author:
Howell, J. Ludeling, O. J.,
     "Wyly, J., MoegaN, J., Leonahd, L,

text:
    No. 6336.
    State ex rel. Marie L. Beebe vs. the Judge of the Sixth District Court, Parish of Orleans.
    In this ease the question is simply whether or not a mandamus will lie to compel a judge to issue an injunction. The act required to be performed is simply a judicial act, and a mandamus will never be issued to .control the discretion of an. officer.
    APPLICATION for a writ of mandamus and prohibition against Saucier, judge of the Sixth District Court, parish of Orleans.

      J. Q. A. Fellows and B. Shackelford, for relator.
    Respondent, in propria persona.

   Howell, J.

The plaintiff presented a petition and affidavit to the judge of the Sixth District Court for the parish of Orleans, setting forth various grounds for an injunction to restrain the sale of her property in executory proceedings at the suit of one J. P. Guinault. The judge, instead of granting or refusing the writ, authorized a rule on said Gui-nault to show cause why the injunction should not be granted as prayed for, and, upon hearing the said rule, refused the injunction. Whereupon plaintiff applied to 'this court for and obtained writs of mandamus and prohibition to compel the district judge to grant the injunction on her petition and stay all proceedings under the writ of seizure and sale pending this application. To these writs the judge answers that on a “rule nisi,” issued in the case of Marie L. Beebe vs. J. P. Guinault, under rules Nos. 21 and 22 of the district courts of the city, it was proved by counter affidavits and documentary evidence that the allegations of the petition for the injunction had no foundation in fact; that the affidavit of the petitioner was made by her from information without any personal1 knowledge of the facts sworn to, and, no bond being filed or tendered as required by law, the court, in its legal discretion, refused the inj unction-

The plaintiff, in her application to this court, alleges that on the trial of the rule in the lower court she was not permitted to introduce rebutting evidence, and reiterates the grounds for an injunction, one of which, she contends, entitles her to an injunction without bond, and she insists that, upon the showing made to the district judge, she was entitled of right to the writ, and that there is no law authorizing the proceeding called a “ rule nisi.”

Article 738, O. P., relied on by the plaintiff, enacts that the debtor against whom this order of seizure and sale shall have been rendered. may obtain an injunction to suspend the sale, if before the time of sale-lie files, in the court issuing the order, his opposition in writing, alleging some of the reasons contained in the following article, and of which her swears to the truth.”

The reason given in this instance is alleged fraud.

It has been often held that the writ of mandamus will issue only to compel the performance of a duty imposed by law, and in which no discretion is to be exercised. The issuance of an injunction is not such a duty. The judge is to exercise a sound legal discretion, subject, of ■course, to revision by this court in cases properly brought up. A mandamus, therefore, will not issue to compel an inferior judge to grant an injunction. This court is not vested with a supervisory control over all .inferior courts, so as to compel them to give remedies and do acts about which they have discretion. They may err in judgment, and even willfully, where such error can not be corrected by this tribunal. But the presumption is that the judge will do his duty in every case, and his failure to do so in some cases makes him responsible to another tribunal than this.

The plaintiff may be entitled to an appeal from the decision on the rule nisi, but we are not asked for a mandamus to compel an appeal. The questions as to the legality of the proceeding by rule, the refusal to hear rebutting evidence, and the validity of rules twenty-one and twenty-two of the district courts are not properly before us in this proceeding. Ours is appellate jurisdiction only, and to be exercised in the mode prescribed by law.

It is therefore ordered that the application for the writs of mandamus and prohibition herein be dismissed at plaintiff’s costs. •

Ludeling, O. J.,

concurring. In this case the question is simply whether or not a mandamus will lie to compel a judge to issue an injunction. The act required to be performed is clearly a judicial act, and a mandamus will never be issued to control the discretion of an officer. I concur in the opinion of' the court.

"Wyly, J.,

concurring. In this case the question is, shall a mandamus issue to compel the judge of the Sixth District Court to grant an injunction in a case where, after hearing the parties on a rule nisi, he rejected the application for an injunction. In other words, shall this court, in the exercise of its appellate jurisdiction, compel the judge a quo to revise and reverse an interlocutory judgment rendered by him rejecting the application for the conservatory remedy of an injunction pendente lite.

A bare statement of the question, it seems to me, will suggest an affirmative answer, requiring no argument to support it. The decree, on the trial of the rule nisi, was certainly an interlocutory judgment settling, in the court a qua, the issue whether, pendente lite, plaintiff was, under •the evidence adduced, entitled to the conservatory order of injunction. When the judge decided the rule he did not discharge a mere ministerial duty, a duty involving no discretion, and to compel the performance of which a mandamus would lie; but he performed a judicial act (as this court has frequently decided) which could be revised on appeal by this court. All the essential elements of a judgment were involved in the decision of the rule. And if this court should issue the mandamus requiring the judge a quo to review the case and reverse his decision, it would transcend its jurisdiction and do an act unwarranted by law. This court, in the exercise of its appellate power, may revise and, if proper, reverse a judgment, after being seized of jurisdiction by an appeal. But, without obtaining jurisdiction by an appeal, this court has no power to review or reverse a judgment, however erroneous, and however great the inconvenience or hardship of the case. The power of this court is not' measured by the hardship of cases or the inconvenience or losses that may result to the litigants for want of á more speedy remedy than the law has provided to protect them from injury by the erroneous judgments of inferior tribunals.

We must look to the constitution and the laws in order to determine the jurisdiction and powers of this court, and to decide whether plaintiff is entitled to the relief which she asks in this application for mandamus. By the constitution and the laws this court may revise a judgment after jurisdiction has attached by an appeal; it may reverse a judgment, but it can not command an inferior court to review its own judgment and to decide it differently and at total variance with the honest conviction of the presiding judge. To compel a judge to decide a case contrary to his honest conviction would be not only arbitrary and tyrannical, but it would) in effect, destroy him as a judge, and degrade the court over which he presides into a petty office for the performance of ministerial duties. I deny the authority of this court to dictate a judgment or an interlocutory decree for the judge below to render in a case of which he is seized of jurisdiction. No issue, interlocutory or pertaining to the merits, can be examined by this court until the case is removed by appeal from the court below to this court. The writs of mandamus and prohibition are only used by this court in aid of its appellate jurisdiction; that is, to assist in establishing and maintaining appellate jurisdiction where opposition has been set up.

From the beginning of the jurisprudence of this State, this court has never permitted a judgment (interlocutory or final) to be revised on the trial of an application to it for a mandamus. And the law is clear that a mandamus will only lie to compel the performance of some ministerial duty. By the constitution, the judge can only perform judicial duties. The interlocutory judgment of which plaintiff complains can only be revised by an appeal. The mandamus applied for, I think, should be denied.

I therefore concur in the decree in this case.

MoegaN, J.,

dissenting. James P. Guinault obtained an order of seizure and sale against the property of Marie L. Beebe. The property was seized and was ordered to be sold. Marie L. Beebe presented a petition to the judge of the Sixth District Court of the parish of Orleans (the court from which the order of seizure and sale issued) alleging that, at the time the note upon which the order of sale issued was executed, she was under age; that it was not given for her benefit, or for the use of her property, all of which she alleges was known to Guinault; that she was induced to sign the note by his false and fraudulent representations, and that the consideration for which it was given had entirely failed. She prayed for an injunction against Guinault and the sheriff, staying the sale. The district judge, instead of acting at once upon the application, granting or refusing it, ordered Guinault to show cause why the injunction should not issue. Guinault showed cause, and the injunction was refused. The relator now applies to this court for a mandamus compelling the district judge to issue the injunction as prayed for.

No appeal is asked for from the refusal of the judge, on the trial of the rule nisi, to grant the injunction, nor do I think that such a proceeding would have been the relator’s remedy. It has, I know, been held that an appeal will lie from what is termed a judgment on a rule nisi where no objection is made to the proceeding. Therefore, if the proceeding by rule be acquiesced in, the judgment thereon will still be subject to our revision. Ordering a party who asks for an injunction to take a rule upon the party against whom the injunction is asked to show cause why it should not issue, is a rule of court, or practice, sometimes resorted to by the judges of the district courts. It is, I think, a good rule; but it is, I apprehend, simply used as a precaution. The action of the district judge in such a proceeding is no more and no less a judgment than if he had refused, or granted the injunction without it. If he refuses to grant the injunction asked of him, without a rule having been previously taken, no appeal will lie, according to the decisions heretofore rendered. Therefore, if a rule is taken without objection, and the injunction is refused, then an appeal will lie. After all, what is it that an appeal is asked from in such a case ? Evidently, it seems to me, the refusal to grant the injunction; whether the refusal is given by the district judge without a rule or with a rule, is a matter of indifference .to the party whose rights, it may be, have been denied him. The rule, in the end, is only a preliminary proceeding, and could not result in a decision of the controversy between the parties, even if the decision of the judge thereon was passed upon here. For instance, ii the judge orders a rule to be taken by A against B to show cause why an injunction should not issue against him, and upon hearing the rule the judge should refuse the injunction, and, upon appeal, we should decide that A was entitled to the writ, what would be the result ? Would we issue it ? No, for we have no original jurisdiction in such a case. Would our saying that A was entitled to the injunction be, of itself, an injunction ? Evidently not. The only result of our judgment would be that the district judge would issue the injunction, and thereupon the litigation between the parties upon the subject of the injunction would begin, which litigation would only be ended by us on appeal from a final judgment therein rendered.

