author: Hoave, J.

text:
    No. 1726.
    Southern Dry Dock Company v. The Steamboat J. D. Perry, Captain A. Baird and Owners.
    'The judicial power of the United States extends to all cases of admiralty and maritime jurisdiction. Constitution of the United States, section second, article third.
    'The District Courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction. Act of Congress, September 24,1789.
    A proceeding by provisional seizure, authorized by State law, when taken out against a vessel of a foreign port, while lying in a port of this State, to enforce a claim for repairs made and materials furnished at the foreign port, is a proceeding in ram or in admiralty, and the State courts are without jurisdiction. JPar curiam: A distinction must be taken between a lion on a vessel at the home port for materials furnished and labor done in repairing her, and the lien for the same, when the vessel is found in a foreign port. In the former case no admiralty lien exists in favor of the builder or furnisher of materials, and the local jurisdiction attaches. But in the latter case an admiralty lien exists, and the State courts are without jurisdiction to enforce it. The form of the writ or proceeding, provided by the local law, is immaterial, if the object sought is to enforce an admiralty lien.
    In a case like this, however, where the master has been cited personally, ana is sought to be made liable in his individual capacity, the State courts, while they are without jurisdiction to proceed m r&m by provisional seizure, have jurisdiction of the personal action.
    APPEAL from Fifth District Court, parish of Orleans.

      Leawmont, J. Pentnielc JEgan, for plaintiff and appellant.

      Given Campbell, foi •defendants and appellees.
   Hoave, J.

The petition of the plaintiff alleged that Capt. A. Baird and the OAYners of the steamboat J. D. Perry, a boat engaged íd •carrying freight and passengers for hire,” Avere indebted to petitioner ■in solido, in the sum of §1029 30, for work and materials furnished in making repairs to the said steamboat; and after claiming a privilege on the vessel, they prayed that a writ of provisional seizure might issue against her, and that Capt. Baird and the owners might be cited and ■condemned to pay the plaintiff the sum claimed, with interest, “and with privilege on the steamboat J. D. Perry.”

The writ Avas issued and the A'essel seized. Baird was cited, as captain, to answer the petition, and an answer was filed in the form of a g-eneral denial by “the defendants.” A supplemental petition was afterwards filed by the plaintiff, aArerring that Baird was sole owner. No contestatio litis Avas formed on this, but as evidence was offered and received, without objection, to prove the ownership by Baird, we will ■consider the case, as if the vessel was the property of Baird, the personal defendant.

A peremptory exception was filed on behalf of the defendants, generally, to the j urisdiction of the court, on the ground that the proceeding was one in rem to enforce an admiralty claim against the vessel for repairs and materials. A rule was also taken to set aside the writ of personal seizin c for the same reason, and the exception and rule and ■the merits were tried together. The court maintained the exceptions and dismissed the suit, and the plaintiff appealed.

From the manner in. which the case has been conducted, it becomes necessary to consider it in two aspects: First, as to the validity of the writ of provisional seizure, (and this must depend on the original petition and affidavit); and second, as to the right to a personal judgment against Baird.

1. The question of validity of the writ of personal seizure, considered from the point of view of the original petition and affidavit, is one which has been fruitful of discussion in the State and national tribunals. By section second of article third of the Constitution of the United States, it is provided that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; and, in execution of this broad provision, it is declared by the act of Congress of September 24, 1789, that the District Courts of the United States “shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” The wisdom of these provisions is apparent, yet no one, familiar with the subject, can have failed to observe a constant tendency to evade or infringe them, and in every commercial city of our seacoast the ships and vessels of other States and nations have been repeatedly subjected to annoyance in violation of these salutary rules.

The Supreme Court of the United States, whose rulings oh this-subject aro necessarily of highest authority, has ■ had occasion recently to condemn this increasing abuse and to formulate the true doctrine in the premises. In the case of the Moses Taylor, 4 Wallace 411, that court said:

The distinguishing and characteristic feature of such suit,” (in rem. in the admiralty,) “is, that the vessel .or thing proceeded against is itself seized and impleaded, as the defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty over the vessel or thing itself, which gives to the title, made under its decrees, validity against all the world. By the common law process, whether of mesne attachment or execution, property is reached only-through a personal defendant, and then only to the extent of his title. Under a sale, therefore, upon a judgment in a common law proceeding, the title acquired can never be better than that possessed by the personal defendant. It is his title, and not the property itself, which is sold. The statute of California to the extent in which it authorizes actions in rem against vessels for causes of action cognizable in the admiralty, invests her courts with admiralty jurisdiction.”

And to this extent the statute was declared to be void.

In the case of the Hine, 4 Wallace 555, the same tribunal, in declaring the nullity of a statute of the State of Towa, by which suits substantially in rem against vessels for causes, cognizable in the admiralty, were authorized, and alluding to the clause of the act of 1789, which saves to suitors “the right of a common law remedy where the common law is competent to give it,” said:

“It could not have been the intention Of Congress, by the exception in that section, to give the suitor alL such remedies as might afterwards be enacted by State statutes, for this would have enabled the States to make the jurisdiction of their courts concurrent in all cases by simply providing a statutory remedy for all cases. Thus the exclusive jurisdiction of the federal courts would be defeated.”

