text:
    Succession of John S. Caldwell.
    In an attachment suit, if the judgment does not decree that the plaintiff shall be paid by privilege out of the proceeds of the property attached, it will be regarded as an ordinary judgment.
    The confidential and head clerk and manager of a bar-room and eating-house, has a privilege for his wages on the movables of the establishment.
    TV. had charge of the ten pin alleys, and received the money paid at them during the day, and made his returns when they were closed. If this occupation did not give him a privilege as an agent under articles 8158, 8181, 8219 and 8221 of the Code, yet it entitles him to be classed with servants, and as such gives him a privilege.
    The Sheriff was sued for the value of certain movables seized and sold by him under a number of attachments. In his answer, he called on the attaching creditors to defend him and asked that they might be made parties to the suit, so that if judgment was rendered against him, he might have judgment over against them. All the creditors but one appeared and justified the seizure. Held : that the fee paid by the Sheriff to counsel for defending the attachment, was a claim to be paid by the attaching creditors.
    Appeal from the Eourth District Court of New Orleans, Reynolds, J.

      Bonford and Finney, for Foley.

      Bayne & Magne and Koonts and Hoffman & Ogden and Oohen.

      BonforA & Finney contended that “ there was no necessity to insert in the judgment in an attachment suit a clause affirming, or recognizing the creditor’s rights under the attachment,” and cited C. P. 265, TuftSY. Ocvrradine, 3, An. 430. Harmon v. Paul Juge, fils, etal, 6An.768.HobiesY. her Husband, 9 Rob. 118.
      Gustine v. the Bank of Louisiana, 10 Rob. 418. Sergeant on Attachment, p. 20. Inés y. Sturgis, 12 Metcalf, 462. Dameport v. Tilton, 10 Metcalf, 320.
   Eustis, O. J.

This appeal is taken .from a judgment of the Court of the Fourth District of New Orleans, rendered on a tableau of distribution filed by the curators of the succession.

J. S. Foley, one of the appellants, is a creditor of the succession by virtue of a subrogation to the rights oí J. & C. Forbes, plaintiffs in two certain suits commenced by attachment in the Third District Court of New Orleans, against Caldwell as an absentee. One of these judgments, to wit: No. 3805, for $1356 81 cts., was opposed by Henderson & Caines, subsequent attaching creditors, on the ground that no privilege had been given to the plaintiffs by that judgment. The District Judge placed Foley as an ordinary creditor on the tableau, without any privilege or right of priority, and from this decision Foley has appealed.

The judgment is in the common form of personal judgments. It decrees that the plaintiff recover from the defendant the sum of $1356 81 with interest and costs, with a stay of execution on a portion until the 16th of July instant.

We think the usual practice in rendering judgments in attachment suits, is to make provision for the right of the party on the property attached. From this practice, we think there would be no propriety in deviating. The present case strongly illustrates the reason and necessity of some such provision in the judgment, inasmuch as by the Sheriff’s return to the writs of attachment, there were no less than twenty-two conflicting attaching- creditors.

The case of Harmon v. Juge, 6th Annual Rep. 768, referred to by the counsel for the appellant, we think, is in affirmance of this practice. In all the judgments under review there, provision was made in them for satisfaction out of the property attached. We find nothing in the other cases referred to by counsel, which is in conflict with this view of the subject. The forms of judgment under the attachment laws of other States and the systems of law which prevail there and in England,—so different from ours in the whole doctrine of privileges ■—-afford no grounds for changing our own. Wo think, therefore, the District Judge did not err in considering the appellant as an ordinary creditor of the succession, and so decreeing.

Foley, the appellant, has also objected to the allowance of two privileged claims, those of Turnbull and Wooster, each of whom are judgment creditors. The objection is against their privileges. The District Judge allowed the privileges under the articles 3158 and 3181, 3219 and 3221.

Turnbull, it is shown by the testimony, was the confidential and head clerk and manager of the establishment of the deceased, which consisted of a bar room and eating house known as the Phoenix House, in St. Charles street. We think the privilege attached to his wages as a clerk or agent of that sort.

Wooster had charge of the ten pin alleys, and received the money paid at them during the day, and made his returns when they were closed. If this occupation did not give him a privilege as an agent under the articles cited, wo ai-e of opinion that it is included within the class of servants which is more comprehensive in the sense of the Code, and authorizes the privilege allowed.

John L. Lewis is also an appellant from a disallowance of a claim of five hundred dollars for professional services, expended by him in the suit of Hiles Judson against him as Sheriff.

This claim is presented in an irregular form, the amount not being in the hands of the curator for distribution; but as the parties have joined issue and tried it in this form, and have so argued it in this Court, we see no objection to its being adjudicated upon, but without receiving the countenance of this Court as a precedent of practice.

The amount of five hundred dollars was paid by Mr. Lewis, who was the Sheriff who made the seizure of the establishment of the Phoenix House, for professional services, in defending the suit of Miles Judson against him, in this Court and the District Court. The amount of this fee is not disputed, but the right to charge the same to the succession is disputed.

This appellant offered in evidence the receipt for the five hundred dollars, the proceedings in the case of Judson, and the amount of the nett proceeds of the sales of the property attached, amounting to $4,788 05.

The suit of Miles Judson in which this expense of five hundred dollars was incurred, was instituted against the Sheriff for the recovery of the liquors, movables and fixtures of the Phoenix House, taken possession of by him, or for their value, being the sum of five thousand dollars, and the sum of one hundred dollars per day for tile time the plaintiff was kept out of the property; and also the further sum of five hundred dollars for the trespass and alleged seizure, &c. Judson, the plaintiff, claimed the property under an act of sale from Caldwell, made previous to the seizure. The District Judge gave the plaintiff the sum of $4,4-00, to be paid out of the proceeds of the property attached.

This Court reversed the judgment of the District Court, and gave judgment for the defendants, and directed the proceeds to be distributed among the creditors, under the order of the Court from which the first suit of attachment emanated.

When the suit was at issue the Sheriff in his answer called upon the attaching creditors to defend him, and inasmuch as the several attachments—twenty-two in number—-were from the five District Courts of New Orleans, he asked that they might be made parties to his suit, and their rights upon the property therein be adjudicated upon, and for judgment over against them in the event of the plaintiff’s recovering. The creditors with one exception appeared and pleaded avouching the legality of the seizure by the Sheriff, and the responsibility of the Phoenix House movables to their several attachments.

The movables in the meantime had been sold under a consent of parties, and it does not appear that any effort was made to charge the Sheriff personally with damages.

It appears also that the Sheriff was one of the appellants to this Court, and on the minutes of the loth of December, 1851, his counsel was one of those who argued the cause, having filed a brief for his client.

We think, under the circumstances, that the Sheriff had the right to employ counsel at the expense of the attaching creditors, and that they were bound to indemnify him, having virtually made his doings their own. It is true they had their own attorneys employed, and the difficulty arises from a want of mutual understanding on this point. We cannot distinguish this case from that of Slew-w't v. Lapsley, recently decided by this Court. The only difference between the two cases is, that In that case the Sheriff had an indemnity bond from the seizing creditor; in this case the creditors adopt and sustain the acts of the Sheriff.

It is therefore decreed, that the judgment of the District Court on the tableau of distribution be affirmed, with the exception of that part directing the curators to account for the sum of five hundred dollars retained by John L. Lewis, late Sheriff, for counsel fees paid in the case of Miles Judson, and discharging the same, which is reversed, and the said sum allowed to the said John L. Lewis, as claimed by him, with costs, and that the costs of this appeal bo paid one-half by Foley, appellant, and the other by the succession.

ON an application for a rehearing, the following judgment was rendered :

It is ordered that the decree rendered in this case on the 10th of January last, be modified so as to read as follows: It is therefore ordered, adjudged and decreed, that the judgment of the Court below on the tableau of distribution be affirmed, with the exception of the part directing the curators to account for the sum of five hundred dollars retained by John L. Lewis, late Sheriff, for counsel fees paid in case of Miles Judson, and disallowing the same, and the part directing L. L. Wooster to be placed among the attaching creditors, which are reversed; and that L. L. Wooster be paid his claim in the rank recognized on the tableau— the sum of two hundred and seventy-four and 41-00 dollars—and that said J. L. Lewis be allowed five hundred dollars, as claimed by him, and costs. It is further ordered that the costs of this appeal be paid one-half by Foley, appellant, and the other half by the succession.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Hill, McLean & Co. v. John C. Simpson. Prehn, Clegg & Co et al., Hamilton, McKinder & Co. et al. and Edward Davenne et al.—Intervenors.

    Plaintiff sold to Simpson cotton for cash, on delivery. It was delivered on the 4th of June, and the plaintiffs, by their delivery of the cotton, gave the purchaser the ownership of it, and he appeared as such, and got credit on his purchase accordingly in the market, without any notice, or interference on the part of plaintiffs on account of their unpaid balance, until the 9 th following. The plaintiffs had no privilege on that day which could conflict with the rights of intervenors. By their incautious delivery the plaintiffs en’abled Simpson to do that for which cotton is bought in this market—to get credit and speculate upon it.
    ■Whenever the owner has parted with his control over the goods, and cannot change their destination, his creditors cannot attach; but, whenever the owner can sell and deliver, the creditor may seize.
    Appeal from the Fourth District Court of New Orleans, Straidbridge, J.

      Semines, for plaintiffs and appellants.

      Olarhe, for Prehn &' Go., Intervenors. F. A. Bradford, for MeIGnder et al., and Bcmenne et al.
   Eustis, C. J.

This appeal is taken by the plaintiffs from a judgment rendered by the Fourth District Court of New Orleans against them, and in favor of certain intervening parties, who are the appellees in this Court.

The suits present a contest between the plaintiffs as attaching creditors and as vendors, and the intervenors, as commission merchants, claiming the right to hold a large quantity of cotton upon which they have made advances.

