source: Caselaw Access Project

author: Dunbar, J.

license: Public Domain

text:
    Ernest Hebert et al. v. A. J. Doussan et al.
    The purchaser of property, under a probate sale, who assumes the payment of a mortgage resting upon the property, cannot urge that the sale cancelled the mortgage; nor are such purchasers third possessors, in the sense which would require the holder of the mortgage claim to pursue his rights under the hypothecary form of action.
    APPEALfrom the Sixth District Court, Parish of West Baton Rouge. Bus % J.
    Lacey, for plaintiffs.

      Brunoi, for defendants and appellants.
   Dunbar, J.

Amaranthe Landry, widow of J. B. Hebert, sold on the 29th January, 1842, to I. F. and F. P. Woods, a small plantation, and thirteen slaves, situated on the Mississippi river, for the sum of $28,000, payable as follows: $7000 in a note at.short date, $3900, divided into three notes of $1000, $1960 and $1000, payable at one year thereafter to her order, and $17,040, the balance, in an assumpsit of that sum, due by the vendor to her minor children, whose tutrix she was, payable as they should respectively become of age. All the instalments to bear an annual interest of ten per cent.; the amount retained for the minors being subject to the same interest, payable annually. For the security of all these payments a vendor’s lien and special mortgage was retained.

Adolphe Hebert having, in the course of business, become the owner of one of the above notes for $1000, instituted suit thereon against the makers, and recovered a judgment against the representatives of their estates, with a full recognition of the vender’s lien and special mortgage given to secure the faithful payment of it. This judgment was obtained on the 30th June, 1847, and was subsequently affirmed by this Court, in March, 1848. See 3d Annual, p. 254.

Isham F. Woods, one of the original purchasers, having died, his half of the estate was purchased at probate sale by F. i'. Woods, the owner of the remaining half, who assumed to pay the one-half of the debt of $17,040, due to the heirs of Hebert, and for which the whole estate remained mortgaged. F. P. Woods dying some time afterwards, the estate was again offered at probate sale< and on the 9th of February, 1848, adjudicated at public auction to the present plaintiffs, for $23,230. A deed thereof in due form was, on the 8th January, 1849, executed in their favor by F. A. Woods, the executor of the deceased, which states that the purchasers retained in their hands, and assumed to pay the sum of $20,965 74, being the estimated amount due on the mortgage origiginally given in favor of the widow and heirs of Hebert, including the interest and costs; for the balance the purchasers executed their obligations in favor of the executor, at one and two years.

Doussan, the present defendant, was at this time the holder and owner, by notarial act of transfer, of the judgment obtained by Adolphe Hébert against the estate of Woods, which, as we have seen, was not only personal against the estate, but executory against the mortgaged property. On an execution issued under that judgment, the defendant was about to seize the mortgaged premises in the possession of the plaintiffs, when he was restrained by an injunction, the origin of the present suit. The cause was twice submitted to a jury, who, upon each trial, rendered a verdict in favor of the plaintiffs. The defendant has appealed. The grounds assumed by the plaintiffs in injunction, are as follows :

1st. That the mortgage and vendor’s lien, originally retained by the widow and heirs of Hebert, were both extinguished by the probate sales of the property made after the death of I. F. and F. P. Woods, and that the present defendant must look not to the property, but to the representative of their estates, for payment.

2d. That if the mortgage still rests upon the property, the plaintiffs are third possessors, and as such entitled to the delays accorded by law, and are only suable in the hypothecary form of action.

3d. That Doussan, being but the transferee of a judgment, had no right to an execution in his own name thereon without an order of Court, or without being made a party to the record, and

4th. That they are apprehensive of eviction, and have a right to demand security.

The first and second grounds we shall consider together.

It is much to be regretted that notaries and others to whom, most frequently, the duty is entrusted of framing the conventions entered into by parties not acquainted with the technicalities and exactness required in legal documents, should so often draw up their deeds without due preparation. Obscurities and doubts are found where all might have been rendered accurate and clear, after forcing the1 parties to either a loss by compromise, or one still greater, by expensive and protracted litigation. These remarks are drawn from us by an examination of the terms of sale, as stated in the deed, from F. A. Woods, executor, to the plaintiffs. Its language is as follows : “ For the price of $23,230, paid and to be paid in the manner following, to wit: by mortgage for vendor’s privilege resting on the property at the time of sale in favor of widow and heirs of Jean B. Hebert, amounting to the sum of $20,965 74, including interest and costs,” &c. That mortgage was originally reserved to secure the pajunent of no less than five different obligations, four of them negotiable, and all varying in amount. Which of them were included in the above estimate'of $20,965 74, the deed does not explain, nor hotv that amount was arrived at.

In the petition for injunction the plaintiffs do not deny that the defendant’s judgment was included in the sum retained by them, and on the second trial opposed the introduction of the notary and vendor as witnesses to establish that it was. If the judgment was included, then so far from the mortgage being extinguished by the probate sale, we shall find that it is specifically retained, and if the purchasers, the present plaintiffs, assumed to pay it as a part of their purchase money, retained by them, for that purpose, in their hands, then the plea of being third pa/rties comes with a bad grace. See Woodwm'd v. Dashiell, 15 La. R., 184. Happily, the plaintiffs have answered the question, and solved the doubt. In an affidavit for continuance, filed by them, and sworn to by M'nest Hebert, one of the plaintiffs, we find the following admission: “ That in consideration of said purchase, this deponent and his co-plaintiffs agreed to assume, and did assume, to pay the amount due and unpaid on the sale to I. F. andE. P. Woods, as set forth, &c., including the notes of one thousand dollar's above mentioned; and this deponent further saith, that by reason of the foregoing, the notes of one thousand dollarrs formed a part of the price agreed to be paid, subject, however, to be made out of deponent, if not paid in due course of legal proceedings, and furthermore subject to such equities as the law may create in the premises.” The provisos are not to be found in the deed of sale, and if they were, the plaintiffs have not brought themselves within them. It is, therefore, established beyond doubt, that the probate sale of the property of Woods did not purge it from the mortgage in favor of the widow and heirs of Hébert, of which the present defendant has the benefit, but re-affirmed it, and that by their assumption of the debt, the plaintiffs are not third parties.

The execution obtained by defendant, issued in the usual and customary form, directing that if the debt could not be made out of Woods, the Sheriff should seize the mortgaged premises, and on making the money should pay it over to Doussan. In this we see nothing illegal or irregular. Doussan was the holder of the judgment by notarial act, of which we presume the Clerk had cognizance, and in directing that the proceeds should be paid over to the true owner of the debt, we are at a loss to know of what the plaintiffs have to complain.

As regards the plea of apprehension of eviction, no evidence has been offered to substantiate it, and it is only where one has 11 just reason to fear that he will be disquieted,” that the law accords to the purchaser the right of requiring security. See C. 0., Art. 2535. Nor are we to be understood by any means as admitting that even had the plaintiffs established “just grounds ” for apprehension of eviction, they could have acquired security from Doussan, who was not the seller of the property, and neither was his transferrer, Adolphe Hébert. The latter came into possession of a negotiable note, in the ordinary course of trade, as we are bound to presume from the record; obtained a judgment upon it, with a recognition of the mortgage given to secure its payment; and should it now happen that the consideration for which it was given has failed in whole or in part, the plea cannot be raised against him. We consider Doussan as holding the same right as Adolphe Hébert, and no more. But the plaintiffs themselves seem finally to have abandoned their apprehensions. On the first trial, at the fall term in 1851, they voluntarily abandoned this ground of attack, upon the plea that they were ruled into trial without having the necessary surveys returned; but shortly afterwards the survey was returned into Court, and upon the second trial had in March, 1852, three years from the time the injunction was first obtained, they seem to have made no effort to have the matter tested. We must conclude that they had no just reason to fear that they would be disquieted.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered, it is ordered that the injunction obtained in this case be dissolved, and that the defendant, A. J. Doussan, recover from the plaintiffs and their sureties, upon the injunction bond, in solido, the sum of two hundred and fifty dollars, as special damages; that the Sheriff proceed with the execution of the writ enjoined; and that plaintiffs pay costs in both Courts..


author: Eüstis, C. J.

text:
    Heirs of William Maguire v. James A. Bass.
    Where heirs have been recognized as such and put in possession of the succession afterwards, and obtained a judgment on the final account rendered by the Curator—it is sufficient evidence of their capacity as such to authorize a judgment against the Curator’s surety. The burthen of proof will rest on the other party.
    APPEAL from the District Court, Tenth District, Parish of Carrol, Gopley, J.

      Drew & Bonner, for plaintiffs.

      Selby, for defendant and appellant.
   Eüstis, C. J.

This suit is brought by the heirs of the late John McGuire, of the parish of Carroll, against James A. Bass, one of the sureties on the bond of William Glatharry, who was the curator of the succession of the deceased.

Judgment was rendered against the defendant for some $800 and costs, and he has appealed.

The main objection taken to the correctness of the judgment of the Court, is the want of sufficient proof of the heirship of the plaintiffs.

Their capacity has been recognized by two judgments of the District Court against the curator, one recognizing the plaintiffs as heirs and putting them in possession of the succession as such, and the other rendered on the final account filed by the curator. These proceedings were sufficient evidence of heir-ship to authorize a judgment against the curator’s surety. It rested with the defendant to impugn them by counter evidence, which has not been done.

