author: Spofford, J. Mebbick, 0.'J.,

text:
    E. R. Delogny v. J. S. David.
    Where real property is sold by written title, it is to the written will of the parties at the time of the sale that we must refer, to ascertain the object sold \ we are not permitted to defeat the plain and ordinary meaning of their language by theories deduced from a presumed inadequacy of price or a comparison of the business talents of the vendor and vendee, even supposing such matters to be properly in evidence.
    Where a particular claim comes precisely within the written description of the object sold, the vendor is estopped by the very distinct terms of his act of sale from saying he never meant to sell that claim, and the writing is conclusive upon the parties unless impeached for fraud.
    Merrick, O. J., dissenting. The object of construction of an instrument is to ascertain the intention of the parties. That intention, when ascertained, is the act itself; the notarial instrument is but the evidence of it.
    One of the first rules of construction is that the instrument must be understood according to the subject matter of the contract, verbo debeat imteXligi, secimdAtm axibjectam materiam.

    It is the common intent of the parties — that is the intent of all the parties that is to be sought; for if there was a difference in this intent, there was no common consent and consequently no contract.
    Appeal from the Second District Court of New Orleans, Zea, J.

      S. L. Johnson, for plaintiff and appellant.

      Benjamin, Bradford, & Finney, for defendant.
   Spofford, J.

The plaintiff and the wife of the defendant succeeded to all the property, movable and immovable, composing the community between the father and mother. The property remained in a state of indivisión for many years. Afterwards, on the 18th February, 1837, the plaintiff made a notarial act of sale to the defendant, John S. David, (whose wife had meanwhile died,) of his undivided half of the property of the succession, situated in the faubourg Lacourse, for the sum of $15,000. The body of the act of sale specified nine distinct parcels of ground in the faubourg Lacourse as the objects of sale, but before the act was closed the vendor added the following clause in explanation of his intent, upon the interpretation of which this cause must turn.

“ Avant la signature du present acte, le dit sieur Fdoucord Robin Belogny a declaré que son intention a été et est encore de vendre au dit sieur John S. David, par les présentes, tous les droits qu’il a oupeut cmoir sun% toutes especes de lots de terre au faubourg Lacourse, et lui appartenant du máme chef que ceuz dont il est question dans le corps de eet acte, á 1’exception cependant de ceux qu’il a ou peut avoir conjointement avec les héritiers da sa défunte sceur, sur la batture du dit faubourg Lacourse et dont il réserve sa part.”

Amongst the property belonging to the community between Robin Belogny pére and his wife, to which the plaintiff and the defendant’s deceased- wife, sueceeded, were portions of two rectangular spaces in the squares known as “la place de l’Annonciation” and “la place du Marché,” a portion of both of those squares being within the faubourg Lacourse.

In 1807 or 1808 Delogny pére, owner of faubourg Lacourse, and Livatidcvis, owner of faubourg Annonciation, had caused a plan ‘to be made laying off these faubourgs into squares, lots and streets, upon which these places figured with the designations before mentioned, as may be seen in part by reference to the case of Xiques v. Bujac, 7 An. 500.

At the date of the sale from the plaintiff to the defendant, it seems these' squares were, by a sort of tacit consent, treated as loci publici, and were actually in possession of the Municipality No. Two.

Many years afterwards, Dimvdais and Devoid (the present defendant) sued the Municipality, and recovered each an undivided portion of square No. 34, in the centre of Annunciation Square, on the ground that there had been no dedication of it to the public. The case will be found reported in 5 An. p. 8. The same parties were afterwards equally successful in suing for the recovery of an undivided portion of Market Square. See 8 An. 397.

■ The plaintiff has now sued Devoid for an undivided half of the land thus recovered by Devoid in the two suits just cited,'to wit: an undivided half of that portion of the tract which lies within the faubourg Lacourse.

Devoid resists this demand, on the ground that the plaintiff sold him all his rights therein by the notarial act of the 18th February, 1837, from which we have quoted the clause said to be decisive of this controversy.

The plaintiff has proved that shortly before this act of sale was passed the defendant, in his capacity of tutor to the minor children of his deceased wife, (plaintiff’s sister,) had caused an inventory to be made of their interest in the property ceded to their mother and the plaintiff by Delogny pére, which was appraised at $16,000, not including the pieces of land now in controversy, and that the defendant declared, under oath, in the inventory, that he knew of no other property belonging to the succession.

The plaintiff also offered a witness to prove that the land now in dispute was worth in 1837 more than $15,000, and another to prove that the defendant was better acquainted with matters of business (except planting) than the plaintiff. This testimony was rejected, as going against and beyond what was contained in the act of sale, and thus falling within the inhibition of Article 2256 of the Civil Code.

It is not necessary to notice the bill of exceptions taken to the rejection of this evidence, as we do not conceive it would overthrow our construction of the act of sale, even if it were admitted.

The sale is not attacked for lesion beyond moiety, nor for any misrepresentation or concealment on the part of the vendee.

It may be conceded that at the date of the sale both parties were ignorant of the fact that the squares in question were the property of the heirs of Lwcvudais and Delogny pére. Still we think that the chance of recovering them was conveyed by the plaintiff to the defendant under the unambiguous and explicit terms of the deed of sale.

When real property is sold by written title, it is to the written will of the parties at the time of the sale that we must refer to ascertain the object sold; we are not permitted to defeat the plain and ordinary meaning of their language by theories deduced from a presumed inadequacy of price, or a comparison of the business talents of the vendor and vendee, even supposing such matters to be properly in evidence.

It is only by assuming that there is ambiguity in the deed that the plaintiff and appellant seeks to derive any benefit from his parol testimony. He argues that in the phrase “ toutes espéces de lots de terre," the word “ lots" was. used in its technical English sense, meaning the uniform divisions of a square that had been subdivided into regular building spaces. But this supposition is repelled by the use of the same term in other parts of the deed, showing that it was employed in its more loose and general' sense of “tract” or “portion.” Thus, among the “lots de terre sitúes aufa/ubourg Laeourse et ei-aprés déerits," there figures one described as “uneportion irréguliére de terrain, designé," &c.

Again, in the clause whore the expression occurs, and upon the meaning of which this case turns, we find a refutation of the theory that the word “lots" was used in its restricted and technical sense, for a special reservation is made of those “lots de terre sur la battwe du ditfaubowg Laeourse. The batture was not then divided into building lots.

The expression “toutes espéces de lots de terre au faubowg Laeourse," is a very broad expression, sufficient of itself to embrace the squares in controversy. But this is not all. The meaning of the parties is still more distinctly enunciated; the vendor adds to the former words the phrase “lui appa/rtenant du méme chef que cevx dont il est question dans le corps de eet aete." Having specified certain pieces of land in the body of the act as the objects of sale, he adds that it was and is his intention to sell by this act to the defendant all the rights which he had or might have to all sorts of parcels of land in the faubourg Laeourse, and belonging to him by the same title as those named in the body of the act. An idle and uncalled for addition if he intended to sell nothing but the specified lots; but a meaning addition if he intended to sell more, and one quite comprehensive of the squares now in dispute.

It implies the possibility of the existence of claims to land in the faubourg Laeourse, descended from Delogny pére, which were then unknown to the contracting parties; and it specially conveyed the rights of the vendor to all such unknown claims; tous les droits qu'il a ou peut avoik; all the chances of recovering land in the faubourg coming to the vendor du méme ehef with the known and specified tracts.

After thirteen years, the defendant, by means of litigation, succeeded in recovering an interest in cei’tain tracts of land in the faubourg Laeourse which had once been supposed to be public, but which were decreed not to be so but to have descended to him from Delogny pére; the plaintiff is estopped by the very distinct terms of his act of sale from saying he never meant to sell this claim, for it comes precisely within the written description of the object sold. And the writing is conclusive upon the parties, unless impeached for fraud. Boner v. Mahle, 3 An.

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

Mebbick, 0.'J.,

dissenting. I have doubts as to the correctness of the conclusions of my colleagues.

The plaintiff sold to the defendant his interest in certain lots, which he described in the deed of conveyance by their numbers and dimensions, and the squares in which they were to be found. Some of them are described as fronting on the Annuciation Square.