Whether a rule is to be taken or not, is within the exclusive direction of the judge. He may, and I believe usually does, order it of his own .motion, as appears to have been done in this case. He may refuse it, if asked for by a litigant. If he orders a rule to be taken, and he refuses the injunction, his action is subject to revision. If he refuses the injunction without a rule, his action can not be revised. Thus the right to a revision of his proceedings is governed by the action, and the arbitrary .action, of the judge. I think this right is fixed by the constitution, and is regulated by the law, and that it exists independent of and despite of the district judge, and I do not think that any thing he can do can abridge, much less, destroy it.

But, to my mind, the serious question in the caséis, whether this court can, by mandamus, compel a district judge to issue an injunction. A majority of the court think that it can not. I think that it can.

The objection to our right to issue the mandamus, as I understand it, is that we have only appellate jurisdiction; that this jurisdiction relates to some judgment pronounced or act done by a district judge, and that .in the case before us the district judge has rendered no judgment and has done no act. I admit that we have only appellate jurisdiction. I do not contend that we have the power to issue a mandamus to a judge of inferior jurisdiction in any case over which we would not have appellate jurisdiction. ' I do not contend that we have the right to issue an injunction in limine litis. But I do contend that it is in the power of this court to compel a district judge to do his duty, and his whole duty, in all cases where the constitution intrusts us with a revision of his judicial proceedings. It is not denied that the matter in controversy between the parties to this suit comes within our appellate jurisdiction.

Now, a mandamus is an order issued in the name of the State by a tribunal of competent jurisdiction and addressed to an individual or corporation, or court of inferior jurisdiction, directing it to perform some certain act belonging to the place, duty, or quality with' which it is clothed. O. P. 829. The object of the order is to prevent a denial of justice, or the consequence of defective police, and it should, therefore, be issued in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever. O. P. 830. It may be directed more particularly to judges of inferior courts, commanding them to render justice and to perform the other duties of their office conformably to law. C. P. 837.

In this case, the order (or writ of mandamus) issues not only when the-judges of inferior courts are guilty of a denial of justice, unreasonable-delay in pronouncing judgment in causes before them, but also if they refuse or neglect to perform any of the duties required of them by law, or which may enable the superior courts to exercise their appellate jurisdiction. C. P. 838.

Suppose a party is attempting to build a wall around a square of which the public has the use, and, injunction being asked for against him, the district judge refuses the writ, would the public be without-a remedy? Suppose A claims title as against B of a piece of real estate, and B is attempting to erect a building thereon which A thinks will be injurious to-his interests, and he asks the judge of his district for an injunction against him prohibiting him from erecting the building, and the judge-refused A, would A be without a remedy ? It would seem so, if the opinion of the majority be correct. And yet these are the remedies given by law, for the Code of Practice says expressly that the injunction must be granted “ when the defendant is in the act of building or constructing some work tending to obstruct a place of which the public has the use, and when the defendant has commenced some building or some other works on a real estate, the ownership or possession of which is contested by the plaintiff, or pretends that such building or works would be injurious to his interest.” C. P. 298. The same Code says the same thing as regards the enjoining of an execution when payment is alleged to have been made after judgment rendered, or when compensation is. pleaded against the judgment, or where the sheriff is proceeding on the. execution contrary to some provision of the law. O. P. 258, No. 10.

An injunction, like an attachment, a sequestration, or a provisional seizure, is a conservatory remedy which a party may obtain in order to give effect to the suit which he has brought or intends to bring. C. P. 208. And the Code of Practice declares when and in what cases it-may be applied for. When a litigant asks for one of them, and his demand is sanctioned by the law,, in my opinion, it is the duty of the judge to grant it.

If an attachment is asked for by me against the property of my debtor, who is a non-resident, and it is refused, I can not give the court jurisdiction, and can not, therefore, proceed against my debtor. Yet the law says that I am entitled to an attachment when my debtor resides out of the State and has property within its jurisdiction. If the judge refuses to cause movable property which I have sued for, and which is in the possession of the party sued, to be sequestered when I have made an affidavit that I feared he was about to remove the same beyond the jurisdiction of the court, pending the action, and tendered the bond required by law, any judgment which I may obtain declaring me to be the owner thereof would be worthless, if, pending the suit, the property was made way with. Yet the Code of Practice says that when one sues for the possession of movable property, and fears that the party having possession may send the property in dispute out of the jurisdiction of the court during the pendency of the suit, a sequestration may be ordered. C. P. 275.

If the judge refuses me a writ of provisional seizure, directed against the furniture of my tenant, who owes me rent, my security is taken away from me. Yet the Code of Practice gives to the lessor the right to obtain a provisional seizure of property used in the house or attached to the real estate which is leased. C. P. 285.

If a man obtains judgment against me, which I have paid, notwithstanding which he issues execution against my property, and advertises it for sale, if the judge refuses me an injunction prohibiting the sale, my property will be sold to satisfy a judgment which, I have already paid. Yet, under article 296, No. 10, of the Code of Practice, I would be entitled to an injunction.

It is within our power to issue á mandamus to courts of inferior jurisdiction, commanding them to render justice, to perform the duties of their office, to prevent a denial of justice on their part, and to prevent their refusal to perform the duties of their office in cases where we have the right to exercise our appellate jurisdiction. In the instances cited the parties asking for relief would have been within the letter of the law, and yet, if the district judge violated his duty and refused compliance with the positive commands of the Code, no remedy is within the reach of those whose rights were invaded, if the ©pinion of the majority prevails. Take the particular case before us. Executory process issued against the relator’s property. The property is seized and offered for sale by the sheriff. She alleges that the note, which the confession of judgment was given to secure, was given without consideration; that it was fraudulently obtained; that she was not of legal age when she signed it, etc. If what she alleges and swears to, be true,, an obligation is sought to be enforced against her which the courts would repudiate. Article 7á9 of the Code of Practice says that the defendant may obtain an injunction on alleging, under oath, any of the causes which prevent the sale of property mortgaged or otherwise bound by virtue of an act importing a confession of judgment.

In the case of the State vs. Bermudez, 14 La. 479, the probate judge was compelled, by mandamus, to appoint an under-tutor to a minor. The court said: “It appears to us the principal and material inquiry is, whether the judge of probates of the parish of Orleans is bound to appoint an under-tutor to minors whose domicile is in his parish. That is the first step to be taken for. (in?) the proceedings in relation to the security to be given by the tutors, and must be carried on contradictorily with the under-tutor.” The decree was that the judge of the court of probates proceed to take cognizance of the plaintiff’s petition, and to make an appointment of under-tutor. The general powers of this court with reference to the supervisory control which it has over courts of inferior jurisdiction is treated of in that decision by Mr. Justice Bullard with an ability which I can not hope to equal, and which only the already extended limits of this opinion prevents me from relieving it of some of its tediousness by giving it at large. I rely upon it, however, to sustain, in principle, the position which I have here endeavored to maintain.

In the case of the State vs. Lewis, 7 M. 457, where an appeal was asked for from the refusal of the district judge to grant-an injunction, and refused, this court, by mandamus, compelled the lower judge to grant the -appeal. This case was overruled in the case of State ex rel. H. Newgass vs. Judge of the Superior District Court, Opinion Book No. 44, folio 635. According to our jurisprudence, no appeal will lie from the refusal of a district judge to grant an injunction, and no mandamus will lie to compel him to grant one. Therefore, in such'cases, the litigant is completely at the mercy of the district judge. I can not reconcile it to myself that .siich a state of things exists.

I think that the sworn allegations contained in the relator’s petition made it the duty of the district judge to issue the injunction; that the matter comes within our appellate jurisdiction, and the text of the law which I have cited convinces me that where a district judge refuses an injunction to a party who is, under the law, entitled to it, it is not only within our power, but it is our duty, to compel him, by mandamus, to obey the behests of the law. The refusal of a judge to do a thing which the law says he shall do is as great a violation of the law as if he did a thing which the law says he shall not do. He may ruin a party by non-action as well as by action. It was to protect the citizen from the possible errors'of judges of inferior jurisdiction that appeals from their judgments are allowed to a higher tribunal. It was to protect the citizen in his rights that to courts of a higher j urisdiction was given the power to -compel judges of an inferior jurisdiction, by mandamus, to perform the ■duties which are devolved upon them by law, and to grant to litigants the relief which a-compliance with the terms of the law entitles them to.

In my opinion, the facts, as alleged and sworn to in the relator’s petition to the district judge, entitle her to an injunction, and, the district judge having refused it, I think the mandamus should issue as prayed for.

Leonahd, L,

dissenting. I concur in the conclusions of Mr. Justice Morgan, but as the question before the court is one, in my opinion, of the most vital importance, I prefer to give my own reasons why I am not able to concur in the views of the majority of the court. I desire, however, not to express any opinion concerning the proper practice of the district courts when application is made to them for relief, except so far as this question arises in the case now before us.

If an ordinary action is instituted against me, and I see proper to file my answer within the legal delays, the court can not order a rule to be taken upon me to show cause why my answer should be stricken out as frivolous and untrue, and afterward decide, upon the trial of this rule, after hearing ex parte affidavits, that the allegations of my answer are, in fact, false, that judgment should be rendered against me, and that execution should issue forthwith. I am entitled in such a case to a trial upon the merits, and to the benefit of the ordinary rules of evidence. In case the plaintiff’s claim against me arises from an act importing a confession of judgment, he may proceed against me “ by causing the 'property subject to his privilege or mortgage to be seized and sold on a simple petition, and without a previous citation.” Code of Practice, art. 734. But the creditor can not proceed as though he had obtained judgment and were entitled to a writ of fieri facias. In obtaining the order he must “ give three days notice to the debtor, counting from that on which the notice is given, if he resides on the spot,.adding a day for every twenty miles between the place of his residence and the residence of the judge to whom the petition has been presented.” Code of Practice, art. 736. “ The delay accorded to the debtor before the issuing of the writ-is to enable the party to apply to the judge for an appeal, or to adopt some other mode of redress in case the proceedings are irregular and unlawful.” Nash vs. Johnson, 9 R. 8.

