were in possession; and, if it did so, and established in him possession by precarious title, evidence fully proves a real contract made in good faith.

Fraud has not been alleged, nor is there proof that defendant was a creditor, when the contract was made.

Judgment affirmed, with costs.


author: Hvmcan, C. J.

text:
    Succession of Charles Ferguson—Opposition of A. Chiapella.
    Where, after five years had elapsed from, the maturity of notes, a party makes provision for their1 payment in an act of sale, it is a tacit renunciation of prescription. He acknowledges their binding effect on providing for their payment.
    In an act of sale, a stipulation for another gives him, as to the sum due to him, all the rights and’ privileges which the vendor himself could exercise on the property sold.
    from the Second District Court of New Orleans, Morgan, J.

      8. Magne for opponent and appellant.-

    1. Obligations are extinguished by payment, novation, prescription, etc. O. 0. 2126. A mortgage is ■accessory to a principal obligation. 0. 0. 3252. Hence, it follows that, when the obligation is extinguished by prescription, the mortgage is gone. 3253, 3374, Nos. 4 and 6, 1 Hen. Dig. (new ed.) p. 959; No. 1 and p. 960, No. 17; LeBeau v. Gage, 8 An. 474. And the creditors may claim the benefit of the prescription, although it was waived by the mortgagor. 0. 0. 3429. Larihet v. Hogan et al. 1 An. p. 330. Blanchard v. JDecuir, 8 An. 504. 3 La. 201. Succession af McGill, 6 An. 345. Girodr. His Ore-ditors, 2 An. 546. 2 Hen. Dig. (new ed.) p. 1233, Nos. 2, 3, 4 and 9. 1 Troplong, p. 115 et seq., No. 100. Marcade on Arts. 2225 N. O.
    2. Such being the law, let us now proceed to apply it to the facts of this case. The notes, of which H. G-. Ferguson is holder, were barred by prescription, one on the 1st September, 1848, and the other on the 1st September, 1849. From that day the mortgage was extinct, so far as we, mortgage creditor, are concerned. It is contended in the original brief that, by tbe act of 1855, the deceased merely put himself in the place and stead of the original debtor of these notes ; and we think that it is a correct view of the fact; but; at all events, and whether the notes were or were not revived, surely the mortgage could not be revived; it was irretrievably gone. And even supposing, for the sake of argument, that the mortgage had been revived, which is a legal impossibility, it should bo gone again, because more than five years elapsed from the 27th March, 1855, to the 28th March, 1860 (date of the filing of the tableau); and, besides, the fact of the debt being mentioned in the tableau could not have operated as an interruption of prescription, according to the authorities cited. 2 An. 546. 3 La. 201,

      Hace Hosier and James McGonnell, conlra.

   Hvmcan, C. J.

The payment of three promissory notes drawn by Joseph Allen to order of H. Q. Ferguson, one for $159 22, due 1st September, 1847, another for $168 97, due 1st September, 1848, and the third for $178 02, due 1st September, 1849, was secured by mortgage on certain immovable property, made by Allen to Ferguson on 16th September, 1846.

On the 27th day of March, 1855, Allen sold the mortgaged property to Charles Ferguson. In the act of sale it was stated that the note of $159 92 was paid, and it was agreed that the two other notes, describing them, should form part of the price, for the sale of the property, and that C. Ferguson should pay them.

On the 27tli May, 1856, 0. Ferguson mortgaged this property to S. Magner.

In the act of mortgage it was stated that the property was encumbered, as shown by certificate of recorder, by the obligation of 0. Ferguson, taken, in the act of sale by Allen to him, to pay the two notes in place and stead of Allen. Some time thereafter Charles Ferguson died, and the administratrix of his succession filed an account of her administration.

On the 27th May, 1860, H. Q. Ferguson filed an opposition to the account, stating that he was a privilege and mortgage creditor for the amount of the two notes and interest, on the property sold by Allen to C. Ferguson, and prayed that he be paid by preference out of the proceeds thereof.

The judge rendered judgment, sustaining his opposition, and ordering him to be paid by preference; from which judgment A. Chiapella, as one of the creditors of the deceased, appealed.

The plea of prescription of five years is the only point presented to this court for consideration.

After five years had elapsed from the maturity of the notes, Allen made provision for their payment in the act of sale to C. Ferguson, which, if not an explicit, is certainly a tacit renunciation of prescription. He acknowledged their binding effect in providing for their payment. Seé^ Civil Code, 3423. But it is declared by the Civil Code that prescription is one of the modes of extinguishing debts; and as these notes were thus extinguished, it is contended that the accessory obligation of mortgage was not revived by the renunciation of prescription. It would be of no avail, in tliis case, to examine tbis position.