On the 3d of Juno, 1851, Hill, McLean & Co., of New Orleans, sold to John Simpson, 819 bales of cotton for the price of $30,585 72 cash, payable on delivery.

The cotton was stored in the Orleans cotton press, but was not delivered to Simpson until the 4th of June. On the day of the sale the plaintiffs received from Simpson $20,000 on account, and on the 7th he gave them his check on BoLb & Go., bankers, for the balance, $10,585 72, which was protested for non payment. For the receiving of this sum, and to enforce their privilege as vendors, the plaintiffs brought the present suit on the 9th of June. Simpson had absconded; the plaintiffs caused to be issued a writ of sequestration and writs of attachment against his property. The Sheriff seized the 819 bales of cotton un(jer tho writ of sequestration, and the writ of attachment was executed by pro-06SS Samis“ aSains^ the intervening parties. On the 21st of June a confession of judgment was entered by Simpson in favor of the plaintiffs for the balance claimed, with privilege as vendors and as attaching creditors. Previous to this the appellees had intervened, and claimed, each for his interest, the cotton sequestered.

The District Judge was of opinion that the case could not be distinguished in principle from that of Galbraith v. Lee, reported in 6th Annnal Reports, 343, and as the property was, at the time of the service of the writ, no longer in the possession of the buyer, he decided in favor of the intervenors, and against the vendor’s privilege. He does not appear to have considered tho attachments as creating any impediment to the exercise of the parties’ claim for the cotton on account of their advances. The effect of these writs has been urged in alignment in this Court. It will be considered after the examination of the plaintiffs’ claim to a privilege as vendors.

A very carefully prepared printed argument has been submitted by the counsel for the plaintiffs, and we will consider the subject in the order in which he has placed his views before us.

It is urged that, in order to maintain the judgment of the District Court, the intervenors must establish two propositions:

1st. That, at the time of the seizure by the Sheriff, they had made specific advances to Simpson on the cotton seized. 2d, that at the time of the seizure,they had possession of the cotton, or that it was under their control.

If the advances were not specific, the Act of 1841, it is said, creates no privilege for the advances, and if, at the time of the seizure, they had parted with the possession of the property, or had lost, or forfeited their right to it, the judgment restoring the possession to them is erroneous.

The parties to these transactions being in perfect good faith, and there being nothing in them at all at variance with the usual course of business, either as to time, place, or circumstance, under the decisions of this court, there is another question which stands before that of specific advances made by the counsel, and that is, whether at the time of the seizure of the cotton, the vendors had a privilege on it. The sale was made for cash on delivery; it was delivered on the 4th of June, and the plaintiffs, by their delivery of the cotton, gave the purchaser the ownership of it, and he appeared as such, and got credit on his purchase, accordingly, in the market, without any notice or interference on the part of the plaintiffs on account of their unpaid balance until the 9th following. The plaintiffs had no privilege on that day which could conflict with the rights of the intervenors. By their incautious delivery, the plaintiffs enable Simpson to do that for which cotton is bought in this market—to get credit and speculate upon it. Fetter v. Field, 1 Annual Reports, 83. Galbraith v. Lee, 5 Annual Reports, 349.

Having, therefore, come to the conclusion that the plaintiffs had no privilege on the cotton at the time of the seizure, no further enquiry is pertinent on that part of the case, and it remains to examine the rights of the plaintiffs under their attachments. The cotton was not seized under the writs of attachment, but, it is contended that the garnishment of the intervenors embraces it, and renders them responsible for it to the plaintiffs.

We do not consider that there is any force in the objection to the validity of the transactions of some of- the intervenors concerning portions of this cotton, founded on the fact that the advances were made on a promise to ship cotton to Liverpool, and that before the matter was closed, one parcel was substituted for another. The undoubted credit that Simpson had at the time, the short period in which the arrangements were completed, and the tona fide delivery to the parties in furtherance of the obligation imposed by the advance, we think, place them on the same footing with regard to those parcels of cotton as the rest of the purchase of cotton stands.

If the rights of the plaintiffs as attaching creditors, as supposed by the counsel, are to be tested by the Act of 1841, which purports to amend the article 3214 of the code, it will be found that this article, as to its meaning and object, has, for years, been acted upon under ajudicial interpretation by the Court in the last resort.

The privilege given by this article, says the Supreme Court, was evidently intended to aid the interests of trade and commerce, and promote a liberal spirit as to factors in respect to advances to their principals. The terms used in it should be understood and construed with reference to mercantile usages, &c. In giving an opinion as to the meaning of the word advances in the article cited, the Court says the word not being in any way qualified, we believe it to be our duty to give it that enlarged sense which best comports with the policy of the provision itself and the general convenience and usages of trade. Turpin v. Reynolds, 14 Louisiana Rep. 477.

Under this construction of the article into which the amendatory Act necessarily falls, we think the privilege of the intervenors could be maintained. But we do not desire to decide this case under that article, but on the ground where the law plaqes it, as we conceive, and on the rights of the parties as they are presented by the evidence.

The fact of the possession of the cotton by Simpson, under the sale from the plaintiffs, can hardly be seriously contested under the statement of facts on which the argument of their counsel is based. But, it is contended that two of the intervenors, Prehn, Clegg & Co., and Parvenne, had parted with the possession of the cotton on which they had made advances, and thereby rendered it liable to the plaintiffs’ attachment. It is conceded that these parties had, prior to the attachments, received from Simpson, bills of lading for the cotton claimed by them, and it seems, that these parties pledged the bills of lading to the house of Bennistoun & Go. and the Oanal Barilo, to secure certain bills of exchange drawn by them; the bills of lading to be returned on satisfactory acceptance of the bills of exchange. The seizure of the cotton was made under the writ of sequestration two days after this transfer of the bills of lading, and the garnishment was served at the same time, being two days after the parties had parted with the possession of the cotton in favor of Pennistoun and the Ganal Barilo.

In relation to this objection to the possession of the intervenors, we only think it material to observe, that this mode of transferring bills of lading as a security for the acceptance of bills drawn on the shipments, is not unusual in this market, and we find nothing in the evidence which authorizes us to believe that the transfer of the bills to the Bennistouns, or the Oanal Banio, was of a tortuous character, in any sense—that it was done without the consent of Simpson, or that his hills of lading were used in any manner in which he could object to in the usual course of business in the cotton trade.

The rights of the intervenors as affected by the plaintiffs’ garnishment, are not all of them exclusively dependent on the same facts, but we consider them all beyond its reach, and for the sake of argument, will assume that they are standing in a similar relation towards the plaintiff.

At the time of the service of the garnishment all the cotton was on shipboard except ninety-two bales, for which bills of lading had been endorsed and delivered by Simpson to the intorvenors. The shipment was completed, the bills of lading negotiated, and the property was entirely beyond the control of its owner.

We know of no case in which this Court has sanctioned the right of an attaching creditor to break up a shipment under these circumstances, and destroy all rights dependent on and created by the bill of lading. We understand the rule to be that, when the owner has parted with his control over it, and cannot change its destination, his creditors cannot attach; but, whenever the owner can sell and deliver, the creditor may seize. Oliver v. Lake, 3d Annual Rep., 78. Blackly v. Matlock, 3d Annual Rep. 375. Hopp v. Glover, 15 Louisiana Rep., 464. Urie v Stevenson, 2d Robinson, 252. Taylor v. Whittemore, id. 100; 5th Robinson Rep. 266. Armor v. Cockburn, 4 Martin, N. S. 668.

Provision having been made in the judgment appealed from for any ultimate claims on the proceeds of the shipments, which the plaintiffs may substantiate, there is no ground for any change in the judgment. ■

The judgment of the District Court is, therefore, affirmed with costs.


author: Dunbar, J.

text:
    James Mackoy v. J. B. Holton & Co.
    The usage, on the neglect, or refusal of the buyer to come in a reasonable time, after notice, and pay for and take the goods, is for the vendor to sell the same at auction, and to hold the buyer responsible for any deficiency in the amount of sales.
    It may be true, under the strict rules of pleading at Common Law, that a plaintiff is bound to affirm his contract by bringing his action for damages for the non-performance of it, or disaffirm the agreement ab iwiUo, and bring his action for money had and received to his use. Under our practice, if defendants do not except and force the plaintiff to make an election, it is too late after evidence has been taken and trial had, to raise an objection of this character.
    Facts that show an intention to rescind a contract.
    Appeal from the Fourth District Court of New Orleans, Strawbridge, J.

      Hite & Gaither, for plaintiff and appellant.

      Ogden & Duncan, for defendants.
   Dunbar, J.

This suit is brought on the following contract: “ Foster, Kentucky, December 2, 1850. An article of agreement made and entered into between J. B. Holton & Co. (composed of J. B. Holton, Wm. Hugh and Joseph Taylor) of the first part, all of Bracken county, Kentucky, and James Mackoy, of Mason county, State aforesaid, of the second part, witnesseth: that the above named J. B. Holton & Co. have this day sold unto the above named Jas. Mackoy, their entire purchase of tobacco, supposed to be two hundred and fifty thousand pounds of leaf tabacco, more or less; Mackoy to receive the tobacco prized in the hogshead, Holton to receive the tobacco and prize it. The tobacco to be in good merchantable order and in good prizing order. Mackoy has the privilege of rejecting ten hogsheads of the entire purchase only, and this he is to have also, if they can agree on the price of it. And he, Maclcoy, is to pay the sum of eight dollars per hundred pounds for all the tobacco so received, to pay five hundred dollars down, in the following manner: Two hundred and eighty dollars in hand, the receipt of which is hereby acknowledged, and give liis individual note, due on the 25th December, instant, for the sum of two uuudred and twenty dollars. It is expressly understood that this five hundred dollars, say, $280 cash, and $220 in his note, is given to bind the trade, and is forfeited on the part of said Mackoy, should he not comply with the stipulations following, which are as follows: Mackoy is to furnish the funds at the rate of eight dollars per hundred to J. B. Holton & Co., as fast as it is needed, to pay the farmers as the tobacco comes in, besides the five hundred which has been mentioned before, in case he complies with the contract, then the five hundred dollars to be placed to his, Maalcoy’s, credit, as so much paid on the purchase, &c.”