In certain eases when an order of seizure and sale has been improperly granted the debtor’s remedy is by appeal, in other cases his remedy is by injunction. But, whether the proper remedy be by appeal or by injunction, he has the constitutional right to have his'case passed uppn by the Supreme Court of ■ the State whenever the matter in controversy exceeds five hundred dollars. If I am sued on a promissory note, I can arrest the course of the proceedings against me by answering that I have paid the debt. If I am proceeded against upon an act importing a confession of judgment, I can arrest the proceedings by swearing that I have paid the debt. '

“ The debtor against whom an order of seizure and sale has been rendered,” says the Code of Practice, art. 738, “ may obtain an injunction to suspend the sale, if before the time of sale he liles in the court his opposition in writing, alleging some of the reasons contained in the following article, of which he shall swear to the truth.” “ The debtor may arrest the sale of the thing,” continues the Code, “by alleging some of the following reasons:

First — “ That he has paid the debt for which he is sued,” etc. Art. 741. “ The plaintiff against whom the injunction has been obtained, may compel the defendant to prove in a summary manner before the judge the truth of the facts alleged in his opposition.”

It will be observed that the executory process is regarded as a suit against the debtor. “ The debt for which he is sued,” is the language of the Code. It will also be observed that the debtor who flies his opposition in such a case, and thus obtains an injunction, is regarded as a defendant, and not as a plaintiff. Upon what principle, then, can it be urged that the defendant in the suit is not entitled to a trial, upon complying with the requirements of the law ? The Code of Practice declares in express terms that he can arrest the sale of the thing by alleging» under oath, that he has paid the debt. Can the judge of a district court abrogate the law by refusing to permit the sale to be arrested when the defendant flies the opposition required by the Code ? If he can deny the defendant a trial on the merits in a suit of this character, he can equally deny this right in any other case whenever his caprice or prejudice may deem the defense ill-founded. He may decide as he sees fit, but he can only decide after a trial. His duties in a case of executory process are clearly laid down in the Code. They are that “ he shall pronounce summarily on the merits of the opposition.” Art. 740. But this the judge has not done in the present instance. He has, on the contrary, refused to permit the opposition to be made, and has, in effect, stricken it from the record. The effect of his course is that the debtor is denied the very privilege which the law guarantees him. The judge does not proceed according to law, as he is bound to do, but according to his own notions of what is equitable and just in the premises. There is no pretense that the opposition is insufficient in law, but only that it is untrue in fact. In other words, my plea of payment may be entirely formal, and filed at the proper time, but, inasmuch as the judge is satisfied that it is ill-founded, I am not to be allowed a trial upon it, nor is it to be permitted to delay for a moment the judgment by default which it sought to avert. So in a case of executory process, my oath that I have paid the debt is formal and filed in time, but the judge satisfies himself by means of ex parte affidavits that the defense is ill-founded, and here, too, refuses me a trial upon the merits, upon which the law commands him to pronounce. Is there any difference in principle between the two cases ? I think not. My rights are as much disregarded and trampled under foot in the one case as in the other. I assume, therefore, that the action of the judge a quo was arbitrary, and in direct defiance of the law; and the question arises whether this court can grant any relief in such a case.

It is admitted that the matter in dispute exceeds five hundred dollars, and that it is, therefore, within our appellate jurisdiction. All that I have said with regard to the right of a party to a trial in the first instance applies with equal force to an appeal whenever the parties are entitled to this privilege. In such a case I would have the right to carry my plea of payment, whether in the case of an ordinary suit or in ease of executory process, before the Supreme Court of the State, and, by tendering the proper bond, to prevent the execution of any judgment against me until my rights in the premises had been finally passed upon by the tribunal of last resort. And any act of the judge a quo■ which deprives me of this privilege in a case in which I am entitled to it is as much an infringement of my rights as it would be to deprive me of any trial whatever.. The application to this court in the present instance is for a writ of mandamus to compel the judge a quo to arrest the sale of the thing; in other words, to compel him to perform that which it is not denied is his manifest duty under the law. “This order,” says the Code of Practice, art. 837, “ may be directed more particularly to judges of inferior courts, commanding them to render justice and to perform the other duties of their office conformably to law.” “In this case,” continues the Code, art. 838, “the order issues not only when the judges of inferior courts are guilty of a denial of justice, unreasonable delay in pronouncing judgment on causes before them, but also if they refuse or neglect to perform any of the duties required of them by law, or which may enable the superior courts to exercise their appellate jurisdiction.” In this case it is, in effect, admitted that the judge a quo has neglected to perform the duty required of him by law, which was to arrest the sale of the thing upon the filing of the proper opposition, and afterward to decide summarily upon the merits of the controversy. Would the writ in this instance enable us to exercise our appellate jurisdiction? Not only would it have this effect, but without the exercise of the writ we are absolutely and irremediably deprived of our jurisdiction. The theory of the law is that no order of seizure and sale for an amount exceeding five hundred dollars shall be carried into effect whenever the required opposition is filed, until the Supreme Court has finally passed upon the suit; provided, of course, that the defendant sees fit to avail himself of a suspensive appeal in case he is cast in the court below. But in this case the property is about to be sold without any opportunity being afforded to the defendant to appeal to this court for relief. There can be no appeal from a refusal to grant an injunction, as was decided by this court in the case of State ex rel. Newgass vs. Judge of the Superior District Court, 27 An. 672. Besides, even if an appeal lay, it would not in such a case prevent the sale. If the sale were once arrested, a suspen-sive appeal from the judgment dissolving.the injunction would keep matters in statu quo. But there could no more be a suspensive appeal from a refusal to grant an injunction than there could be a suspensive appeal on the part of a plaintiff from a judgment of nonsuit. The doctrine advanced by the judge a quo, if sustained, leads simply to this: I own, for example, a piece of real estate valued at one hundred thousand dollars. A person styling himself a creditor sues out an order of seizure and sale upon an act importing a confession of judgment for fifty thousand dollars. I file my opposition, under oath, alleging that the act containing the privilege is forged. The judge, as in this instance, refuses to permit the sale of the property to be arrested. I apply to the Supreme Court in vain for the interposition of its appellate powers, and my property is finally sacrificed-, because a single judge has decided my oath to be untrue, and that, too, without ever having granted me a trial on the merits.

The purchaser at the sale would undoubtedly acquire a good title, because he would purchase at a sale ordered by a court of competent jurisdiction, in a case, too, in which this court had decided that the sale could not be arrested. I would thus be deprived of my property by the arbitrary refusal of the courts to grant me a trial in a case in which this privilege was expressly guaranteed to me by the constitution. I should be slow to believe that the law of Louisiana was in such a condition as this. If it is, my homestead may be sold at any moment, by the judge of my domicile without trial and without remedy. It is a principle of law which I fully recognize that the judges of the inferior courts ought not to be interfered with in the exercise of those powers which the law has confided to them; but it is also a principle of law, and one of graver import, that those tribunals can not exercise their powers in such a manner as to deprive this court of its appellate jurisdiction. When two principles come, to some .extent, in conflict, they must, if possible, be reconciled; if this can not be done, one of them must yield. I see no difficulty in reconciling the principles that are presented in this case; if I did, I should maintain the principle of the right of appeal above all others.


source: Caselaw Access Project

author: Leonaed, J. MoRGan, L, Leonard, L

license: Public Domain

text:
    No. 5162.
    Nicholas Theodore vs. New Orleans Mutual Insurance Association.
    All matters which show the transaction to be void or voidable in point of law, on the ground of fraud or otherwise, should be pleaded specially.
    No appellate court should be called to decide upon auestions that were not raised in the court below. In the present case it is manifest that there was no effort to make good, while the evidence was being adduced, the charges of fraud and concealment, which are now urged so strenuously in the argument.
    The failure on the part of the association to object to the itemized statement of loss that was presented to them, or to answer the letters of plaintiffs attorney, had an appearance of indifference,' the tendency of which would be to put them in the light of acquiescing in a claim, which, if they had thought it fraudulent or unfounded, they would naturally be supposed to have repudiated.
    APPEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Bonwr & Benedict, for plaintiff and appellee.

      E. Bermudez, for defendant and appellant.
   Leonaed, J.

On the sixth day of April, 1872, Nicholas Theodore presented to the New Orleans Mutual Insurance Association the following written application:

“Insurance is wanted by U. M. Binachi for account of Nicholas Theodore against fire for the term of one year on tools and implements such as are generally used in the building of steamboat and factory furnaces and the repairing of furnaces and grates, contained in frame composition-roof building situated on Delta street, No. 76, between Lafayette and Poydras, as will more fully appear from inventory of said tools and implements on file in this office, known as No. — to the extent of $1500. Premium two per cent; accepted $30.
“(Signed) •' N. THEODORE, Applicant.”

The inventory referred to comprised blocks, tackle, derricks, screws, chains; iron kettles, etc., and included a building estimated at five hundred dollars. On the same day that the application was made a policy was duly issued by the .association in favor of the applicant, Nicholas Theodore, “ in consideration of thirty dollars, to them paid,” insuring the tools and implements mentioned in the inventory “ against loss or damage by fire to the amount of fifteen hundred dollars ” during the period of one year from the date of the policy.

On the thirtieth day of December, 1872, a fire occurred in the vicinity of Mr. Theodore’s place of business, in consequence of which he claims that the property insured wras damaged by heat, water, falling walls, and exposure to the extent of fifteen hundred dollars, the amount of the policy; that immediately after the firé he presented a detailed statement of his loss to the associatioh and demanded payment, which was refused. He thereupon brought .this suit upon his policy, which is annexed to the petition.

The answer of the association is simply a general- denial.