The vendor’s privilege exists for the payment of the amount of these notes. They formed a part of the price that 0. Ferguson, the vendee, was to pay for the property; and by his assumption he became the debtor for the whole amount of the notes. See Civil Code, 3216.

In the case of Dupuy v. Lashall, 17 La. Rep. p. 67, it is announced, that in an act of sale, a stipulation for another gave him, as to the sum due him, all the rights and privileges, which the vendor himself could exercise on property sold.

Appellant further contends that, as five years have elapsed since C. Ferguson assumed to pay, his estate is released by prescription. In the act of mortgage made by C. Ferguson in favor of S. Maguer, May 27th, 1856, Ferguson stated that he had agreed to pay the notes. This acknowledgment interrupted prescription. See Civil Code, 3516 and-3486.

Between that date and the time of filing- the opposition, five years had not passed.

H. Q. Ferguson, having the right of vendor’s privilege, is entitled to be paid in preference to other creditors. See Civil Code, 3153.

Judgment affirmed; appellant to pay costs of appeal.


author: Howeli, J.

text:
    J. M. Relf & Co. v. James Boro—John Watt & Co., Garnishees.
    In tile transfer of debts, rights or credits to third parties, the dciivcry tabes place between the trans-ferror and transferree by the giving of the title.
    The transferree is only possessed, as it regards third persons, after notico has been given to the debtor of the transfer having taken place. The transforree may, nevertheless, become possessed by the acceptance of the transfer by the debtor in an authentic act.
    The property of the debtor is always held liable to his creditors until a full and complete transfer and tradition is made to the purchaser.
    The creditors of a consignor can attach merchandize, or its proceeds, in the hands of the consignee, until the instructions, verbal or written, to pay the proceeds of sale to a third party have been communicated to, and the stipulation in his favor accopbed, by him. The principle is, that the consignee must come under direct obligation to tho assignee.
    Thore is no such interest shown in a third party as to roquire him to bo cited; nor to make it unsafe for garnishees to pay as ordered.
    from the Fourth District Court oí New Orleans, Price, J.

      T. J. & A. Q. Semines for plaintiffs. W II. Hunt and L. M. Day, curators ad hoe.

   Howeli, J.

This suit was commenced by attachment, and by a supplemental petition, filed on the 12th May, 1859, the appellants, John Watt & Co., were made* garnishees, whose answers, with the interrogatories propounded, were as follows, to wit:

Int. 1. Are you acquainted with James Boro, the defendant herein, who lives in Memphis ? If yea, how long have you known him ?

Ans. Yes; by correspondence, since November, 1857, and personally since April, 1858.

Int. 2. Do you know such a person as Joseph Boro, or Joseph Boro & Co. ? If yea, when and where did you first know' him or said firm ?

Ans. No.

Int. 3. Did you or not, some two or three months ago, have in your possession, or under your control, money, or credits, or notes, or bills of exchange, belonging to the defendant, James Boro ? If yea, state the amount thereof on 1st March, 1859, and subsequently, and how much you now have on hand; and if you have none on hand now in the name of James Boro, was not a portion thereof or all thereof transferred on your books to the name of Joseph Boro, or Joseph Boro & Co.? and state how much you now have on hand in tho name of Joseph Boro, or Joseph Boro & Co. ?

Ans. This interrogatory is answered by the annexed copy of account current with James Boro & Co., from October 22, 1858, to May 7, 1859. We have now on hand at credit of Joseph Boro & Co. $1,930 99. We pray that the said copy of the account current annexed be made part of this answer to this third interrogatory.

Int. 4. Who directed the transfer of funds on your books from the name of James Boro to Joseph Boro & Co., or Joseph Boro ? If James Boro did, to whom did he give that direction, and was his direction given in writing- ? If yea, annex to yonr answer a copy of said written direction.

Ans. James Boro gave ns the instructions to make this transfer, verbally, in our counting room, in the latter part of March, 1859.

Int. 5. Who controls the funds in your hands standing in the name of James, or Joseph Boro, or Joseph Boro & Go. ? If James Boro controls funds standing in the name of Joseph Boro, or Joseph Boro &Oo., by what authority does he do so ? and, if that authority be in writing, annex it to your answers.

Ans. I do not know. Our account was kept with James Boro & Go., who instructed us, as before stated, to transfer the balance at their credit to Joseph Boro & Go., whom we do nob know.