The plaintiff alleges that he has paid to the defendants, in part performance of this contract, seventeen hundred and sixty-five dollars, that he has always been ready and willing to perform his part of said agreement, but that the defendants have failed and refused to deliver the tobacco, when amicably thereunto requested, and moreover, in order to defraud him of his just rights, had shipped the tobacco to the city of New Orleans. He seeks to recover both the damages which he has sustained from the failure of the defendants to deliver the tobacco, in conformity with the contract, and the moneys he has paid them.

The defendants in their answer, admit the contract, as set forth in plaintiff’s petition, and the payments to them of the sums of money mentioned therein, but allege that the plaintiff failed to furnish them with necessary funds to pay for the tobacco, as it was brought in by the farmers, as he was bound to do; that they delivered to the plaintiff, in part compliance with then- contract, five hogsheads of tobacco on the 16th January, 1850, and that afterwards, when the tobacco came in very fast upon them, the money aforesaid, that had been paid to them by plaintiff, was quickly exhausted; that they notified him of the fact, and required and urged him again and again, to furnish them with more money, which he utterly failed and neglected to do. In consequence of which default on the part of the plaintiff, they, the defendants, were compelled to raise the money themselves to pay for the tobacco, and to ship it on their own account to their factors in New Orleans, Schultz & Hadden, and Beatty, Leggett & Co. The defendants plead in reconvention, allege that they have sustained damages from the default of the plaintiff to the amount of five thousand dollars, and that they have further the right to retain the five hundered dollars, the forfeit, or penalty incurred by plaintiff for his non-compliance with his contract.

The plaintiff commenced this suit by attaching the tobacco in the hands of the beforementioned factors in this city, who, also intervened, claiming a privilege upon the proceeds of the tobacco for advances made by them. The District Judge decided in their favor, to the extent of their advances, from which portion of the judgment no appeal has been taken. The case is therefore dis-embarrassed of any inquiry relative to the claims of the intervenors, and is to be decided by us solely upon the controversy between the original parties.

We agree with the District Judge, in the opinion, that it is shown by the evidence, that the plaintiff after having paid seventeen hundred and sixty-five dollars, and received five hogsheads of tobacco, failed to comply with his contract in furnishing the funds which he was bound to provide the defendants with, for the purpose of making payments to the farmers for their tobacco, as it was delivered by them to the defendants. It is also shown that the defendants were put to much inconvenience and expense in having to raise the money themselves. But we think it is likewise clearly established, that on the default of the plaintiff to furnish the necessary funds for the payment to bo made for the tobacco, that the defendants elected to rescind the contract, and consider it forfeited by shipping the tobacco on their own account to New Orleans, a distant market, with the view of making a handsome speculation thereby. One of the witnesses says: “ that he saw Jesse B. Holton on his way down from Mays-ville, and in conversation with him on that day, he told me that James Maclcoy had forfeited his contract, and he thought he would make more money than if he, Maclcoy, had complied with his contract; this conversation took place a few days after the contract was claimed to be broken, at which time the prospects of tobacco were very promising.” The usage, on the neglect or refusal of the buyer to come in a reasonable time, after notice, and pay for and take the goods, is for the vendor to sell the same at auction, and to hold the buyer responsible for the deficiency in the amount of sales. 2 Kents Com. 504. There is no usage or authority, with which we are acquainted, that authorises the vendor under such circumstances to ship the goods to a distant market for sale, and then charge the vendee with the difference in price. We do not understand the case of Applegate v. Hogan, 9th B. Monroe’s Reports, to which we have been referred by defendants’ counsel, as maintaining any such doctrine. The conduct of the defendants can be viewed in no other light than as’a relinquishment of the contract, and if the contract be considered as rescinded, the buyer has a right to recover back the money paid. Raymond et al. v. Bearnard, 12 Johnson, 274. Gillet v. Maynard, 5 Johnson, 87. The same authority says, that if the contract is rescinded in part, it must be in toto; and the plaintiff’s right to recover back the money paid, is undeniable. Believing, however, as we do, that the plaintiff was first in default in not furnishing to the defendants, the necessary funds to pay for the tobacco, in conformity to his contract; we do not consider that he is entitled ex cequo et bono to recover from them the forfeit, or penalty of five hundred dollars.

It is, however, contended by the counsel of the defendants, that the plaintiff in his petition has set up contrary, or inconsistent causes of action; that he was bound-to affirm-the contract, by bringing his action for damages for the nonperformance of it, or he should have elected to disaffirm the agreement db initio, and brought his action for money had and received to his use. Sugden’s Law of Vendors, 178-4.

This may be true, under the strict rules of special pleading at Common Law, but not under our more liberal system. Before the adoption of the Code of Practice in the case of Kenny et al. v. Dow, 10th Martin, 601, it was held that after evidence had been taken and trial had such a defect was cured. This rule, reasonable in itself, has not been changed by our Code o'f Practice, arts. 149, 152. The defendants might have filed an exception and forced the plaintiff to make an election, but not having done so in the proper time, it is now too late.

The same objection might be made to the defendants’ answer,in reconvention.. In that, they claim the penalty and sue for a breach of covenant; to which, in like manner, no exception was taken. Chitty on Contracts, 888.

Under our equitable system of pleading, we are enabled to do substantial justice between the parties without being driven to the necessity of dismissing both their claims.

After crediting the defendants with four hundred and twenty-four dollars, the value of five hogsheads of tobacco delivered to plaintiff, and allowing them to retain the five hundred dollars forfeit or penalty, there will be a balance due to plaintiff of eight hundred and forty-one dollars.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed, and there be judgment for the plaintiff against the defendants in solido, for the sum of eight hundred and forty-one dollars, with five per cent, per annum interest from judicial demand, to wit: the 27th of March, 1851, with costs in both Courts.


text:
    Thomas J. Cooley and Sidney A. Lacoste v. Cecile, f. w. c.
    It often occurs that the valuable services of counsel enure to the benefit of others than those who have employed them. Large interests often include small ones in matters of litigation. For such services counsel cannot recover against parties who did not employ them.
    Appeal from the District Court of the Ninth Judicial District, parish of Point Coupee.
    Plaintiffs in pro. per.

      Provosty and Soy, for defendant and appellant.
   Eustis, C. J.

(Slidell, J. dissenting.) This suit is instituted to recover the amount of a fee for professional services, rendered the defendants by the plaintiffs, as attorneys and counsellors at law, in the case of Marcelin Mayer et al. v. Virginie Esneault, vide 7 Ann. Rep. The services were rendered in sustaining the will of Mr. Simon Porche. The amount claimed was five hundred dollars; the plaintiffs recovered the sum of three hundred and fifty dollars, and the defendant has appealed.

The succession, which was secured to the universal legatee by the services of the plaintiff, was valuable, and it is certain that, in maintaining the interests of their principal client, the defendent had the benefit of them. Her interest, however, was small comparatively, and was concurrent with that of the universal legatee in that suit. She had no separate interest to be defended, because if her legacy failed, it would have enured to the benefit of the principal defendent, the universal legatee, and we so decided.

The present defendant was made a party defendant in the suit, and the plaintiffs filed her answer as well as that of the principal defendant.

It is denied that the defendant ever employed the plaintiffs, and, it is contended by the plaintiff, that the fact is established by two circumstances: one is the signature of the defendant to a release in favor of a witness which was in the handwriting of one of the plaintiffs. We find, on examining the copy of the release, that it does not bear the signature of the defendant; it has a mark (M) which may have been intended for it. There is no explanation of the circumstances under which this mark was appended to the release, nor of the understanding of the party as to its purposes, and the uses to which it was to be applied. And we think that such an explanation ought to have been given, in order to bind the defendant by it to the extent contended for by the plaintiffs. But this shows the defendant was unable to write her name, and it would be obviously unjust to hold a person of this condition to the same knowledge and consequences which an act of this kind on the part of business persons would imply.

The other circumstance, relied upon to prove the plaintiffs’ employment by the defendant, is their possession of the copy of the petition and citation served on the defendant. In considering the object of this suit we must again refer to ^le con^ition of the defendant, as to all legal matters, one of absolute dependence. The possession of these papers, it is plain, proves nothing except the fact. The plaintiffs were employed by those entrusted with the business of the universal legatee, and as no communication is proved to have taken place between them and the defendant before the trial, the case rests upon the weight to be attached to the release.

It often occurs that the valuable services of counsel inure to the benefit of others than those who have employed them. Large interests often include small ones in matters of litigation. As we said in the' case of Boseliw v. Delaakme¡ 5th Annual Reports, 481, for such services counsel cannot recover against parties who have not employed them.

Our impression is that it became the duty of the universal legatee, the testamentary executor having died, to sustain and execute the will. The plaintiffs maintained in them argument that the heirs had no right to impugn the rights of the defendant as long as the will stood unimpeached, inasmuch as they were without interest in respect to them. It is plain that the main defence covered the rights of the defendant, and the will being in operation, her only conflict was with their client, the universal legatee.

The appearance of the plaintiffs under ordinary circumstances would have been evidence of their employment; but in the present case the plaintiffs represented the main and controlling interest to be defended in another’s right. The defendant’s interest was small, and she was merely a nominal party in the suit.