It is urged, however, by defendants, that when Theodore obtained his policy, there was concealment of the material fact that there was lime on the premises, and that thus the entire policy was vitiated; and, furthermore, that lime was introduced upon the premises after the policy was issued, whereby it became forfeited, even if it were valid in the beginning. These defenses were not specially pleaded, nor do they seem to have been hinted at until after the evidence was closed. In the case of Kennedy vs. New York Life Insurance Company, 10 An. 809, it was held that “ our law presumes every contract which does not appear illegal or immoral on its face to be made for a valid cause and upon a sufficient consideration; and it is incumbent upon him who would put the opposite party upon the proof of the sufficiency of the caus, eto do so specially by his pleadings.” “ All matters which show the transaction to be void or voidable in point of law, on the ground of fraud or otherwise, shall be pleaded specially.” Pino vs. Merchants’ Mutual Insurance Company, 19 An. 214. “ The rule is one calculated to remedy loose practice and prevent surprise.” Flynn vs. Merchants’ Insurance Company, 17 An. 185. It is true that, if evidence be offered without .objection in support of a defense which should be specially pleaded the issue thus presented must be considered and passed upon.

But it does not follow that one should be called upon to meet an issue that was not raised on the trial at all. No one can defend himself unless he is informed in some manner of the charges which his adversary makes against him. Nor should any appellate court be called to decide questions that were not raised in the court below. If the judge a quo has correctly decided the issues that were presented to him, his judgment should be affirmed. In the present case, it is manifest that there was no effort to make good, while the evidence was being adduced, the charges of fraud and concealment which are now urged so strenuously in the argument.

The execution of the policy by the defendant and the payment of the premium by the plaintiff was not questioned in the court below, and the only controversy that arose, and, indeed, the only one that could well have arisen under the pleadings, was whether any of the property covered by the policy was injured by fire, and, if so, what was the extent of the damage. Beyond this inquiry, in the aspect of the case in which it presents itself to us, we should deem it unjust to the plaintiff to go. Erom the testimony of a fireman who was present, it seems that, on the occasion of the fire, Mr, Theodore’s premises were broken into to make room for the operations of the firemen. Their pipes and hose ran through his yard, and the entire place was deluged with water. A neighbor, who was an eye-witness of all that occurred, testifies substantially to the same facts. He observed that the fire extended as far as Mr. Theodore’s premises, and that a number of spars which were lying in his yard were burning. Next morning, when the workmen arrived at the shop, they found the shed in which some of the tools were kept partially torn down, all the ropes were soaked with water, the straps were burned from the blocks, the carts were broken, and some four or five spars were so badly charred as to be utterly useless.

A short time after the Are, Mr. Theodore, by his attorneys, Hornor & Benedict, delivered to the association, as required by the terms of the policy, a sworn statement of his loss, amounting, as he claimed, to fifteen hundred dollars. This statement was accompanied by a certificate of a well-known and respectable notary public, stating that he had personally examined the circumstances attending the fire and damage alleged, that he was acquainted with the character of the insured, and that he verily believed that Nicholas Theodore had by misfortune, and without fraud or evil practice, sustained loss and damage on the property insured to the amount of fifteen hundred dollars. To this statement, as well as to two letters addressed them by Mr. Benedict on the subject of his client’s loss, the association paid no sort of attention. Under these circumstances we shall accept the sworn statement of the claimant and the certificate of the notary as true. If the association had any objections to offer to the correctness of the statement, they should have made them known at the time it was presented to them, or at least have taken some steps to ascertain for themselves wherein the claim was unjust. Having done neither, but apparently treating with contempt a matter which demanded their prompt and courteous attention, we do not think they are in a position to rely for their defense upon any trifling inaccuracy or want of memory on the part of plaintiff or his witnesses, when they came to testify on the trial, a year or more after the occurrence. A careful examination of the testimony convinces us that the plaintiff suffered from the fire considerably more than the amount of his claim. Two witnesses were introduced by the defendant on the trial, one of them the inspector of the association, who swore that Mr. Theodore had told them that he had sustained no damage by fire, but that some screws and other articles had been stolen from him. This testimony is contradicted by the plaintiff himself and by two other witnesses, and is at variance with all the circumstances of the case. •

If the inspector had made a careful examination of the premises, he might have been able to shed some light upon the case. As it was, he did not observe what seems to have been apparent to every one else. We are inclined, on the whole, to believe the testimony of the witness Barbara, who states that Mr. Theodore invited the inspector to come in and estimate the damage for himself, but that the latter refused to do so, as there were some seven or eight inches of water on the floor.

Our estimate of the damage done by the fire to plaintiffs tools and implements alone exceeds the amount for which judgment-was rendered in his favor in the court below; but as he has neither appealed himself nor filed an answer to the appeal of defendant, we are not at liberty to increase the amount of the judgment. It becomes unnecessary in .this aspect of the case to decide whether or not the shed in which a portion of the tools were kept was included within the terms of the policy.

It is therefore ordered that the judgment of the district court be affirmed with costs.

Mr. Justice Howell recused.

MoRGan, L,

concurring. I do not consider it necessary to express any opinion as to whether a defendant insurance company can take advantage of a fact, proved by the plaintiff, which would be a defense to the suit, simply because the fact disclosed was not specially put at issue. For instance, if a party seeks to recover from an insurance company for the loss of his house by fire, and the company denied, generally, the allegations, and on the trial the plaintiff proved that he had burned the house himself, or caused it to be done, I am not prepared to say that the company should be condemned to pay simply because it had not alleged the fact in its answer. Leaving this question out, however, I think the case before us is with the plaintiff, and I therefore concur in the decree.

On Application for Rehearing.

Leonard, L

If the issues of fraud and concealment growing out of the presence of lime on the premises of the plaintiff had been presented to us in such a manner that we could have felt at liberty to examine them, we should have agreed with the judge a quo that the policy would not have been vitiated thereby, because lime was an article necessary to the carrying on of plaintiff's business, and that implied permission was therefore given him to keep it‘in and about his premises. Hayward vs. N. Y. Insurance Co., 19 Abbott, 116.

The failure on the part of the association to object to the itemized statement of loss that was presented to them or to answer the letters of plaintiff’s attorney had an appearance of indifference, the tendency of which would be to put them in the light of acquiescing in a claim which,, if they had thought it fraudulent or -unfounded, they would naturally be supposed to have repudiated at the time. We do not desire that the language used in our opinion should be construed to convey any harsher import than this.

Upon a re-examination of the case, under .the view of the law and the rules of practice laid down in our opinion (and to which we still adhere), we fail to find that the conclusion reached by us was erroneous. The itemized statement of loss made up immediately after the Are, sworn -to by the plaintiff and certified to be correct by Mr. Andrew Hero, notary public, from his personal knowledge, and which we have said was in no manner objected to by the association at the time, exceeds, without including the item of damage to the building, the amount for which judgment was rendered in the court below.

Rehearing refused.


author: Leonaed, J.

text:
    No. 5791.
    Jules A. Blanc vs. Mutual National Bank of New Orleans.
    To fix the indorser's liability, payment oí the note must he duly demanded of the maker and notice of his failure to comply with his contract given to the indorser. The latter’s obligation then becomes absolute and unconditional, as much so as that of the maker. Demand or notice on either of them may, however, he waived. If both are waived, either expressly or by necessary implication, the indorser at once assumes an unconditional liability.
    In the present case the indorsers declared: “We waive protest on this note." Whether these words imply also a waiver of notice, is a Question upon which the authorities are by no means uniform. But the indorsers added: “ We hold ourselves responsible for the payment of the note, which is hereby extended thirty days.” under the circumstances of the ease the indorsers were not released by the want of compliance with the usual formalities of the law. After the dishonor-of the note when it became due, the situation of the indorsers was no longer-that of indorsers upon commercial paper, but that of embarrassed debtors obtaining time as best they could from the creditor.
    If the bank has caused the plaintiff any damage by failing to use proper diligence in the collection of his note he can recover the amount of his loss upon proving-that it results from the negligence of the bank; but, under the present cause of action, to wit: the release of the indorsers, through the failure of the bank to cause the protest of the note, the plaintiff can not reoovor.
    APEAL from the Fifth District Court, parish of Orleans. Cullom, J.

      Lacey & Butler, for plaintiff and appellee.

      Kennedy & Chiapella- and A. & W. Voorhies, for defendant and appellant.
   Leonaed, J.

The plaintiff, Blanc, is the holder and owner of the following promissory note:

“ New Orleans, December 16,1872.
“ On the twenty-first day of January next after date I promise to pay to the order of H. E. Given & Oo. fifteen hundred dollars at the office of H. F. Given & Co., in New Orleans. Yalue received.
“(Signed) W. STACKHOUSE.
“(Indorsed) H. F. GIVEN & CO.”

On the day on which the note fell due, Messrs. H. E. Given & Oo. signed the following indorsement: “We hereby waive protest on this note, and hold ourselves responsible .for the payment of the same, which is hereby extended thirty days from this date.”

, On the twenty-sixth day of February, 1873, a second indorsement was made on the note as follows:

• “ Five hundred dollars being paid on account of this note, we agree to the extension of payment of one thousand dollars for thirty days from this date, and still hold ourselves responsible for the payment of the same at maturity.
“(Signed) ■ H. E.'GIVEN & CO.”

Lastly, there is a third indorsement, as follows:

“New Orleans, March 31,1873.
“We hereby waive protest, notice of protest, and service thereof on the within note, and hold ourselves equally responsible for the payment of one thousand dollars thereof on the twenty-fifth day of November next (1873), to which it is extended by consent, all interest paid to that date.
“ (Signed) H. E. GIVEN & CO.”