Int. 6. Is or is not the funds in your hands standing in the name of Joseph Boro, or Joseph Boro & Go., the property of James Boro, or has he an interest therein, and does he not control it as owner ?

Ans. I do not know. All that I do know is, that James Boro & Go. instructed us to transfer the balance at their credit to Joseph Boro & Co. So far as we are concerned, we would not pay James Boro & Go. said balance, were they to draw on us, they having transferred said balance to Joseph Boro & Go.

(Signed) M. Mussosr.

On the trial of the cause, and without any notice to the garnishees, judgment was rendered directing them to .pay over to the plaintiffs the said sum of $1,930 99, to be applied pro lardo to the satisfaction of the judgment rendered at the same time against the defendant.

The garnishees complain that bhis order was improvidently entered and is injurious, not merely to the rights of Joseph Boro & Go., but also to themselves, who are left open to the pursuit of Josejih Boro & Go.

The plaintiffs contend that the transfer, on the books of the garnishees, of the funds from the name of James Boro & Go. to Joseph Boro & Go., had no effect, and that, consequently, they could attach the same and obtain judgment therefor against the garnishees, on their answers, as showing an indebtedness to their debtor.

The first question for solution is, do the answers of the garnishees establish a legal transfer, prior to the attachment, by the defendant to Joseph Boro & Co. ? And, if not, do they, in the second place, present such a state of facts as to require the plaintiffs to notify the garnishees before obtaining judgment against them ?

1. We think that, tested by the principles of our laws, relating to the assignment of debts and other incorporeal rights, these answers fail to prove a transfer.

“In the transfer of debts, rights or claims, to a third person, the delivery takes place between the transferror and the transferree by the giving of the title.” G. G. 2612.

“ The transferree is only possessed as it regards third persons, after notice has been given to the debtor of the transfer having taken place. The transferree may, nevertheless, become possessed by the acceptance of the transfer by the debtor in an authentic act.” G. 0. 2613.

We can find in the answers of the garnishees, or elsewhere in the record, no evidence whatever of any agreement between the transferrors and transferrees, tlie giving of a title, or an acceptance by, or on behalf of, the transferrees. Indeed, the garnishees confess entire ignorance of the alleged transferrees, and of their right to control the funds held by them. The transfer on their boots, as described, might operate as a title, in the meaning of the Code, when brought to the knowledge of and accepted by the transferrees; but, until such event, the garnishees may be considered as the agents of the transferrors, who may rescind their order and change the destination or direction of the funds.

It is a well settled principle of our law, that the property of the debtor is always held liable to his creditors, until a full and complete transfer and tradition are made to the purchaser. 2 L. 422. 14 L. 10. And, in the case of consignor and consignee, the creditors of the consignor can attach merchandize or its proceeds in the hands of the consignee, until the instructions (verbal or written) to pay tho proceeds of sale to a third party have been communicated to, and the stipulation in his favor acceptedby, him. 13 A. 651. The principle is that the consignee must come under direct obligation to the assignee.

2. Are the appellants entitled, under the facts presented in their answers, to notice before judgment ban be given against them ?

In support of their right to such notice the garnishees rely upon the ruling in the case of Estell v. Goodloe, 6 A. 122, in which it was held that, when the answer of a garnishee does not contain an unqualified confession of indebtedness, the plaintiff should make the transferree or third person, disclosed as having an intérest, a party to the suit, before final judgment can be given against the garnishee. The facts of that case, however, are different from those in this. There, the evidence of the garnishee’s indebtedness consisted of certain notes not negotiable, which, by his answers, had been transferred by the defendant and payee, and against which he had an equitable defence. He did not admit unqualified indebtedness to any one. While, in this case, the garnishees show that they have in their hands funds which belonged, at one time, to the defendant, but which they, under instructions from him, transferred on their books to a third party; a proceeding which we have found to be ineffectual in law, and to have really transferred nothing. There is no such interest shown in a third party as to require him to be cited, nor to make it unsafe to the garnishees to pay as ordered. Wo conclude, therefore, that, upon their answers, the appellants are the debtors of the defendant, and that they are rightfully ordered to pay to the plaintiffs in attachment.

The correctness of this conclusion is sustained by the presumption arising from the silence of the alleged transferrees, and the payment of $5,000 by the garnishees, as shown by the account made part of their answers, to James Boro & Go., some weeks after receiving instructions to make the transfer on their books.