The suit being instituted by attorneys at law, and the proceedings having been conducted by officers of the Court, there is no necessity in this suit to en-quire into the authority of one of the heirs who sues as attorney in fact.

The judgment, on which this suit is brought, was rendered on an opposition to the curator’s account, filed at the suit of the plaintiffs. It appears to have been consented to by the curator, but his attorney swears that it was for the sum he thought was due the heirs, according to the vouchers and evidence of debt before him.

The return of the Sheriff, in this execution, issued against the curator, we think is sufficient to warrant the judgment against the surety. Besides it is proved that the curator is notoriously insolvent.

We do not examine the exception of the defendant to the admission of the powers of attorney of the plaintiffs, because there was no necessity for proving them, and the case is against the defendant without them.

The judgment appealed from is affirmed, with costs.


author: Slidell, C. J.

text:
    Almira Gates v. John Walker.

      Caldwell was appointed curator of the succession of Gates. He filed a tableau which was opposed by Maries, through T. A. Bartlette, attorney at law, Marks claiming to be a creditor as vendor of goods to one Johnson, for whom Gates became surety, as Maries alleged. The evidence was altogether parole. Maries’ claim was rejected, but by consent of counsel a judgment of non-suit was entered. Subsequently, Caldwell absconded, anil Walker applied for the curatorship, through Bao'tlette, was appointed, and obtained judgment against Leefe, Caldwell’s surety. Execution issued against Leefe, and the return showed that before sale of the property seized, the case u was settled by the parties.” During the summer vacation, Walker filed a tableau recognizing Marks’ claim, which, not being opposed, was allowed; but the judgment of homologation was never signed. Almira Gates, the widow of Gates, sued to set aside the homologation, charging collusion between Ma/rlcs and the curator, Walker. By the Cohort, the recognition of Marks’ claim by the curator was collusive. WaZker obtained the curatorship for the sole purpose of obliging Marks, and of enabling him to make his claim. It was an abuse of the forms of legal proceedings for the curator, under the circumstances, to place upon the tableau a claim which had been rejected, after trial before the Court.
    Where the return of an execution against the surety of a defaulting curator shows that the case was u settled by the parties,” the creditors, in the absense of further explanation, have a right to consider the amount of the execution as having been paid in cash.
    The wife of the deceased, though she had lived apart from him, was not judicially separated from bed and board, and she had an interest in his estate, at least for the purpose of presenting her claim for the marital portion for adjudication.
    It seems that a Judge, in whose Court the -mortuaria are pending, mayproprio motu entertain an inquiry into an abuse of the form of legal proceedings in his own Court, such as this case pivsents.
    Appeal from the Second District Court of New Orleans. Lea, J.

      Spring, for plaintiff.

      Bartlette, for defendant and appellant.
   Slidell, C. J.

Spencer Gates, whose occupation was that of a deputy sheriff in New Orleans, died here in January, 1849. John S. Calckoell was appointed his curator. The total estate left by the deceased amounted to $1966. In 1860 Caldwell filed a tableau of distribution, and E. J. Man'les made opposition, claiming to be a creditor in the sum of $768 50. This amount was alleged to be due by the deceased, as surety of one Johnson, for a purchase of merchandize made by Johnson from Maries, on the 15th December, 1848. In this matter, T. A. Ba/rtlette. Esq., acted as the attorney of Marries. After a trial in the usual course, the Court rejected the claim Of Maries, but before the judgment was signed, it was, by consent of counsel, amended so as to be a judgment of non-suit onty, reserving to Mandes leave to exorcise his rights, if any he had, by subsequent proceedings. The District Judge gave at length his reasons for the rejection of the claim; and as they have a material bearing upon subsequent matters, out of which the present controversy has grown, it is proper to quote his remarks on that occasion:

“ The testimony,” says the District Judge, “ in regard to this claim is very unsatisfactory. It is supported entirely by parole proof, under circumstances which render it improbable, that if the claim were correct, no better evidence could have been offered • there is no detailed account offered, and no proof of any specific sum due. It is hardly probable that a person who was unwilling to credit the purchaser of his goods, should be willing to sell at a year’s ci edit, upon the security of a mere stranger, without taking a note, or some written evidence of the debt; and it is so easy a matter after ono’s decease to procure evidence to prove admission, alleged to have been made by him before his death, which, from the fact that they are mere verbal admissions, it is impossible to contradict, that testimony of this kind should be received with great caution. I do not feel satisfied that "opponent has a good claim against the succession of Gates. It appears, according to the testimony of the principal witness, that Maries tried to get a written acknowledgment from Gates, but could not get it. If, indeed, the claim be a good one, it is opponent’s own fault that there exists no better evidence of it, or that none has been offered. I do not mean to lay it down as a rule, that parole evidence may not sustain even large claims against the estates of deceased persons; but under such circumstances, to be entitled to any weight, it should be definite, positive and supported by circumstances giving it probability, both as respects the relation of the parties and the opportunities of information within reach of the witnesses. The claim is, therefore, rejected.”

Subsequently, Caldwell, the curator, absconded and died; and John Wallcer, by his attorney, T. A. Ba/rtlette, applied for letters of curatorship, After due proceedings, he received them in February, 1851. He then brOughtsuit against Leefe, the official surety of Caldwell, and recovered judgment for $909 40, and interest, the amount of funds of the estate of Gates for which Caldwell was a defaulter. By the return of an execution issued against Leefe for the amount of the judgment, it appears that on the 29th July, 1851, after a seizure Of property had been made, and before the day of sale arrived, the case was “ settled between the parties,” an expression which, unexplained, the creditors and heirs of the succession have a right to treat as evidence that the curator, Wallcer, had collected in cash the amount of the judgment. On the 31st July, 1851, the period of the usual summer vacation, when little business is done in the Courts, Wallcer filed a tableau of distribution, in which he states the amount df claims against the estate, which he proposes to pay, and includes among them the claim of E. J. Maries for $76S 50, and interest from 1st January, 1850. No creditor appeared to oppose, except the Clerk of the Court, who claimed a privilege for a small amount of fees. On the 8th August, 1851, a judgment was rendered, which, after reciting that due publications had been made, sustained the opposition of the Clerk, and homologated the tableau so amended. This judgment, however, remained unsigned; and in December, 1851, Almira Gates, the wife of the deceased, instituted a proceeding before the same Court to set aside the decree of homologation, on the ground of fraudulent collusion between the curator and Marks. There was judgment sotting aside the decree, and reforming the tableau by striking from it the item of $768 50, allowed to Mandes, and reducing the fee of Mr. Bartletie to $70.

An examination of the evidence constrains us to adopt the conclusion which which forced itself upon the mind of the District Judge. We consider the recognition of Maries' claim collusive, and concur fully in the reasons assigned by the District Judge, who remarked as follows:

“ This case is presented upon the issue made to the suit instituted herein, for a nullity of the judgment of homologation of the account of John Wallcer, curator, filed on the 23d June, 1851. The material allegations of the petition, so far as relates te the legal merits of the case, are substantially proved. The claim of Marks for $768 50 had been fairly presented, on evidence which was unsatisfactory, and rejected. This was well known to Marks' counsel, who acted, also, as Walker's counsel. In fact, it appears that WoXker obtained the curatorship for the sole purpose of obliging Marks, and of enabling him to make his claim out of the estate. It was an abuse of the forms of legal proceedings for the curator, under the circumstances, to place upon the tableau a claim which had been rejected after trial before the Court, and it appears from the tableau that Marks' claim is the only debt placed on the tableau which is not incident to the new administration. Viewing the matter in this light, I declined to sign the judgment-of homologation, when made acquainted with the facts. On the trial of the case, new evidence in support of Marks' claim was introduced, and the trial was proceeded in, as if upon an opposition to the tableau. The matter may be considered, therefore, as open for an adjudication upon the merits of the whole case, and have nothing to add to the reasons given on the first trial of Marks' claim, except to say that I am not satisfied that Gates ever became surety for the debt which is now sought to be collected from his estate.”

It is said there is no evidence in the record that the plaintiff in these proceedings has any interest in the succession of Spencer Gates.

We consider it satisfactorily proved that Almira was the lawful wife of the deceased. Whether she is entitled, as widow in community, not having cohabited with him for many years, and having lived in the North, it is immaterial now to inquire. They, it would seem., never had any children; he died intestate, and it does not appear that he left any ascendants, or collateral relations. If he did not, she would inherit from him, not having been separated from bed and board from him. 0. 0., Art. 018. There was in this case an estrangement from some cause unexplained, and an actual living apart; but we understand the separation from bed and board (separation de corps ct de Mens,) contemplated in the Code, Art. 918, to be a judicial separation. No authority to the contrary has been cited for the defendant, and wo are not aware of any. If, on the contrary, he did in fact leave collateral relations, of which we have no evidence, still she would have an interest in the preservation and due administration of the estate, having a right in duo season to present for adjudication her claims for the marital portion.

Besides, we are not prepared to say that a Judge, in whose Court the mortuaria are pending, may not proprio moka entertain an inquiry into an abuse df the forms of legal proceedings in his own Court, such as is here presented.

There was another proceeding in the matter of this succession, which resulted in a separate judgment, from which, also, the defendant has appealed.

Itwas a judgment, on rule, dismissing the curator from office, and condemning him to pay twenty per cent, interest on $909 40, from August 8th, 1851, until paid.