In the case of the Belfast, 7 Wallace 624, the same court held language which is especially applicable to the case at bar. Alluding again to the “ common law remedy,” which'is saved to the suitor and which is now urged before us as a justification for the issuance of the writ of provisional seizure in the present suit, it said :

“ Proceedings, in a suit at common law, on a contract of affreightment, are precisely the same as in suits on contracts not regarded as maritime, wholly irrespective of the fact that the injured party might have sought redress in the admiralty. When properly brought, the suit is against the owners of the vessel, and in the States, where there are attachment laws, the plaintiff may attach any property not exempted from execution belonging to the defendant. * * * Liability of the owners of the vessel under the contract being the foundation of the suit, nothing can finally be held under the attachment, except the interest of the owner in the vessel, because the vessel is held, under the attachment, as the-property of the defendant and not as the offending thing, as in the case of a proceeding in rem to enforce a maritime lien.”

It is apparent, then, that our State courts can nave no-power to enforce, by proceedings in rem, an admiralty lien against a vessel. They may seize and hold for final judgment the interest of a personal defendant in a vessel, in -proper cases, by any writ addressed to such interest alone. The name of the writ is unimportant. It is commonly called attachment; such is its name in this State; but by any other name it would have as great validity, and the principal question in the case at bar, which we find it necessary to decide, is, whether the writ of provisional seizure could lawfully issue. We are of opinion that it could not.

The privilege thus sought to be enforced is an admiralty lien — the lien of a material man — for work and materials furnished in New Orleans to a foreign vessel, which came hither from the Ohio river and was bound to White river, in Arkansas. The cases cited by plaintiff against this position are not in-point, for there is a wide difference in legal necessity between work done in building a vessel on shore, at the place of her nativity, and work and materials furnished by way of repairs in a foreign port. The former has not, the latter have, an admiralty lien. The privilege springs from the nature of the debt, and the writ of provisional seizure by which it is sought to be enforced, grasps the thing itself, and not merely the interest of some person or persons in the thing. If enforced by judgment, with privilege,” as prayed for iu the original petition in this case, there would be sold, not the interest of Baird, for it is not alleged that he has any, or of any other person, but the vessel herself, her tackle, apparel and furniture, free and clear of all titles, interests, mortgages, privileges and other incumbrances, the claims of the whole world being transferred to the fund realized. We can see no practical difference in origin, progress and result between the operations of such a writ and those of admiralty process. It goes as far and strikes as deeply.

It is urged that the writ of provisional seizure in this case is a 41 conservatory act” merely, and not liable to the objection of infringing the admiralty jurisdiction. It is true that the writ is conservatory, But so also is the admiralty process which issues upon the filing of a libel, being provisional merely and falling to the ground if the libel-ant does not establish a case, or if the claimant establishes a defense. The objects of the two writs are identical; both are issued upon the allegation of a privilege, upon a more affidavit and without bond in favor of the owner of the thing seized. So far as the writ of provisional seizure and the prayer for the enforcement of the privilege, in this case, are concerned, the action is in rem. against the object seised, its true ownership being of no moment. That object being a vessel and the privilege a maritime lien, we have, infolded in the suit, a proceeding which is in reality an admiralty proceeding, and the fact that the plaintiff asked, also, for a personal judgment against Baird, can not divert our attention from the fact that he has asked for a judgment m rem against the vessel described as the property of some one else.

The orginal petition of the plaintiff, with a few changes of terminology, would be a libel in admiralty, and its prayer does not differ substantially from that of a libel in which the actions in rem against the vessel and in personam against the master are joined. To sustain the writ of provisional seizure and a consequent judgment against the vessel for the privilege alleged, would be, by indirection at least, to infringe the exclusive jurisdiction of the courts of the United States.

2. But, as the pleadings stand, a personal action also is instituted against Baird, and we think the judge a quo went too far in dismissing the entire suit. The writ of provisional seizure was properly set aside, for the petition and affidavit on which it was asked for, did not authorize its issuance. But there is evidence enough to justify a personal judgment against Baird who was duly cited.

It is therefore ordered and adjudged that the judgment appealed from be reversed. It is further ordered that the writ of provisional seizure issued herein bo quashed, with costs thereof; that the plaintiff have judgment against the defendant, A. Baird, for the sum of one thousand and twenty-nine dollars and thirty cents, with legal interest from January 2, 1S67, and other costs of the lower court; and that the appellees pay the costs of appeal.


source: Caselaw Access Project

author: IIowe, J.

license: Public Domain

text:
    No. 3000.
    Mrs. Ann Smith, Widow, etc., Administratrix, et al. v. James H. Jones et al.
    The room or place whore the court usually holds its sessions is not sacramental. Therefore, court may he opened and hold in the room, commonly used as a clerk’s office, and the decrees and judgments, rendered in such room or place, will not he void on that account.
    APPEAL from the Fifth District Court, parish of Orleans.

      Leaumont, J. A. L. Tissot and Cotton & Levy, for plaintiffs and appellants.

      Jlornor & Benedict, for defendants and appellees
   IIowe, J.