Judgment affirmed, with costs.


author: Ids:dey, J.

text:
    George Schmidt v. Jacob Barker.
    In the absence of any special agreement or understanding between a banker and a depositor, whore the deposit is an irregular one; when an open account is lcept; where moneys are deposited in bank to be drawn out, not in tho identical funds deposited; where moneys deposited are mingled with the cash assets of the bank, and used indifferently with his own; the relations between a bank and its depositors are well and definitely fixed by our own law and jurisprudence, and by that of other countries, in which business is transacted with such institutions.
    Such deposits are not real deposits, but are loans for use to the banker. The money so deposited transfers the property to the loanee; and the relation between a bank and its customers, in regard to irregular deposits so made, is simply one of debtor and creditor.
    Legal agreements having the effects of laws upon the parties, none but the parties can abrogate or modify them; and it is incumbent on courts to give legal effect to all such contracts, according to tho true intent of all the parties.
    This court has often held that it will not lend its aid to settle disputes relative to contracts reprobated bylaw. It will notice their illegality ex offu-io, and allow it, without any plea, at any stage of the proceedings. Parties cannot he heard who ask relief from a violation of law. The law leaves them where their conduct has placed them, and "in pari o udio meKor est coiidilio posxedentis”

    Every condition of a thing impossible, or contra "bonos mores, or prohibited by law, is null, and ronders void tho agreement which depends on it.
    He who binds himself unwillingly, and under constraint, is not deemed, in the eye of the law, a participant in an illicit covenant.
    If, from the plaintiff’s own stating, the cause of action appears to arise from a transgression of a positive law of the country, the court, will not lend their aid.
    Ü. PPEAL from the Sixth District Court of New Orleans, Leaumont, J.

      Durant 16 Homor for plaintiff.

    1. A stim of money deposited with a banker is not a real deposit. L. C. 2904. The only real deposit. L. C. 2934.
    2. Money thus deposited is “a loan for use” to the banker. See L. C. 2883, 2884; Story on Bailments, g 64, p. 65; Matthews, Finley & Go. v. Their Creditors, 10 An. 342; Sims v. Bean, 10 An. 346; Grant on Banking, page 1.
    3. Loan for use transfers the property to the loanee. Troplong, Dépot, 1115, § 116; Potliier, Contract de Bienf. p. 71; Melville v. Dodge, 6 Murray, Granger and Scott; See 60 Eng. Com. Law Bep. p. 455; Pott y. Glegg, 16 Exchequer, 323.
    4. In such a case the banker must pay, under all circumstances. L. C. 2891 el seq.; Pothier, Contract de Bienf. p. 108, ?¿ 50, chap. 4; Potliier on Obligations, No. 622, p. 337 of Evans’ translation; 2 vol. $ 622 of the Paris edition, 1813. See also U. S. Bank v. Bank of Georgia, 10 Wheat. 346, et seq.; Commercial Bank v. Hughes, 17 Wend. p. 100.

      Jacob Barker pro se.

    -Now into court comes Jacob Barker, appellant, representing to this honorable court that the court below erred in giving-judgment against him in the above entitled suit, the claim being founded on illegal and worthless notes received under an express agreement to bo returned in the same description of paper, which says: “Deposits in this bank are received only on condition that the amount is to be drawn in Confederate currency;” and further, the balance in the bank book, introduced by plaintiff, is stated to be Confederate notes. The banking-currency of the city was exclusively of that character at the time. The said agreement was also introduced by plaintiff.