We are of opinion there is no error in the judgment. The penalty is prescribed by the act of 1837, p. 95. The facts of this case bring it within the statute. The curator, as we have said, is to be considered as having received a cash amount of (at least) $909 40, from Leefe, on the 29th July, 1851. He did not deposit in Bank. He has shown no payment of this money to any creditor, except a sum of $603 12 to Mamies, on the 15th October, 1851, which payment was collusive and void. It is asserted by counsel that the other creditors, among whom, by the tableau, it was proposed to distribute the fund, have been paid; but there is no proof of it. So, that whatever equity there might perhaps be to exempt a curator from the penalty, from the time he actually used money to pay a just debt, there is no proof to lot in its application in the present case.

The two judgments are affirmed.

It is, therefore, ordered, adjudged and decreed that the judgment of the Court below, on the trial of the rule of the 8th of June, 1852, be affirmed, with costs. It is further ordered and decreed that the judgment of the Court below on the application of Widow Almira Oates, for nullity of judgment, be affirmed, with costs.

Re-hearing refused.


author: Campbell, J.

text:
    John Watson v. C. R. Kennedy.
    Suit for damages for wrongful attachment. Defendant pleaded that plaintiff had illegally neglected to bond the property attached. Held: —The right to set aside an attachment by delivering to the Sheriff an obligation to satisfy the judgment that may be rendered against him, is a privilege which the law accords to the defendant—and not a duty enjoined, and the attaching creditor cannot complain if the defendant fails to exercise it.
    In cases of this character, based on the tortious acts of defendant, the jury are the legitimate judges of the quaAitwm of damages, and the law leaves them much discretion.
    Appeal from tbe District Court, Third Judicial District, Olamh, J.

      Imimgston, for plaintiff.

      Qolien, for defendant and appellant.
   Campbell, J.

This suit was instituted for the "recovery of damages, alleged to have been sustained by plaintiff in consequence of the illegal seizure of his property by defendant.

It is alleged, that on the 27th August, 1850, defendant instituted suit against plaintiff by attachment, as endorser of a note for $1035. That under this proceeding, property of the value of from two thousand seven hundred to three thousand three hundred and seventy-five dollars, and money to the amount of two thousand five hundred dollars were attached—amounts much jnore than sufficient to satisfy the demand of the attaching creditor. That on the next day, and pending the suit referred to, defendant instituted another suit on the same cause of action, and caused to be attached some ten thousand barrels of coal, worth at the time seventy-five cents per barrel, but which at the release of the seizure, upon the dismissal of the suit, (Nov. 29,) from a fall in the market, were worth but forty cents per barrel; wherefore he claims in damages the difference between the price at which the coal could have been sold during the seizure and its market value at the date of its release and delivery, which he alleges amounts to at least three thousand five hundred dollars. He further alleges that the seizure in this suit was illegal, vexatious and oppressive, and intended to embarrass him.

To this petition defendant filed a general denial, and by supplemental answer claimed five hundred dollars as damages resulting, as is alleged, from the “illegal and malicious conduct of plaintiff.” On these issues the' parties went to trial. The case was submitted to a jury, who returned a verdict of one thousand dollars in favor of plaintiff. • ^

Erom the record it appears that the suit, instituted in the Third Judicial District Court on the 28th August by the defendant Kennedy, was dismissed the 25th November, on the plea of lis pendens, and that, on appeal to the Supreme Court, the judgment dismissing the suit was affirmed, 6 Ann., 807. Erom this and other facts disclosed by the records—as for example, the issuing of the first attachment before the right of action arose—the large value of the property seized as compared with the amount of the demand—the institution the next day, in a different tribunal, of another suit by attachment, against the same party, on the same cause of action—from all this we are satisfied that the suit complained of was uncalled for and vexatious, and prosecuted without due regard for the rights of the defendant.

It is urged by the defendant, as an objection to the demand of plaintiff and in support of his own claim for damages, that plaintiff illegally neglected to bond the property attached. The right to set aside an attachment by delivering to the Sheriff an obligation to satisfy the judgment that may be rendered against him, is a privilege which the law accords to the defendant, and not a duty enjoined, and the plaintiff cannot complain if he fails to exorcise it. There is nothing in the evidence which supports the assertion made by the defendant in his printed argument, that plaintiff did not bond the property “ solely to lay the foundation for a claim for damages.”

In cases of the character of this, based on the tortious acts of the defendant, the jury are the legitimate judges of the quantum, of damages, in the assessment of which the law leaves them much discretion; O. 0. 1928, n. 8 ; and in view of all the facts, (notwithstanding the testimony on this point is somewhat conflicting,) we are unable to say that this discretion has been improperly exercised by thorn.

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

Rehearing refused.


author: Ogden, J.

text:
    A. Reine, Agent, &c., v. C. H. Poumairat & Co.
    Action for the price of sugar sold. Defendant pleaded non delivery. Plaintiff offered to deliver the sugar, and placed the defendant in default by giving him a written notice to attend on the day fixed by agreement for the delivery of the sugar. Held:—Thereupon the plaintiff’s right of action accrued to compel the payment of the price.
    Appeal from the Second. District Court of New Orleans, Lea, J.

      Dufour, for plaintiff.

      R. 3. Bandees', for defendant and appellant.
   Ogden, J.

The defendant being sued for the price of forty-eight hogsheads of sugai^ admits in his answer that he did agree to purchase the sugar at the price for-which he is sued, but avers that he was deceived in regard to the quality of it by the false representations of the plaintiff. The defence is not sustained by any evidence in the record. The other points relied on by the defendant, to obtain a reversal of the judgment of the Court below, are 1st. : That the plaintiff sues for the price without having delivered the thing sold. 2d. That the judgment is erroneous, because it does not decree a stay of execution until the delivery of the sugar. Neither of these points are tenable. The plaintiff offered to deliver the sugar, and placed the defendant in default by giving him a written notice to attend on the day fixed by the agreement for the delivery of the sugai’—thereupon the plaintiff’s right of action accrued to compel the payment of the price. Civil Code, Art. 2529. The right of the defendant to claim the sugar, or the proceeds of the sale of it, which it appears was made with consent of parties under order of the Court, is reserved in the judgment appealed from, and we see no reason to disturb the judgment.

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

Rehearing refused.


author: Vooriiibs, J.

text:
    John Kellar v. Henry W. Palfrey.
    The Supreme Court is without jurisdiction when the matter in dispute does not exceed three hundred dollars.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J. J.

      D. Mix, for plaintiff and appellant.

      Bengamin & Mieou, for defendant.
   Vooriiibs, J.

The defendant having issued an execution on a judgment rendered in his favor by the late Commercial Court of New Orleans against the plaintiff for the sum of one hundred and seventy dollars, with interest and costs, allowing as a credit the sum of fifteen dollars, the latter sued out an in- ’ junction on the ground that the judgment was extinguished by compensation, averring that he was the transferree of a judgment rendered by the same court in favor of Mrs. Qora Slocum, against the plaintiff for the sum of three hundred and ninety-three dollars, together with interest and costs.

From a copy of his judgment, annexed to but forming no part of the record, it appears that the defendant is entitled to recover five per cent, per annum interesfc from the 15th of July, 1839, until paid, and three dollars costs of protest, and the costs of suit. The writ of injunction was issued on the 14th of June, 1852. Allowing interest to that date, and three dollars, the cost of protest, there being no allegation or evidence as to the costs of suit, the whole amount called for by the execution would not exceed two hundred and ninety dollars.

The extinguishment of the defendant’s judgment by compensation is the only matter in dispute.

“The Supreme Court, except in the cases hereafter provided,'shall have appellate jurisdiction only; which jurisdiction shall extend to all cases when the matter in dispute shall exceed three hundred dollars,” &c. Con., Art. 62. The same provision existed in the former Constitution, Art. 63.

We concur in opinion with our predecessors, that “the framers of the Constitution wisely provided a limit to the jurisdiction of this Court, that litigants for small matters might not be burdened by onerous costs, or harassed by protracted litigation. This wise policy it is,our duty to enforce; and parties who are dissatisfied with the decrees of inferior tribunals must exhibit affirmatively their right to our interference.” Plique v. Bellome, 2 An. 293.

It is, therefore, ordered, that the appeal be dismissed.


author:
Voorhies, J.
      Slidell, 0. J.

text:
    William Bonner v. John H. Baker.
    No valid auction sale of real estate can be made when the description of the property sold is vague and indefinite.
    To make a valid auction sale of immovables and slaves, the authority given by the owner to the auctioneer should be in writing—as also the conditions on which the sale is to be made.
    Appeal from the District Court, Third District, Parish of Jefferson, Glm'lee, J.

      7. F. & J. B. Ootton, for plaintiff.
    Lamergne, for defendant and appellant.
   Voorhies, J.

This suit is instituted by William Bonner in his own name and as agent of George Pursglme, to compel the defendant to execute a conveyance to them for four lots of ground, which they allege were offered by him for sale, for cash, at auction, on the 8th of May, 1852, and adjudicated to them by John P. Phillips, as auctioneer.

The defendant, in his answer, has excepted to the joinder of actions, and pleaded the general issue.

Whether the trial on the merits in the Court d qua, without noticing the exception, operated as an abandonment or waiver of it on the part of the defendant, as urged by the plaintiffs, we consider immaterial for us to determine, as we have come to a conclusion on the merits.