The judgment of the District Court is, therefore, reversed, and judgment rendered for the defendapt, with costs in both Courts.


author: Dunbae, J.

text:
    State v. Jean Geze.
    Information for selling spirituous liquors to slaves without consent of masters, &c. XLeld: If the owner of the slave, or person having him in charge, sent the slave to buy, or receive the spirituous liquor from the defendant, for the purpose of inducing the defendant to commit the offence charged in the information—then the act committed was done with the assent of the owner, or person having the slave in charge—and the material ingredient of the offence is wanting.
    Appeal from the District Court, Fourth District, Parish of Ascension.

      Duffel, J. Attorney General, for the State.
    Illsley, for defendant.
   Dunbae, J.

This is a prosecution, by information against defendant, for unlawfully selling spirituous and intoxicating liquors to a slave, without the consent and authorization of his master, or person having charge of said slave. The defendant was tried and found guilty by a jury, and condemned by the Court to a fine of five hundred dollars, with the costs of prosecution, and imprisonment for thirty days, unless the fine and costs were paid.

Upon the trial of this case, the counsel of the defendant moved the Court to instruct the Jury, if they should be of opinion, from the testimony adduced, that the owner of the slave, or the person having charge of him, sent the slave to buy, or receive the spirituous liquors from the accused, for the purpose of entrapping him and inducing him to commit the act charged, that the act so committed being done with the knowledge and assent of the owner, or person having charge of the slave, the material ingredient of the offence would be wanting, and that in such case no offence was committed, as charged. The Court having refused to charge, as thus requested, the defendant took his bill of exceptions.

We are well aware of the solicitude which has been exhibited by our Legislature for a long scries of years, in the passage of numerous Acts to prohibit the selling of intoxicating liquors to slaves, and have considered the subject with every disposition, if possible, to construe the Statute of 1832, under which the information in this case has been framed, so as to advance the remedy and suppress the mischief; but we have been unable to agree with the District Judge in his refusal to charge the Jury as requested.

The Act of 1832, with the several amendments thereto, imposes a fine “ upon any person who shall give, sell or deliver, or cause to be sold, &c., to the slave of any other person, without the consent and authorization of the master or owner, or person having charge of such slave, any spirituous or intoxicating liquors, &c.” Revised Statutes, p. 555. It is clear that the material ingredient in the offence under this Statute is “the giving, selling, &c., without the consent and authorization of the owner, or person having charge of such slave.” If then the owner or person having charge of the slave sent him to the defendant for the purpose of inducing him to sell or give the spirituous liquors to the slave, with what propriety can it be said that the sphituous liquors were given or sold without the consent of the owner or person having charge of the slave?

It has however been contended by the Attorney General, that the Act of June V, 1806, imposes a fine upon any person who shall sell intoxicating liquor to a slave without a permission in writing from the master. Bullard and Curry’s Digest, 51. This is very true; but the defendant has not been informed against under that Statute, and if he had been, the fine imposed by it would not have been sufficient to give this Court jurisdiction. Unfortunately perhaps for the good of the community, this wise provision of the Act of 1806, requiring the permission of the master in writing, has been omitted in the Act of 1832, under which the defendant is now prosecuted. This case bears a striking analogy to that of larceny. One of the material ingredients in the offence of larceny is, that the taking of the goods should be without the consent of the owner, imito domino. In Eggington’s case, reported in Russell on Crimes, 2 vol. 105, this material ingredient in the offence of larceny underwent great consideration, as the author tells us. The prisoners having been convicted, the case was argued before the twelve judges, a majority of whom held that the prisoners were guilty of the larceny under the following circumstances. It appeared that the prisoners, intending to rob a manufactory at Soho, near Birmingham, of which Mr. Boulton was the principal proprietor, applied to a man named Phillips, who was employed as servant and watchman to the manufactory, to assist them in the robbery. Phillips assented to their proposal, but immediately gave information to Mr. Boulton, who told him to carry on the business, with a view to the detection of the thieves, which the servant accordingly did. The conviction of the prisoners was founded upon the consideration that although Mr. Boulton had permitted or suffered the meditated offence to be committed, he had not done anything originally to induce it; that his object being to detect the prisoners, he only gave them a greater facility to commit the larceny than they otherwise might have had; and that this could no more be considered as an assent than if a man, knowing of the intent of thieves to break into his house, were not to secure it with the usual number of bolts. From this report of the case it is to be inferred that if Mr. Boulton had done anything originally to induce the commission of the theft, the prisoners would have been acquitted. So we think, if the owner of the slave, or the person having him. in charge, sent the slave to buy or receive the spirituous liquors from the defendant, for the purpose of inducing Mm to commit the offence charged in the information, that the act so committed being done with the assent of the owner or person having charge of the slave, the material ingredient of the offence would be wanting, and that in such case no offence was committed, as charged.

It is therefore ordered, that the judgment of the District Court he avoided and reversed, that a new trial be awarded the defendant, with instructions to the DistrictJudge to charge the Jury in conformity to the principles of this opinion and decree.


text:
    Sebastian Hiriat v. Harriet Hildreth, widow, &c.
    Where issue has not been joined before the death of the original plaintiff, no judgment can be had lie-fore notice to the defendant of the revival of the suit.
    Appeal from the District Court, Sixth District, Parish of Iberville. Robertson, J.

      Rd/wa/rds, for plaintiff.

      Laba/woe, for defendant and appellant.
   Dunbar, J.

The plaintiff in this suit died after service of citation on defendant, hut before issue joined.

On the 6th September, 1852, on motion of W. R. Rdwa/rds, counsel for plaintiff, it was ordered by the District Judge, that the cause be transferred from the dead to the trial docket; and the said counsel having suggested the death of Sebastian Hiriat, and filed letters of administration to Paul Louis Hiriat, it was ordered that the said Paul Hiriat, administrator, he made a party to the suit. ■There does not appear to have been any service of this order of revival upon the defendant or her attorney, and the plaintiff’s counsel on the next day obtained from the Court a judgment by default against her, which was made final a few days thereafter, without any appearance or defence on behalf of the defendant.

On the same day, however, on which the judgment was made final against her, the defendant came into Court with her counsel and moved for a new trial, upon the ground that both the judgment by default and final judgment against her were irregular and illegal. The District Judge overruled this motion, and the defendant has appealed.

We think the District Judge erred. If there had been a contestatio litis before the death of the original plaintiff, the proceedings would have been regular, but not otherwise. Carlisle v. Holdship, 15th La. 375. Where there has been no issue joined before the death of the original plaintiff, the defendant should he notified of the revival. Licquet’s Heirs v. Pierce, 5th La. 363.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be reversed, and the case remanded for further proceedings—the costs of this appeal to be paid by the appellee.


text:
    Wilhelmus Bogart v. Jean Bte. Rils.
    An action for the recovery of land will not bar the plaintiff from suing out an injunction against defendant’s committing waste, nor deprive him of his right to sequester timber cut from the land.
    Appeal from the District Court, Sixth District, Parish of Iberville. Burk, J.

      JEdwcwds, for plaintiff and appellant.
    Talbot, for defendant.
   Dunbar, J.

A petitory action for the recovery of a tract of land adjacent to the Mississippi, was instituted in 1846, by one Blanlcs against one Mcurionneaux and others. All the defendants in that action except Ma/rionneaux, adjusted their difficulties with the plaintiff, so that the suit exists really only between them. That suit is still pending in the same court from whence the present appeal has been taken. In 1850, Blanlcs and Marionnecmx sold their respective claims to the present plaintiff and defendant. This action, instituted in 1852, was for the purpose of enjoining the defendant, Bits, from committing waste on the land in controversy during the pendency of the suit, and obtaining a sequestration of some timber that defendant had already cut down thereon, and was about to carry off. The injunction and sequestration issued agreeably to the prayer of the petitioner, who in his petition makes especial reference to the pending suit between Blanlcs and Marionneaux. The defendant, Bils, excepted to answering the plaintiff’s petition, and prayed that it might be dismissed, “ as another suit for the same cause of action was pending.” The District Judge sustained the exception, from which opinion the present appeal has been taken.

It will simplify this case to consider it as one between the original contestants, Blanlcs and Ma/rionnecmx, and in doing so, (which is most favorable to the defendant,) we are of the opinion that, during the pendency of the suit, plaintiff had a right to the conservatory remedies asked for; indeed, from the nature of the sequestration it could only arise during the pendency of the suit. It is not, strictly speaking, a new action; rather a branch of the old, and ought to have been cumulated with it. The class of exception which prohibits two suits being brought before different tribunals for the same cause of action, the parties being the same, (see 0. P. art. 335, sec. 2,) was obviously framed to shield defendants from the harassing effects of a multiplicity of suits before different tribunals, for the same cause of action, by the same plaintiffs. But we cannot understand it to mean that a party is precluded from filing an additional, or supplemental petition, necessary, as in this case, for the preservation of what he may deem his rights, during the pendency of the original action, and to which he is forced by the act of the defendant himself. The petition in the present case, to be sure, does not pray that it may be cumulated with the prior suit; but that, we consider, does not impair the right of the plaintiff to have the conservatory order granted, and damages allowed. Upon due proof the Court might, ex officio, have ordered the two to be cumulated, according as it might have served to the despatch of business, without prejudice to the interests of the parties litigant, and we shall leave that to its discretion.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed; the exception filed by defendant be overruled, and the cause remanded for further proceedings—according to law, the appellee paying costs of the appeal.


text:
    Charles Morgan, Administrator, v. Jacob Coffman.
    In the case of Coffman v. W&Mams, on a sale, Cresvp as principal and Morgan (deceased) as surety, gave a twelve months’ bond for the price of the property. On the 19th of July, 1819, the Sheriff had an execution on the bond, against Cresvp and Morgan, and was about to levy, when, on the same day, Hudson, the attorney at law of Coffman, and the Sheriff, meeting Cresvp, Hudson directed the Sheriff to return the execution, and took Cresup's draft on Fellowes, Johnson <& Co., of New Orleans, payable to Hudson's order, on the 1st of the following November. Hudson endorsed the draft u without recourse,” and forwarded it to Coffman, who kept it “ a long time.” The draft was neither accepted nor paid by F., J. & Co., in whose hands Gresup had no funds. Held: If Coffman did not approve of Hudson's arrangement, he should have ordered a new execution and returned Cresup's draft. 3-Iis long acquiescence discharged the surety.
    Appeal from the District Court, Ninth District, Parish of Point Coupee, Fa/i'ra/r, J.