Jamos H. Jones instituted executory proceedings in the Fifth District Court, for the parish of Orleans, for the collection of a note made by A. W. Horlor and secured by mortgage and vendor’s-privilege.

The plaintiff in this case, widow and administratrix of Horlor, and Emelia Horlor, daughter of the deceased, sued out the injunction, now before us, to arrest the seizure and sale on various grounds, which do not seem to be either established by the evidence or insisted upon in the argument.

A rule was taken by Jones, defendant in injunction, to dissolve the ■same, on the grounds that the petition was untrue; that it set up no cause of action; that no special relief except an indefinite delay was asked, and that the bond was too small.

The case was tried summarily, and judgment given by the court « qua, dissolving the injunction, with ten per cent, damages, and the plaintiffs appealed.

The injunction appears to have been sued out merely for delay, and the points made hero are purely technical.

The trial of the rule occupied five days in the court below. It seems that when the cause came up, at 10 A. M. of the second day, the witnesses of the plaintiffs were not present, and attachments were issued returnable at noon. The judge proceeded with the trial of another cause; a jury case. At noon, witnesses having arrived, the judge left the jury case and proceeded with the summary trial of the rule in the adjoining room, used as a clerk’s office; but yet in open court, in the legal sense, there being a judge, a clerk and a sheriff, and the record showing that the court was open. The parties to the jury cause, who were thus left, are not before ns, and do not complain; and we can not perceive that the plaintiffs have any legal reason to consider themselves aggrieved. It will hardly be pretended that, of the two rooms in question-, one is much better than the other, and certainly not, that it is sacramental to use one for holding “open court” rather than the other. And, finally, it is not pretended that on the first, third, fourth and fifth days of the trial, there were any irregularities in the method of holding the court.

It is suggested parenthetically in the brief that the court a qua was without jurisdiction. The point is untenable. See Graham v. Markey, 22 An.

Judgment affirmed.


author: ^Wxly, J.'

text:
    No. 1912.
    Austin, Thorpe & Co. and others v. Da Rocha, Becker & Co.—Mrs. Pelanne and others, opponents.
    A seizing creditor can not disregard a sale of an interest in a store, on tlie ground that it is made in fraud of the rights of creditors.
    Before ho can maintain a seizure in such a case, the sale must be declared null by direct action. The rule is different in case of a simulation. In the latter case seizure may be made and the property sold without reference to the sale.
    A 'bona, fide purchaser of an interest in a store, whereby she becomes a partner in commendam, does not lose her rights by .declining to enjoin tlie sale of the store which is under seizure. The rights of a partner in couwiendam may be enforced as well by third opposition against the proceeds of the sale. But in the latter case the amount which the property brought at sheriff's sale, will be taken as the basis on which the proceeds are to be distributed, unless it bo shown that there was fraud or other ill practices in the sale which led to the sacrifice of the property.
    The privileges existing on the stock of goods for the salaries of clerks, which have been ascertained and recognized by third opposition, will be first paid out of the proceeds of the sale of the property by the sheriff, unless as in this case the partner in commendam expressly assumed to pay them.
    These privileges of clerks for salaries on the goocis m tne store are not lost or impaired oy a simulated sale and transfer of the store to other parties; nor does the taking of a note by a clerk for his salary novate the debt nor destroy the privilege.
    APPEAL from the Fourth District Court, parish of Orleans.

      Tlieard, J. Collens & Wooldridge and J. Ad. Boeier, for plaintiffs and appellants.

      O. JDufour and J. Q. A. Bellotes, for appellees.
   ^Wxly, J.'

The plaintiffs who are appellants, obtained respectively judgments against the defendants in December, 1866. Under executions issued thereon, the contents of the stores Nos. 136 Chartres street and 147 Canal street, were seized on the twelfth of June, 1867, as the property of the defendants. The legality of the seizure of the Canal street store and the proceeds of the sales of both the stores,, form the subject of the present controversy.

A few days before the sale Mrs. Raymond Pelanne claimed an interest in the contents of the store 147 Canal street, to the extent of $12,000, as partner in commendam of one J. D. Meredith, whose name at the time of seizure was on a sign over the door. She did not enjoin the sale, however, but on the sixth of July filed a petition of third opposition, reciting her interest and praying as follows : “That an order be issued to the effect that, if the said sheriff should persist in selling, the proceeds of said sale may be retained and kept in his hands until the determination of this third opposition and petition for damages ; that the sheriff, H. T. Hays, of New Orleans, and the seizing creditors aforesaid, Austin, Thorpe & Co., Butler & Pitkin and Wright, Brinkerhoff & Co., be severally cited; that said Harry T. Hays, sheriff, together with said seizing creditors (if they can be found), be condemned in solido to pay your petitioner the sum of twelve thousand dollars, being the value of her property wrongfully seized and taken away as aforesaid, and the further sum of- dollars per month for rent as stated above from the first of June last, until the determination of this suit; and the further sum of one thousand dollars as special damages for counsel fees, in prosecution of the present claim, and all costs, with privilege on the proceeds of said sale, for general relief,” etc.