      The Confederate notes were not demanded or refused; always held subject to order of plaintiff, and were filed in the above entitled cause with the answer.
    Defendant insists that it was not competent for a military commander to change the obligation of contracts by any military order, however much they may have a right to interpret any contract brought before it for adjudication.
    Defendant insists that the military orders relied on by the appellee do not apply to this case.
    In a case of collections of seventy thousand dollars by the State Bank of Louisiana for a Tennessee bank, in which Mr. Barker was counsel for the Tennessee bank, tried before General Butler, he decided in favor of the State Bank of Louisiana, using the following language: “ That he saw no propriety in interposing the authority of the United States between the bank who sent the Confederate notes to be circulated here and the bank who received them, and consequently permitted the latter to return them in kind.”
    In a case similar to this, a case in which Mr. Barker was interested, was brought before Judge Bell, of the provost court of the Department of the Gulf, in which he decided “that the military authority did not come here to annul contracts or to furnish parties with an excuse for violating faith.”
    Mr. Barker begs to refer to a case in Illinois, (see A. L. Freeman’s reports, 32 Illinois, Osgood v. McConnell,) where the judges say, among other things: to permit such proof would be to alter, change or modify the agreement of the parties, which cannot be allowed.
    Mr. Barker also begs leave to refer to the Digest of Opinions of the Judge Advocate General of the Army, p. 30, wherein it is stated, among other things, “that Confederate notes are illegal and disloyal publications, and as such are ordered te be destroyed wherever found; an application, therefore, on the part of a foreign resident, to restore a quantity of such notes to him as their former possessor, either in their original form or in Federal currency of an equal amount, cannot be entertained. ”
    Mr. Barker begs leave further to refer this most honorable court to the opinion of Chancellor- Kent, in the case of Griswold v. Waddington, in the Court of Errors of New York. See Johnson’s Reports, vol. 16, p. 485, in which the Chancellor says:
    “If, from the plaintiff’s own stating, or otherwise, the caixse of action appears to arise from a transgression of a positive law of the country, the court will not lend their aid. ”
    “It would be difficult to state any principle of law more plainly founded in common sense and true policy, than that which declares, that a plaintiff must not appear, from his own showing, to have infringed the law of the land; and if he does, he cannot avail himself of the law to enforce a contract made in opposition to law. The plaintiff must recover upon his own merits; and if he has none, or if he discloses a case founded upon illegal dealing, and founded on an intercourse prohibited by law, he ought not to be heard, whatever the demerits of the defendant may be. There is, to my mind, something monstrous in the proposition, that a court of law ought to carry into effect a contract founded upon a breach of law. It is encouraging disobedience, and giving to disloyalty its unhallowed fruits. There is no such mischievous doctriné to be deduced from the books. There arc cases in which a contract, fair and lawful, as between the two individuals who are parties to it, is not to be contaminated by other transactions, which might precede, or which might be the result of the contract. But even if an agent be a party to an original transaction, and the money in his hand be the proceeds of the illegal contract, no recovery can be had. (Vide, on this subject, Lord Kenyon, and Askhurst J. in Taylor v. Blair, 3 Term Bep. 454; Rooke J. in 1 Bos. and Pull., 296; Story J. in Bales v. Mayberry, 2 Gallison, 560; Hurd v. Kniclcerbaclcer, 5 Johns. Bep. 327; ITodgson v. Temple, 5 Taunton, 181; Faileney v. Beynous, 4 Burr, 2069; Petrie v. Hannay, 3 Term Bep. 418; and the disapprobation of those two cases, in 14 Vesey, 192, ex parte Daniels.) Lord Alvanley lays down the true rule in Monlc v. Abel, 3 Bos. and Pull. 25,) when he declares, that “ the principle to be extracted from the cases on this subject is, that no man can come into a British court of justice to seek the assistance of the law, who founds his claims upon a contravention of the British laws.
    I now conclude that, as the contract in this case was founded upon dealings during the late war, between the plaintiffs, who were resident citizens of'the United States, and Henry W., who was a natural born and a resident subject of Great Britain, it was an unlawful contract, and cannot be enforced in the courts of this country.
    Mr. Barker’s bank has always been in the habit of receiving gold, silver, treasury notes and bank notes, paying its depositors in like funds, without reference to the fluctuations in value. He was particularly unfortunate in relation to deposits of gold and silver, and the sale thereof, the great advance being subsequent to his sales. This did not furnish any excuse for not paying back gold to those who had deposited gold, under the printed regulations of his bank.
    Suppose that the deposit had been in counterfeit money, or a trunk of plate, could the bank be considered answerable for anything else ?
   Ids:dey, J.

The plaintiff claims from the defendant, as the owner of the Bank of Commerce, in New Orleans, the sum of four hundred dollars, being the balance which he avers to be due to him, on moneys deposited by him in said bank, between the 17th day of January and the 1st day of April, 1862. He complains that this balance is due and payable to him in legal tender notes of the United States, but that the said defendant has illegally and wrongfully, without his consent, caused the plaintiff’s bank book to be balanced, as a balance of account in Confederate notes, which the plaintiff himself terms “the treasonable issue of rebels in arms against the United States. ”

All these allegations arc traversed by the defendant, who, however,admits that the said balance is correct as to amount, but sets up, in his’ defence, a special contract, by which he avers that deposits were received in his bank, at the period stated, only on the condition that the amount was to be drawn for in Confederate currency. And he further specially avers, that the balance of account was struck in the manner alleged by the plaintiff, with his full knowledge, and at his special request.