The act of sale was in the French language, and the parties, by using the word “lots,” must he understood as using the word in its English sense — that is, as a lot of ground, a subdivision of a square — for the word has a very different signification in the French, the language of the act.

Every one of the lots specially described formed but a subdivision of a square. The price of the undivided interest in the lots sold was $15,000. At the time of the sale the interest of plaintiff in the two squares then supposed to be public was -worth $15,000 more.

Now the object of construction of an instrument is to ascertain the intention of the parties. That intention, when ascertained, is the act itself. The notarial instrument is but the evidence of it.

One of the first rules of construction is that the instrument must be understood according to the subject matter of the contract. Verba debent intelligi secundum subjeetam materiam. The subject matter of the contract was the conveyance to the defendant of plaintiff’s undivided interest in the lots of ground in the faubourg Lacourse, and not squares, (ílets) of which neither party at that time supposed the plaintiff to be the .owner.

That the plaintiff didmot intend to sell the interest in Annunciation Square is evident from his describing other lots as bounded on that squm'e; that the defendant did not suppose he was buying the square is evident from the fact that sometime before his purchase he caused the interest in the “lots” to be inventoried as belonging to her succession, and he made no mention of the square, although he gave in the property under oath. Moreover the two squares were manifestly in the possession of the public,'and appeared to be dedicated to public uses, and consequently the parties must have -supposed, as it is evident from their conduct, that they were eccin'a commercium, things impossible to sell.

No. 4 of Article 1940 says: “It is the common intent of the parties, that is, the intent (interest) of all the parties, that is to be sought for; if there was á difference in this intent, there was no common eonsentj and consequently no contract.”

Article 1954 of the Civil Code declares that “However general be the terms in which a contract is couched, it extends only to things concerning which it appears the parties intended to .contract.” See also C. C. 3040, and the case of Payler v. Hamershaw, 4 M. & S. 423.

This rule is taken word for word from No. 98 of Pothier on Obligations, with the exception of the .concluding phrase, which is, however, implied in what precedes it.

It reads, as I translate it: “However general may be the terms in which a contract may be couched, it comprehended only the things concerning which it appears the contracting parties intended to contract, and not those of which the pcm'ties home not thought.”

If wre apply this -rule to the case before us, we find the parties contracting in reference to city lots which were in commerce, lots which were fractional parts and subdivisions of squares. It may, therefore, very well be supposed that the plaintiff intended to convey fo the defendant his interest in any similar lots which he had omitted in his description or enumeration, and nothing moreu For language appears to me to be somewhat forced and equity injured and this principle of law violated, when we extend the term “lots” to squares of ground or public places which bor.e technically another name, or which were at that time of equal value to all the lots enumerated, and which appeared to be out of commerce, and which the parties themselves did not suppose it possible to sell.

The allusion to the levee in the act of sale does not, I think, materially weaken the view here taken; for the levee, not having been laid out into squares, might well bear the name of lot or lots, particularly if any part of it was inclosed or used, while it could not be applied with the same propriety to a public place.

With the grave doubts resting upon my mind which these considerations have raised, I am not at present able to yield my full assent to the decree.

       “ Intention ” in the FrencTi text. — Rep.


source: Caselaw Access Project

author: Spofford, J. Buchanan, J.,

license: Public Domain

text:
    W. L. Campbell v. The City of New Orleans.
    Where a tax, levied under a municipal ordinance passed without the legal formalities, has been voluntarily paid, it cannot be recovered back on the ground of error.
    There being no law exempting the plaintiff’s property from taxation, for the purposes contemplated by the ordinance, he was under a natural obligation to contribute his quota to the support of the municipal government from which he derived protection. No suit will lie to recover what has been paid or given in compliance with a natural obligation Buchanan, J., dissenting. There is no natural obligation to pay a tax illegally imposed.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      A. Robert, for plaintiff and appellant.

      J. J. Michel, for defendant.
   Spofford, J.

It appears that the plaintiff in 1851 paid to the Tax Collector of the late Municipality No. 8 of New Orleans, without protest or objection, the sum of $403, as his city tax for the year 1850, upon certain property designated on the tax receipt. It does not appear that the Tax Collector had any compulsory warrant or execution in his hands against the plaintiff.

In 1855 plaintiff brought this suit against the city of New Orleans, which had succeeded to the rights and obligations of the Third Municipality, to recover the sum thus paid, upon the allegation that it was paid through error.

The only proof of error adduced by the plaintiff is the fact that one Philippi refused to pay a similar tax assessed against him by the Third Municipality for the same year, and when sued therefor, succeeded in defeating its collection, on the ground of certain informalities in the mode of passing the ordinance by which it was levied. See the case of City of New Orleans v. Oscar Philippi, 9 An. 44, decided in January, 1854.

It does not appear that any other person assessed under the ordinance has refused or failed to pay the tax.

It is not denied that the money paid by the plaintiff was necessary for the purpose of defraying the expenses of the Municipality for the year 1850; that it was faithfully appropriated to that purpose, or that the plaintiff has received his proportionate share of the benefit derived therefrom in protection to his person and property.

As there was no law exempting the plaintiff’s property from taxation forjhe purposes contemplated by the ordinance in question, and under the general law it was thus liable to taxation, he was under a natural obligation to contribute his quota to the support of the municipal government from which he derived protection. Although it may be true that a perfect obligation to pay did not arise for want of regularity in the ordinance imposing the tax, still, as the plaintiff voluntarily paid, without protest, a sum naturally due, he cannot now reclaim it on the plea of error.

“Such obligations as the law has rendered invalid for the want of certain forms, or for some reason of general policy, but which are not in themselves immoral or unjust,” form one class of natural obligations. C. O. 1751, No. 1.

The municipal authorities were virtually the plaintiff’s agents for the purpose of laying such an assessment upon his taxable property as would defray his share of the necessary expenses of police, &c. They laid the assessment upon property legally liable to taxation, but in doing so neglected to pursue certain prescribed forms — a neglect which would have rendered the plaintiff’s obligation to pay invalid in foro legis, if he had raised the objection in time and in the proper manner.

But his obligation to pay subsisted in conscience, and according to natural justice, because it was neither immoral nor unjust, although informally contracted. And “no suit will lie to recover what has been paid, or given in compliance with a natural obligation. O. 0.1752, No. 1; see also Acts, 2280, 2281; O. P. 18.

The case would present quite a different aspect if the tax had been paid upon property not subject to taxation at all. The doctrine settled in the cases of the Catholic Society v. City of New Orleans, 10 An. 73, and Sumner v. Dorchester, 4. Pick. 363, would then be applicable.

Judgment affirmed.

Buchanan, J.,

dissecting. For the reasons given in the decision of the court in the case of the City v. Philippi, 9 An. 44, I am of the opinion that the judgment of the District Court 'herein should be reversed. I cannot recognize a natural obligation to pay a tax illegally imposed.


author: Merrick, O. J. Spofford, J., Lea, J.,

text:
    Francis Katheman v. General Mutual Insurance Co and Crescent Mutual Insurance Co.
    In an action on a valued policy of insurance the plaintiff is not put on proof of interest in the object insured by a plea of the general issue.
    When the shipper has insured the freight, unless there is a special denial in the answer that he paid the freight in advance the fact need not be proved.
    Freight paid in advance is a lawful object of insurance, and the underwriter cannot avoid liability on the ground that freight thus paid in advance might be recovered back in consequence of the loss of the cargo.
    Appeal from the Third District Court of New Orleans, Kennedy J.

      P. E. Bonford &T.W. Collins, for plaintiff and appellant.

      M M. Cohen, E. Briggs and George Eustis, for defendants.
   Merrick, O. J.

This suit is brought against the defendants upon two valued policies.

In the policy of the General Mutual Insurance Company the insurance is stated to be upon goods and merchandise valued at “ eighty-seven hundred dollars.” In another part of the instrument the insurance is declared to be on

i of merchandise, valued at $5500.................to amount of $2750.

•J- of freight, “ $3200................ “ $1000.

$4350.

jn cage jQgg Qr ,3amage -under this insurance the settlement to be on the princjp]e 0f salvage loss. Asimilar policy with the Orescent Mutual Insurance Company” to the extent of “ forty-three hundred and fifty dollars.” The passages marked with inverted commas were written in the blanks of the printed contract.