      Lacoste, for plaintiff.
    Bailiff.¡ for defendant and appellant.
    Plaintiff’s counsel cited: 5 Ann. 222; 11 Rob. 33; 10 Rob. 412; 4 Rob. 276.
    Defendant’s counsel contended that there was no such granting of time as impaired the remedies of the surety against the principal, and cited Buchner y. Watt, 19 L. R. 211; State Bank v. Harralson, 2 Ann. 456 ; Ferkins v. Bank of Louisiana, 5 A. 225, 16 L. R. 133.
   Dunbar, J.

This is an injunction sued out by the administrator of Charles Horga/n, deceased, to restrain the defendant from proceeding- upon an execution issued on a twelve months’ hond given in the case of Coffman v. Williams, by John V. Gresup, as principal, and Charles Morgan, deceased, as surety. The plaintiff alleges that the surety has been released by the giving of time to Gresup, the principal, by Coffman, without the consent of the surety. The District Judge made the injunction perpetual, and the defendant has appealed.

It appears from the evidence of the Sheriff of the Parish of Pointe Coupee, that, on the 19th of July, 1849, he had in his hands an execution issued on the above twelve months’ hond, against Ch'esup and his sureties, and on the same day, he was about to levy the said execution, in company with IT. C. Hudson, the attorney-at-law of Coffman, when they met with Cresup, the principal on said bond, and demanded payment of the execution, who told them that he had funds with Messrs. Fellowes, Johnson & Co., of New Orleans, and would give a draft on them for the amount. That Mr. Hudson took the draft as proposed, on Fellowes, Johnson & Co., payable to his own order, on the first day of November thereafter, and ordered the execution to be returned, which was accordingly done. It further appears, that the draft was endorsed by Hudson without recourse, and forwarded to Coffman, who having kept it aalong“time, in the language of the witness, returned it to him, who produced it on the trial of the cause, the same never having been accepted or paid by Fellowes, Johnson & Go., one of whom, in his deposition in the case, declares that Gresup had no funds in their hands and had no right whatever to draw on them.

Under this statement of facts, we think the surety is discharged. If Goffman did not approve of the return of the execution ordered by his attorney, and the taking of the draft which was forwarded to him, he should immediately have dissented and ordered another execution; his long acquiescence in this arrangement must be considered as a prolongation of the term granted to the principal debtor without the consent of the surety, which operates a discharge of the latter. Civil Code, Art. 3032. See also the case of John R. Sham & Co. v. John Nolan, ante p. 25.

The judgment of the District Court is, therefore, affirmed, with costs.


author: Slidell, J.

text:
    Succession of Ira Smith.
    When all the parties interested in the judgment have not been made parties to the appeal, the appeal will be dismissed. /
    Appeal from the District Court, Sixth District, Parrar, J.

      Ratliff, for appellant.

      Winter, Brewer and Gollins, for executrix.

      If. B. & P. P Phillips and W. J. Lyle, for appellees.
   Slidell, J.

In 1851, Mrs. Smith, who had administered the succession of her deceased husband, as executrix of his will, filed in the Court where his succession was opened, an account of her administration, showing her receipts and expenditures. She also filed a statement of outstanding debts and probable expenses of settling the estate, and represented that a sale would be necessary to pay them. Other matters pertinent to the administration were presented. An opposition was filed by the attorney of the absent minor, Ira Smith, a legatee under the will. After the usual publications, trial, &c., the Court below rendered a judgment in which it acts upon the objections to the account, settles the pretentions of the widow and others interested, fixes the amounts due various banks and other creditors, directs a salí}, of certain property and the payment of enumerated debts from its proceeds, and commands commissions to issue to the Sheriffs of the respective parishes where .the property was situated, to effect the sales. This judgment was signed in April, 1852, and, it is said, has been executed by sales and payments. In the same month, an order at chambers appears to have been made by the Judge, upon a petition presented by the minor’s attorney, allowing a devolutive appeal upon condition of the appellant giving bond “in the sum of two hundred dollars, conditioned according to him.” The petition appears not to have been filed in the clerk’s office until December, 1852, in which month an appeal bond was executed in favor of Mrs. Smith, executrix, only; and in January, 1853, citations were issued and served upon the attorney of absent heirs, the executrix, and Sai'ah Smith and husband, she being a legatee. These persons, with Mrs. Lyle, being the only persons whom the petition of appeal prayed might be cited.

Mrs. Smith and Mrs. Sterling have moved to dismiss the appeal upon various grounds, one only of which need be considered, and this is that all the parties interested in the judgment, have not been made parties to the appeal.

We think the ground of dismissal well taken. The creditors of the succession have an important interest in maintaining the judgment; they have not been cited, and their citation was not asked by the appellant. No bond of appeal was given in their favor, either by naming them in the bond, or by using any personal words which would comprehend them. The relief asked by the appellant seriously concerns their interests, and a reversal of the judgment ought not to be had without citing them. See 2 Annual, 546, 994; 6 Rob. 303; 3 Rob. 436.

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


author: Rost, J.

text:
    Wm. Guesnard v. B. & A. Soulie.
    The effect of the pact de non aMenando, so far as the party in whose favor it operates is concerned, is, that in contemplation of law, the property remains in the possession of the original debtor, notwithstanding it may have been alienated by him; and those who purchase it, or acquire real rights on it, are presumed to know the titles and incumbrances under which they hold.
    The mortgagee, in such a case, has a right to proceed by the via executiva, after the alienation, as if the property still belonged to the mortgagor.
    Appeal from the First District Court of New Orleans, Lm'ue, J.

      Mawian, for plaintiff.

      Fyma and 8eghers, for defendants and appellants.
   Rost, J.

At a Sheriff’s sale made under an order of seizure issued upon a mortgage duly recorded and containing the pact de non alienando, the plaintiff became the purchaser of a house and lot, and was required on the spot to pay into the Sheriff’s hands the entire amount of his bid.

The certificate of mortgages showing no other conventional mortgage existing on the property, the Sheriff paid the claim of the seizing creditor and the costs of suit, and gave the balance in his hands to the husband of the defendant, Mrs. Glinton.

It appears that Mrs. Glinton, after giving this mortgage, had sold the land to one John Bm'tley, who gave her in part payment his note for $800, secured by mortgage on the property. This note is now in the hands of the defendants, and they have taken upon it an order of seizure and sale which the plaintiff has enjoined. This is an appeal from the judgment perpetuating the injunction.

The effect of the pact de non alienando, so far as the party in whose favor it operates is concerned, is, that in contemplation of law, the property remains in the possession of the original debtor, notwithstanding it may have been alienated by him; and those who purchase it or acquire real rights on it, are presumed to know the titles and incumbrances under which they hold. Donaldson v. Morel, 2 L. R. 34.

The mortgagee, in such a case, has a right to proceed by the via executiva, after the alienation, as if the property still belonged to the mortgagor. Murphy v. Gandot, 2d R. 378; Gas Bank v. Allen, 4 Rob. 389; Ducros v. Forbin, 9 Rob. 167. The mortgage creditor, in this case, thus proceeded and gave notice of the seizure to Mrs. Glinton; the subsequent alienations being null as to him, he had nothing to do with the mortgages resulting from those alienations, and the plaintiff, who holds under him, stands in the same situation. If he could be evicted by’the defendant’s mortgage in this action, under article 711, 0. P., and 2399 0. 0., he would have his recourse in warranty against the mortgagor and mortgagee, and thus effect would be given against the latter to an alienation which the law reputes null and void as to him.

The proceedings in the suit, were carried on against Peter Glinton and his wife, and if the Recorder of Mortgages was not informed that they had alienated the property, it is not surprising that he did not certify the existence of mortgages resulting from that alienation.

The authorities cited to show that the mortgage once created and inscribed continues to affect the property until the extinction of the debt, and that the Recorder cannot destroy it by his act or omission, are not applicable to this case.

The mortgage held by the defendants was taken under the implied condition which they are presumed to know, that in a certain contingency, the title under which it arose might be treated as a nullity, and the injury resulting to them from the happening of that condition, is not one which the party in whose favor it existed, or those claiming under him, can be called upon to redress. The case would be a very hard one, if the loss of the defendants did not mainly result from the nature of the security they held, and from their not using the degree of diligence which such a security renders necessary. Those who hold second mortgages should, at all times, be informed of any proceedings which may have been had under the first. The property, in this case, sold for an amount more than sufficient to pay both mortgages, and the want of vigilance of the defendants alone, enabled their debtor to commit a fraud upon them.

Judgment affirmed with costs.


author: Eustis, 0. J. Eitstis, C. J.

text:
    Lucy Brown, f. w. c., v. Persifor F. Smith, Sewell T. Taylor, warrantor.
    The plaintiff was a slave in 1823. Her master was about removing from the District of Columbia to New York, and an indenture of apprenticeship of plaintiff, was made by her father to her master, to bind plaintiffuntil her majority. Her owner executed an act of manumission of plaintiff, and in the year of 1819, entrusted it to a gentleman of this city. Held: It seems as though the act of manumission and indenture were made with a view to the change of residence which followed and most clearly manifest the intention of removing to New York, by the laws of which, in force at the time of the change of residence, it is provided, that any person, not being an inhabitant of that State, who shall be travelling to or from, or passing through the State, may bring with him any person lawfully held by him in slavery, and may take such person with him from the State; but the person so held in slavery shall not reside, or continue in New York, more than nine months, and if such residence be continued beyond that time such person shall be free. The intention to reside in New York, and the actual residence there for, certainly, a year, being proved, the plaintiff became free.
    The plaintiff’s condition as a free person, could not be affected by the subsequent return to, and residence of her former owner with her, in the District of Columbia, as by a statute of Maryland, of 1796, it is provided that “ it shall not be lawful to import, or bring into the State, by land or water, any negro, mulatto or other slave, for sale or to reside within the State, and any person brought in the State as a slave, contrary to this act, if a slave before, shall thereupon, immediately cease to be the property of the person or persons so importing, or bringing such slave within the State.
    Appeal from the Third District Court of New Orleans, Kennedy, J.