Tiie court a qua ordered the sheriff to retain in his hands all the proceeds of sale, including those of the sale of the contents of the store 136 Chartres street, to which Mrs. Pelanne made no claim.

Several oppositions were filed by parties whose claims were rejected by the court a qua, and who have not appealed.

The following parties made oppositions, claiming privilege as clerks under article 3158 of the Civil Code, viz:

Charles Baudier, for $56 52; H. Meridier, for $97 91; J. S. Shaw, for $193 52; James T. Howard, for $691 10; Daniel Yan Allen, for $900.

• The claims of the first three were allowed. The claims of Howard and Yan Allen were rejected on the ground that they had lost their privilege by novation of their debts, and they have appealed.

The plaintiffs answered Mrs. Pelanne’s opposition by a general denial, and specially denied the title set up by her, and averred that if she had any title it was void and of no effect against them; that it was simulated and fraudulent, and the result of a conspiracy to cover and conceal the property of the defendants, Da Rocha, Becker & Co., from their creditors, and especially from the plaintiffs.

The judge a quo was of the opinion that as to the claim of Mrs. Pelanne the only question was simulation or not; that the transaction by which she claimed an interest in the store 147 Canal street, to the extent of $12,009, was a real one; that she was in possession of the interest thus claimed through Meredith; that the seizure of the goods by the plaintiffs, and their sale, involved the loss of her interest and that she must bo indemnified for her loss by the allowance to her of all the proceeds of sale of this store, except the amount of certain privileged claims.

The proceeds of the store on Chartres street were consumed in costs.

The plaintiffs appealed and were joined as stated above, by two of the clerks.

As to the third opposition of Mrs. Pelanne, we agree with the District Judge, that the only question is simulation or not If her part ownership of the contents of the store, 147 Canal street, was real, though acquired iu fraud of the rights of the plaintiffs, their seizure of that store was illegal; her rights could not be assailed in that manner, and her opposition must he maintained.

Whether she saw fit to enjoin the sale or not, can not prejudice her rights in the premises. C. P. 400.

It is only simulated sales that the seizing creditor is permitted to disregard, because they pass no title and are not subject to the rules of real contracts operating injuriously to creditors.

If this opponent has an actual title, accompanied with possession, the plaintiffs who have thus assailed it, will not he heard setting up fraud iu the transfer; that ground of nullity they must seek iu a direct action.

An examination of the evidence satisfies us that the claim of the opponent, Mrs Pelanne, was not fictitious; as to her the transaction was not a simulation; that for a valuable consideration she became a partner in commendam, acquiring a part ownership of the store as claimed, and had possession thereof through the partnership of which she was a member, the possession of a partnership being for each of the partners.

There is no doubt, however, that as to the defendants there was a bold simulation and fraud attempted; that Samuels and Meredith were merely interposed with fictious titles to cover the turpitude of the defendants; that these parties merely held for the defendants, who never parted with actual title until they caused the transfer to be made to the third opponent, Mrs. Pelanne

We regard the partnership with Meredith and the transfer from Samuels as but the consummation of one transaction which was conducted by the defendants, doubtless, for the purpose of defeating their creditors. But, because Mrs. Pelanne was induced by these designing mea to buy an interest in the store and to form a partnership with Meredith, a party interposed, does it follow that her title to a share of the store was a simulation, in the face of evidence that she paid a real consideration therefor 1 Is an actual contract of sale to he treated as a simulation, because the object of the contract had previously beeu acquired by tbe vendor under a simulated transfer 1 We think not Mrs. Pelanne may, perhaps, be guilty of a constructive fraud iu thus dealing with these dishonest men and obtaining a preference over other creditors, but of this the plaintiffs can not inquire in this form of attack.

Her contract with them was a real one; it is subject to the rules • governing actual contracts, and can not be treated as a simulation.

The fact that she continued to hold the notes which the defendants had given her for borrowed money, did not invalidate her engagement in purchasing an interest in the store, because after the purchase, ¿hese notes, being part of the consideration, ceased to be valuable to her; the debt which they evidenced having been settled, she might at any time be compelled to surrender them.

But the plaintiffs insist that as evidence of fraud was received without objection, the case was tried on that issue; and that it has been decided that, where the parties try the question of fraud, the opponent can not afterwards demand that the seizing creditors be compelled to resort to a revocatory action; and they cite Dejean v. Blacketer, 13 An. 595, and Stewart v. Scudder, 10 An. 216, as authorities on that point.

It is true, evidence of fraud was received, but, from the written opinion of the judge a quo, we think the case was not tried by the parties on that issue, for he says no fraud was pleaded. The case referred to in 10 An. 216, is not in point. In Dejean’s case, 13 An. 595,. where the absconding debtor’s property was attached before any consideration was given for the pretended sale, there is an express recognition by the court of the settled jurisprudence of this State, that, where an actual title has passed, accompanied with possession, its validity can not be tested by attachment or seizure, but a direct action must be brought to avoid the contract as fraudulent.1 In that case, however, it was hold that, as the answer to the opposition set up fraud and simulation and prayed that the sale be annulled, and as no exception was made as to the regularity of the proceedings, and as the parties to the suit had tried the question of fraud, the court felt it to be their “ duty to inquire if the sale was fraudulent, and not to reverse the decision on the ground that the party ought to have instituted a revocatory action.” * * In the case before us it does not appear that there was a waiver of technicalities, as in that case, by the parties trying the question of fraud in the court below. Nor do we find, in the answer of the plaintiffs to the opposition, a prayer that the sale be annulled for fraud, as there was in the case last referred tc

The case before us was tried with the other oppositions, and it can hot fairly be said that the opponent, Mrs. Pelanne, consented to try the question of fraud with the plaintiffs; especially as she insisted that her demand was a distinct suit and was entitled to be tried separately, and, for fear of prejudicing her rights, took a bill of exceptions to the ruling of the court requiring all the oppositions to be tried together.