The policy of the Crescent Mutual was similar, with the exception that it contained no reference to the policy of the General Mutual Insurance Company.

The voyage contemplated was from this city to Monterey, California, on a schooner called the Louisiana.

The plaintiffs in their petition allege the sea-worthiness of the schooner, and their interest in the merchandise shipped, and aver that “ they did, through their agent, T. C. Kathman, cause said goods and merchandise and the amount of the freight, money paid in advance for carrying the same, to be insured in said companies.”

Among other things, the petitioners further allege, in substance, that the schooner became leaky at her arrival at the Cape de Verde Islands, and put into Port Praya, where she was caulked; that in pursuing her voyage from thence she encountered storms in weathering Cape Horn, by which the vessel was so much damaged that she was obliged, for safety, to put into the port of Valparaiso on her arrival in order to repair damages and be enabled to proceed on her voyage ;• that the captain, in order to convert the greater part of the proceeds of the vessel and cargo to liis own use, barratrously exaggerated the injury which the vessel had sustained, caused repeated surveys to be made as a pretext for ruinous delays, thus purposely involving said vessel in debt, and fraudulently using said indebtedness as an excuse for causing or permitting the sale of the cargo and vessel to meet such indebtedness, and having by said fraudulent means caused the sale of the- said'vessel and cargo to'take place, he obtained payment to himself of the balance of proceeds amounting to several thousand dollars, and having thus accomplished, his criminal design he absconded and has not been heard of since, and that plaintiffs on learning the facts abandoned to the underwriters.

The defendants simply pleaded the general issue.

The Judge of the lower court being of the opinion that as to the cargo there was a partial loss by sea damage, converted into a total loss by the barratry of the master, and that no abandonment was necessary, but also being of opinion, as to the freight, that there was no proof that the plaintiffs had ever paid it,, or, that, if paid, the same was not to be returned if the goods were not delivered according to the bill of lading; he gave judgment in favor of the plaintiff to the amount of the merchandise specified in the policies respectively, and against them as to the iteips of freight.

The plaintiffs appealed, their appeal being returnable on the first Monday of November, 1855. The defendants filed on the 28th -day of October, 1856, nearly a year after the day the appeal was made returnable, an answer to the appeal, praying for an amendment of the judgment in their favor.

The plaintiffs and appellants contend that, inasmuch as there is no answer in the record denying the interest of the plaintiffs in the object of the policy which the parties have respectively valued, they are not now at liberty to contest the same, and in support of this position the plaintiffs cite the case of Kennedy v. The New York Life Insurance Company, 10 An., 809.

The defendants reply that this last case ought not to he considered as authority, inasmuch as it violates the well-settled rules of pleading as tocases arising under the law of insurance, and the court is requested to re-consider the Case, and if it be found wrong to overrule the same.

That case being out of the way then, the defendants urge that the plaintiffs were not interested in the freight, and that the warranty of sea-worthiness was violated, inasmuch as, in the short run to the Oape de Verde Islands the vessel, without any stress of weather, required caulking, and at Valparaiso she was found to require coppering a-new, and that there is no proof that the premium was paid and that there was a deviation. The earnestness with which the counsel for the defendants have contested the correctness of the rule laid down in the case of Kennedy, namely: that the defendants will not be permitted, in an insurance upon lives and in a valued policy, to put the plaintiff upon proof of the interest of the insured in the life insured, or the interest in the object valued in the valued policy without specially pleading such want of interest, induces us to reconsider the question and review the reasons upon which that decision rests.

Counsel, as much alive to the interests of an insurance company as the company itself, would hardly assert that there was to be one rule of proceeding for the ordinary suitor in our courts and another for the insurance company, and he would only expect that in the event there is something different from ordinary contracts in the contract of insurance, that his case should be excepted from the rules governing other cases in such particular.

The learned counsel, therefore, for the defendants, candidly admit that as a general proposition it is undeniably true 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 cause to do so specially by his pleadings,” but they say that by Article No. 2952 of the Civil Code actions to recover the payment of what has been won at gaming or by a bet, except for games tending to promote skill in the use of arms, such as the exercise of the gun, foot, horse and chariot racing, have been taken away, and, inasmuch as an insurance of an object in which the assured has no interest, is but a wager, therefore it is necessary for the plaintiff to allege and prove interest in order to take his case out of the general rule established by law, and show that his contract is lawful.

This reasoning appears to us to be fallacious:

First — There are but few contracts more useful or of more frequent occurrence than contracts of insurance. When we consider the frequency of these contracts and the magnitude of the interest involved in them, the number of companies chartered under the general law of the State, the number of the special charters formerly granted by the Legislature, and the number of agencies established in this city by companies from other States, and when we further consider that the common course of dealing of men with each other is to act honestly and not fraudulently; we say when we- consider these things we may safely affirm that the contract of insurance is, in the eye of the law, presumed to be a bona fide contract and not a fictitious one; and that as a general rule the contract is real, and that the wager policy is the rare case and the exception to the general rule. The law says no action is given to recover money won by a bet, but the contract of insurance becomes a bet only when it is fietitious and not real. It is, therefore, more logical and more consonant to the spirit of our jurisprudence to say that the contract of insurance is lawful, and he who would show it to be unlawful should allege its illegality. TJt res magis valeat quwm pereat.

Second — It does not necessarily follow that because a thing is proper to be alleged in the petition that, therefore, the defendant by his general denial can put the plaintiff upon proof of it.

The plaintiff who would sue in a representative capacity, such as heir, administrator, executor, &c., must allege that capacity, but he is not bound to prove it unless specially denied. The party suing upon a written contract must allege its execution, but he is not compelled to prove it unless it is specially denied. This is also illustrated by the English law (under the new rules of pleading), on the subject before us. There should (in England) be some averment of interest in the declaration, but if the defendant would dispute the interest he must in his plea traverse it modo et forma as alleged. 2 Arnould, 1264, 1289.

So under our law, if upon a promissory note the plaintiff in his petition alleges its consideration it will not dispense the defendant from putting the consideration at issue by his pleadings, if he relies upon a want of consideration for his defence.

Much more, therefore, when the contract set up in plaintiffs petition appears on its face to be illegal, ought the defendant who would take advantage of its illegality specially to plead it. Harvey v. Fitzgerald, 6 M. R., 549.

It is true that the law of insurance depends upon that general custom adopted by commercial usage which has been sanctioned by our courts, and not upon any positive provisions of the lawgiver. But that by no means exempts this class of contracts from the law of the forum where they are sought to be enforced, any more than commercial contracts, such as promissory notes and bills of exchange, are exempt from the like law.

It being admitted that in an open policy of insurance a party can only recover to the extent of the loss which he proves he has sustained, the question arises what is the effect of a valuation in a policy of insurance ? Mr. J. Lawrence answers the question in the case of Shawe v. Felton, 2 East. 109, in these words: “The effect of a valued policy was not to preclude the underwriters from showing that the assured had no interest, but that in order to avoid disputes as to the quantum of the assured’s interest the parties agreed that it should be estimated at a certain value.” See also 1 Arnould, 807. Then the object is to relieve the assured from the necessity of proving the extent of his interest in the object of which the valuation has been made. 1 Bouvier Inst., 1223, 1230 ; 2 Greenleaf, 381. It is unreasonable to allow the underwriter who has the money of the assured, the consideration for his engagement, in his hands and who has agreed with the assured as to the value of the thing insured to govern both parties in case of a loss, to contest his engagement without specially traversing the interest of the party assured by his pleadings.” The assured may well suppose, until put upon his guard by a special allegation to that effect, that his interest in the thing insured is recognized by the receipt from him of the premium by the underwriter, and his agreement as to the amount of liquidated damages to be allowed in case of a loss. But it is said that the answer in this case was drawn out by an experienced, accurate and precise practitioner, one well versed in this branch of the law, and that if the rule adopted in the case of Kennedy v. The New York Life Insurance Co. be extended to cases of valued policies it will take the insurance companies by surprise. While we acknowledge the ability of the experienced counsel who drafted the answer in this case we cannot admit that the reasoning has very great force. The learned counsel may have been led into error by the too close pursuit of the common law authorities, applicable as they are to entirely different rules of pleading, and evidence so far modified by such pleadings.- But counsel of equal experience have heretofore thought it necessary to plead specially such defences as tended to invalidate the contract of insurance for such a want of interest or other cause. See 3 R. R. 424; 4 R. R. 234; 11 Rbb. 255; 11 R. R. 222; 2 R. R. 267, 457; 1 R. R. 192, 43.8; 8 R. R. 443 ; 10 R. R. 165; 6 An. 432, 762 ; 10 An. 738.