Some weeks prior to the expiration of this third and last extension, the plaintiff, Blanc, deposited the note for collection with the Mutual National Bank of New Orleans. The bank, however, took no steps to collect the note at the termination of the extension. No demand was made upon either the maker or the indorsers. There was no protest, notice of protest or of non-payment. When Mr. Blanc afterward went to the bank and asked the note-clerk why the note had not been protested, the latter replied that ho “ didn’t think it was necessary; the protest had been waived.”

Blanc thereupon filed this suit, alleging that, by the failure of the bank to perform the acts required by law to fix the liability of the indorsers, H. E. Given & Co., the latter had been released from all liability as in-dorsers on the note, and that the bank had thereby become liable to him for the full amount due upon the samé. The bank answered that Given & Co., the indorsers, did not and never had claimed that they were released from liability on the note; that there were no funds provided to meet the note at the place of payment, and that a presentment there, even if necessary (which is, however, denied), would have been ■entirely useless. The further averment is made, that the plaintiff is in possession of collateral security more than sufficient to cover the amount ■of the note in question.

“ That it is the duty of a bank with whom negotiable paper is left for ■collection,” said the Supreme Court of New York in McKinster vs. Bank of Utica, 9 Wend. 46, “ to take the necessary measures to charge the in-dorsers upon default of the maker, and that they are responsible to the •owner of the note for neglect or omission to perform such duty, is fully ■established in the case of Smedes vs. Bank of Utica, 20 Johns. 372, and ■the same case in error, 3 Cowen,- 663.” The same doctrine has been recognized by the Supreme Court of Louisiana. “ It is clear,” said Simon, J., in Arming-ton vs. Gaslight and Banking Company,. 15 La. 414, “that by failing to demand payment and not using the ordinary diligence to secure the liability of the parties to the bill the defendants have made •it their own, and have become liable to the owners for the amount.” See, •also, Duruford vs. Patterson et al., 6 M. 460. And in such a ease “ the •amount of the obligation intrusted for collection is prima facie the measure of damages sustained by the principal.” Livaudais vs. Denis, 4 An. 300. ' ' '

The question therefore presented for our consideration in the present -case is, whether H. E. Given & Co. were released from their liability by. the failure of the bank to cause the note of Stackhouse to be protested. ■“ Our action rests,” say plaintiff’s counsel in their brief, “ upon a want of liability on the part of the indorsers occasioned by the fault of the bank.”

The obligation of an indorser upon a promissory note is conditional. He binds himself to pay, if the maker fails to do so. To fix the indorser’s liability, payment of the note must be duly demanded of the maker, and notice of his failure to comply with his contract given to the in-dorser. The latter’s obligation then becomes absolute and unconditional, as much so as that of the maker.

Demand.or notice on either of them may, however, be waived. If both -•are waived, either expressly or by necessary implication, the indorser at .once assumes an unconditional liability. In the present case the in-dorsers declared: “We waive protest on this note.” Whether these words imply also a waiver of notice is a question upon which the authorities are by no means uniform. But the indorsers add: “We hold ourselves responsible for the payment of the note, which is hereby extended thirty days.” After such a waiver, was the holder bound to make demand and give notice at the expiration of the thirty days, or to obtain a second waiv.er in order to hold the indorsers ?

In the case of Forster vs. Jurdison, 2 East. 105, an accepted' bill of ■exchange was duly protested at its maturity against the drawers. The holders, however, wrote to the drawers that they would agree to retain the bill “ until the latter end of the week,” believing, that they would then be able to collect it from the accepter. This, however, they failed to do, and some weeks later brought suit against the drawers. The latter objected that it was incumbent upon the holders to have given them notice that the acceptor had not taken up the bill at the end Of the week, and that, by their failure so to do, the drawers were discharged. Lord Ellenborough held that no second protest or notice was necessary, and that the drawers were bound.

The case of Ridgway & Budd vs. Day, 13 Pa. State, 113, bears a striking resemblance to the one at bar. Jacob Day was indorser npon a. note of Samuel W. Day. Before the maturity of the note the holders-wrote to the indorser, informing him that it was probable the note would not be paid and offering to extend the term of payment if he should so desire. Jacob Day answered: “ I am willing to extend the time for thirty days longer, and of course will stand responsible for the payment of the note as originally intended.” Several other extensions were granted by the holders, Jacob Day continuing to hold himself responsible as originally intended.” When he was ultimately sued, he urged that he was released from liability on the ground that he had never received notice -of protest or of non-payment. The court said: “ The letter from the indorser to the payee contains a distinct statement that if the time is extended for thirty days he will hold himself bound. This is a distinct guarantee that he will hold himself bound at the end of thirty days after maturity, and under like circumstances the holder was not bound to give notice.”

Why should payment have been demanded of Stackhouse at what plaintiff terms the “prolonged maturities” of the note? The note was certainly not due as to him at those successive periods. He was no party to the extensions that were granted to the indorsers. As to him there was but one maturity. He failed to meet his obligation at that date, and the holder was at liberty to bring suit against him at once. He could not be expected to provide funds at any other date to meet the note at the original place of payment, because, not being privy to the new ar-ragements between the holder and the indorsers, hé would have no reason to suppose that the note would again be presented to him. Nor had Given & Co. any ground to believe that the note would be paid by Stack-house at the termination of the several extensions. They seem to have left him out of view altogether, and to have taken 'charge of the obligation themselves. It was they who paid the five hundred d<?llars on the note. They, no doubt, looked to Stackhouse to reimburse them, but they alone dealt with the holder. After the dishonor of the note, the situation of Given & Co. was no longer that of indorsers upon commercial paper, but of embarrassed debtors, obtaining time as best they could from the creditor. It is true that on the occasion of the third extension they “ waived protest,” though they neglected to do so at the time of the second extension. We are at a loss to understand why the waiver should have been thought necessary on the one occasion and not on the other. Be that as it may, they waived some thing to which they were not entitled, and which they had no reason whatever to expect. Indeed, they seem to have supposed, as they naturally would from the nature of' their contract, that the note would be presented for payment to them. Thus their own counsel propounded this question to a member of the house: “Could you have paid that note if it'had been presented?” And the answer was: “Well, sir, it is questionable. We could have paid it; the question is whether we would have done so.”

If the bank has caused the plaintiff any damage by failing to use proper diligence in the collection of his note, he can recover the amount of his loss upon proving that it resulted from the negligence of the bank. JBut under the present cause of action — the release of the indorsers through the failure of the bank to cause the protest of the note — we are of opinion that the plaintiff can not recover.

It is therefore ordered, adjudged, and decreed that the judgment of the district court be reversed, and that ours be for the defendant, with -costs of both courts.


author: Ludelin®, C. J.

text:
    No. 6339.
    The State of Louisiana vs. John Garvey and Charles Earle.
    ' It is an elementary principle of law that the accused is entitled to the benefit of all reasonable doubts, and before any confession can be received in evidence in a criminal ease it must be shown that it is voluntary. This was not proved in thccase at bar. Therefore the fudge a quo erred in overruling the objection to the admission of the confession.
    It is competent to inauire whether the prisoner stated that certain things would be found by searching a particular place, and to prove that they were accordingly so found; but it would not be competent to inauire whether he confessed that he had concealed them there.
    In the present case it was the confession itself which was objected to, and it should have been rejected, whether th.e objects found and other facts corroborated the alleged confession or not, is immaterial in considering the admissibility of the confession. These facts might have been proved, and even that they were discovered in conseauence of the information received from the accused, without making a confession unduly obtained admissible.
    APPEAL from the Superior Oriminal Court, parish of Orleans. Steele, J. Criminal case.

      John McPhelin, District Attorney, for plaintiff .and appellee.

      J. J. Finney and J. H. Hagins, for defendants and appellants.
   Ludelin®, C. J.

The defendants, charged with murder, were convictecl of manslaughter, and they were sentenced to the Penitentiary for twenty years.

There are two bills of exception in the record. The first is as follows:

Be it remembered that on the twenty-sixth day of February, 1876, ■on the trial of the above-entitled case, one William Carlton, a witness for the State, then being on the witness-stand, who, after testifying that .he was a sergeant in the Metropolitan Police force, and at the time the offense charged against the accused is alleged to have been committed, 'was acting as such police sergeant, under Captain Edgeworth, at the police station in which the accused were confined at the time of their arrest, the said witness was proceeding to state a conversation alleged to have been held between the prisoner, Charles Earle, and one Corbett, also a member of the Metropolitan Police force, and subject to the orders of said Edgeworth, which conversation was overheard by the said witness, Carlton, and in which the said Earle admitted the connection of himself and John Garvey with the crime with which they were charged; to which statement counsel for the accused objected, on the ground that A. S. Badger, superintendent of the Metropolitan Police, and Edgeworth, captain of the Metropolitan Police, both acting as such respectively, at the time the said offense is said to have been committed, had previously testified that, after the arrest of the accused, they and each of them had used every means in-their power by way of promises and threats made to the prisoners to induce them to make the confession; and that they and each of them had instructed their subordinates to leave nothing undone to obtain some admission of their guilt from the prisoners; the testimony of the witness, Carlton, as to the conversation alleged to have taken place between the prisoner, Earle, and the said Corbett, and overheard by the witness, was inadmissible, as tending to establish a confession made under undue influence; but the court overruled the objection, and allowed the witness to .proceed. Whereupon counsel for the accused took this bill of exception,” etc.

The judge a quo before signing the bill of 'exceptions made the following addition to the statement of facts:

The testimony of Police Sergeant Carlton, which is referred to as a confession and objected to by defendants, was admitted by the court for the following reasons: First — That it was not shown affirmatively that any improper influence had been used by either Chief Badger or Police Captain Edgeworth before the time of the conversation referred to, but, on the contrary, it was shown that the promises made by Badger were after and not before this conversation. Second — The entire truth of the statement was fully established by the finding of the brickbat, stave-pile, and other facts, beyond the control of the accused, in the condition as minutely described in the statement.
“ (Signed) HIRAM R. STEELE, Judge.”