The only question at issue, thén, between the parties, is the mode in which the admitted balance is to be drawn out oí the bant; in legal tender notes or in Confederate notes.

In the absence of any special agreement, or understanding, between a banter and a depositor, when the deposit is an irregular one ; when an account is tept; where moneys are deposited in bant, to be drawn out, not in the indentical funds deposited; where moneys deposited are mingled with the cash assets of the bant, and used indifferently with his own; the relations between a bant and its depositors are well and definitely fixed by our own law and jurisprudence, and by that of other countries in which business is transacted with such institutions.

Such deposits are not real deposits, but are loans for use to the banter, The money so deposited transfers the property to the loanee; and the relation between a bant and its customers, in regard to irregular deposits so made, is simply one of debtor and creditor. See Arts. L. C. 2904, 2883, 2934, 2884. See the case of Matthews, Finley & Co. v. Their Creditors, 10 An. 343; and that of Sims v. Bean, 10 An. 346; Grant on Banking, p. 1; Marine Bank v. Fulton Bank, Wallace’s Report, 2 vol. p. 252.

But the defendant relies on his contract with the plaintiff; and, if the agreement is a legal one, he might well invote Art. 1940 C. C.; which says that, “Legal agreements, haying the effect of law uiDon the parties, none but the parties can abrogate or modify them, and it is incumbent on courts to give legal effect to all such contracts, according to the true intent of all the parties.” See sec. 2 of the same Article.

What was the agreement between these parties ? It is that produced by the plaintiff himself; and it precedes in the bank book the statement of the account. It is as follows:

“Bank of Commerce, New Orleans, January 17, 1862. Deposits in this bank are received only on condition that the amount is to be drawn in Confederate ourrencyand the currency is what the plaintiff himself calls the treasonable issue of rebels in arms against the United States.

This court has often held that it will not lend its aid to settle disputes relative to contracts reprobated by law. It will notice their illegality ex •officio, and allow it without any plea at any stage of the proceedings. Parties cannot be heard who ask relief from a violation of law. The law leaves them where their conduct has placed them, and in pari causa 'melior esi conditio possedeniis. Davis v. Holbrook, 1 An. 178; State v. Lazarie et al., 12 An. 166; Gravier’s Curator v. Canaby’s Executor, 17 La. 132.

Article 2026, Louisiana Code, prescribes that “ every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct), or prohibited by law, is null and void, and renders void the agreement which depends on it;” and Pothier (art. 1, chap. 3, part 3) defines the conditional obligation as that “qui est suspendue par la condition sous laquelle elle a été contractée, qui n’est pas accomplie.”

And in what light' can this court, constituted as it is, and recognizing, as supreme and paramount to all other laws, the constitution and statutes of the United States, view a condition, on which a deposit is received, and which condition, voluntarily acceded to by the depositor, provides for and contemplates the aiding of the circulation of the treasonable issue of rebels in arms against the United States; of an issue put in circulation for tlie express purpose of facilitating and carrying on the rebellion ; and ■which, issue, on the yery face of it, anticipates and purposes a disruption and dismemberment of the general government: as the notes so issued were only to be payable “six months after the ratification of peace between the Confederate States and the United States.”

Such a condition in a contract is, in the words of the law, “ a nullity, and renders void the agreement which depends on it.”

The plaintiff was a party to this illicit contract, and his right to stand in judgment depends upon the nature of his connection with the obnoxious condition, and upon the contingency as to whether its illegality lies properly at his door.

Many of the French commentators draw a clear destination between cases wherein both parties to the contract are compromitted illicitly, and where one alone is guilty of infringing the law.

Gilbert in his Code annoté, vol. 1, id. 503, in his notes to Article* 1133 C. N., says: “Les auteurs distinguent sur ce point entre le cas oil la convention est illicite seulement du coté d’une des parties, et celui ou elle est illicite des deux cdtés. Dans le premier cas, celui qui n’a ríen promis d’illicite est fondé a répéter ce qu’il a payé; dans le second, ni l’une ni l’autre des parties ne sont admises á exereer des répétitions l’une contre l’autre.” V. Pothier, No. 43 etsuiv.; Toullier, t. 6, No. 126; Duranton, t. 2, p. 687; Delomcourt, t. 2, p. 687, edit, de 1819.

Cette distinction est prise de Paul et d’Ulpieu, dans les’lois 3 et 4, |2, de Condict áb iarp causa.