We see no reason in the case before us to depart from the rule •of practice applicable to actual contracts sought to be annulled for fraud.

Our conclusion is, that the opposition of Mrs. Pelanne was well taken, and that she has been damaged to the extent of her interest in the contents of the store 147 Canal street, and should be indemnified by a judgment, as prayed for, against tbe sheriff and seizing creditors, for her share of the value of the property thus disposed of by the sheriff, and which can not be returned to her. She has failed to show that she has sustained any further damage than the loss of her share of the property sold, which has not been shown to have had a greater value than the price for which it was Sold by the sheriff.

The fact that she gave $12,000 for a shars of twelve twentieths in the store on Canal street, on the eleventh of January, 1867, does not prove that her interest in the stock on hand on the twelfth of June, following, when the seizure was made, was worth that sum.

In the absence of other proof, we will presume the value of the goods and the fixtures of the store 147 Canal street, at the day of sale was the price for which they were sold by tbe sheriff, to wit: $9576 45; and the amount for which Mrs. Pelanne should have judgment, is for the value of her share of the property thus ascertained, after deducting the privilege claims of the clerks, but not tbe costs of tbe sale. We think the privilege of the clerks for their salaries was not lost by tbe simulated transfers made by the defendants, and they should be paid oat of the proceeds in the hands of the sheriff, and of this Mrs. Pelanne can not complain, because in the transfer from Samuels she also assumed to pay them.

We think the court erred in rejecting the claims of Howard and Van Allen on the ground that they wore novated; there is no proof that novation was intended by the parties when the notes were given, and it is never presumed. 13 An. 238; 4 An. 509; C. C. 2181, 2188; 4 N. S. 95. As Mrs. Pelanne has not asked that the sale of the sheriff be annulled, we will not so order it; but will allow her judgment for damages, as claimed, without interest, because nene lias been prayed for,- and without a privilege on the proceeds of the sale, because we are aware of no law entitling her to it.

It is therefore ordered that the judgment appealed from be amended by striking out that part thereof in favor of the opponent, Mrs. Pelanne, and it is now ordered that .she recover judgment in solido, against the sheriff and the plaintiffs herein, for forty-five hundred and eighty-two dollars and forty-four cents, ($4582 44), being twelve-twentieths of $9576 45, the amount of the sale, less $1939 05, the amount of the privilege claims of the clerks. It is further ordered that said judgment he amended by allowing the claim of James T. Howard for six hundred and ninety-one dollars and ten cents, ($691 10), and also the claim of Daniel Yan Allen for nine hundred dollars, ($900), to be paid, each by preference, out of the proceeds of the sale in the hands of the sheriff; and that the seizing creditors be entitled to the balance of the said proceeds. As thus amended, it i? ordered that the judgment of the court a qiia be affirmed.

It is further ordered that Mrs. Pelanne pay costs of plaintiffs’ appeal, and that plaintiffs pay costs of the appeals of the opponents, Howard and Yan Allen.


author: Howell, J.

text:
    No. 1736.
    C. Case, Receiver, etc. v. S. Henderson et al.
    The holder of a check, drawn hy a third party on a bank, has no action against the bank in case of refusal to pay. Therefore he can not oppose such check in compensation to his note held by the bank.
    APPEAL from the Fifth District Court, parish of Orleans.

      Beaumont, J. J. B. House, for plaintiff and appellee.

      Breaux & Benner, for defendants and appellants.
   Howell, J.

This is an action on a note by the receiver of the First National Bank of New Orleans against the maker and indorser, to which the idea of compensation is opposed, and is based on a check drawn on the bank by a third party, in favor of, and presented by, the maker, but payment thereof refused.

The first question is, did this refusal give the holder a right of action against tiie bank on the check? This question is answered in the negative by the United States Supreme Court, in the case of the National Bank of the Republic v. R. J. Millard, No. 211, December term, 1869, where it was fully examined and authorities cited. It was succinctly said: The right of the depositor is a chose in action, and his check does not transfer the debt or give a lien upon it to a third person without the assent of the depositary; there is no privity of contract between the holder of the check and the bank or depositary, and without this there is no foundation for an action by the former against the latter. See 2 Selden 412; 5 Bosworth 341; 21 Wendell 373; Byles on Bills, ch. Check on Banker. This principle is recognized in Poydras v. Delamare, 13 La. 98.

The defendants, then, as holder of the check, having no right of action against the plaintiff, can not compensate his debt therewith, because it is not equally demandable. C. C. 2205; 3 An. 617; 7 La. 564;’ 7 N. S. 517 .