The only evidence on the merits, as exhibited by the record, consists of the testimony of L. B. Finny, a memorandum purporting to be a proees-verbal of the auctioneer, and a publication of the sale of 18 lots of ground in the village of Mechanicsham, in squares Nos. 8, 9 and 24. The description of the squares is the only description given of the lots, and it is not stated to whom they belonged. The terms of sale announced, namely, “one-fourth cash ; balance at 6, 12 and 18 months; a mortgage on the property to secure payment,” are entirely different from those alleged in the petition. There is no averment or proof of the payment of the price of adjudication. The memorandum of the auctioneer is in the following words, viz :

“ Sales at auction of four lots of ground in the village of Mechanicsham, Parish of Jefferson, Louisiana, by order and on account of Mr. John K. Baker, by J. P. Phillips. B. Armfield, auc’t at Bank’s Arcade, Magazine street, on Saturday the 8th May, 1852.
George Pursglore, Lot No. 1,........----. $250 00
Do. do. do. No. 2, - -- -- -- -- -- -- 235 00
William Bonner, do. Nos. 7 & 8, $85, - -- --..... 170 00
$655 00
Charges, commissions and State Taxes, 3 per cent.,......$22 60
Advertising,.........-......- - - 550
$28 10
New Orleans, 13th May, 1852.
(Signed) R. ARMFIELD, Auctioneer.
Rec’d payment of comss. & taxes from L. B. Kinny, Notary Public, N. Orleans, 13th May, 1852. (Signed) J. P. PHILLIPS.”

The statement of facts contained in this instrument, does not, in our opinion, meet the requirements of law to constitute a valid procés-verbal of sale. The auctioneer, in his procés-verbal, should give an exact description of the property conveyed, the price of adjudication, and the terms of sale. The description of the lots in question is so vague and indefinite that it is utterly impossible to designate those adjudicated to the plaintiffs out of the eighteen advertized for sale. The testimony of Mr. Kinny we consider immaterial. He says, “he was at the Arcade when the property described in plaintiff’s petition was offered for sale, and adjudicated to plaintiff. Defendant was also present and made no objections.”

Under this state of facts the adjudication, tested by the provisions of our Code, was clearly illegal and void. In relation to auction sales of immovables and slaves, the law requires that the authority given by the vendor to the auctioneer should be in writing, as well as the conditions on which such sales are made. C. C. Art. 25, 84. No such authority appears to have been given in this case. In the case of Pew v. Livaudais, 3 L. R. 460, the Court held: — “ We have no hesitation to say, that as another part of the Code, Articles 2255-6, requires the assent of the parties to a sale of real estate to be written, unless the party, against whom the sale is sought to be enforced, admits it, we cannot recognize any validity in an auction sale of real property the owner of which did not authorize or assent to in writing, and does not admit his assent otherwise.” The same principle is also recognized in the case of Short v. Knight, 15 L. R. 484. In that case the adjudication was held to be nuil and void, on the ground of the absence of written evidence of any authority given by the defendant to the auctioneer to sell the lot.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed, and that judgment be rendered in favor of the defendant, with costs in both Courts.

Slidell, 0. J.

I wish' to be considered as putting’ my concurrence in our decree, upon the ground of the uncertainty as to the thing sold, not deeming it indispensable to express an opinion on the other point.


author: Buchanan, J.

text:
    J. T. B. Featherstonh v. Thomas A. Compton et al., McDowell, Mills & Co., Garnishees.
    Decision in Soott v. Duke, Killgore v. Planters Panic, and Gormnercial Panic v. Markham, 3 A., affirmed.
    It is competent for the garnishee to plead all defences which may be necessary for the protection of his own interest. Of such a nature is a plea which shows that the plaintiff cannot recover against him, because the law, under which he is proceeding against the defendant, is repealed.
    Appeal from the First District Court of New Orleans, Larue, J.

      Duncan & Redmond, for plaintiff and appellant.

      Stockton & Steele, for garnishees.
   Buchanan, J.

This is an appeal by plaintiff from a judgment of the District Court discharging a garnishee from liability to satisfy a judgment of which the plaintiff is assignee, obtained in the year 1840 in the State of Mississippi. This Mississippi judgment was made executory by an order of the Ninth Judicial District Court of Louisiana, sitting in Concordia, in the year 1842. A writ of fieri facias was directed from the Ninth District Court to the Sheriff of the parish of Orleans, on the 31st December, 1851', (page 51 of the record,) and under this ft. fa. the sheriff of Orleans seized, on the 11th February, 1852, in the hands of McDowell, Mills & Go. all moneys, credits, &c., belonging to defendant, Thomas A. Gompton. Interrogatories were propounded on the same day to the garnishees, which they have answered by acknowledging an indebtedness to Gompton individually, but averring that they are creditors to a far larger amount of a commercial firm of which Gompton is the principal partner. The .plaintiff ruled garnishees to shew cause why they should not pay the amount into Court which they acknowledged to be due to Gompton individually. On hearing, the Judge below discharged the rule.

The first point made in the cause by the counsel of appellees is, that the proceedings against their clients are unauthorized by law and void.

The article 746 of the Code of Practice provided, that when a creditor has obtained against his debtor a judgment having the force of res judicata in another State of the Union, or in a foreign country, he might execute such judgment by having the property of his debtor seized and sold by executory process, without previous citation, in the same manner as on privileged or mortgaged debts contained in acts importing confession of judgment.

But by Act of 1st June, 1846, (Session Acts, page 166,) it was declared that so much of the above mentioned article of the Code of Practice as authorizes a creditor, having obtained a judgment in another State of the Union, or in a a foreign country, to proceed by executory process on said judgment, was repealed.

In three cases decided by the late Supreme Court, in the same year, and reported in 3d Annual Reports, it was held, that the effect of this repealing law was to arrest proceedings, even when commenced. In the first of those cases Scott v. Duke, the order of seizure and sale was granted by the District Court of Tensas, in December, 1845, upon a judgment rendered in Alabama. The appeal was taken in December, 1847. The language of the Supreme Court, in deciding the case, is : “ Yfhen the appeal was taken in this case, the law authorizing the executory process had been repealed, and the order of seizure had become inoperative in conseqnence of that repeal.” The facts were substantially the same in the two cases of Killgore v. Planters Bank, and Commercial Bank v. Markham, which affirmed the decision in the case of Seott v. Dulce.

Those cases are decisive of the present one. Their authority does not seem to have been called in question in the five years that have elapsed since their decision, and we see no reason for questioning it at this time. It is, indeed, insisted with much earnestness by the counsel of appellant, that it is for the defendant alone to plead the illegality of the executory process, and that this is a matter with which the garnishee has no concern. We are of the opinion that it is competent for the garnishee to plead all defences which may be necessary for the protection of his own interest. Of that nature is a plea which shows that the plaintiff cannot recover against him, because the law, under which he is proceeding, has been repealed.

Judgment affirmed.

Rehearing refused.


author: Voorhies, J.

text:
    C. E. Metcalf v. J. S. Clark—Margaret B. Clark, opponent.
    Property purchased with the paraphernal funds of the wife is her separate property—and not liable for the debts of the community.
    It is not necessary that an investment of paraphernal funds in the name of the wife should appear, as such, in the act by which the property is acquired. The wife, in all cases, would be bound to show the reality of the sale to her dehors the act—and the same proof would be necessary in order to make the acknowledgment in the act binding upon her.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      A. K. Ogden, for plaintiff and appellant.

      Hcm/nes and Rand, for defendants.
   Voorhies, J.

Ma/rgan'et B. Sprout, wife of the defendant, and her sister Ma/ry Ann Sprout, claiming the ownership of the lots of ground seized in this case, as the the property of the defendant, have enjoined the sale.

By agreement of the parties in the record, the contestation is limited to the claim of Mrs. Glande. Eroin the judgment rendered in her favor perpetuating the injunction, the plaintiff has appealed.

The property in controversy was purchased by Mrs. Glande and her sister, Ma/ry Ann Sprout, through the agency of Charles H. Kellogg, from the estate of Robert Lanjton, of whose last will Judge Preston was one of the executors, for the price of $3010, partly in cash and partly on terms of credit. This sum it is proved, was paid out of the share inherited by the vendees from the estate of James Brown, of whose last will Judge Preston was also the executor. Thus it is shown that the paraphernal funds of Mrs. Glande, with which her share of the price was paid, never came into the possession of her husband.

Assuming it -to be proved that the price was paid out of her paraphernal funds, yet it is contended by the plaintiff that, as regards creditors, she has no right to claim the property as her separate property, and that it is consequently liable to seizure for the debts contracted by the husband as the head and master of the community. We do not think so—but, on the contrary, consider the reverse as settled by our jurisprudence.

In Dominguez v. Lee et al, 17 L. R. 295, which is one of the leading cases on the subject, the learned Judge, who delivered the opinion of the Court, remarked : “ It is true, as a general rule, that the law considers to be common

property that which is acquired by the husband and wife during the marriage, although the purchase be only in the name of one of the two, and not of both. C. C, 2371; 10 L. R, 148. The reason is that, in that case, the period of time when the purchase is made is alone attended to, and not the person who made it. But we are not ready to say that no distinction ought to be made when the property is clearly shown to have been bought with the separate funds of one of the parties, and particularly with funds of the wife which never came under the administration of the husband. 1 L. R, 523. It is a well settled doctrine in our jurisprudence, that money received during the marriage, even by the husband on account of the wife, does not fall in the community, but remains her separate property, 7 L. R, 292. According to article 2363 of the Louisiana Code, the wife has the right to administer her paraphernal property, without the assistance of her husband; and by article 2315, paraphernal property is considered as the separate property of the wife. There necessarily results from these provisions of the law a power allowed to the wife to administer alone her paraphernal estate, as she pleases; and a right to alienate her separate property and to invest her paraphernal funds in whatever manner she thinks proper and most advantagnous to her interest, provided she does it with the authorization of her husband."