The argument attempted to be drawn from the practice of certain members of the profession is therefore inconclusive. The maxim of communis m'rorfacit jus does not apply. So long as parties are willing to try their cases, and admit evidence upon defective pleadings, this court will not insist upon strict rules but decide upon the evidence adduced. Still the court has not sanctioned a loose practice even in regard to the commercial contract of insurance. In the 9th An. Rep., 591, in the case of Matthews v. The General Mutual Insurance Co. of New York this court said, “ Under the English practice, which has certainly not often been more indulgent than ours, the plea of the general issue to an action on a policy of insurance was formerly sufficient to let in evidence of illegality, misrepresentation, breach of warranties, or almost every matter which would discharge underwriters; 2 Arnould Ins. 1286. By the new rules of pleading adopted in the King’s Bench in 1834, matters showing the transaction to be void or voidable on the ground of fraud must be specially pleaded. In the present case notice of the intention to prove fraud on the part of the assured was given in dtfendant's answer. Probably it would home been bettm' to specify the mode amd circumstances of the fraud. But if the plaintiff was surprised by the evidence offered, the discretion of the court of the first instance could have afforded him relief by granting him. a continuance.” We, therefore, conclude that there is no reason to disturb the doctrine laid down in the case of Kennedy against The New York Life Insurance Go., and that under the general issue In this case the defendants cannot, for the want of testimony on that part of plaintiff’s case, contest his interest in the object insured. The same principle governs as to the objection that the premium was not paid. As it regards the question of sea-worthiness and deviation, these questions are open so far as the testimony which has been offered by the plaintiffs tends to establish the one or the other.

We do not think the caulking of the schooner at the Gape de Verde Islands, or the condition of her copper at Valparaiso sufficient to rebut the presumption of sea-worthiness at the commencement of the voyage. The detention at Valparaiso was barratrous, and the defendants by their warranty against the barratry of the master are precluded from setting up the same as a deviation. The judgment of the lower court must be reversed, and judgment rendered for the whole amount of the insurance.

It is, therefore, ordered, adjudged and decreed by the court that the judgment of the lower court be avoided and reversed, and this court now proceeding to render such judgment as ought to have been rendered by the lower court do order, adjudge and decree that the plaintiffs do have and recover judgment against the defendants, the General Mutual Insurance Company of New York, for the sum of four thousand three hundred and fifty dollars, with legal interest thereon from the 24th day of March, 1853, till paid; and also against the defendant, the Crescent Mutual Insurance Company of New Orleans, for the like sum of money, viz — four thousand three hundred and fifty dollars, with the like legal interest from the said 24th day of March, 1853, until paid, and it is further ordered that the defendants pay the costs of both courts.

Spofford, J.,

dissenting. Prim& facie a shipper of merchandise has not an insurable interest in the freight he contracts to pay for its transportation. Eor if the voyage be not accomplished the freight is not due.

Both policies disclose that one of the subjects of insurance in this case was “ freight” insured eo nomine on behalf of the shipper. There is a distinct valuation of this risk in the policies.

So far, they appear on their face to he wager policies. The general issue, in my judgment, put the plaintiff upon explanatory proof of the feature in the policies declared upon, and he should have shown circumstances which would enable us to say that he had an insurable interest in the item thus separately valued. He thought it necessary to allege in his petition that the freight money was “ paid in advance” by him. But he has not proved the fact, so that we are unable to decide whether this circumstance would of itself give him an insurable interest in the subject

I, therefore, think the judgment should he affirmed.

Lea, J.,

dissenting. I see no reason to change the views expressed in the dissenting opinion rendered in the case of Kennedy v. The New York Life Insurance Company. I think that where the obligation sued upon is conditional upon its face, as in the case of a policy of insurance, that the general denial puts the plaintiff upon the proof of all the facts which are essential to convert the conditional obligation into one which is absolute. The contract of insurance is one of indemnity. If there was no loss there is no liability. Unless the plaintiff paid the freight in advance he has sustained no loss which can be the object of indemnity. The case would be different in a suit upon a promissory note, or other obligation importing an absolute liability on its face where, in the absence of a special defence, the document proves itself, and in most cases the mere possession is proof of title.

As respects the insurance of freight, I can see no good reason why money paid by a shipper of goods on account of freight to the owner of a ship should not be protected by insurance as constituting fairly an insurable interest, and though it may have been insured as freight, eo nomine, still I think that evidence of a custom to insure such an interest under the term “freight” would be admissible. The underwriters certainly intended to insure something when they received the premium, and they cannot consistently urge as a matter of defence that they were assuring an impossible risk. In the case at bar, how - ever, it is not conclusively shown that the freight was paid in advance; and, in my opinion, there .'should be judgment as in case of non-suit upon the claim for insurance upon freight. In other respects I think the judgment should be affirmed.


author: Lea, J. Lea, J.

text:
    Shaw & Zuntz v. Andrew Knox.
    Payments made by a factor of debts due by his principal, are considered as money advanced by the factor and without a subrogation to the rights of the creditor, the factor cannot claim any privilege arising from the nature of the debts thus paid.
    The terms “necessary supplies ” furnished to a plantation, include such supplies only as are essential to the subsistence and management of the plantation.
    Factors who have furnished supplies to a plantation, as regards creditors having an equal privilege with themselves, can only claim a ratable proportion of the proceeds of the whole crop.
    Appeal from the Fourth District Court of New Orleans, Reynolds, J.

      C. Roselius and J. VanmaiPre, for plaintiffs and appellees.

      Chilton & Kwi'rison, for defendants.
   Lea, J.

The plaintiffs in this case have sued for the recovery of $13,531 80, being a balance due for supplies alleged to have been furnished for the use of the plantation of the defendant, and for advances made upon his crop during the years 1854 and 1855. For the purpose of enforcing the privilege which they claim, they have caused to be sequestered forty hogsheads of sugar and one hundred and fifty barrels of molasses, consigned to Geo. M. Pirilcw'd <& Co.

C. W. Muneaster, Geo. M. Pinalcwi'd & Go. and other creditors, including the overseer on Knox's plantation, have intervened in this litigation, claiming privileges superior to that of the plaintiffs upon the property sequestered. The indebtedness of the defendant is not disputed. The only issue between the parties is that which has reference to the conflict of privileges, and in determining this issue, our inquiry is restricted to an examination of the plaintiffs’ claim, as they have not, by an answer to the appeal, asked for any change of the judgment in their favor. By the 3184th Article of the Civil Code, a privilege is given upon the planter’s crop to those who have “furnished necessary supplies to any farm, or plantation."

There is no other Article of the Code under which the plaintiffs can assert a privilege. The payments made by them for debts due by Knox, even though they may have been contracted for supplies, can be considered only as so much money advanced, and this remark will apply as well to payments made for labor and for the price of machinery furnished to the plantation, as to payments made to furnishers of supplies. Subrogation by operation of law does not take place in favor of one who pays a privileged debt in the absence of any legal obligation so to do, and it is not pretended that the plaintiffs have acquired any rights by conventional subrogation. Nor are they entitled to any privilege as factors who have made advances. The privilege conferred by the 3214th Article of the Civil Code, operates only in favor of consignees, upon goods consigned to them.

The privilege of the plaintiffs is therefore restricted to “ necessany supplies furnished by them” to the plantation, and this term we consider as intended to include such supplies only as are essential to the subsistence and management of the plantation. Tested by this rule, that portion of the claim sued upon, which would under any circumstances be entitled to a privilege, would be reduced to an amount even less than the balance shown to be due by the account marked C. It is unnecessary however to scrutinize this account in detail, as even admitting all the items charged to have been for “plantation supplies,” tho amount (i. o. $2940 92) falls far short of the proceeds of the crops received by tho plaintiffs, upon which they are entitled to a privilege. It appears from the credits allowed in the plaintiffs’ account, that the proceeds of sales of sugar, subject alike to the privileges of the plaintiffs and of the intervenors, amount to $9279, but this amount was subject to tho superior privilege of Prigge, the overseer, and to the concurrent privilege of Muncaster for slave hire, and of Felt & Reid and ff. M. Pinclearrd & Go., for supplies.