Judgment affirmed.

Mr. Justice Howe recused.


author: Taliaferro, J.

text:
    No. 2183.
    Samuel Hirsch v. Thomas P. Leathers, et al.
    A steamboat that takes goods on board at tbo port of INe-w Orleans, and gives a bill of lading obligatory to deliver tbe goods at a given point or place on tbe Yazoo river, not on tbe route or line of tbe steamer, -with. tbe reservation of tbe privilege of transhipment, is • liable in case of loss or failure to deliver tbe goods according to the contract. This liability is tbe same, -whether tbe loss occurs before transhipment or afterward; in tbe latter case, tbe second vessel is as much theirs as tbe first, and tbe liability is tbe same as if tbe loss bad occurred on tbe first vessel.
    APPEAL from the Fourth District Court, parish of Orleans.

      lheard, J. Clarice, Bayne & Bensliaw, for plaintiff and appellee.

      MeCay & Lusenburg, for defendant and appellant.
   Taliaferro, J.

This is an action against the captain and owners of the steamer Magenta to render them liable in damages, to the amount of a thousand dollars, for the loss of a shipment of goods made by the plaintiff, who alleges that the goods were delivered. The answer is a general denial. The plaintiff obtained judgment as prayed for in the court below, with legal interest from judicial demand, with privilege on the steamer, her tackle and furniture. The defendants have appealed. It is shown that at the time the shipment was made, the steamer Magenta was a packet, running between New Orleans and Memphis, and advertised to take freight and passengers for Yazoo river, with the privilege of reshipping. The plaintiff, in October, 1866, shipped a bill of goods by the Magenta from New Orleans to Sidon, on the Yazoo river. The goods were transferred at Vicksburg to a small steamer called the Myrtie, to be carried trom there to Sidon. Before reaching Sidon the small steamer struck a snag, by which a hole was made through her bottom, causing her to sink in a very short time. The goods on board were sent in a damaged condition to Greenwood, a point on the Yazoo above Sidon, and sold. The plaintiff’s goods were not insured.

The evidence, we think, entitles the plaintiff to recover. It is shown by the testimony of an old and experienced steamboat officer,, the captain then of a steamer, and who had been in that capacity on many boats previously, that the small boat upon which the plaintiff’s merchandise was transhipped, wa's utterly unseaworthy. He states that he was on board of her on her second trip before the last she made, for the purpose of examining her, at the request of a friend who. was disposed to buy the boat, if found suitable. This witness states,, and his testimony is in no manner impugned, that he went into her hold and found thirteen or fourteen' of her door timbers broken and splintered up, which impaired the strength of the boat;, that theMyrtie was a very weakly built boat and in a very frail condition on the trip on which she sunk, and previously. The witness thought she-was not seaworthy, and that she was liable to go to pieces by the working of her machinery. He stated that the person in charge of thee Myrtie during tie trip on which she sunk, was not competent to navigate her as a master; that he was only, competent as a clerk; that the boat had no regular master; the witness was applied to by one of the owners of the Myrtie to take charge of her, but declined because he did not consider, her safe. This evidence is so clear and direct, and given after a special examination of the boat, made at a very short time preceding her last trip, that it can not be counterpoised by the certificate of the Inspector, given six months before at Cincinnati, and the statement of the officer in command at the time the boat sunk. In fact the testimony of the latter does not conflict in any material manner with the testimony of the principal witness called in behalf of the plaintiff. True, he says he examined her very particularly, and knew she was in every way sound, but he also said the Myrtie was a light boat, lighter than he would have built her; and, on cross-examination, stated that on the down trip, a few days before receiving the goods from the Magenta, the Myrtie rolled over a log and broke seven or eight timbers, and soon afterwards that he had the cracked timbers spliced and spiked.

The privilege of transhipment stipulated by the carriers by no means exonerates them from their obligation to deliver the goods at the point named in the contract of affreightment. They were bound in reshipping to employ a seaworthy vessel, and as to their liability the second vessel is considered as much theirs as the first. Abbott on shipping, 6 An. 544.

Judgment affirmed.


author: "Wyly, J.

text:
    No. 2906.
    The State ex rel. Pontchartrain Railroad Company v. The Judge of the Eighth District Court.
    In this case an injunction was granted restraining tlie city oí Rew Orleans from destroying or removing the Pontcbartrain Railroad depot. The city obtained an order dissolving the injunction on bond. The railroad company asked for an appeal from the order dissolving the injunction on bond, which the court a qua refused on the ground that no irreparable injury would follow.
    Held by the Supreme Court — That the allegations in the petition for injunction being taken as true, an irreparable injury would follow, because the company would, in case it was decided in their favor, be driven to another action on the bond to obtain their rights j that an appeal would lie in all cases from an interlocutory decree where an irreparable injury would follow.
    APPLICATION for mandamus.

      C. M. Emerson, Judge of the Third District in of II. C. absent.

      Lea, Einney & Milletfor relators.
   "Wyly, J.