The next is the case of Terrell v. Cutrer, 1 R. R, 367, in which the same principle is not only affirmed, but extended further in favor of the wife. In that case the husband was in possession of the paraphernal funds of the wife, which he applied to the payment of the price of the property conveyed to her. The Court held, that as the wife has at any time the right to resume the administration of her paraphernal property, there was no necessity to prove that she had the actual administration at the time she appropriated part of it to the purchase of the slave with her husband’s consent. That act alone was one of administration, and was done with the consent of the husband.”

The same doctrine was again affirmed in other cases. See 4 R. R, 194 • % An. 930 ; 5 An. 611. A careful consideration of the different provisions of our Code on the subject, would, it seems to us, remove any doubt on our minds, if any existed, as to the correctness of the principle thus settled by our predecessors. Under article 2421 of our Code, a contract of sale between husband and wife is declared to be valid, “when the transfer to the wife, even though not separated, has a legitimate cause, as the replacing of her dotal or other effects alienated.” If the paraphernal funds of the. wife may be thus invested in regard to the husband, we are at a' loss to discover why the same rule should not be applicable to all cases.

But it is urged that the investment of the paraphernal funds should be expressed in the act by which the wife acquires the property. The objection does not appear to us to be founded in law. In regard to creditors, such a statement would of itself be without effect, except in giving notice to third persons. But as the husband is the head and master of the community, having alone the administration, a purchase in the narrie of the wife would not be in the usual course of business, and consequently would be sufficient to put third persons upon enquiry. As this rule seems to be applicable to promissory notes signed by the wife, we see no reason why it should not be equally applicable to other contracts entered into by her. The wife, if required, would be bound in all cases to establish the reality of the sale to her dehors the act; and the same proof would also be necessary in order to make her acknowledgment in the act binding upon her.

We deem it unnecessary to -determine whether the wife could purchase on credit; as, it suffices to say, that she had then under her separate administration sufficient funds of her own with which the price of the property has been paid. As the evidence ■ in the record would, in our opinion, bind her, if the property had diminished in value, or totally perished, it is but just to conclude that she should be entitled to hold it in her own right as an investment of her paraphernal funds.

Considering- this as one of the cases in which creditors have a right to en-quire into the validity of the wife’s title, and no malice is shown, we are of opinion that the appellee is not entitled to the damages claimed by her.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court below be affirmed, with costs in both Courts.

       Ogden, J., did not sit in this case, having been of counsel when the case was submitted.


author: Voorhies J.

text:
    The State, on the relation of John L. Henly, v. M. M. Reynolds, Judge of the Fourth District Court of New Orleans—and Thomas Gilmore, Clerk.
    The supervisory power of the Supreme Court, through writs of Mandamus, is limited to those cases where its exercise is incidental to and in furtherance of its appellate jurisdiction.
   Voorhies J.

The facts, on which the application for a mandamus in this Í cause is based, are these: The relator, John Eenly, in his capacity of Sheriff of Harrison county, Mississippi, held in his possession, under process of attachment at the suit of Butterworth, certain slaves seized as the property of David Myers. ' Whilst in his custody they were clandestinely taken away and removed to this State. Meanwhile Glaiborn Myers, having obtained a judgment in the Fourth District Court of New Orleans, caused an execution to issue directed to the Sheriff of Rapides, which was levied on the slaves in question. The relator then filed a petition of third opposition, claiming the slaves thus illegally taken from his custody, and enjoining the Sheriff’s sale. From the judgment rendered in his favor, Glaiborn Myers took a suspensive appeal, giving bond and security in the sum of $500, as fixed by the order of the Judge. The relator objected, that the amount of the bond was insufficient to entitle the appellant to a suspensive appeal; and now complains that both the Clerk and the District Judge have refused to grant him a writ of possession.

The jurisdiction of this Court, in relation to the subject matter under consideration, is hardly distinguishable from the jurisdictionof the Supreme Court under the constitution of 1845; both have appellate jurisdiction only, except in cases specially enumerated. The jurisdiction of the first Supreme Court was also invested with the same limited powers. What was therefore held by them on similar questions, may be considered as having the authority of precedent. In the Succession of Whipple, 2 An., 237, the Court said : “ We have not a general supervising power and control over Courts of inferior jurisdiction. Our supervising power, through the writs of mandamus and prohibition, is limited to those cases where its exercise is incidental to and in furtherance of our appellate jurisdiction.” The question was also fully examined and considered in another case reported in 2 An., 979, in which the Court says: “ The Supreme Court derives its jurisdiction from the constitution, by which it is declared to be appellate. Its powers are commensurate with its jurisdiction, and the Court has uniformly refused to exercise a general supervisory control over the proceedings of the inferior tribunals, and can interpose its authority only when necessary for the exorcise of its appellate jurisdiction.” See exparte Bujol, 3 An., 71G, affirming those decisions.

We are of opinion that this case comes clearly within the principle of the decisions in the cases quoted; and that the relief or remedy sought by the relator is not necessary for the exercise of our jurisdiction, or such as to authorize our interposition.

The mandamus is, therefore, refused.


text:
    Mrs. P. W. Rountree v. Brilliant Steamboat Company.
    Permission, for a slave to serve on. a particular steamboat does not warrant his employment on another, without the consent of the owner.
    Appeal .from the Third District Court of New Orleans. Kennedy, J.

      Hun. ton and Bradford, for plaintiff,
    ffoold, for defendant and appellant.
   Slidell, C. J.

The evidence in this cause satisfactorily establishes the following facts : that the slave Jesse was the property of the plaintiff; that he was worth the amount awarded by the judgment below; that he was received on board the steamboat of the defendant’s in the capacity of a cabin servant, and carried up the river, without the consent of the plaintiff, and without her knowledge ; that near Plaquemines the boilers of the steamboat exploded; that the slave was badly scalded and otherwise wounded; was taken ashore in an apparently dying condition, and soon after died.

The evidence is so clear as to the occasion, and the severity of the injuries which befel the slave, that the appellant has not attempted to dispute them: but has, at much length, argued that the consequent death of the slave has not been proved. Two witnesses, who had deposed as to his condition on their personal knowledge, wore permitted, without objection, to testify that they understood” afterwards he died from the scalding and other wounds. We do not think the appellant here can call upon us to disregard this testimony entirely, because it is hearsay. His acquiescence in its admission may naturally have led the plaintiff to abstain from offering further evidence, to show that the apparently dying condition in which witnesses saw the slave after the explosion, was actually followed soon after by his death. We do not say if a judgment came us resting wholly on hearsay evidence received below without objection, we ghoyifl feei "bound to affirm it. It is unnecessary to push the inquiry to that extent. Here is a case where hearsay evidence is accompanied by direct and unexceptionable testimony, strongly indicating the probability of its truth. Besides, the objection comes with a bad grace from the defendants, whose business it was, having taken away the slave without the owner’s consent, to bring him back, or account for him.

Upon the question of the defendant’s liability, we find no difficulty. The purpose and scope of the statute is a stem and stringent protection of this class of property from loss, by the bad faith or negligence of those engaged in the navigation of water courses. The consent of the master of the slave is scrupulously exacted; the liability for damages, if the slave is carried without the master’s consent, is clear. See the Statutes of 1816, 1835, p. 152, 1840, p. 89. It is true the plaintiff had given her consent to the employment of the slave on another steamboat; but the proof is satisfactory that she was ignorant of his discharge from that boat; and that as soon as he was discharged, he applied for service on board the defendant’s vessel. The officer who employed him knew who his owner was, and his previous employment on board the Natchez, but asked him for no pass or authorization from his owner, although he acknowledges he knew it was the rule on all boats not to hire slaves without a pass or permission. The consent that the slave should serve on board a particular boat,does not excuse the absence of a consent to his employment elsewhere.

Judgment affirmed, with costs.


text:
    The State v. William Foster.
    The plea of autrefois eoiwiet is a special plea in bar of the prosecution pending; and in order to plead the same with effect, the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful upon a sufficient indictment.
    Where the indictment alleges that the prisoner had fled from justice, the proclamation of the Governor offering a reward for his apprehension, was admissible in evidence to sustain the allegation. Where the portal stroke is given in this State, but the death occurs in the State of Mississippi, the crime maybe prosecuted in the parish where the mortal stroke was given.
    When the wound was inflicted on board of a vessel in Lake Borgne, but moored to a wharf in the parish of St. Bernard, the Courts of that parish can entertain jurisdiction over the offender.
    Appeal from the First District Court of New Orleans. Larue, J.

      Attorney General, for the State.

      Lucros, for the defendant.
   Buchanan, J.

The defendant was indicted in the parish of St. Bernard, for the murder of Clement Nicaise, alleged to have been committed on the 5th November, 1850. He was found guilty of manslaughter, and, on appeal to this Court the judgment was arrested, “ without prejudice to a legal prosecution for the crime of manslaughter.” See the decision of this Court, delivered at the April term of 1852, not yet reported.