It is true this amount has been credited generally in the plaintiffs’ account, no special imputation of payment having been made; and as between the plaintiffs and the defendant probably such a general credit cannot be disturbed: but the plaintiffs are now seeking to assert a privilege upon property in the hands of tho intervenors, upon which these intervenors have a concurrent privilege with themselves, and the question is not whether the imputation can be disturbed, but whether they (the plaintiffs) can bo permitted to receive a larger distributive share in the proceeds of the property seized, than they would have been entitled to receive had the whole fund arising from the sale of the crop been applied ratably to the payment of all the priviledged claims.

If the plaintiffs have already received more than their proportionate share of a fund upon which the intervenors have a common privilege with themselves, they cannot interfere with the distribution of that portion in the hands of the intervenors, except for the purpose of claiming a pro rata distribution of the whole fund, including that which they have themselves received; but as they have already received more than enough to satisfy the whole of their privileged claim, it is impossible that they can receive a larger amount upon a ratable distribution.

We would remark again that the appellees not having appealed from the judgment of the court, nor filed an answer to the appeal taken by the appellants, we could not, oven if tho testimony justified the change, make any alteration in the judgment to the prejudice of the appellants. The only enquiry which is admissible, as the case is presented to us, being whether the plaintiffs can, under the circumstances, claim a privilege upon the property sequestered to the prejudice of the intervening creditors who have also a privilege. But although the rights of tho intervening creditors having a privilege upon the property sequestered, cannot be destroyed so far as that property or its proceeds are affected, the imputation of payment would nevertheless not be without effect as to ordinary creditors. In other words, although under the peculiar state of the pleadings and evidence in this case, the plaintiffs can, as against the recognized privileged creditors, claim only a ratable proportion of the whole of the proceeds of the crop subject to their privilege, they are not precluded from asserting their privilege as against ordinm'y creditors for the balance remaining due to them as furnishers of supplies. For this purpose, it may be necessary to consider the effect of the general credit by which the proceeds of sales are imputed equally to the liquidation of the entire indebtedness of the defendant to the plantiffs. The indebtedness for supplies having been ascertained, it becomes a mere matter of calculation to determine the proportion of the privileged claim of the plaintiffs remaining unliquidated.

The total indebtedness of the defendant to the plaintiffs amounted to $23,617 27 cts., which has been reduced by payments imputed generally upon the whole indebtedness, to the sum of $13,531 80. An examination of the items for supplies furnished has satisfied us that the total indebtedness of this character did not exceed $2903 82, which, by a ratable imputation of the credits allowed, wguld be reduced to $1672 40. For the payment of this balance thus ascertamed, the plaintiffs are entitled to a privilege and priority upon the proceeds of the property sequestered, over the ordinary creditors, and for the balance of their claim remaining' unpaid they are entitled to rank as ordinary creditors.

It is ordered that the judgment appealed from be amended and that the proceeds of the property sequestered herein be distributed among the several creditors in the following order, viz:

1st. Clerk’s and Sheriff’s fees................... ......
2d. Adolphe Prigge (overseer................... $223 00
3d. Felt & Reid.............................. 148 00
O. W. Muneaster.......................... 650 00
Geo. M. PineTemd & Go.................... 300 00

The claims of the three last named creditors to be recognized as of equal rank for the respective sums attached to their names.

4th. Shaw & Zwite............................ $1,672 40

5th. It is further ordered that the following named parties be recognized as ordinary creditors of equal rank, for the following sums, to wit:

Shaw & Zunta.................................$11,860 40
Felt & Reid................................... 41 00
Brewer & Go................................... 57 00
Sampson & Keene.............................. 100 00
Bridge & Brother............................... 165 00
Wcwner & Go.................................. 60 00
S. T. Tcmjlor.................................. 124 00

It is further ordered that the judgment appealed from, except so far as it is herein amended, be affirmed, and that the costs of this appeal be paid by the plaintiffs and appellees.

SAME CASE ON A RE-HEARING.

Lea, J.

Our attention has been called, in the brief for a re-hearing, to a remark made in the decision that was rendered in this case, which requires correction.

In stating that “ subrogation by operation of law does not take place in favor of one who pays a privileged debt in the absence of any legal obligation so to do,” it was not intended to restrict in any manner the application of the Article 2157 of the Civil Code. The reading of the Article is plain and free from ambiguity. It was thought necessary, however, to refer only to such portion of the Article as might be considered applicable to the case at bar. Upon a review of the case, we see no reason to make any change in the judgment heretofore rendered. We do not consider payments made by a factor upon the order of a planter such payments as are contemplated in Article 2157 of the Code. They can be considered only as so much money advanced.

Re-hearing refused.


author: Mebkicek, C. J.

text:
    Louis Coussy et als. v. Adelaide Vivant et als.
    A., executrix of the estate of i?., left the State, after having appointed G. as her agent. Certain property of the estate was afterwards sold by order of court, and the price in cash and notes paid over to G. as the agent of the executrix. Shortly after A. died, and (7., the agent, was appointed executor of JS.’s estate, and in that capacity collected the part of the price unpaid. No account of the price was rendered to the heirs of -5. by the representatives of Aand her successor in office rendered no account thereof.

      JTéld: That the failure to deposit the power of attorney of the executrix in the office of the Recorder of Mortgages did not affect the validity of the proceedings under which the property was sold.
    That the heirs of the executrix, at whose instance the property was sold, could not be made liable for the price: 1st, because the part of the price unpaid at her death was properly paid to her successor in office, and 2d, because the cash payment having been made to 6y., as agent of A., in her capacity as executrix, he is presumed to have been in possession of the amount at the death of A., and when afterwards appointed the successor in office of A., to have kept possession of the fund in that capacity.
    Appeal from the Second District Court of New Orleans, Lea, J.

      E. Filleul, for plaintiffs and appellants.

      J. Seghers, for A. Vivant, appellee.

      S. L. Johnson, for Faught et at, appellees.
   Mebkicek, C. J.

The plaintiffs allege that they are the testamentary heirs of Vietoire Moaxos Tío, a free woman of color, their aunt, who departed this life in June, 1837. That petitioners have been recognized as her heirs, and put in possession of her estate. That she appointed Marie Lavaux, f. w. c., separated in bed and board from her husband, Francois Auguste, testamentary executrix. That the executrix took the oath, and received letters testamentary, June 28th, 1837. That about the end of March, 1839, the said executrix left the city of New Orleans, and the State of Louisiana, without informing or obtaining leave of the court, or having been discharged, or having filed an account of her administration. That before she left she made a power of attorney to L. F&rrand, f. m. c., but did not deposit and record said power in the office of the Judge who had appointed her, and before whom the succession was opened. That during her absence the proceedings were conducted by an attorney at law in the same manner as if she were present in court and within the jurisdiction and control of the court of probates. That when she was absent, upon such petition, the sale of all the immovables was ordered, and on the 13th day of May, 1839, a certain iot of ground, belonging to said succession, was sold and adjudicated to Adelaide Vivant, for $3200, payable one-third cash, the balance in two equal instalments, at six and twelve months’ credit. That in the act of sale, Louis Fm'rand, under the power of attorney referred to, appeared as the agent of Matfie La/oaux. That the price was not not brought into court and placed under the jurisdiction of the court, and was not paid under the sanction and authority of the court. That said payment, if it ever took place, was made without the authorization of the court which controls every act of the executor and administrator, or of his duly authorized agent. That said FerroAid had no authority to divest the succession of title to its property, or to receive payment of the sum due the succession by Adelaide Vivant, and.such payment is null. That Adelaide Vivant cannot avail herself of the plea of good faith, because she was well aware of the incapacity of Ferrcmd, and of the absence of the executrix at the time of said pretended payment. That at the time of the alleged payment petitioners were minors unable to attend to their interests. That said Ma/i'ie Lma/wx died in the city of Paris, Prance, ten days after the said sale, to wit: on the 22d day of June, 1889. That she or her heirs never rendered an account of her administration. That no part of the price of said property has ever been accounted for or placed under the control of the court. That the succession of Ma/rie Lcmaux has been opened, and the defendants (except said Adelaide Vivant) are her heirs, and that they and said Adelaide Vivant are responsible to petitioners for said price, with five per cent, interest thereon per annum.