This is an application for mandamus to compel the judge of the Eighth District Court, parish of Orleans, to grant a suspensive appeal from an order permitting-the defendant, in an injunction suit, to dissolve the injunction on bond, under art. 307, C. P

It appears that the relator, the Pontchartrain Railroad Company, sued the city of New Orleans, alleging' that by its charter and also with the assent of the city of New Orleans, it acquired a certain franchise, more than thirty years ago, and the same was to be perpetual, to wit, the right to construct a railroad, a depot and other necessary works, “in the street, road or walking avenue which lines the space of ground reserved by Bernard Marigny, and known under the appellation of Marigny Canal, at the period when he established the old and the new suburb, starting from the bend of said canal to Levee street.”

It is also alleged that in pursuance of this right the railroad was built, together with the depot and other works, more than thirty years ago; and that the city of New Orleans is about to remove these works and dispossess the company of its franchise. Upon these averments the writ of injunction was issued.

The order, sought to be appealed from, permits this injunction to be dissolved on bond, so far as it restrains the city of New Orleans from removing or causing to be removed all constructions of said company in said-avenue, except the tracks of the railroad.

The complaint is, that this order will permit the city of New Orleans to remove the depot and other constructions necessary for the operation of the railroad, and will, in effect, deprive the company of the enjoyment of its franchise; that it works an irreparable injury.

In considering the question, we must take these allegations as true. If the city of New Orleans removes the depot and other buildings belonging to the said company from the place occupied by them, and where the company has the right to have them, it will commit a trespass, and an action for damages will arise in favor of the company and against the city of New Orleans.

If these constructions are removed, the present suit will not end the litigation between the Pontchartrain Railroad Company and the city of New Orleans, if decided in favor of the former; another suit, to wit: an action for damages, will have to be instituted in order to adjust the rights of the parties.

In contemplation of law it would be an irreparable injury thus to compel the plaintiff in injunction to resort to an action for damages in order to have his rights adjusted.

In The State v. The Judge of the Fifth District Court, 12 An. 455, a case directly in point, it was held that to permit the dissolution of the injunction on bond, may have “the effect to compel the plaintiff to institute a now action on the bond after the determination of this suit. It may so change the condition of parties to the present suit, that the final judgment in the case will not end the controversy. », * * Orders producing such effects are considered as working irreparable injuries. C. P. 566; Hyde v. Jenkins, 6 L. 435; Gossett v. Cashell, 14 L. 245; Taylor v. Penrose, 12 L. 137; Comstock v. Paie, 15 L. 481; 2 R. 342. As a question of law merely, it seems to result from tlie authorities cited that the plaintiff is entitled to appeal.”

In White & Trufaut v. Carznave, 14 An. 57, it was held “that where the consequences of an interlocutory order are such that they can not be remedied by a final decree, and the party will be driven to another action to obtain his rights, it is an irreparable injury, from which he may appeal.”

It is therefore ordered that tlie mandamus herein be male peremptory, and the judge be required to grant the appeal as prayed for. It is further ordered that the city of New Orleans pay costs of this proceeding.


text:
    No. 2161.
    John T. Michel v. Sheriff Parish of Orleans, et al.
    A motion to dismiss an appeal will not be entertained, if the documents offered to prove a voluntary execution of the judgment show that tho right to a devolutive appeal is reserved.
    In this case a horse was in the possession of the sheriff under a sequestration issued at the suit of Ware & Son v. Wilson, in tho Second Judicial District Court, parish of Jefferson Burnett intervened and claimed a privilege on the horse. The sheriff, with the consent? of tho intcrvenor, transferred tho horse to a livery stable in Hew Orleans for safe keeping. Tho suit of Ware & Son was, by consent, transferred to tho Sixth District Court, parish of Orleans. While this suit was pending and the horse under seizure, tho intorvenor brought a separate action in tho Tilth District Court, parish of Orleans, and obtained judgment on default, on which ho caused the horse to ho seized. Hold — That thointcrvenor, having consented to tho transfer of tho horse to Hew Orleans by tho sheriff, and having caused a second seizuro to bo made while he was still a party to the suit in which tho first seizure was made, ho could not question the validity of the possession of the sheriff under the first seizure and all that ho could effect by his execution, was to-levy on the property in the possession of tho sheriff, subject to the first seizure..
    APPEAL from the Fifth District Court, parish of Orleans.

      Beaumont, J. Brice <£ Mitehel and W. S. iScolt, for plaintiff and appellee.

      Semmes <& Mott for defendant and appellant.
   Howell, J.

The defendants have appealed from a judgment maintaining an injunction and staying tho sale of a certain horse under execution in the suit of J. J. Burnett v. J. G. Wilson.

The motion to dismiss can not prevail, because, if we can properly look into the documents offered to prove the voluntary execution of the judgment, we find among them the written consent of both parties, that tho action taken hv Burnett, one of tlie appellants, should not. prejudice the right to a devolutive appeal.