It thus appears that the accused objected to the reception in evidence of the alleged conversation, in which Earle admitted the connection of himself and of Garvey With the crime, on the ground that the admission had been made under undue influence, and that the judge a quo overruled the objection, because he held that the onus was on the accused to prove that the admission had been procured by undue influences, and because the brickbat, stave-pile, and other extraneous facts were found' as detailed in the alleged conversation.

We can not agree with the learned judge in either proposition. It is an elementary principle of law that the accused is entitled to the benefit of all reasonable doubts, and, Mr. Greenleaf says, “ before any confession can be received in evidence in a criminal case it must be shown that it was VOLUNTARY.” Section 219. This was not proved in the case at bar. The-judge says that it was proved that the alleged conversation was made before Chief of Police Badger had made the promises. That may be true, but it does not appear the admission was made before Edgeworth or some, one else had made promises or threats. The statement of facts in the bill does not satisfy us that the confession was voluntarily made, and therefore it should have been rejected. See 25 An. 191.

On the question suggested by the second reason of the judge a quo for admitting the confession, the law seems to be well settled. “ Where, in consequence of the information obtained from the prisoner, the property stolen, or the instrument of the crime, or the bloody clothes of the person murdered, or any other material fact is discovered, it is competent to show that such discovery was made conformably to the information given by the prisoner.”

“ The statement as to his knowledge of the place where the property or other evidence was to be found being thus confirmed by the fact is proved to be true, and not to have been fabricated in consequence of any inducement. It is competent therefore to inquire whether the prisoner stated that the thing would be found by searching a particular place and to prove that it was accordingly so found, but it would not be competent to inquire whether he confessed that he had concealed it. there.” 1 Bhil. Evid. 411; Greenl. section 231. “This limitation of the rule,” says Mr. Greenleaf, “was distinctly laid down by Lord Eldon, who said that where the knowledge of any fact was obtained from a prisoner, under such a promise as excluded the confession itself from being given in evidence, he would direct an acquittal, unless the fact itself proved would have been sufficient to warrant a conviction without any confession leading to it.” Section 231. In the present case it was the confession itself which was objected to, and it should have been rejected. Whether the finding of the brickbat, stave-pile, and “other facts ” corroborated the alleged confession or not, is immaterial in considering the admissibility of the confession. These facts might have been proved, and even that they were discovered in consequence of information received from the accused, without making a confession unduly obtained admissible.

This view of the case renders it unnecessary to examine the other bill of exception.

It is therefore ordered that the verdict of the jury in this case be set aside, the judgment of the court be annulled, and that this case be remanded to be tried according to law.


author: Ludeling, 0. J. Morgan, J.

text:
    No. 4986.
    Russell & Hall vs. Ellen Keefe et al.
    The laches complained oí in regard to the statément oí fact, if any there be, can not be attributed to the appellant, but to the judge a quo. The appellant applied to the judge to make the statement of facts in time, and the failure to make it before granting the appeal can not be considered just cause to dismiss it.
    To annul a sale for fraud or simulation, the original debtor must be a party to the suit only where the debt has not been previously liquidated by a judgment. In this case, plaintiffs had obtained a judgment against the transferrer of the property in question before this suit was brought.
    It is true that plaintiffs contracted with the transferrer anterior to the transfer of the property to Ellen Keefe. But it is also true that'her title appears not to have been recorded, and thus plaintiffs could not be charged with notice of the transfer.
    Here a longer time elapsed between the pretended sale and the time when this suit was tried than was necessary to deliver the property, and the pretended vendor remained in possession of the property. This placed the'onus of establishing the bonafides of the transaction upon the transferee. There is no evidence of good faith in the record.
    APPEAL from the Sixth District Court, parish of Orleans. , Saucier, J.

      John M. Bonner, for plaintiffe and appellees.

      John N. Healy and Bichard Shackelford, for defendant and appellant.
   On Motion to Dismiss.

Ludeling, 0. J.

A motion to dismiss this appeal has been made on the grounds following:

That the transcript does not show that appellees have been cited; that the transcript is incomplete; that the statement of facts made by the judge was made to.o late, having been made after the appeal was granted.

The first objection was waived by making the second and third objections, even if the appellees had not been cited. But they were properly cited.

Second — The transcript was connected by certiorari.

Third — The laches, complained of in regard to the statement of fact, if any there be, can not be attributed to the appellant, but to the judge a quo. Tbe appellant applied to the judge to make the statement of facts in time, and the failure to make it before granting the appeal can not be considered just cause to dismiss the appeal.

The motion is therefore refused.

On the Merits.

Morgan, J.

The allegations in the petition, are that plaintiffs obtained judgment against M. Lacey; that execution issued thereon; that only a small portion thereof was realized'under'the execution; that Lacey made a fraudulent and simulated transfer of a certain piece of real estate to Ellen Keefe, the defendant, for the purpose of concealing it from his creditors, thus depriving plaintiffs of.the power to collect their debt. They pray that the sale of the property from Lacey to Keefe may be declared fraudulent and simulated, and that it be declared subject to seizure. Lacey and Keefe were both cited. Ellen Keefe alone answered. She alleges that she purchased the property for a valuable consideration, by public act, on the thirtieth of April, 1873. The suit of the plaintiffs against Lacey was instituted on the ninth of May, 1873. The judgment against him was rendered on the tenth of June, 1873, and was signed on the fourteenth of the same month.

In the suit now before us judgment was rendered against the defendant, Ellen Keefe, decreeing the property which she purchased from Lacey subject to plaintiffs’ execution in the case of Russell & Hall vs. Lacey. Erom this judgment Ellen Keefe has appealed. She has assigned the following alleged errors, apparent on the face of the record, in support of her appeal:

First — That the allegations in the petition are not sufficient to warrant-the judgment appealed from. ■

Second — That the case was not fully at issue when it was tried, no issue having been raised between the plaintiffs and Lacey.

Third — That the ease was tried upon Tuesday, the twenty-fifth of November, 1873, a day upon which no appealable case could be tried, Tuesday of each week being set aside by the rules of the Sixth District Court for the trial of unappealable cases exclusively, which was the reason why the clerk failed to take down the testimony of the witnesses who were examined in the case.

Fourth — That the allegations in the petition show that plaintiffs did not contract with Lacey, after the date of the act of sale from Lacey to her, and that plaintiffs, therefore, were not in a position to throw the burden of proving the verity and bona fide consideration of said sale upon her. ' ■

First — The allegations in the petition allege a fraudulent transfer of property, to the prejudice of the plaintiffs. This is good cause, if true, to bring a suit to annul the transfer.

Second — In so far as the appellant is concerned, it matters not whether the issue was joined between the plaintiffs and Lacey or not. It was joined as to her, and the only question in which she has any interest is, whether the judgment which declares her act to have been fraudulent and simulated was properly rendered. Besides, to annul a contract for fraud or simulation, the original debtor must be a party to the suit only where the debt has not been previously liquidated by a judgment. 2 Hennen’s Digest, p. 1034, section 2, No. 1, and the cases there cited. In this case plaintiffs had obtained a judgment against Lacey before this suit was brought.

Third — The case was tried without objection on the day upon which it was assigned for trial. If it was improperly assigned, objection should have been made before going into the trial. As to the objection that appellant was thus precluded from causing the testimony adduced to be taken down in writing, it is not shown that any attempt was made to cause it to be so taken. Besides, the district judge has made out a statement of facts, the correctness of which is not disputed, and we do not see how appellant has been injured, or wherein she has been deprived of any right in this regard.

Fourth — It is true that plaintiffs contracted with Lacey anterior to the transfer of the property to Ellen Keefe. But it is also true that her title appears not to, have been recorded, and thus plaintiffs could not be charged with notice of the transfer. It is also true that Lacey continued in possession of the property. He occupied it before the sale, and he was occupying it when this suit was brought. The pretended sale was made on the thirtieth April, 1873. This case was tried in the district court in December of the same year. There is no pretense of a lease. Lacey’s possession, therefore, was never interfered with, practically or technically. In cases of contracts which purport to transfer the ownership of immovable property, if he who transfers it is suffered by the obligee to remain in corporeal possession for a longer time than is reasonably required to deliver the actual possession, and to act as owner, to the injury of a third person, who may afterward contract with him, or acquire rights upon his property as creditor, it will be considered as a mark of fraud, and will throw the burden of proving that the contract was ma'de bona fide upon him to whom the ownership of the property was transferred by the first contract, in any controversy with creditors of the obligor or person acquiring bona fide intermediate rights by contract with him. R. C. C. 1921.

Here a longer time elapsed between the pretended sale and the time when, this suit was tried than was necessary to deliver the property, and the pretended' vendor remained in possession of the property. This placed the onus of establishing the tona fides of the transaction upon the transferee.. There is no evidence- of good faith in the record.

“In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the.usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and, with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.” 0.0.2480.

In this case it is not pretended thát Lacey remained in possession of the property which Ellen Keefe asserts was 'transferred by him to her by any title whatever, and, as we have before said, there is no evidence whatever of any good faith in the transaction. We conclude, therefore, that the judgment of the district court was properly rendered. Vide 17 La. 360; 11 An. 163; 15 An. 4, 556.

Judgment affirmed.