The petition concludes with a prayer that the heirs of said Ma/rie Lcmaux, each for their verile shares, and said Adelcdde Vi/ocmt, in solido with them, be decreed to pay petitioners $3200, with five per cent, interest from the 13th day of April, 1839, with a privilege and a mortgage upon the property sold.

Prom the petition, therefore, it appears that plaintiffs expect to recover from the defendant, Adelaide Vivcmt, because she was not justified in making payment to Ferrand, and from the heirs of Marie Lcmaux, because she (Marie Lcmaux) left the State and did not cause her power of attorney to be deposited in the office of the Judge who appointed her; because the receipt of the money and notes by Ferrand was the receipt of money by herself, and because she did not render any account.

The plaintiffs, previously to the institution of this suit, brought an action to have the lot of ground, the price of which is the object of the present suit, declared to be the property of the plaintiffs, on account of certain alleged irregularities in the sale. That case was finally decided against the plaintiffs by the decree of this court in December, 1854. The present action for the price was also decided against the plaintiffs by the lower court, and they have appealed.

There is no ground for the action against Adelaide Vivant. The letters testamentary conferred upon Ma/rie Lcmaux the power to administer the estate as executrix. Her departure from the State, after making her power of attorney, did not, as the law then stood, have the effect ipso facto to deprive her of her office, notwithstanding the copy of the power of attorney does not appear to have been deposited with the Judge. It required some action of the court appointing her to declare the office to be vacant. But the court, so far from making such order, recognized her acts, and at ha' instance ordered the sale of the property, the price of which is in question in this case. She was, therefore, in office, and the receipt of the money due by the debtor of the succession, by Ferrand, her agent, was a valid payment, and discharged the debtor for the $1060 66$, the instalment in cash made during the lifetime of Ma/rie Lavaux, the executrix.

The two promissory notes were paid to Ferrand whilst he was executor, and had capacity to receive the money. Those payments were also valid.

Now, are the heirs of Marie Lava/ux bound for these payments ? It is shown, that the executrix died in Paris, on the 22d day of June, 1839, just twelve days after Ferrand, the agent, acknowledged, by notarial act of sale, to have received the first instalment of the price in cash, and the promissory notes falling due in six and twelve months thereafter.

Ferrand was appointed dative testamentary executor, and qualified as such on the 2d day of December, 1839. As to the two notes not .matured at the time of the death of Marie Lava/ux, it cannot be seriously contended that her heirs are responsible for the payment made by Adelcdde Vivant to Ferrand, who was at that time executor. The payment of the notes we have already said was valid.

But in regard to the instalment in cash, it is possibly not so clear at the first view who is bound to account for it to the plaintiffs, Ferrand or the heirs of Marie Lamaux. We will, therefore, consider how the matter stands. It is certain that, after the death of Marie Lamanwi, her heirs did not represent the succession of Vietoire Mareos Tio. They were, so far as the latter succession was concerned, third persons. It is equally clear that, after the appointment of Ferrand as dative testamentary executor, he did represent the succession of the testati’ix, Tio, for the purpose of collecting the property sold for the payment of debts, and to pay such debts. It is equally clear that in collecting the instalment of cash, Ferrand was not the agent of Man'ie Lamaux in her individual capacity but as executrix. The fund, therefore, which he had collected belonged to the estate. It was not the private property of Man'ie Lama/ax, but the property of the succession.

The agent who has the fund of his principal in his hands is quoad the fund only a depositary. He cannot use it (which is presumed to exist in his hands in specie) without committing a crime.

Now, suppose the heirs of Lamaux had sued Ferrand immediately after his appointment as executor for the $1066 66-|, received by him as agent for Marie Lamaux, executrix, alleging that they were bound to account to the succession of Victoire Manxos Tio for this money, could not Ferrand have replied successfully: “It is true that this money is in my hands, but I did not receive it for your mother in her individual capacity, which you alone represent; I received it for the execwt/t'ix of the last will and testament of Tio, and as I am now executor of her will, I am bound to account to no one but myself.”

It would seem that the heirs of Lamaux could no more take this money out of the hands of the dative testamentary executor who had possession of and, by his appointment, title to the money, than they could a slave or .a piece of real estate. If the heirs could not recover this money from the dative testamentary executor, they are not bound to the heirs of Tio for it.

As the money is by law presumed to be in the hands of the agent, who is not supposed to have committed the crime of embezzlement, it must follow that his sureties are prima facie bound with him for its faithful administration. If the surety would relieve himself from such objection, he should at least show that the agent had not only embezzled the fund before his appointment as executor, but also that he was insolvent at that time. Binding, therefore, that the fund in controversy has gone into the hands of Ferrand as executor, the plaintiff must be left to such remedy as they have against him and his surety. There is no reason to disturb the judgment of the lower court, and we consider what we have here said a sufficient answer to the other questions raised by-plaintiffs’ counsel.

Judgment affirmed.


author: Spofford, J.

text:
    City of New Orleans v. Estate of Arthur McArthur.
    ■Where defendant admits a part of the plaintiff’s claim and deposits the amount in court, and the balance for which judgment is rendered is less than $300, the judgment being an entirety and the whole amount claimed in the suit being over $300, the court has jurisdiction of an appeal.
    One can only be bound by the assessment rolls of the parish or district within which one has taxaable property, after having failed to appeal without a sufficient excuse.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      Dwrant & 3ornm\ for defendant and appellant.

      Lamille & Morell, for plaintiff.
   Spofford, J.

In the cases of the City of New Orleans v. Lacroix, The Same v. Rousseau, and The Same v. Lesseps, 11 Ann. pp. 193, 195 and 251, we held, that a tax payer sued for city taxes, before being allowed to establish errors in the assessment roll to his prejudice, should allege and show that he has applied in vain, to the proper authorities for a correction thereof, within the time limited by law for such an appeal, or in default of such an application, that there existed some sufficient reason for his apparent negligence.

Upon the authority of those cases, the district Judge in this instance excluded all evidence to establish the allegations of the defendant’s answer, and rendered a judgment against her for all the taxes claimed, from which she has' appealed.

The judgment sought to be reversed is an entirety, and exceeds three hundred dollars. We think we have jurisdiction of the case.

The defendant, whoso answer is full, explicit and carefully framed, does not contest the correctness of the doctrine laid down in the cases above cited, but maintains that she has brought herself within the exception to the rule, by alleging a state of facts which exonerates her from the charge of laches, and excuses her for her failure to apply for a correction of the assessment roll.

If her answer is true, (and in this inquiry we must assume its truth,) she gave in faithfully all her property in the city of New Orleans to the Assessors of the respective districts where it was situated; she had no property subject to taxation, except that which was situated in the Second and Third Districts ; she admits herself bound by the assessments rolls of those districts; but she avers, that the assessment against her in the Fvrst District of “twenty-four slaves in square No. 220, comprised within Dryad.es, Melpomene, Thalia and Bacchus streets, assessed at $12,000,” is a gross error, as she never owned any property either in that square or in the First District; that during the year for which the taxes sued on are levied, all of her slaves were assessed in the Second District, and are regularly included in her bill; that she is entitled to relief from the gross error and fraudulent assessment made by the Assessor of the First District, to swell up the amount of the taxable property, because as she owned no property whatever in that district, and was rightfully assessed for all her property elsewhere, she was not bound to look over the eight hundred squares on the assessment roll of the First District, to see whether she was there taxed for any slaves or property she did not own.

This state of facts discloses a reasonable and valid excuse for what we should otherwise regard as an apparent neglect on the part of the defendant, to examine the assessment roll and apply for its correction in the mode pointed out by statutory regulations upon that subject.