      J. J). Mix and Bonford, for plaintiff.

      Benjamin & Mieou, for defendant.

      Elmore & King, for warrantor and appellant.
   Eustis, 0. J.

This is an appeal taken by the defendants from a judgment of the Third District Court of New Orleans, by which the plaintiff and her two children are decreed to be free.

It appears by the evidence that the plaintiff, who is a negro woman, was bom a slave, and in the year 1823, belonged to Elijah Mix, and lived in the service of her master with his family, in the District of Columbia; that some time in that year, Mr. Mix removed with his family to New York, and fixed his residence there; that early in 1825, he removed back to Georgetown, and in 1829, he removed back to New York, and that the plaintiff lived in his service during this time; that she was afterwards, in 1832, in the service of Gapt. Wells, of the U. S. Army, in this city, as a slave, who sold her to Sewell T. Taylor, from whom General Smith, her present owner, purchased her,.

By the law of New York, in force at the time of the change of residence by Mr. Mix, it is provided, that “ any person not being an inhabitant of that State, who shall be traveling to or from, or passing through the State, may bring with him any person lawfully held by him in slavery, and may take such person with him from the State; but the person so held in slavery shall not reside or continue in this State more than nine months, and if such residence be continued beyond that time, such person shall be free.”

An instrument of writing was produced at the trial, on behalf of the plaintiff, and acknowledged before the Mayor of Georgetown, on the 8th day of May, 1823. It purports to bo an indenture of apprenticeship of Lucy Brown, in favor of Elijah, Mix, of Georgetown, as his servant and waiting- maid, until she shall attain the age of twenty-one years. It is signed with the mark of Lucy Broten and her father, Ea/rry Brown, and Elijah, Mix. This instrument is witnessed by Samuel Oooper, an officer in the Army of the United States, who has testified to his signature, though he has no recollection of the instrument.

There was a bill of exceptions taken to the introduction of the deposition of a free negro woman named Oedlia Ma/i'hle, taken under a commission in'Washington city, on the ground of incompetency of the witness to testify in a suit in which a Christian white person is concerned, under a statute of Maryland.

The question raised by this bill of exceptions there is no necessity for deciding, inasmuch as we have come to our conclusions independent of the testimony of this witness. And we think the evidence is too clear in favor of the plaintiff’s right to her freedom, to require any notice of the charge of the Judge to which exceptions have been taken by the counsel for the plaintiff.

We do not think the force and effect of the indenture, as a piece of evidence, is weakened by the circumstance of there being no evidence of the time of its delivery; nor do we deduce any unfavorable impression from its appearance, nor find any ground for not giving to it the effect of an instrument in the possession of a party interested in procuring it.

It also appears in evidence that, in 1849, the plaintiff entrusted to a gentleman of the bar of this city, an act of emancipation of Mr. Mix, in her favor, dated in 1823. This paper has been lost, but we think there is evidence of its existence and purport.

Neither of these instruments, let us admit, had any legal effect, but they point to the conclusion that the plaintiff was to have her liberty so far as the intention of her master could give it to her, and are explained by the fact of his projected removal from Georgetown to New York. She could not remain in servitude for more than nine months after her arrival in New York, and the purpose of the iuenture was to secure her services until she was twenty-one. She was, at the time, fifteen, and hence the wish of her father that she should be under the protection of her master’s family until her majority. It seems to us as though the act of manumission and indenture were made with a view to the change of residence which followed, and most clearly manifest the intention of removing to a State in which the condition of the slave would be changed by it.

The purpose and intention of removing to New York and to reside there, we think, unquestionable. The fact of residence in New York, we think, is equally .so. The evidence is not reconcilable as to the precise time beyond a year. It was not less than that period, and was probably several months longer. It was ■not in the same place. Part of the time, Mr. Mix lived in the city, and part in -the country; but the evidence satisfies us that, at the time, ho had neither residence nor domicil elsewhere than where his family resided.

Her freedom thus established under the laws of the State in which her master resided, would have been maintained under the laws of this State, had she been brought here after the establishment of her freedom in 1825. It appears that Mr. Mix having obtained a government contract, removed back to Georgetown with his family, and took the plaintiff with him in the fall of that year.

It is contended by the counsel for the defendant, that there was no real change of domicil in 1823, by the removal to New York, and that under the jurisprudence prevailing- in the District of Columbia, the effect of the law of New York could do no more than suspend the exercise of the master’s rights upon the slave during their sojourn, and that on their return to Georgetown, the original status of slavery reattached. The cases referred to in support of this doctrine, are Adam v. Leverton, 2 Harris & McHenry, 382, and Mahony v. Ashton, 4th id. 305. These cases were determined by the Supreme Court of Maryland, in 1789 and 1799.

In relation to the change of domicil on the part of Mr. Mix, in 1823, we have to observe that there is no circumstance in evidence which weakens the effect of the positive testimony of Ool. Gooper, as to the removal to New York, and that of the son and daughter of Mr. Mix, who though at an early age at the time, must be considered as speaking according to the traditions of the family, as well as on their own recollection of the event. This concurrence of fact and intent is not impaired by the removal back to Georgetown, in 1825, because a new cause is assigned for the change of residence, to wit: the having obtained a contract from the Government. We must also bear' in mind that the continuance of the plaintiff in the service of the family, after their return to Georgetown, though consistent with servitude as a condition, is also consistent with her apprenticeship, and that this service continued in the family after their return to New York, in 1829 and 1830.

The first case cited, that of Adam v. Leverton, does not appear to have any direct bearing in the question; the other is decided on the effect of a statute of Maryland, then in force.

It appears in that case, that Ann Joiee, a negro woman, was carried with her owner, Lord Baltimore, claiming her as a slave, from the Island of Barbadoes to England, and afterwards brought to Maryland by him, claiming her as his slave, between the years 1678 and 1681, and that she, during her life, -was held and treated as a slave, and that her issue had been held as slaves ever since. The Court of Appeals, in giving judgment, said: “By a positive law of this State, in 1715, then the province of Maryland, the relation of master and slave is recognized as then existing, and all negro and other slaves then imported, or thereafter to be imported into this province, and all children then born or thereafter to be born of such negroes or slaves, are declared to be slaves during their natural lives. This case being brought before this Court by original proceedings, we are of opinion that it must be governed by the laws of this State, and that, in this case, however the laws of Great Britain in such instances operating upon such persons there, might interpose so as to prevent the exercise of certain acts by the master, not permitted as in the case of Somersett; yet, upon the bringing Ann Joiee into this State, then the province of Maryland, the relation of master and slave continued in its extent, as authorized by the laws of this State, and therefore the judgment of the general Court must be reversed, &c.”

We are relieved from the inquiry, whether the plaintiff, by her return to Georgetown in the service of Mr. Mix, would fall into the condition of a slave, by a statute of Maryland, passed in 1796, and the decision of the Court of Appeals under it. That statute provided that “it shall not be lawful to import or bring into this State, by land or water, any negro, mulatto or other slave, for sale or to reside within this State; and any person brought into this State as a slave, contrary to this act, if a slave before, shall thereupon immediately cease to be the property of the person or persons so importing or bringing such slave within this State, and shall be free.”

We find this statute adjudicated upon as late as 1820. See Baptiste v. De Valembrun, 5 Harris & Johnson, 95. We therefore conclude that the plaintiff’s condition as a free person, was not affected by her return, in the service of Mr. Mix, to Georgetown, in 1825.

It appears that the plaintiff was first known in Louisiana, in 1831, at Fort Wood, as the slave of Gapt. Wells. Mr. Mix resided in New Orleans from 1838 till his death, several years since, and the plaintiff's condition, as a slave, does not appear to have been drawn in question until this suit, instituted in May, 1851. From this state of things, the law establishes no presumptions which can defeat her right to freedom if once legally established.

Under the jurisprudence of this State, we think the judgment in favor of the plaintiff must be maintained.

This case was tried by a jury, and they allowed the sum of five dollars per month for wages from the service of the citation; the plaintiff took judgment on the verdict without any application for a new trial. An amendment of the judgment is asked in this Court, allowing her §20 per month, for 12 months prior to the institution of this suit. The sum allowed is certainly small, but in looking at the testimony, we find it too loose and unsatisfactory on this subject, to authorize us to increase it.

The judgment of the District Court is therefore affirmed with costs.

There was an application for a rehearing in this case, resting upon a supposed erroneous interpretation of the statute of Maryland, of 1796. The statute is in the following words:

CHAPTER LXVII.

An Act relating to negroes, and to repeal the Acts of Assembly therein mentioned.

Be it enacted, by the General Assembly of Man’yland, That it shall not be lawful, from and after the passing of this Act, to import or bring into this State, by land or water, any negro, mulatto or other slave, for sale, or to reside within this State; and any person brought into this State as a slave, contrary to this Act, if a slave before, shall thereupon immediately cease to be the property of the person or persons so importing or bringing such slave within this State, and shall be free.