It is hardly necessary to add, as was said in the ease of Gravier’s Curator v. Carraby’s Executor, 17 La. p. 128, that a fortiori the law will not lend its aid to enforce the performance of such contracts in the first instance. Duranton, with his usual aptness at illustration, demonstrates such a ease as would save one of the contracting parties from the effect of an illicit agreement. It would be one in which his participation therein was caused by the force of circumstances that he could not resist, without entailing on him grievous injury. That author says: “ Quelquefois cepen-dant, la cause de l’obligation de l’une des parties est illicite, sans que l’objet de l’obligation de l’autre le soit: tel est le cas oú vous vous obligez a me restituer un dépot que mon p'ere vous a confié, sans en avoir retiré une reconnaissance, et que vous exigiez une promesse de ma part de vous payer pour cela une certaine somme.

“L’objet de cette obligation, la restitution du depot, est tres licite, mais la cause de mon obligation de vous payer la somme est illicite, non pas sans doute par rapport a moi, mais par rapport a vous qui avez exige une promesse pour faire ce que l’équité et le droit vous oblígeaient de faire sans aucune rétribittion. ” Duranton, Art. 366, liv. 3, tit. 3.

In the example suggested by this author, he who binds himself unwillingly and under constraint is not deemed, in the eye of the law, a participant in an illicit covenant. But was this the case with the plaintiff in this suit? Olearly not; but the very reverse of it. His acquiescence in a contract that violated the law, and tended to endanger the public safety, was entirely voluntary, of Ms own free will, and with his eyes open,

His participation in the illegal contract was immoral, being, as it was, in violation of law. See the case of Davis v. Holbrook, 1 An. 175.

What was due to plaintiff by his contract with the defendant? Foui-hundred dollars in Confederate money. If the shadow of a legal cause of action were disclosed in this case by the plaintiff, it is so coupled with the illicit condition as to be inseparable from it.

The whole contract is an absolute nullity; and quod nullum esl confir-man nequit, quod nullum esl, nullum produait ejfelcum. Nemo audilur propriam turpiludinen allegans. ”

The doctrine taught by Chancellor Kent, in the case of Griswold v. Waddington, in the Court of Errors, New York, meets our fullest approbation. He says: “If from the plaintiff’s own stating, the cause of action appears to arise from a transgression of a positive law of the country, the court will not lend their aid.”

It would be difficult to state any principle of law more plainly founded on common sense and true policy, than that which declares that a plaintiff must not appear, from his own showing, to have infringed the law of the land; and, if ho does, he cannot avail himself of the law to enforce a contract made in opposition to lavr. The plaintiff must recover on his own merits; and if he has none, or if he disclose a case founded upon illegal dealing, and founded on an intercourse prohibited by law, he oughji not to be heard, whatever the demerits of the defendant may be.

“There is,” says the Chancellor, “to my mind, something monstrous in the proposition ¿hat a court of law ought to carry into effect a contract founded upon a breach of law. It is encouraging disobedience and giving-disloyalty its unhallowed fruits.

There is no such mischievous doctrine to be found in the books.”

The judgment of the lower court, which was in favor of the plaintiff, must be reversed.

It is therefore ordered, adjudged and decreed, that the action of the plaintiff be dismissed, and that plaintiff pay the costs in both courts.

Same Case. — Application eoe a Re-heabing,

May it please your honors : The plaintiff and appellee, Schmidt, respectfully asks for a re-hearing- in this case.

The plaintiff alleged, on the 2d day of June, 1864, that his balance of account in Jacob Barker’s bank was @400, and that the same was payable to him in legal tender notes..

The relations between a banker and depositor are those of simple debtor and creditor, and the acts of Congress make treasury notes a “legal tender in payment of debts.” Therefore, Barker, he said, owed him @400, in treasury notes, which was true, if Barkér owed him anything at all.

The plaintiff also averred that recently, i. e. with regard to the filing of petition, 2d June, 1864, Barker had, in striking the balance of his deposit account, wrongfully; illegally, and without the consent of petitioner, stated this to be a balance of account in Confederate notes, which was false, as tiie balance was simply, as appears by tlie book itself, one of “dollars,” for which the United States treasury notes were a legal tender.

In answer to this, Barker says that plaintiff deposited with him the nominal amount of §1,350, in “Confederate notes, under a special contract to receive back the same description of paper to this is added the averments of many different agreements, on the part of plaintiff, to receive “Confederate notes” for his debt.

What was the proof in this case ?

The defendant offered no proof at all. All the averments of his answer are therefore unsupported by evidence.