One can only be bound by the assessment rolls of the parish or district, within which one has taxable property, after having failed to appeal without a sufficient excuse. A different rule would subject parties to constant surprises, or oblige them to employ agents in every parish or assessment district in the State.

It is therefore ordered, that the judgment appealed from be avoided and reversed, and that this cause be remanded to the district court, with directions to permit the defendant to offer evidence in support of the allegations of her answer, and further to proceed as the law may require; the costs of this appeal to be borne by the plaintiff and appellee.


author: Voobiiies, J.

text:
    State v. The Judge of the Seventh Judicial District.
    Where property is seized under execution and the sale is enjoined by a third person claiming to be the owner, it is the value of the property under seizure, ansi not the amount for which the writ issued, which determines the right of api>eal.
    ON the application of Mills Cleveland for a mandmmus to the Judge of the
    District Court of East Feliciana, C. Bailiff] J.

      Muse & Hm'dy and Bowman & Be Lee, for appellants.
   Voobiiies, J.

(Merrick, O. J., declined sitting.) This is an application for a writ of mandamus to compel the district Judge to - grant to the relators an appeal from a judgment rendered by him in favor of Thomas P. Simpson against Mills & Cleveland.

In his answer accompanying the petition praying for the writ, the Judge has waived the usual notice, and consented that the matter shall be submitted instanter to the decision of this court.

The ground upon which he justifies his refusal to grant the appeal is, that the matter in dispute does not exceed the sum of $300.

It is in evidence that in 1855, the relators, Mills & Cleveland, obtained a judgment against Thomas Albritton, for the sum of $136, with eight per cent, per annum interest on $90 83 thereof from tho 1st of January, 1853, and on the residue from the 1st of January, 1854, until paid. A writ of fieri facias thereon, issued on the 18th of October, 1855, was executed by the seizure of a negro woman named Lrney, as the property of Albritton. Thomas P. Simpson enjoined the sale, on the ground that the property seized belonged to him and not to the defendant in execution. After the joinder of issue, judgment was Tendered in favor of Simpson, perpetuating the injunction. It is from the judgment thus rendered against them that the relators claim the right of appeal.

We think it is clear that the title to the slave Buey, and not the judgment in favor of the relators against Albritton, was the matter in dispute between the litigating parties in the injunction suit. As the evidence shows that the value of the slave exceeded the sum of $300, it is obvious that the relators were entitled to an appeal from tho judgment thus rendered against them. See 5 Ann. 31.

It is therefore ordered that a writ of mandamus issue as prayed for, directing the district Judge to grant an appeal to the relators from the judgment thus rendered against them in favor of said Simpson, on complying with the requirements of the law.


author: Lea, J.

text:
    W. H. Hogan v. G. W. Carras.
    In every sale of a seaworthy steamer, where time is given for the payment of the price, it is to he considered as having been in the contemplation of the parties, that the vessel was to be employed in navigation, and even if that navigation extends beyond the waters of the State, in the absence of any allegation of fraud or insolvency, the vendor will not be permitted to' attach the boat where the price is not yet due, by swearing that the debtor is about to remove his property out of the State before the debt becomes due.
    Appeal from the Fourth District of New Orleans, Reynolds, J.

      Ghilton & Hcm'ison, for plaintiff and appellant.

      R. & 3. Ma/rr, for defendant.
   Lea, J.

The plaintiff, who is a resident of the State of Mississippi, acting as the agent of-third parties, sold to the defendant, who is also a resident of the State of Mississippi, the steamboat P. O. Wallis, and in part payment of the price, received a note dated March 10th, 1856, payable on the 22d September following. On the 22 d March, 1856, twelve days after the date of the note and six months before its maturity, the plaintiff caused the steamer to be attached, on the ground that the defendant was a non-resident and was about to remove the said boat out of the State of Louisiana, before the note should become due. Upon a rule taken for that purpose, there was a judgment setting aside the attachment, from which judgment the plaintiff has appealed.

The only question which it is necessary to determine, is whether the nature of the contract was one which made it an exception to the general rule rcgu-. lating attachments based upon unmatured obligations. It may be assumed that the allegations of the petition, supported by the plaintiff’s affidavit, are such as bring the case within the letter of the law, authorizing an attachment, but there is no allegation of ff'aud or bad faith on the part of the defendant, and it is shown that, at the date of the seizure, the defendant had made arrangements for the employment of the vessel permanently in a trade confined exclusively to the waters of the State. Apart from this, however, we think that on every sale of a seaworthy steamer where time is given for the payment of the price, it must have been in contemplation of the parties that the vessel was to be employed in navigation; and even if that navigation extended beyond the waters of the .State, it would, in the absence of any allegation of fraud or insolvency, be a breach of faith to interrupt an employment from which it was anticipated that the purchaser would derive the means of meeting his engagements.

We think, as was ruled in the case of Russel v. Wilson, 18 La. 367, “that it would be unreasonable to extend the application of the Act of 1826, to a species of property which from its nature and destination must necessarily be taken out of the State, and which the creditors of the owner could not have believed would remain continually within its limits.” By selling property of this kind upon terms of credit, there is an implied permission on the part of the vendor, as incident to the contract, that it may be employed in accordance with its destination in whatever manner may be most remunerative to the owner, and the plaintiff cannot be permitted before the maturity of his demand, to interrupt such use of the vessel as must have been in contemplation of both parties at the time the sale was effected.

Judgment affirmed.


author: Buciianan, J.

text:
    Charles S. Farwell v. Harris & Morgan.
    In an action against the owners of a ship for the value of a slave carried away in the ship, the plaintiff, under the general denial, is bound to prove that he is the owner of the slave carried away. •
    It is a good defence to such an action, that another person than the plaintiff is the owner of the slave, and that the defendant was authorized and employed by such other person to receive the slave and carry him to another port.
    The Clerk of the ship is a competent witness for his employers to prove the instructions given by the owner to the Clerk, in shipping the slave.
    A formal release of a witness from any liability over to the party interrogating him, annexed to the interrogatories and transmitted with the commission under which he was examined, is sufficient to remove the objection to his testimony on the score of interest.
    In an action against a common carrier upon the penal statute for taking slaves out of the State without the consent of the owner, the ostensible owner in whose name the slave was shipped, and the vendor of such owner, have no interest in the suit, and are competent witnesses for the defendant. The judgment in such an action is not conclusive as to the title to the slave.
    The common carrier is not required, upon his own responsibility, to decide upon the validity of the title of shippers to property which is shipped, but the shipowner has complied with the law, if he has in good faith received the slave from a person claiming to be owner, and holding under an apparent title.
    The court takes judicial knowledge that slaves are personal property in other States.
    Appeal from the Fourth District Court of Now Orleans, Reynolds, J.

      H. G-aith&i', for plaintiff.

      Race & Fosten', for defendants and appellants.
   Buciianan, J.

On the 29th of December, 1853, a slave man named Ghm'les was shipped by one G. H. Hughes on board the steamship Perseverance, belonging to the defendants, at the port of New Orleans, for transportation to Galveston, in the State of Texas; and a clearance for said slave was granted by the Collector of this port, upon oath being made, as directed by the Act of Congress of 2d March, 1801, by the shipper and by the master of the ship, that, to the best of their knowledge and belief, the said Ghm'les was not imported into the United States since the 1st of January, 1808, and that, under the laws of this State, he was held to service and labor.

The present action is instituted by a person who alleges himself to have been, at' the the time of said shipment, the owner of said slave Ghm'les, and that said slave was taken out of the State, on board the steamship Perseverance, without his consent and against his wishes, by means of which taking the slave has been altogether lost to him. Plaintiff claims the value of said slave, stated at twelve hundred dollars; hire from the time of his abduction at the rate of twenty-five dollars per month; and in addition, a penalty of five hundred dollars, under the statute.

The first question which arises, under the pleadings and hills of exception, is the right of defendants to plead, and to prove, that the slave Ghm'les belonged to another person than the plaintiff.

In all the statutes, four in number, which give an action against the owners of a ship for the value of a slave carried away in the ship, the action is in terms given to the ownrn' of a sime. See Acts of 1816, p. 8; Acts of 1835, p. 152; Acts of 1839, p. 120 ; Acts of 1840, p. 90.