II. Provided, nevertheless, and be it enacted, That it shall and may be lawful for any citizen or citizens of the United States, who shall come into this State, with a bona fide intention of settling therein, to import or bring into this State, at the time of his or her removal into this State, or within one year thereafter, any slave or slaves, the property of such citizen at the time of his or her said removal, which slave or slaves, or the mother or mothers of which slave or slaves, shall have been resident of the United States, or some one of them, three whole years next preceding such removal, and the same to retain as slaves.

III. And be it enacted, That nothing herein contained shaE be construed to enable any person or persons, so removing as aforesaid, to sell or dispose of any slave or slaves imported by virtue of this act, or their increase, unless such person or persons shall have resided within this State three whole years next preceding such ,sale, except in cases of disposition by last wiE and testament, and dispositions by law for bona fide debts, or consequent upon intestacy.

IV. And be it enacted, That nothing in this Act contained shall be construed or taken to affect the right of any person or persons traveling oi sojourning with any slave or slaves within this State, such slave or slaves not being sold or otherwise disposed of in this State; but carried by the owner out of this State, or attempted to be carried.

Passed 31st of December, 1796.

Eitstis, C. J.

A rehearing has been applied for on the part of the defendants in this case, for the purpose of reconsidering the effect of the Statute of Maryland of 179 6.

Having come to the conclusion on the evidence, that the plaintiff was not a slave on her return to Georgetown, in the service of her master, early in the year 1825, and that her residence at that time was in New York, and that he was not in any sense an inhabitant or citizen of the State of Maryland, according to the adjudged cases of the Supreme Court of Maryland, the plaintiff would not be held reduced to bondage by her return to that State.

In the case of Bland v. Woolfolk, 9th Gill & Johnson’s Reports, 19, determined under this Statute of 1796, it was held that if a negro slave, with the permission of his owner, takes up his residence in another State, such owner cannot resume his property in him after his return to the State, either for the purpose of servitude within the State, or sale to a citizen of Maryland, even although the return of the negro originally was against his master’s consent.

So in Cross v. Black, id. p. 199, it was decided that a citizen of Maryland, intending to break up his establishment, and leaving the State with his slaves, with an avowed design of becoming a resident of another State, and actually going out of the State in pursuance of such design, may, before he reaches the point of his intended destination, change his purpose and return with his slaves, without forfeiting his title to them. To subject him to such forfeiture there must be an actual consummated design to remove and place them elsewhere permanently.

We are therefore satisfied that our conclusions, that under the Act of 1796, the plaintiff is entitled to her liberty, are in accordance with the settled jurisprudence relating to that Statute in the State of Maryland.

The Court of Appeals of Kentucky have in a recent case, not reported in full, Ferry v. Street, decided in the same sense in relation to a slave who had acquired her freedom under a Statute of Pennsylvania, by remaining in that State, with the consent of her mistress, for more than six months.

The application for a rehearing is therefore refused.


text:
    Charlotte Williams and Husband v. Micajah Courtney, et al.
    "Where an appeal is taken by the plaintiff, and the names of the warrantors, who are immediately interested, do not appear, either directly, or by implication in the appeal bond, the appeal will be dismissed.
    Appeal from the District Court, Ninth District, Parish of Point Coupee. Farrar, J.

      Bailiff, for plaintiffs and appellant.

      J. H. Collins and IT. B. Phillips, for defentants.
   Rost, J.

A motion to dismiss this appeal has been made on the ground that all the parties having an interest, that the judgment of the District Court should remain undisturbed, have not been made parties; and also on the ground that no appeal bond, such as the law requires, has been given.

The defendant being sued for an undivided interest in a tract of land, called in warranty his vendors, who appeared and joined in the defence. The judgment below was in favor of the defendants generally. The appeal was granted on motion in open Court, but the bond given does not contain the names of the warrantors expressly, nor any general expression, such as the words “ and others,” or “other parties interested.” None of the defendants except Micagah Gov/rtney, can therefore be considered as parties to the appeal. See the case of Brigham et al. v. Taylor et al., 2nd Annual, 906.

The warrantors are the parties upon whom the loss is to fall in case the judgment should be reversed. They have therefore a direct interest that it should remain undisturbed, and under the uniform jurisprudence of this Court the appeal cannot be sustained. 12 R. R. 203. Guiron v. Bagnerie, 9 L. R. 471. Curry v. Roberts, 12 L. R. 474. Oliver v. Williams, 12 R. R. 183.

The agreement entered into by the counsel of all parties, was simply that the judgment might be rendered at Chambers, and an appeal granted on motion of any of the parties, as though taken in open Court; it contains no waiver of the only manner in which appellees can be brought in Court to answer appeals taken by motion.

In the case of Thomas Beard and others v. B. Poydras, 13 L. R. 83, which seems, as reported, to favor the view of the appellant, the argument was that the case should be continued as to the warrantors and other parties to the suit, until the decision of the case between the plaintiffs and some of the defendants.

It is therefore ordered, adjudged and decreed, that the appeal taken in this case be dismissed, with costs. ■

         The agreement of counsel is in the following words: “ The parties to the above entitled suit consent that judgment be rendered at Chambers on the testimony offered on the trial. They also consent to an appeal being granted by the Judge, on motion of any one of the parties, as though taken in open Cdur(i, waiving citation of appeal.”


text:
    Nolan Stewart v. J. R. Allain et al.
    A purchaser at sheriff’s ksale can compel the recorder to erase from his books of record a judicial mortgage, the registry of which is posterior in date to that of the mortgage under which the property was sold, so far as the same bears upon the property purchased.
    Appeal from the District Court, Sixth District, Burls, J.

      J. M. & J. E. Elam, for plaintiff and appellant.

      Brandt, Grieves, Beale and Sherburne, for defendants.
   Rost, J.

The only question which this case presents on the appeal, is whe ther a purchaser at sheriff’s sale, can compel the recorder to erase from his books of record, a judicial mortgage, the registry of which is posterior in date to that of the mortgage under which the property was sold.

The same issue in the case of an anterior judicial mortgage, was before us in the case of Samuel B. Young v. Municipality No. One; and we then held that no provision was made by law for rem oving such an incumbrance. 5 Annual 736. It was decided in that case, that article 684 of the Code of Practice prohibiting a sale of property under execution, if the price offered does not exceed the amount of the privileges and mortgages with which it is incumbered, refers to special and not to general mortgages. Art. 708, however, providing that the purchaser is bound for nothing beyond the price of his adjudication, and that if after paying the creditor, there remains nothing more due, to discharge the mortgages subsequent to that of the suing creditor, the sheriff shall give him a release from those mortgages, has received a different interpretation and has been held to apply to judicial as well as to conventional mortgages. Fortier v. Slidell, 7 R. 398. Lagourge v. Summers, 8 R. 175. Passibor v. Prieur, 1 Annual 10.

We feel bound to adopt that interpretation.

The plaintiff purchased under a mortgage consented by Dempsey P. Gam, in favor of the Clinton and Port Hudson Railroad Company. He is entitled to have all the subsequent mortgages existing on the property mortgaged to the company, erased from the public record. A large number of slaves upon which it had no mortgage, were sold at the same time; upon these, 'of course, the judicial mortgage of the appellees must remain.

We have not found it necessary to notice the plea of simulation set up by the appellees. The judicial sale of the property vested the title in the plaintiff and must have its legal effect.

It is ordered, that the judgment be reversed. It is further ordered, that the recorder of the parish of West Baton Rouge, enter on the books of record of mortgages, a release of the judicial mortgage of Hewitt, Heran & Co. against Dempsey P. Cain, so far as it bears upon the following property; one tract of land lying and being in the parish of West Baton Rouge, fronting on the Mississippi river and bounded above by the lands of the heirs of Brock, and below |iy the lands of him, said Cain, containing eight hundred arpents, more or-less; one negro man named Dennard, aged twenty-seven years; one negro woman, named Daphne, aged about thirty-eight years; one man named Guy, aged about thirty-five years; one child named Jacob, son of Daphne, aged eight years; one girl named Louisa, aged sixteen years; one woman named Olamissa, aged about eighteen years; one boy named HarTewell, aged twelve years; one boy named Fdmund, aged eighteen years; one man named Hampton, aged twenty-nine years; one woman named Ooley, aged fifty years; one woman named Mrn'ia, aged twenty years; one boy named John, aged nineteen years; one girl named Gha/rlotte, aged fifteen years, all slaves for life.

It is further ordered, that the defendants pay costs in both Courts.


text:
    E. Porche, Curator, v. Creditors of the Succession of John G. Banks.
    An administrator of an Estate is bound, legally and morally, to manage its affairs with at least as much prudence as he would his own, and, if disregarding it, he pays more for services, professional, or otherwise, rendered the Succession, than they could have been procured for, he violates his duty, and must bear the loss.
    If an administrator unadvisedly institutes suit, the Estate ought not to suffer loss by it.
    Appeal from the District Court, Fifth District, Parish of Terrebonne, Randall, J.

      Hall, for Plaintiff.

      Beaily, for Heirs of Banks, opponents and appellants.
   Dunbae, J.

The Heirs of William Banks are appellants from a judgment homologating the account filed by the present Curator. Their opposition is confined to the amount of commissions allowed the present and former curators, and to the amounts paid J. L. Gola and Winchester Hall for legal services rendered the succession. The commission of $176 32, allowed L. E. Barras the former curator, was settled by the homologation of his account in September, 1848, and is not now a subject for investigation.

The commissions of the present curator were properly charged on the amount of funds which came into his hands. See C. C., arts. 1189 and 1200, and case of Smith, admr. v. Cheney, admx., 1 Robinson, 98.

The amounts paid- to J. L. Cole and W. Hall, as attorneys for the curators, Barras and Porche, are opposed, mainly upon the grounds that they are excessive. At the time of the rendition of the account, J. L. Oole had already received $2650, and filed an opposition claiming to be paid $800 additional. The opposition was sustained to the extent of $290 00, making his compensation altogether $2940. The amount paid to W. Hall was $1950, which was ratified by the Court.