In pursuance of this decree an indictment for manslaughter was laid before the Grand Jury in St. Bernard, who found a true bill at the June term of 1852. A second conviction having ensued, the defendant again prosecutes an appeal before this tribunal, and prays that the judgment bo arrested on the following grounds:

1st. That the Court below set aside the plea of “autrefois convict,” on a mere motion of which the accused was not cveh informed, and by an expairte order.

2d. That the proclamation of the Governor was improperly admitted in evidence before the jury, to prove the absconding of the defendant.

3d. That the indictment does not describe the place of the death of Clement FPiaaise with sufficient certainty, inasmuch as it says “ he died on Lake Borgne,” without specifying in what State or jurisdiction he died.

4-th. That the Court erred in refusing to charge the jury that if they found it proved that the mortal wound was inflicted in a schooner, on Lake Borgne, they must acquit the prisoner.

1. Upon the first of these points, the record show's that defendant pleaded to his indictment on the 8th of June, 1852, in -writing. His plea was the general issue, to w'hich, upon the same paper, was added a plea of autrefois convict, in the following w'ords: “ And the said William Foster further says, that, though not guilty, he has already been convicted for the same alleged offence, and sentenced to the Penitentiary by this honorable Court, in the last term of this Court, and consequently he pleads autrefois convict, which he is ready to verily.”

To this plea the District Attorney demurred, as follows: “ That to maintain the plea of autrefois convict, the crime must not only be the same for which the defendant was before convicted; but the conviction must have been lawful, and on a sufficient indictment. In the present case, the conviction was on an indictment clearly insufficient to sustain the verdict for manslaughter, more than a year having elapsed between the commission of the crime and the prosecution. The District Attorney, therefore, demurs to said plea, alleging for cause of demurrer that the facts are insufficient in law to bar the present prosecution, and prays the judgment of the Court, overruling and rejecting the plea of autrefois convict."

This demurrer appears to have been disposed of on the same day that it was filed. The entry in the minutes is as follows: “ On motion of the District Attorney, it is ordered by the Court that the plea of autrefois convict be set aside.” This order is asserted to have been made ex pan'te, and in the absence of the defendant’s counsel. But the contrary is to be inferred, from the fact that the entry in the record immediately preceding the sustaining of the demurrer, and in the same day’s proceedings, is a motion of defendant’s counsel to be allowed to amend his plea, which was granted. A demurrer to a plea admits the facts, and is to be decided by the Court, and not by the jury ; and we are satisfied that the plea was in this instance properly overruled. The plea of autrefois convict is a special plea in bar of the prosecution pending; and in order to plead the same with effect, the crime must be the same for which the defendant was before convicted, and the conviction must have been lawful upon a sufficient indictment. Ohitty’s Com. Law, vol. 1, p. 461. 9 East’s. Rep., 441.

But the judgment was arrested upon the previous conviction in this case, precisely upon the ground that the indictment was insufficient to support a conviction for manslaughter, for w'ant of the allegation that the accused had fled from justice, more than a year having elapsed from the commission of the offence to the finding of the bill of indictment.

2. Upon the second grofmd of error, we are of opinion that the proclamation of the Governor was properly received in evidence, as a circumstance tending to sustain the allegation of this indictment, that defendant had fled from justice— an allegation necessary to justify a prosecution for manslaughter, under the circumstances.

3. The former decision of this Court in this case, above mentioned, has passed upon the third of defendant’s grounds of error, in express terms. In that docicision, it js said: “The common law, adopted by our act of 1805, was modified by the statute of 2d George, which provides that when the stroke has been given in England, and the death occurs out of England, or the reverse, the killing may be inquired of in that part of England where either the death or stroke shall happen respectively. 1 East., Pleas of the Crown. And so the late Court of Errors and Appeals in Criminal Cases held, in the case of State v, MeCoy and others: “ That when the mortal stroke was given in this State, but the death occurred in the State of Mississippi, the crime might be prosecuted in the parish where the mortal stroke was given.” 8 Rob. Rep., 545. It was proper, therefore, to charge in the indictment the truth, that the death occurred on Lake Borgne, and it was immaterial whether it occurred within the jurisdiction of Louisiana, ■ Mississippi- or on the high-seas, within the jurisdiction of the United States.”

We entirely concur in the view taken of this point by our predecessors.

4. The fourth point of error assigned, appears to us to involve a question of fact, and, as such, to be excluded from our appellate jurisdiction in criminal cases, by Article 62 of the Constitution. The indictment charges that the wound which caused the death of Clement Nieaise, was inflicted in the parish of St. Bern'ard. Erom the appellant’s bill of exceptions, it appears that the Judge was requested to charge the jury that if they were of opinion, from the evidence that the mortal wound was inflicted on Clement Nieaise, while in a schooner on Lake Borgne, where there is always. water at the lowest tide, the accused must be acquitted. And for the purpose, apparently, of sustaining this bill of exceptions, a part of the cross-examination of one witness has been taken in writing by the request of defendant’s counsel, and sent up with the record. The question of the territorial limits of the parish of St. Bernard-is probably a question of law; but the question of the place where the mortal wound was given, is undoubtedly a question of fact. We are of opinion that in the case supposed by the Judge, in the bill of exceptions, that although the wound was given on board a schooner on Lake Borgne, yet the schooner being moored to a wharf, was in the parish of St. Bernard—-the Judge did not err in refusing the charge. But whether or not the schooner was at such a point as described, is a question of fact, into which we cannot inquire.

It is, -therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: VooRniES, J.

text:
    Joel Small v. Henry Bonnabel—Charles A. Jacobs. Warrantor.
    Farties who obstruct the use of the public road are liable in damages.
    Appeal from the District Court, Third District, Parish of Jefferson. Cla/rlce, J.

      Jourdan, for plaintiff.

      Schmidt, for defendant and appellant.
   VooRniES, J.

The plaintiff has cumulated several demands in this action. He alleges that the defendant has, within the year, illegally taken possession of part of his land fronting on the bayou Metairie; that on the portion thus taken, which forms a part of the public road, the defendant has cut a canal and erected a fence, whereby he is deprived of the use of said road and bayou, greatly to his damage; that he and the other proprietors of the Metairie are interested, for the benefit of their property, to have the use of the whole width of said road; that said bayou is public for all persons, and its free access, which is highly beneficial to him, is thereby interrupted; and that the defendant’s boundary, according to his titles, does not extend to the_ South side of said bayou. He, therefore, prays that the defendant’s boundary be accordingly established; that he be condemned to restore to plaintiff, and to the public use, the land thus unlawfully taken by him; that he be condemned to remove his fence from said land, and ordered to fill up said canal; and in default of so doing, that the same be done by the proper officer, at his cost and charge ; and that he be condemned to pay the plaintiff five thousand dollars damages.

The defendant, after pleading the general issue, avers that the present boundaries of his land have been established, and exist unchanged, from time immemorial; that the plaintiff’s action is barred by the prescription of ten, twenty, and thirty years. He further avers that the plaintiff has, for a long time, encroached upon and appropriated to his own use a portion of said public road, and the only road by which the defendant has ingress to and egress from his land, in consequence of which he has sustained three thousand dollars damages, for which he prays judgment; and also prays that Gharries A. Jacobs, his vendor, may be cited in warranty, &c.

Gharries A. Jacobs, in his answer, avers that according to the metes and bounds assigned to the property convoyed by him to the defendant, and made with reference to the sheriff’s deed of sale, no liability whatever attaches to him in relation to the subject matter in dispute.

Upon these pleadings, and the evidence adduced by the parties, this case was submitted to a jury, who rendered a verdict in favor of the plaintiff against the defendant, and in favor of the latter against his warrantor. This verdict was set aside, and a new. trial granted. On the second trial the jury rendered the following verdict: “We, of the jury, find for the plaintiff that his title extends, to bayou Metairie, and find one thousand dollars damages for plaintiff, and that the defendant move his fence to the North side of the bayou Metairie, and that the space of sixty feet on the South side be kept open for a public road, and in demand in warranty, we find in favor of the warrantor.” From the judgment rendered thereon, after fruitless efforts to obtain a new trial, the defendant has appealed.

The record shows that Pierre Langliehe, from whom all the parties derive their titles, originally owned a tract of land containing twenty arpents front on each side of the bayou Metairie, which he acquired by purchase from Andrres Alrmonaster y Rosas, on the 1st of October, 1787. On the 24th of January, 1793, Langliehe conveyed to Joseph Rearalien a portion of this land, containing three arpents on each side of said bayou. On the 24th of January, 1800, he also conveyed to Louis Forneret nine arpents front on the South side of said bayou. In the conveyance, the land is described as fronting the road.—“Nueve arpanes de frente al camino, orillando el bajou.” There is no evidence Of the divestiture of Forneret's title. It appears from the recital in the act of sale from the estate of Francois Donille, pére, deceased, to B’rangois Donille, made on the 24th of August, 1824, that the deceased acquired the same tract of land from Joseph Deville Degoulin Belleehasse, on the 29th of July, 1807, On the third of June, 1834, it was sold at public auction as the joint property of Franpois Donille, deceased, and Jean Baptiste Auvignac Donille, and purchased by Samuel Moore, who conveyed the same, on the 26th February, 1836, to Joseph Kenton, from whom the plaintiff purchased three arpents front of said tract. Subsequently, the plaintiff purchased three arpents front from Mrs. Wm. J. Johnson, making six arpents front on the South or East of bayou Metairie, as claimed by him. There is no evidence in the record showing any conveyance of the three arpents from Kenton to Mrs. Johnson; but in the deed of sale from her to the plaintiff, it is stated that she acquired the same from Kenton by authentic act, passed before the same Notary on the 18th of June, 1843. Be itas it may, it is considered immaterial to the decision of this case. And here it may be proper to remark, that in all the mesne conveyance to which we have referred, the land in question is invariably described as fronting on the bayou, except in the conveyance from Langliehe to Forneret.