[Notice. — The iollowing eases, decided in 1876, not being ready to be delivered to me by the clerk of the court when I went out of office on the nineteenth of February, 1877, are reported by my successor, Mr. Percy Roberts. — Charles G-ayaeee.]


author: Howell, J.

text:
    No. 6314.
    State ex rel. James Longstreet vs. George B. Johnson, Auditor, and A. Dubuclet, Treasurer.
    A mandamus will not issue to compel an officer of the State to perform a duty,, unless that duty is shown to be a purely ministerial one,
    APPEAL from the Superior District Court, parish of Orleans. 1Taw-kins, J.

      Field, Attorney General, and Dibble, Assistant Attorney General, for the State.

      T. Gilmore & Sons, for the Louisiana Levee Company, appellants.

      W. H. Hunt, for Longstreet, appellee.
   Howell, J.

The relator alleges that he is Levee Commissioner on the part of the State, and chairman of the “Commission of Levee Engineers,” and is entitled to a salary of six thousand dollars per annum, in accordance with the provisions of acts No. 4 of 1871 and No. 43 of 1873, relative to the Louisiana Levee Company; that he has faithfully discharged all the duties imposed by said laws upon him as such during the year 1875; that by said acts, and acts No. 3 and No. 56 of 1874, there is to be collected annually by taxation a sum sufficient to cover the cost of all levees required by said Commission of Levee Engineers in their annual report to be built and repaired, and known as levee-construction fund and levee-repair fund; that the said revenue, annually collected, is set apart for the execution of the-purposes set forth in said acts of 1871 and 1873, in which the Commission of Levee Engineers are created and charged with the performance of important duties, indispensable to the general purposes and public objects therein contemplated; that according to law the said Commission of Levee Engineers did, during the year 1875, notify and reduce the quantity of levee work for said year at the contract price of fifty cents per cubic yard, and ordered the construction of one million and eighty-six thousand two hundred cubic yards of levee work, and the tax assessed has been or will be paid into the State treasury, to the amount of five hundred and sixty thousand dollars, leaving a surplus out of which he claims to be paid, with lien and privilege; that his salary and expenses for said year were earned in the service of said company and the State in performing labors imposed on him by law, in the construction and repair of the levees of the State, for which purpose the said tax is collected, and upon the surplus of which for the said year he claims a lien and privilege for his salary of six thousand dollars and contingent expenses; amounting, as per authentic account, to three thousand five hundred dollars; and he prays, since there is no relief by ordinary means assigned by law to him, for a mandamus to compel the State Auditor and State Treasurer, respectively, to audit and issue warrants for and make payment of the said sums to him out of the surplus levee funds for 1875 now in the treasury, and that the Levee Company be made party.

The defense, among others, is that the petition discloses no cause of action or right to the remedy by mandamus; that the funds named are bylaw to be paid to and they belong to the Levee Company for the specific purpose of constructing and repairing levees; that relator’s claim is not ordered to be paid out of the same; and that there is no appropriation made for it.

We think the case presented is not one for a mandamus. It is only where a ministerial duty is imposed by law on an officer that a mandamus will lie against him. No such duty is shown in this case.

It is therefore ordered that the judgment appealed from be reversed, and the application for the writ of mandamus be refused, with costs in both courts.


text:
    No. 5189.
    Mutual National Bank vs. Jean Rotgé et al.
    The iact that a check on a bank has been certified by the bank, at the reauest of the indorsers, before its delivery to the holder, will not discharge the indorsers. Such a certification arouses no implication that the holder intended to release the indorsers and look only to the bank.
    Protest is not essential in order to hold the indorsers. It is sufficient if the holder of the paper inform one of the indorsers, on the day the paper matures, that the drawee has failed to pay it, and said indorser in turn informs the preceding indorser the day after.
    APPEAL from the Sixth District Court, parish of Orleans. Bander, J.

      T. H. Kennedy, for plaintiff and appellee.

      Sambola & Bucros, for defendants.
   Howell, J.

This is a suit against the drawer and indorsers of a check, the casé being submitted to us only as to the indorsers. The defense is that they are discharged by the laches of the plaintiff in not having the check duly protested, and notifying defendants, and by plaintiff’s acceptance of the direct promise of the drawee, the New Orleans National Banking Association, evidenced by its certification of said check.

The facts are that on the fourth of October, 1873’ Theodore Gollain drew his check on the New Orleans Banking Association for seven hundred and forty dollars in favor of Paul Castaing, who indorsed it, and gave it as an accommodation loan to Jean Rotgé, by whom it was also indorsed. The two indorsers in blank went together to the bank on which it was drawn, and had it certified in the words “through ClearingHouse,” and in this condition Rotgé, the last indorser, delivered it about noon of the same day to the plaintiff bank in payment of his note for same amount. On the sixth of October, the next legal day, the plaintiff presented it at the Clearing-House, but, no one appearing to represent the drawee, it was presented to the latter without avail. Rotgé was informed of these facts on the same day, and he informed the preceding indorser on the next day.

We think it clear that the plaintiff was not guilty of any laches. Nor do the facts show that the indorsers were released by any acceptance of the promise of the drawee shown by the certification. The check was so certified and indorsed when delivered to the plaintiff, who used due diligence to notify the last indorser, and the notice to .the next was given in a reasonable time. There is no act of the plaintiff showing any release or any intention to release the indorsers. The certification was made at their request, and before delivery to plaintiff. The fact that the drawee certified it and thereby became unconditionally bound to the holder did not affect the liability of the indorsers, if notified in due time of the dishonor. The indorsers, however, rely upon the following authority: “ By the acceptance or certification of the check, an entirely new engagement is entered into by the bank with the holder and his legal transferees. This engagement is simply and unconditionally to pay to him or them the sum named in the check on demand. The check ceases in fact to be a check, and becomes a promise to pay. Accordingly, the rules which govern a check no longer govern this instrument. * * The check itself is, in its new form, strictly evidence of a deposit to the credit of the holder. All the rules about presentment for payment at once fall to the ground. The holder need no longer regard the condition of the drawer’s account or balance with the bank. The bank is bound to withhold enough from the depositor’s funds to meet the demand of the holder, whenever it may be made.” Morse on Banks and Banking, p. 282.

This doctrine, if accepted as fully correct, does not go to the extent of releasing the indorsers under the circumstances in this case from liability to the plaintiff. Mr. Parsons in his work on Notes and Bills, vol. 2, p. 75, says: • The law of demand and notice has no application between the bank and the holder; but may still have as between the holder and the drawer.” And in the case of Willits vs. Phoenix Bank, 2 Duer, 121, cited by both the above authors in this connection, it was said: “The sole and manifest object of the maker or holder of a check in requiring it to be certified is to enable him to use it as money; that is, to pass it to others with the same certainty of its acceptance, as affording the same security to a holder; and the bank, in complying with the request, must know that such is its object. It is, therefore, certain that a bank, by certifying a check, means to give a currency and value that would not otherwise belong to it, and this additional value, it seems to us, can only be given by interpreting the certificate as an unconditional promise of payment, whenever payment shall be demanded; otherwise, a certified check would be of no more use or value than an ordinary check, and would afford no greater security to a holder. The certificate is a useless form, unless it means, not merely that the check was good when certified, but that it will be good when presented for payment.”

It is apparent that these authorities refer only to the liability of the certifying bank, and we are left to general principles and the rules of commercial law and jurisprudence to settle the liability of the indorsers to the holders. We are acquainted with no principle which releases the indorsers from liability to the holder when the latter uses the diligence required of him in such case.

Judgment affirmed.


author: Wvly, J.

text:
    No. 6495.
    State ex rel. A. F. Hickman vs. the Judge of the Second District Court, Parish of Orleans.
    where a creditor of a succession opposes items of the executor’s account, which aggregate more than five hundred dollars, he may appeal from the decision of the court dismissing his opposition, even though his individual claim against the succession is less than five hundred dollars.
    Had the decision been against the executor, he could have appealed, and the rule is1 that where one of the parties may appeal, the adverse party may also.
    APPEAL from the Second District Court, parish of Orleans. Tissot, J.

      Julien A. Seghers, for relator.
   Wvly, J.

Relator, a creditor of the succession of L. F. Generes, opposed various items of the account rendered by the executors of said succession, amounting in the aggregate to largely over five hundred dollars. From a judgment dismissing the opposition and homologating the account, relator sought for and was denied a suspensive appeal. Thereupon he applied for this mandamus to compel the judge to grant him an appeal.

The answer of the judge is substantially that relator’s interest in the matter in dispute does not exceed five hundred dollars. In the succession of W. H. Gale, 21 An. 487, this court said: “Where creditors of a succession are litigating their rights contradictorily with each other an appeal will lie, though the claim of each creditor may not amount to the sum of five hundred dollars, if the value of the succession exceed that sum.” Here the items opposed by relator largely exceed five hundred dollars. If the succession had been cast, we apprehend the executors could have appealed. The rule is, where one party has the right of appeal, his adversary in the litigation ought to have the same right.

It is therefore ordered that the mandamus herein be made peremptory.


author: LeonaRD, J. MokgaN, J.,

text:
    No. 5300.
    Folsom Brothers vs. City of New Orleans.
    The municipal corporations in this State are liable for whatever damages may be caused by mobs or riotous assemblages within their respective limits.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.

      Semmes & Mott, for appellants.

      George S. Lacey, City Attorney, for appellee.
   LeonaRD, J.

The plaintiffs bring this suit against the city for damages to their property caused by a mob on the night of May 6,1873.

Section 2453 of the Revised Statutes declares that: “the different municipal corporations of this State shall be liable for the damages done to property by mobs or riotous assemblages in their respective limits.” The liability of cities and towns under the provision of this statute is no longer an open question. Williams vs. City of New Orleans, 23 An. 507.

The present case was tried by a jury in the court below, who gave the plaintiffs fifteen thousand dollars damages. They thought this sum too small, and have appealed. The city appears to be fully satisfied with the verdict.