It is, therefore, an essential averment of the petition, that the plaintiff is the owner of the slave carried away; and the general denial puts him on the proof of this fact. It is, consequently, a good defence to such an action, that another person than the plaintiff is the owner, and that the defendant was authorized and employed hy that other person to receive the slave on board his vessel, and convey him to another port. The case of Buel v. The steamer New York, in 17 La. Rep., cited by plaintiff, is not inconsistent with this ruling. In that case the plaintiff offered in evidence his title (a bill of sale made in Florida,) in support of his allegation of ownership; and the objection made by defendant was, that the same had not been recorded in New Orleans. But the court held this ground of objection to be untenable; and observed, “there was no adverse title set up against that of plaintiff; the defendant did not pretend to own the slave, nor to home any right contradictory with the plaintiffs.”

But here, the case is directly the reverse. The defendants plead specially that “ they received on board the said ship Perseverance a negro man named Chamlcs, represented at the time to be a slave belonging to one Ja/mes L. Mc-Keon, residing in Galveston, Texas; but that said slave was duly passed at the customhouse hy said McKeon, or his agent, and the regular customhouse clearance given before the said man Charles was taken on board, and which is the only precaution and protection the law affords and points out to common carriers, and your respondents are unable to know to whom slaves may belong— hut as common carriers, when properly cleared at the customhouse, they'are hound to receive and transport the same as required. That they did thus legally receive a certain negro Charles, properly cleared at the customhouse, as the property of one James L. McKeon, of Galveston, to whom, on the arrival of the ship Perseverance at that port, he was delivered and properly receipted for, and charges paid.”

The answer of defendants next proceeds to aver, with circumstantial detail, that James L. McKeon, of Galveston, Texas, is the owner of the slave Charles, hy two distinct titles ; one derived from Leonidas B. Hanper, (who is likewise the vendor of plaintiff,) and the other from Riahan'd Kanper, the father of Leonidas, whom the answer avers to have been the real original owner of the slave, and whose title was never divested, until the conveyance hy said Richard to McKeon.

It is evident that the outstanding title in another than the plaintiff, thus pleaded, is a matter which had a direct pertinency to the defendants’ liability to plaintiff in the manner and form as charged. The court did not err, therefore, in refusing to strike out those pleas, upon plaintiff’s application, or to put defendants upon making an election.

The customhouse manifest and clearance of slave Charles hy Hughes, were given in evidence hy plaintiff; and Hughes was offered by defendant, and properly received hy the court, to prove that in shipping- the slave he acted as the agent of and by special instructions from James L. McKeon. The circumstance of Hughes being in the defendants’ employ, as Clerk of the ship, did not render him incompetent. C. O. 2261. His testimony is corroborated by that of McKeon. McKeon and Richan'd Hamper were examined under commission in Texas, and their depositions, with exhibits annexed, were offered hy defendants. Hanper was objected to as incompetent, on the ground of interest, and that it would be proving title to the slave hy parol. McKeon was also objected to on the score of interest.

The objection to Harper was sustained hy the court, and his deposition ruled out. That of McKeon was admitted by the court “ only to show that said Mc- Keon placed the negro on board the defendants’ ship, claimed to bo the owner of the negro, and paid charges for bringing him to Galveston, and for no other purpose.”

We think these rulings of the court erroneous. A formal release of Mc-Kean from any liability over to the defendants was annexed to the defendants’ interrogatories, and transmitted with the commission under which he was examined. But he would have been competent, even without the release. Neither he nor Richan'd Hanper have any interest in the result of this suit, which is an action against a common carrier, upon a penal statute, for taking a slave out of the State without the consent of his owner.

We do not understand this statute as requiring the common carrier to decide, upon his own responsibility, upon the validity of the title of shippers to property which is shipped. We fully appreciate the considerations of public policy, which have dictated the laws under review, in relation to the particular kind of property in question. But the shipowner has complied with the law, if he has in good faith received the slave from a person claiming to be owner, and holding an apparent title to the slave; and we take the very best witness, in support of such a defence, to be the party from whom he has thus received the slave. It is to be observed, that neither in the pleadings, nor in the evidence, is the slightest imputation thrown upon the good faith of the defendants. On the contrary, the evidence on both sides shows that the plaintiff has himself to blame, in a great measure, for the jeopardy, if not the loss, of the money advanced by him to Leonidas Hanper upon the sale á réméré of this slave; inasmuch as he imprudently trusted his vendor with the possession of the slave, and allowed him, on a previous occasion, to take him to Texas, where he pledged the slave for the security of money borrowed.

We have further to observe, upon the objections made to Richan'd Harper's evidence, that we take judicial knowledge that slaves are personal property in Texas. Indeed, the sort of title to the slave Charles, which Richard Hanper proves, could only be proved by parol in Louisiana. He swears that the said boy was born and raised his own slave, and that he never parted with the title to him until he made the bill of sale of him to L>i\ McKeon of Galveston.

The depositions of McKeon and of Richard Hanper, which come up with the bill of exceptions, and the exhibits annexed to those depositions, completely make out the defendants’ case.

In dismissing the defendants from this action, we are not to be understood, however, as concluding plaintiff in relation to the title to the slave Chandes. We do not consider that the proper parties are before us for such a purpose.

It is therefore adjudged, and decreed, that the judgment of the District Court be reversed; and that there be judgment in favor of defendants, with costs1 in both courts-


text:
    Mrs. P. McCormick v. Robert Conway.
    An action for damages for malicious prosecution should not be maintained without proof of malice or bad faith on the part of the prosecutor.
    Malice may be inferred from an utter absence of probable cause, but in such case, the absence of probable cause, to form the basis of a presumption of malice, should be shown affirmatively and positively.
    Appeal from the Sixth District Court of New Orleans, Cotton, J.

      Michel, QiTbnore & Semmes and Labatt, for plaintiff and appellee.

      Budd & Lambert, for defendant and appellant.
   Lea, J.

The plaintiff sues to recover damages for an alleged malicious arrest, made at the instance of the defendant, who charged her under oath with passing a counterfeit bank note, knowing it to be such. There is no proof in the record showing that any actual damage was sustained by the plaintiff, or that she was imprisoned. The jury, however, found a verdict in her favor for the sum of $500, probably as vindictive damages.

We searched the evidence carefully, and find no proof of malice or of bad faith on the part of the defendant. It is true that malice may bo inferred from an utter absence of probable cause, but in such case the absence of probable cause to form the basis of a presumption of malice should be shown affirmatively and positively.

In the case at bar, the defendant is shown to be a man of good character, and no fact has been brought to our notice which could induce the belief that he had a motive which could prompt him to make a false accusation against the plaintiff. “The public interest and the proper administration of justice in criminal matters requires that actions for a malicious arrest should not be maintained without clear proof of malice and the absence of probable cause.” See Maloney v. Doane, 15 L. R. 281.

It is ordered, that the judgment appealed from be reversed, and that there be judgment for the defendant, the plaintiff and appellee paying costs in both courts.


author: Spoeeord, J'.

text:
    Hugh Lackey v. Clayton Tiffin.
    The transfer of a judgment rendered in another State, which is final between the parties, cannot be resisted when sued on by the assignee in this State, as being the sale of a litigious right.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Ad. Bezier, for plaintiff and appellee.

      W. 8. Upton and C. Boselius, for defendant and appellant.
   Spoeeord, J'.

The only question here is, did the plaintiff buy a litigious right ?

“A right is said to be litigious when there exists a suit and contestation on the same.” C. O. 2623.

On the 19th July, 1854, when the plaintiff, Bhiyh Lackey, bought of Armistead Lawless a final judgment which the latter had obtained many years before, in the State of Missouri, against Clayton Tiffin, the right of Armistead Lawless was nowhere in contestation. Not in Missouri, for there it was fixed by irrevocable decree; not here, for Lawless had asserted no right here.

If Laalcey did not own this judgment before the 19th July, 1864, he had unadvisedly brought a suit in New Orleans upon a claim to which he was a stranger, and as to which he was incompetent to stand in court. The fact that the defendant, Tiffin, had joined issue with him as to Ms rights, did not preclude him from buying Lawless's right, touching which there was no litigation pending whereby such right could be affected.

Judgment affirmed.