The lots of ground claimed by the defendant constituted a part of the tract of land of seventeen arpents front on the North side of the bayou Metairie, which Jacobs purchased from Angélique Awry on the 22d of March, 1836. The latter acquired the same by inheritance, and by virtue of the last will of her mother, Adelaide Demony, who acquired the same under the last will of her husband, Pierre Langliehe.

It appears that Jacobs had previously conveyed this land to Qowmal, Oiraud, Pm'don and Bonnabel, the defendant, describing it as fronting on the North side of the bayou Metairie. Afterwards, it was seized, advertised and sold by the sheriff, under an order of seizure and sale at the suit of Charles A. Jacobs, to whom it was adjudicated, and by whom the same was divided into lots, four of which were purchased by the defendant, on the 28th of May, 1839. In the description of these lots an error is alleged to have been committed. We consider this immaterial.

Considering the evidence in connection with the admissions of the parties in the proceedings, we do not think the jury have erred in their conclusion as to the public road; and it is clearly shown that the defendant’s canal and fence are on the same.

Under this state of facts, it is obvious that the defendant has not committed any trespass on the plaintiff’s land. But the object of this action seems to be substantially the abatement of a nuisance, which the plaintiff has clearly the right to maintain. See Herbert v. Benson, 2 An.

The only question, therefore, which remains for our consideration, is the question relative to the damages. Is the plaintiff entitled to recover any ? If so, what amount? The act of the defendant, obstructing the use of the public road, was clearly illegal. “ Every act whatever, of man, that causes damage to another, obliges him by whose fault it happened to repair it.” C. 0., 2294. From a careful examination of the evidence in relation to the damages, we have not been able to concur with the jury in their conclusion. One of the witnesses testifies that he would assess the damages sustained by plaintiff at from $1000 to $2000. Another witness says that “ a fence made between his house and the bayou,' in violation of his rights, would injure his property one-fourth of its value.” Other witnesses testify that they consider the injury sustained by plaintiff in consequence of being deprived of the use of the bayou, to be equal to one-half of the value of his property. The estimates thus made were evidently based upon the hypothesis that the canal and road were to remain permanent fixtures. It is not shown that the plaintiff has sustained any specific damages. Woodworth, one of the witnesses, says : “ Access to the water in the bayou was a great advantage to the place. Knows that Mr. Oanton had to dig a well twenty or thirty feet to have water. He would not give fifty dollars for all the lands on both sides of the bayou.” On the whole, we think the evidence insufficient to justify us in allowing any damages to the plaintiff.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court be avoided and reversed, so far as it condemns the defendant to pay damages, and in all other respects affirmed, and that the costs of the appeal be paid by the appellee.


author: Ogden, J. Buchanan, J.

text:
    The State, on the relation of N. Trepagnier v. F. M. Crozat.
    The duration of an office which is held by executive appointment, and having no term fixed, can be filled at the pleasure of the Executive, is not enlarged by Article 96 of the Constitution of 1845, which provides that “ the duration of all offices, not fixed by this Constitution, shall never exceed four years.” This Article is a restriction upon the Legislature, and applies to those offices which were held either during good behavior, or for a longer term than four years. It does not enlarge the tenure of an office held by the will of the Governor.
    The Act of April 10,1811, provides that “ for the parish of Orleans there shall be for the city of New Orleans an office of record of births and deaths, whereof the officer shall be appointed by the Governor.” An office, thus created, is held during the pleasure of the appointing power. That appointing power was, originally, the Governor, and it is doubtful whether the Constitution of 1812, ( Sec. 9, of Art. 8,) making the Senate a component part of the appointing power as to officers established by that Constitution, and whose appointment was not therein otherwise provided for, made any change in the mode of appointing the Recorder of Births and Deaths. ( Buchanan, J.)
    Whether the appointing power be vested in the Governor alone, or in the Governor and Senate, by the terms of the law creating the office of Recorder of Births and Deaths, it is an office d/u/ra/nte "beneplácito. No term of duration was fixed by the Statute creating the office, and when such is the case, the office is not to be taken, or intended as an office during good behavior, but an office during pleasure. ( Buchanan, J.)
    Article 96 of the Constitution of 1845 has nothing to do with offices, of which the tenure, under the law creating them, was dui'vng pleasure. That Article limits the duration of offices held during good behavior to four years. The tenure, duri/ngpleasure, is not susceptible of limitation, as it is subject to the will of the appointing power. ( Buchanan, J)
    APPEAL from the Eirst District Court of New Orleans.

      la/i'ue, J. War-field and Dufi'our, for plaintiffs,
    cited, ex pw'te, Eennen, 13 Peters, 259; Bfieholson and another v. Thompson and another, 5 Rob., 367; The State v. Percy, 5 A., 282; Kelly v. Gilly, 5 A. 534.

      Boselius and J. W. Oollins, for defendant and appellant.
   Ogden, J.

The office of Recorder of Births and Deaths was not established by the Constitution; it was created by an Act of the Legislature in 1811, and the power of appointment by that act was given to the Governor, and no limitation of the term of offices fixed. The Article 47 of the Constitution contains a proviso in the following words : “Provided, however, that the Legislature shall have a rightto prescribe the mode of appointment to all other officers established by law.” The power of the Governor to make the present appointment is derived from the Act of the Legislature of 1811, creating the office. Under the authority of the cases cited by the counsel for the appellee, there can be no doubt the Governor could rightfully cause the office of the appellant to cease, by the appointment of the Relator, with the consent of the Senate, for the reason that the Statute creating the office has fixed no term for its duration, unless there is some other law by which his power is restricted. Such a law is supposed by the counsel for defendant to exist in Article 90 of the Constitution of 1845, the effect of which, it is contended, was to make the office in question an office of four 3>-ears fixed duration. The terms of that Article are as follows: “ The duration of all offices not fixed by this Constitution shall never exceed four years.” I consider that one of the objects of this Article was to limit the power of the Legislature, and also that from its terms it was applicable to those existing offices which were either held during good behavior, or for a term longer than four years, and that consequently it produced no enlarging effect upon the tenure of the office now in question, which was held at the pleasure of the Executive.

I am of opinion that the tenure of the office of Recorder of Births and Deaths has always been at the pleasure of the Executive, and that the Relator was legally appointed.

Slidell, C. J., Vookhies, J., and Campbell, J., concurring- in the above opinion of Ogden, J.

All the Judges being of opinion that the judgment should be affirmed, it is, therefore, decreed that the judgment of the District Court be affirmed, with costs.

Buchanan, J.

The office of Recorder of Births and Deaths was created by the act of April 10, 1811, in the following words:

“For the parish of Orleans, there shall be for the city of New Orleans, an ■office of record of births and deaths, whereof the officer shall be appointed by the Governor.”

I am of opinion that this office, thus created, was an office during the pleasure of the appointing power. That appointing power was, originally, the Governor alone. It admits of doubt whether the Constitution of 1812 made any change in that respect. The Section 9 of Article 3 of that Constitution made the Senate a component part of the appointing- power, as to offices established by that Constitution, and whose appointment was not therein otherwise provided for. The Constitution of 1845, Article 50, and the Constitution of 1852, Article 47, have repeated the Section 9, Article 3, of the Constitution of 1812, lotidem verbis.

The practice, however, seems to have been that appointments of Recorder of Births and Deaths in New Orleans were made by the Governor and Senate. Accordingly, the throe commissions in this record, issued by as many Governors, two to the respondent and one to the Relator, are all “ by and with the advice and consent of the Senate.”

Whether the appointing power in this instance be vested in the Governor alone, or in the Governor and Senate, I hold it to be clear that by the terms of the law creating the office, it is an office durante bene plaeito. No term of duration was fixed by the Statute creating the office, and the Supreme Court expressly decided in the case of Nicholson v. Thompson, 5th Robinson’s Reps., that when such was the case, the office was not to be taken or intended as an office during good behavior, but an office during pleasure.

The respondent relies upon the Article 96 of the Constitution of 1845, as giving- him the right to hold this office for the full term of four years from the date of liis commission, which is the 16th February, 1850.

But, in my judgment, that Article has nothing to do with offices, of which the tenure, under the law creating them, enacted previous to that Constitution, was during pleasure. The Article reads as follows: “The duration of all offices not fixed by this Constitution shall never exceed four years.”

The effect of that Article was to diminish, not to augment, the term of office. Accordingly, our predecessors, in the case of the State on the relation of Bandoin v. Percy, reported in 5th Annual Reports, decided that the commission of a Notary Public, granted in 1839, should be held to expire in four years from the going into effect of the Constitution of 1845. But the office of Notary Public, under the Statute of 1813, which created it, was an office during good behamor. It was properly held that the Article 96 of the Constitution of 1845, applied to that office, and curtailed its duration to four years, counting not retrospectively, but from the going into effect of the Constitution. The tenure during pleasure, is the very opposite of that during good behavior. Its duration is unsusceptible of being curtailed, because, from its very nature, it is arbitrary, and subjected to the will of the appointing power.