There seems to be no question about the occurrence of the riot, nor that plaintiffs’ store was broken into and pillaged by the mob. The amount of the damage sustained is the only matter in controversy. Mr. George Folsom, one of the plaintiffs, swears that the firm sustained loss by the riot to the amount of twenty-six thousand eight hundred and fifty-eight dollars, as detailed in an itemized statement annexed to the petition; that this statement was made out immediately after the riot, and that only those articles were put down which were known to have been taken away. The values charged are the wholesale cash prices. Mr. Folsom further testifies that the actual damage sustained by the firm was greater than the amount charged to the city; and that the articles taken away could not have been' replaced for that sum at the time of the riot. Mr. Thomas T. Moré, an employee of plaintiffs, swears that every item charged to the city was actually lost by the firm on the night of the riot. Mr. W. R. B. Turner, another employee, testifies that he assisted in making up the statement, and that the amount charged is less than the actual loss.

We regret that the representatives of the city did not see proper to institute a more careful scrutiny into a matter which involved the payment by the taxpayers of so large a sum of money. As it was, they did not call a single witness; nor did they apparently make any effort to ascertain for themselves the amount of the city’s liability. It might have been well, also, to have cross-examined the plaintiffs and their clerks more rigorously with regard to each item of loss charged in the statement. As it is, we have no alternative but to accept the uncontradicted testimony of these witnesses as accurate and conclusive.

It is therefore ordered, adjudged, and decreed that the verdict of the .jury be set aside, that the judgment of the Superior District Court be-annulled, and that plaintiffs recover of defendant, the city of New Orleans, the sum of twenty-six thousand eight hundred and fifty-eight dollars, with five per cent interest from May 16,1873, and costs of both courts.'

MokgaN, J.,

dissenting. The jury heard the witnesses in the case, and as the question submitted to them was one of damages alone, I think their opinion should prevail.

I am therefore of opinion that the judgment of the district court should simply be affirmed.


author: LeoNakd, J.

text:
    No. 6379.
    George F. Brott vs. Eager, Ellerman & Co.
    The Superior District Court has no authority to enjoin a party from bringing a suit' before any tribunal which has jurisdiction of the suit.
    APPEAL from the Superior District Court, parish of Orleans. Hawkins, J.
    X. A. Sheldon, for plaintiff.

      W. W. King, for defendants.
   LeoNakd, J.

The plaintiff complains that the defendants, Eager, El-' lerman & Co., are annoying and molesting him in the management and control of a portion of his property, to wit: the steamer Martha, and he has asked for and obtained an injunction restraining them from further interference. The particular acts of annoyance and molestation of which plaintiff complains are that defendants, who are the lessees of the oity wharves, have instituted judicial proceedings against him, and will probably continue to do so, before a justice of the peace -for the collection of certain fees and charges, imposed by an ordinance of the city of New Orleans, from which he claims his steamer is exempt.

The defendants excepted that the Superior District Court was without authority to restrain them from prosecuting the claims in question before the tribunals having jurisdiction of the amount in controversy.

We think that this exception should have been maintained. Plaintiff has his remedy under article seventy-four of the constitution, giving this court appellate jurisdiction in all cases in which the constitutionality or legality of any tax, toll, or impost imposed by a municipal corporation shall be in contestation, whatever may be the amount thereof. Levy & Co. vs. City of Shreveport, 27 An. 620.

It is therefore ordered, adjudged, and decreed that the judgment of the Superior District Court be reversed, and that plaintiff’s suit be dismissed at his costs.


author: Wyly, J.

text:
    No. 4839.
    Rosa Epstein vs. Mutual Aid and Benevolent Life Insurance Association.
    If a policy of life insurance contain a stipulation that the assured shall pay a certain assessment within thirty days from the time that notice is given to him that said assessment is due, and that on his failure to pay said assessment, as stipulated, the policy shall be void, the stipulation will be upheld and enforced.
    If the assured reside out of the city of New Orleans and the notice of the accrued assessment in writing is directed to him by the secretary of assurers to such address as the assured has left at the office of the secretary and mailed in the city of New Orleans, such notice will be held sufficient, and no evidence will be admitted to show that the assured did not receive the notice.
    APPEAL from the Fifth District Court, parish of Orleans. Oullom, J.

      B. B. Forman, for plaintiff and appellant.

      Ogden & Bill, for defendants.
   Wyly, J.

Plaintiff appeals from the judgment rejecting her demand against the defendants for five thousand dollars on a policy of insurance taken out on the life of her husband, Lewis Epstein, on the second of July, 1872, the assured having died on the twentieth of January, 1873. The defense is, the policy was void, because the assured failed to comply with a condition precedent. The insurance was for a sum equal to one dollar for each enrolled member to the number of five thousand appearing on the books of the association in class “A” at the date of the death of the assured. By a clause of the policy it was stipulated that the assured “agrees to pay into the treasury at the office of the association in the city of New Orleans one dollar and twenty-five cents upon the death of a member enrolled in class* “A” of the association within thirty days after” notice _ * * *; should the party whose life is hereby in■sured reside out of New Orleans, then he shall be notified by written notice deposited in the postoffice in the city of New Orleans addressed to such address as has been left in writing at the office of the association with the secretary.”

The policy also declares it to be a condition precedent that if the assured should fail to pay the assessment called for upon the decease of a member of the class “A” within the time mentioned “this policy shall become null and void.” It is shown that a call was made on the tenth of December, 1872, on account of the death of a member of class “A/’ and that written notice thereof was deposited by the secretary of the association in the postoffiee on the eleventh of December, 1872, in a letter addressed to the assured at Summit, Mississippi, the address left by him with the said secretary; and no payment was made in response to said call. Plaintiff has adduced evidence showing that the assured never received the notice. That may be true and still the policy become void, because the secretary complied with the terms of the contract when he deposited notice of the call in the postoffice. Plaintiff complains that the evidence of the secretary is inconclusive, but we find it sufficient and ■satisfactory. The policy became void by the terms thereof when the ■assured failed to pay after thirty days from the day the said notice was ■deposited in the postoffice by the secretary of the association, and this •occurred prior to the death of the assured.

The view taken may seem harsh, but it is our duty to give effect to the stipulations of the contract which the parties voluntarily entered into.

Judgment affirmed.


author: 'Morgan, J.

text:
    No. 5705.
    J. A. Donnally & Son vs. the Merchants’ Mutual Insurance Company.
    An implied warranty oí seaworthiness enters into every policy of insurance on vessels or on freight. Thus, when the owners of a vessel insure freight and the vessel is lost. the insurers may resist the payment of the sum for which the freight has been insured, on the ground that the vessel was unseaworthy.
    If the insurers have received the payment of premium on some specific amount indorsed on the policy as the amount insured for, they will-be liable for that amount.
    APPEAL from the District of Orleans. Hcno-ilcins, J.

      George L. Bright, for the plaintiffs.

      A. &. W. Voorldes, for defendants.
   'Morgan, J.

Plaintiffs effected insurance with the defendant company on fifty-five per cent of the amount of freight on staves, timber, or lumber loaded on flats or barges by them, or for their account, navigating on the Mississippi river between Cairo and New Orleans. On this policy is indorsed, July 14,1873, fifty-five per cent on freight to amount of $2310, flat No. 41. The flat No. 41 started on a voyage from Columbus,. Kentucky, to New Orleans on the tenth of July, 1873. On the night of' the thirteenth of July she grounded about eight miles below Helena, Arkansas. She became a total loss; plaintiffs’ freight was not earned, and they seek to recover from the defendants the amount which they say is covered by their policy. The cargo was abandoned by the owners thereof to the defendants and to the Sun Insurance Company, in whose offices it is insured. Plaintiffs claim from the defendants, in addition to the amount of their insurance, seventy-three dollars, the value of a check-line used by them in work done on the flat after it came under their control.

The defendants do not dispute the entry on the policy, but they say that plaintiffs failed to give notice of the loss as required by law and by the policy, and to furnish preliminary proof in due time. They also say that the boat was unseaworthy in several respects, and more especially in not having an anchor on board.

The defendants complain of the judgment-of the district court, which was against them, and they say that it is erroneous:

First — In condemning them to pay the value of the check-line.

Second — In rejecting their defense of unseaworthiness, both as regards the matter of the anchor, and the incompetency, negligence, and ill-conduct of the officers of the barge.

Third — That the policy sued on is not a valued policy, and that plaintiffs have failed to prove the amount or value of the freight.

First — The'check-line was not insured. But it was used in working the flat, and with the view of saving the cargo, which was partly insured in the defendants’ company. The use of the line was proved. Also, that it was not returned. The value is also established. As it.was used in the defendants’ service, they should pay for it; not because '-it was insured, but because it was appropriated to their use and for their benefit.

Second — In every policy there is an implied warranty of seaworthiness, and this is a condition precedent on the part of the insured. 8 Peters, 557. Whether the equipment of a vessel is sufficient to fulfill the warranty, m-ust depend upon the nature of the voyage proposed. 8 Peters, 557.

The evidence satisfies us that it is not usual for flats used on the Mississippi river to carry anchors, and that an anchor is not, therefore, to make them seaworthy. . Neither do we think that there was such incompetency, negligence, or ill-conduct of the officers of the vessel as would vitiate, the policy. There is no evidence that the boat was badly navigated. The next morning after she grounded the captain went to Helena, about eight miles off, to procure assistance, in the hope that he ■could get a steamer to pull her off. This it was proper for him to do. While absent she sank. The loss we attribute to the dangers of navigation.

Third — By the policy freight is insured to the amount of $2310, and on the same day the above entry was made freight to the amount of $1270 was indorsed oh the policy, and the premium thereon was paid. This, we think, fixes the amount which the company contracted to pay' in case of loss.

Judgment affirmed.