The circumstance that Barker annexes to and deposits with his answer certain four one-hundred-dollar Confederate notes, is of no value against •the plaintiff', because those notes are not proved to be what plaintiff deposited. These were not offered in evidence on the trial of the cause in •the court below; there was no evidence of any kind offered there in regard to them, and the Supreme court has no power to look at them at -all, as instruments of proof to make out the defendant’s case. For all purposes, they must be legally considered as not existing. They were filed by the defendant in the court below with his answer, but the record is destitute of all evidence about them; how can this court, then, allude to them at all ? How does this court learn that these were the notes which plaintiff deposited with defendant ?

Plaintiff has not admitted it. The defendant has not proved it. How, then, can this court take it for a fact.

Would not the case be a hard one for plaintiff' if all the allegations-defendants choose to put in their answers are to be taken as true, without proof ?

The bank book of plaintiff does not say that the deposits were made in Confederate notes, but does say they were made “in cash.” The memorandum at the foot of the account, defendant states to have been made in 1864, without his consent.

This is his admission, with regard to the entry, and there is no other proof in the record about it. His admission can only legally be taken as he makes it: it is, that he did not consent to the balance being struck payable in Confederate notes; that is all ho admits. Why should this court take it for granted, in the absence of all proof on the other side, that he consented to a balance in Confederate notes, in May, 1864, two years after the circulation had been forbidden by the highest law of the department (State), and to him they were absolutely worthless. Nor is there any proof that the plaintiff deposited Confederate notes with defendant ; the deposits are represented in the bank books as “cash.” It is true that a memorandum above the deposit entries saying, that “the amounts are to be drawn in Confederate currency but, at that time, January 1862, the defendant may Kavo considered this as a method of showing his devotion to the sacred causo of liberty and independence, in the fashionable phrase of that day. At that time, too, the court know, as a matter of history, that the notes of the banks of New Orleans, and those issued by the city corporation, wore in general circulation; so that it cannot be presumed, in tho absence, of proof, that the deposits were made in Cou-federate notes.

Let us now suppose, in the absence of proof on the point, and for the sake of argument, that the deposits were made in Confederate notes, “the treasonable issue of rebels in arms agiiinsi the United States” (a style of designation which is apparently attractive), what then ? They are received and entered on plaintiff’s pass book as “cash” in dollars. What was the effect of such an entry in plaintiff’s book ? Why, to make him a' creditor of defendant for so many dollars! not the very dollars, recollect, which plaintiff deposited; for there is no question here really of the contract of deposit, but of the contract of loans for consumption.

The law governing their relations is, therefore, that of the Louisiana Code, Art. 2882. “By the effect of this loan the borrower becomes the owner <ff the thing lent, and if it be astrayod, in whatever manner the same may have happened, the loss is on his account. ”

If in this case the loan was made in Confederate notes, which we admit argumentó gratia, then, these having been destroyed, i. e. rendered worthless by the collapse of the rebellion, the loss is on the defendant.

But the text and provisions of our code do not stop here. Article 2884 says : “The obligation which results from a loan of money can never be more than the numerical sum mentioned in the contract. ” But that he is bound to pay! He must pay the numerical sum, which means the number of the standard (in this case dollars) mentioned in the contract.

And, says the same Article in continuation: “If there has been augmentation or diminution of the value of the specie” (i. e. the kind of currency loaned) “before the time of'payment, the debtor is bound to return nothing more than the numerical sum” (and consequently he can return nothing less than that) “in such specie as has currency at the time of the payment.”

In the case at bar, the time of payment was the months of May or June, 1864, when the bank pass-book was balanced, and when “Confederate notes” were not only worthless, but prohibited as a circulating medium; according to the Code, then, the depreciation must be borne by Barker, and he must pay the sum loaned him in “legal tender,” the specie which has currency at this time.

The proclamation of May 1st, 1862, issued by the major-general commanding the national forces, declared that the circulation of Confederate notes was permitted “until further orders.” See General Order, No. 1, May 1st, 1862.

On the 16th May, 1862, the major-general, by Order No. 29, prohibited all circulation of or trade in Confederate notes, after the 27th May, 1862.

And by General Order No. 30, 19th May, 1862, after setting forth, in the strongest terms, the treason and bad faith of the public and private bankers of New Orleans, the major-general commanded: “II. That all private bankers, receiving deposits, pay out to their depositors only the current .bills of the city banks, United States treasury notes, gold ox-silver.”

This is the supreme law of the department (State of Louisiana), has been, since 1862, and is now in full force, and of higher force than any statute of Louisiana.

Re-hearing refused.