Taking this view of the question, I deem the argument of the counsel of defendant, drawn from the 23d Article of the Civil Code, to be inapplicable to the present case. The Article 96 of the Constitution of 1845 has not been copied in the Constitution of 1852. The omission of the limitation of the duration of offices may be viewed as, in some sense, arepeal, pro tanto, of the Constitution of 1845; although, in truth, it is a want of precision in language to speak of that Constitution as repealed. It is, in the words of Article 142 of the present Constitution, superceded by the latter instrument, as well in those Articles which are copied, as in those which are omitted. But the learned counsel says that the limitation of the duration of offices, by Article 96, was inconsistent with the Act of 1811 creating the Recorder of Births and Deaths, in New Orleans ; and, by being so inconsistent, the effect was to repeal the Act of 1811. He proceeds to contend that the omission of the article of limitation in the Constitution of 1852, was tantamount to a repeal of a repealing act, which, by onr legislation, does not revive the first act. The conclusion is sound, but the premises are defective. The Article 96 of the Constitution of 1845 is notineonsistent with the Act of 1811, according to my view, as above expressed; and, therefore, I hold the Act of 1811 to be in full force. The office of Recorder of Births and Deaths was, originally, and has never ceased to be, an office held during the pleasure of the Executive.

I am, therefore, of opinion that the judgment of the District Court should be affirmed.


text:
    Lewis Bond v. Samuel B. Frost and Owners of the Steamboat Concordia.
    In an action against a common carrier for damages to goods, the proof must be clear and certain, to relieve him from liability, that the damages did not arise while the goods were in his hands; for the presumption is against him, not only from the terms of the bill of lading, but from the policy of law.
    In suits against common carriers the testimony in their behalf of their devks and servants, must be received with great caution.
    Appeal from the Fifth District Court of New Orleans, Buchanan, J.

      Ecmner, for plaintiff.

      Bonford, for defendants and appellants.
   Campbell, J.

This suit was instituted for the recovery of damages, alleged to have been sustained by plaintiff on a shipment of ninety bales of cotton.

The steamer Naomi received the cotton in Hatchee river, and stipulated, in a clear bill of lading, to deliver it to the consignees, Felix Walker & Co., in New Orleans, “ they paying freight at two dollars per bale and charges, with privilege of re-shipping.” On the 14th March, 1850, this cotton was rc-shipped at Memphis, by the Naomi, on the steamer Concordia. She undertook, by her bill of lading, (in which it was expressed that the cotton was in good order and condition,) to deliver it at the port of New Orleans, in like good order and condition, upon consignees paying freight at the rate of one dollar per bale, and charges, amounting to $106 87.

Upon the arrival of the cotton at the port of New. Orleans, it was ascertained that fifty bales were damaged. The consignees received the cotton, except five bales, which the carrier retained and subsequently sold, without the consent of the owner, to reimburse the freight and charges, the consignee having refused to pay them, in consequence of the damage done to the cotton.

The plaintiff’s claim for damages is based upon the non-delivery of five bales of cotton, expenses incurred in picking and preparing for market the fifty damaged bales, loss of cotton in picking, etc., as set forth in a statement annexed to his petition.

On the first trial of this cause, in February, 1851, before the Fifth District Court, judgment was rendered in favor of the plaintiff for three hundred and seventy-three dollars and fifty-nine cents. From this judgment the defendant appealed. After a careful examination of the facts disclosed by the record, the Supreme Court, in effect, held that even though it be admitted that the recital in the bill of lading is not conclusive against the vessel, and that the carrier may be permitted to go behind it, and prove that the condition of the cotton, at the time of its receipt, was different from what is recited in the bill of lading, yet that the policy of law, a policy—as was well said—-justified by long experience, not only throws the burden of proof upon the carrier, but holds him to a strict accountability, and will not permit him either to qualify or evade the effect of his written acknowledgment in the bill of lading, except upon evidence the most clear and convincing; in the correctness of which opinion we fully concur.

Being of opinion, however, that there was not sufficient evidence to establish the correctness of the charge of two hundred and five dollars and fifty-six cents, for loss of weight in picking fifty bales damaged cotton—there being no proof of the value of the cotton picked out, or that it was necessarily taken out as damaged cotton—the judgment of the District Court was reversed, and the case remanded for a new trial. 6 An., 803.

On the second trial, a number of the most intelligent merchants of the city were examined, who stated that it is the uniform usage among the cotton factors of the city, when cotton consigned to them is so much damaged that it will not iidry out," to send it to the pickeries, that the damaged cotton may be removed, and the rest repacked. They further state that it is the uniform usage for the picker to retain as part of the price the damaged cotton; and, though in the opinion of some of them, this mode of remuneration is objectionable, they regard it as the onfy feasible plan that can be adopted.

The custom is universal^ recognized, and the defendants, knowing as they must have done, that in accordance with established usage, the cotton would be sent to the pickery, if they knew a better mode of rendering it merchantable, should have pointed it out.

In reference to the amount charged for picking and re-baling the damaged cotton, we concur in the opinion arrived at by the District Judge, who says:

“Various witnesses, conversant with the cotton trade in this city, have been examined as to what is a reasonable charge for taking to pieces, airing and re-baling cotton, partially damaged, in bales. They concur in stating that the price charged in this instance, ( one dollar per bale,) is below the usual price. Mr. Hill, an eminent merchant of long standing and experience in the cotton trade in this city, declares, that he has constantly paid §1 50 per bale, allowing the pickers to keep the damaged cotton; that if he required the picker to account for the damaged cotton, he would consider it reasonable to allow at least double, or $3 per bale, for his services. In the present case, the damaged cotton retained by the picker was thirty-four pounds per bale. The cotton was shipped afterwards to Liverpool, and invoiced at six cents per pound. At that rate, the damaged cotton yielded the picker two dollars and four cents per bale, or one hundred and two dollars for the fifty bales, picked, dried and re-baled. The charge made by the picker was one dollar, with the privilege of retaining the damaged cotton. But by making him account for its proceeds, we find, as above, that this cotton has yielded him three dollars and four cents per bale. This only exceeds, by two dollars, for the whole fifty bales, what Mr. Hill calls a.minimum price for picking and rebaling. The further light thrown upon the case by the additional evidence, only will justify, if any, a reduction of two dollars on plaintiff’s claim.”

The doubt expressed by the Court in remanding the case for a new trial, resulting from the want of proof of the value of the pickings, and of the necessity of taking such a number of pounds from the bales, is resolved by the exhibition of the invoice of the damaged cotton, and the testimony of Mr. Hill, from which it appears that the cotton was worth six cents per pound to the picker, and that thirty-four pounds (the weight lost per bale by picking-,) is a small average for cotton that is damaged enough to bo picked.

After a careful examination of all the testimony adduced, we are of opinion that the defendants have failed to establish, with sufficient certainty, that the damage to the cotton complained of, (and which is fully proved,) was sustained before the cotton was received on board the Concordia. They may have created a doubt on this subject; perhaps rendered it probable; but have by no means made it certain; and we deem this certainty of proof necessary to rebut the presumptions of law against the carrier, presumptions which arise, not from the terms of the bill of lading- alone, but from the policy of law.

This rule may doubtless, in some instances, operate with severity, but, as was said by Chief Justice Holt, in a case somewhat analagous, “ This is a politic establishment, contrived by the policy of the law for the safety of all persons, the necessity of whose affairs oblige them to trust those sort of persons, that they may be safe in their ways of dealing.”

The Supreme Court, as has been shown, concurred in that portion of the judgment of the lower Court which recognized the liability of the defendants for the damage to the cotton. On the new trial, however, the whole case being again open, additional evidence was introduced. The witnesses of plaintiff, all of whom appear to be familiar with the cotton business, being either factors, cotton brokers, or pickers, concur generally in the opinion that the damage was recent.

The only additional testimony offered by the defendants to prove that the damage did not happen on the Concordia, is found in the depositions of Joseph I). Phelps and Samuel Da/oid, both servants of the owners of the Concordia, the one being a clerk, the other mate. They give it as their opinion that the damage was an old one, and could not, therefore, have occurred on the Con cordia.

Without intending to disregard the testimony of these witnesses, on the ground of their being servants of the defendants—for we give to their testimony all the consideration which can properly be claimed for it—wo deem it proper to state that wc receive it with the allowance implied by the opinion of Best, C. J., in the case of Riley v. Korn, 5 Bing., 217, (15 Com. Law R., 423,) in which he states that “ When goods are delivered to a carrier, they are usually no longer under the eye of the owner; he seldom follows or sends a servant with them to the place of destination. If they should be 5lost, or injured by the grossest negligence of the carrier or his servants, or stolon by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss; his witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their masters and themselves.”

We think proper to add that, as the care of the cotton on board the Concordia was distinctly at issue on the former trial, it is an unsatisfactory circumstance that the evidence as to the particular place where the cotton was stowed was not brought forward until the second trial.

The defendants having failed to establish satisfactorily that the cotton was damaged when received on board the Concordia, the judgment of the District Court is affirmed, with costs.