We have given our most attentive consideration to the evidence adduced in support of these claims, and the conclusions arrived at do not support the opinion of the District Judge. An administrator of an estate is bound legally and morally to manage its affairs, with at least as much prudence as he would his own, and if, disregarding it, he pays more for services, professional or otherwise rendered the Succession, than they could have been procured for, he violates his duty, and must bear the loss.

In the present case, had the curator made the proper exertions, he could, as the evidence establishes, have obtained gentlemen of the bar, possessed of ability and experience, to prosecute the suits he brought for a remuneration considerably less than that he has paid; and if suits are unadvisedly brought, as we think was the case of “ Porche, curator, v. Oonnelly,” the estate ought not to suffer loss by it. “It is,” as this Court has had occasion more than onCe before to remark, “a matter of great delicacy to determine the compensation due for professional services.” Rut where estates are concerned, “we cannot be too rigid in adhering to the rule, that the fee must be graduated by the value of the services rendered.” Such was the language of this Court in the case of Stein v. Bowman, 9 Lou’a, 284, and Macarty's Succession, 3 Ann., 517. Adhering to these views, we are of opinion from the evidence that $1900 would be sufficient remuneration for the services rendered by J. L. Oole, and $600 tor those rendered by W. Eall.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be reversed so far as it decrees that J. L. Oole should receive $2940 for legal services rendered the estate, and so far as it confirms the payment already made to him of $2650, and the payment made to Winchester Eall of $1950; and, for the reasons already adduced, it is ordered adjudged and decreed, that the curator, E. Porche, shall only be entitled to a credit on his account of $1900 paid J. L. Cole, and $600 paid to Winchester Eall, and that the judgment in favor of the Heirs of William Banks be so amended that the net assets of the estate be divided amongst them shall be $39,280 52, instead of $36,890 52, as rendered. And that in all other respects the judgment of the District Court be affirmed—-the costs in both Courts to be paid by the estate.


text:
    Joseph Adrien Leblanc v. Michael Walsh.
    A judgment was obtained by Walsh against Leblanc for the price of a slave—conditioned that no execution should issue until Walsh had furnished personal or mortgage security to protect Leblanc from, disturbance, or eviction. executed a mortgage, and sent a sheriff with a copy of the mortgage and a fi.fa. to Leblanc. Leblane enjoined the writ—and the main ground was that no formal notice of the mortgage had been given before the writ issued. Held: the mere issuing of the writ worked no injury to Leblanc. Before any attempt was made to execute it, he had notice of the execution of the mortgage, and refused to accept it, not on the ground of an informal tender, but that the mortgaged property was insufficient. It seems inequitable to allow the plaintiff to enjoin upon this mere objection of form, which he did not make at the time. lie might, it is true, have reasonably objected to pay the costs of issuing the fieri facias—but ought to have been satisfied with the mortgage, and paid the debt.
    Appeal from the District Court, Fifth District, Parish of Terrebonne. Randall, J.

      Mercer, for plaintiff and appellant.

      Hall, for defendant
   Slidell, J.

This is a case of injunction, by which the execution of a judgment was restrained.

Walsh obtained a judgment against Leblanc for the price of a slave sold by Walsh, hut with a condition in the judgment that no execution should be issued until Walsh had furnished personal or mortgage security, in the sum of eight hundred dollars, to protect his vendee from disturbance, or eviction.

Walsh then executed a mortgage of certain land by notarial act in favor of Leblanc, took out a fi. fa., and sent the sheriff with the writ and a copy of the act of mortgage to Leblanc. He refused to accept the mortgage, on the ground that the mortgaged property was not worth eight hundred dollars. That such was the ground of refusal appears by his own acknowledgment in his petition for injunction.

From the evidence in this case it appears that the property mortgaged is worth eight hundred dollars. The ground, therefore, upon which Leblanc refused to receive it, was untenable.

But another ground was presented in his petition for injunction which succeeded in the Court below, and that was that a formal tender of the mortgage had not been made before issuing the fierifacias.

The mere issuing of the writ worked no injury to Leblanc. Before any attempt to execute it he had notice of the execution of the mortgage, and refused to accept it, not on the ground of an informal tender, but that the mortgaged property was insufficient. It seems to us inequitable to allow the plaintiff to enjoin upon this mere objection of form, which he did not make at the time. He might, it is true, have reasonably objected to pay the costs of issuing the fieri facias, a very small matter, but ought to have been satisfied with the mortgage, and paid the debt.

Being of opinion that the plaintiff has resorted to the remedy of injunction without a substantial equity,

It is, therefore, decreed that the judgment be reversed, that the said Walsh have leave to proceed in the execution of his judgment, that the mortgage in the petion referred to stand as the security of the said Leblanc, for the purposes contemplated in the judgment of the District Court in the suit of Walsh v. Leblanc; that the costs of this suit in both Courts be paid by the said Leblanc, and that the said Michael Walsh recover as damages from said J A. Leblanc and Adolphe Verret, his surety on the injunction, in solido, the sum of thirty dollars.


text:
    J. P. Watson v. A. Ledoux et al.
    A front proprietor on the river cannot be held bound to make reparation for the consequences of an accident, unless he was in fault when it occurred.
    The Act of 1829, relative to Roads and Levees, so far as the Parish of Pointe Coupee is concerned, was repealed by the Act of 8th February, 1831.
    In cases of flood, as in those of conflagration, the rule is, that services rendered voluntarily to preserve another man’s property from destruction, are presumed to be gratuitous.
    Appeal from the Second District Court of New Orleans, Lea, J.

      Durant and Hornor, for plaintiff and appellant.

      Elmore & King, for defendants.
    Plaintiff’s counsel contended that as the work was necessary and useful to defendants, they were entitled to recover, and cited : Code, 2278; O'Reilly v. McLeod, 2 A., 147; Police Jury v. Hampton, 5 N. S., 389.
    Defendants’ counsel cited: Me Williams v. Hagan, 4 'Rob., 375 ; Bandholomew v. Jaclcson, 20 Johns., 28; Rennselaer Glass Factory v. Reid, 5 Cowen, 587, 603, 620; Munford v. Brown, 6 Cowen, 475.
   Rost, J.

This case was remanded by us with directions to the District Judge to overrule the exception taken by the defendant, that the petition discloses no cause of action, and to proceed on the trial of the case.

An answer has since been filed and upon a trial on the merits, judgment has been rendered against the plaintiff, who prosecutes this appeal.

The District Judge has correctly interpreted the former opinion of the Court. We remanded the case because we thought that under the allegations of the petition evidence might be introduced under which the defendant would be liable, but we never meant to say that a front proprietor on the river is liable absolutely in all cases for the entire cost of stopping a crevasse upon his land. There is no law to make him so, and on principle, he cannot be held bound to make reparation for the consequences of an accident, unless he was in fault when it occurred.

The Act of 1829, relative to roads and levees, established a partial liability in such cases, and made the owner responsible for the labor furnished on the requisition of the levee inspectors to work upon crevasses, but that Act was repealed for the Parish of Pointe Coupee by the Act of the 8th February, 1831, and the power to legislate upon the subject of levees delegated to the Police Jury of that parish.

The Police Jury have exercised that power, and the ordinance adopted by them provides that planters furnishing hands to work upon crevasses, shall be entitled to no compensation therefor. The case of O'Reilly v. McLeod occurred on Bayou Lafourche, where the Act of 1829 is still in force; besides the defendant in that case was in fault. In the case of the Police Jury v. Hampton also, the defendant was in fault See 2d Ann., p. 146 ; 5 N. S., 389.

The evidence shows that the levee of the defendants was in a good state of repair and no fault can be imputed to them. The accident was the result of force ma/jewe exclusively, and in cases of flood, as in those of conflagration, we take the rule to be, that services rendered voluntarily to preserve another man’s property from destruction, are presumed to be gratuitous and give no cause of action.

We do not think there is in the record sufficient evidence of an obligation on the part of the defendants to pay the sum claimed. The judgment must, therefore, be affirmed.

Judgment affirmed with costs.


text:
    Parish of West Baton Rouge v. Wm. B. Robertson.
    Constitutionality of a fine imposed by the Police Jury of West Baton Rouge affirmed.
    The Supreme Court is without jurisdiction to decide an exception taken to the trial of a cause before a Justice of the Peace on the ground that the Justice was interested in the cause.
    Appeal from the District Court, Sixth District, Parish of West Baton Rouge, Burlo, J.

      Lobdell, for plaintiff.

      S. M. Fcmrot and A. S. Serrón, for defendant and appellant.
   Rost, J.

This is an appeal by the plaintiffs from a judgment of the District Court reversing the judgment of a Justice of the Peace, by which the defendant was condemned to pay a fine of $100, and dismissing the plaintiffs’ claim, on some of the exceptions taken by the defendant to the action.

The action was brought under the provisions of an ordinance of the Police Jury, passed under the authority of an Act of the Legislature, delegating to that body the power to pass all such ordinances as they may deem necessary relative to roads and levees, and to impose such fines and penalties to enforce the same, as they may judge proper and expedient. Acts of 1831, B. & C., page 763, No. 129.

The only question into which we can enquire is that of the constutionality or legaliiy of the fine imposed by that ordinance. The District Judge, so far as we understand him, was of opinion that the ordinance was illegal because it made the fine collectable by information or indictment. We see no such disposition in the ordinance, and if there was, Justices of the Peace derive their jurisdiction from the law, and the Police Jury can neither increase or diminish it.

There was nothing illegal or unconstitutional in the fine imposed, and this exception should have been overruled; hut leaving that exception out of view, there was another based upon the personal interest of the justice of the peace, which was also sustained by the District Judge. Of this exception we have no appellate jurisdiction, and as it is sufficient to sustain the judgment, the appeal must he dismissed.

It is ordered that the appeal he dismissed with costs.