On the merits, tlie material facts are, that the plaintiff, as sheriff of the parish of Jefferson, liad possession of the horse in question, sequestered in the suit of Ware & Son v. J. G. Wilson, instituted in the District Court for the parish of Jefferson, in which suit Bui nett, tho real defendant in this suit, intervened, claiming a privilege on and pledge ot said animal. Tlie suit was transferred, by consent of all parties, to the Sixth District Court in New Orleans. While pending in Jefferson, tin» sheriff, for the better care and greater safety of the property, as stated by him, transferred it to a livery stable in New Orleans, after which JBurnett, while his intervention in the suit of Ware & Son v. Wilson was still pending, brought suit in the Fifth District Court for the parish of Orleans against Wilson on the same cause of action, obtained judgment on default, and upon Wilson’s waiving the delay for appeal caused the horse to be seized under his execution. When he instituted this suit and caused this seizure to be made, he was still a party to the suit of Ware & Son v. Wilson, and knew of the contest going on therein in regard to the legal possession by the sheriff of this horse, and whether or not the said sheriff rendered said horse liable to seizure by third persons by sending him out of his bailiwick, Burnett, who had voluntarily made himself a party and claimed a right upon the animal in the possession of the sheriff by virtue of a writ of sequestration, could not disregard that possession. And further, the evidence leads us to believe that it was with the consent of Burnett that the horse was sent by the sheriff of Jefferson to the city of New Orleans, to be there kept for the latter, as it seems to have been their wish, as well probably of others, that the horse should be exhibited at a fair in New Orleans, and they were all willing to take the risk of such unusual proceedings. We conclude that, as to the parties to this action, the sheriff of Jefferson had the legal possession of the horse in question, at the time the defendant, Burnett, caused the seizure to be made under his execution, and the most he could do, in any event, was to levy his seizure in the hands of the said sheriff. In this view, the judgment of the court a qua is correct.

Judgment affirmed.


author: Wyly, J.

text:
    1136.
    E. A. Yorke & Co. v. S. W. Scott & Co.
    The exception that the petition discloses no cause of action, if not made ana passed upon in the lower court, will not be noticed on appeal, nor will objections to the admissibility of testimony, which has not been excepted to in the court a qua, be considered on appeal.
    APPEAL from Third District Court, parish of Orleans.

      Pellowes, J. JE. J). Craig, for plaintiffs and appellees.

      Cooley & Philips, for defendants and appellants.
   Wyly, J.

The defendants have appealed from a judgment or confirmation of a default against them.

The proof in the record satisfactorily establishes the correctness of the account on which the suit is iounded.

As to the objection tliat the petition discloses no cause of action, we will remark that the exception was not pleaded by the defendants; that we can only examine and revise tiie issues presented to the court of the first instance, and do not propose to consider issues raised only in the brief of counsel.

As to the objection that the depositions, received by the court to prove the demand, appear to have been taken by the clerk before the trial, and not in open court, we will observe that there was no bill of exceptions taken to the admissibility of the evidence, and therefore we decline to consider it.

This question was examined in Brander, Williams & Co. v. Goodwin, and another, 6 An. 521, a case directly in point, in which it was held that “ where a judgment by default was confirmed upon testimony sworn to before the deputy clerk, but his attestation does not show that it was taken in open court, it is liable to objection; but the objection will not be examined by the Supreme Court, unless brought before it by bill of exceptions or in some other legal manner; and it forms no excuse for not taking the bill of exceptions, that it was a confirmation of a judgment by default, as the defendant should have been present to protect himself from the effects of illegal testimony.”

On this point we consider the jurisprudence settled.

Judgment affirmed.


author: Wyi.y, J.

text:
    2955.
    The State of Louisiana v. George Fritz, alias George Fry.
    In a criminal trial, on an indictment for forgery, a paper or document, shown to be in the handwriting of the accused, which has no relation to, or connection with, the document forged, is not admissible in evidence to prove by a comparison of the handwriting, that the forged document is in the handwriting of the accused. *
    APPEAL from the First District Court, parish of Orleans.

      Abell, J. Simeon Bolden, Attorney General for the State.

      J. J. Foley, for defendant and appellant.
   Wyi.y, J.

The defendant having been charged with, and tried and convicted of, the crime of forgery and sentenced to imprisonment at hard labor for four years, has appealed.

In order to prove that the order for the delivery of the goods, charged to have been forged, was in the handwriting of the defendant, the district attorney was permitted to introduce and offer to the jury another paper or writing, not on the same subject matter and irrelevant to the issue, for the purpose of instituting a comparison of handwriting, and thereby proving that the order, alleged to be forged, was in the handwriting of the defendant. With regard to said writing, so offered to the jury for the purpose of comparison, a police officer testified that on the thirtieth April, 1867, and while the defendant was in duress for some other offense, said officer handed the defendant a pencil and paper, and ordered him to write down such words as said officer should dictate; that the defendant did as ordered; that said officer kept said writing in his possession for over a year, and it was the same paper that-was offered to the jury for the purpose of instituting the comparison. The above facts are set out in the bill of exceptions which was taken by the defendant to the introduction of said paper for the purpose only of comparison of handwriting.

We think the court erred in receiving the evidence.

The rule is settled in England and also in many of the States of the Union, that comparisons of hands by juxtaposition of two writings in order to ascertain whether both were written by the same person, is inadmissible. Mr. Starkie, after announcing that evidence by comparison of hands is not admissible, remarks: “As to the reason of the rule which excludes evidence by actual comparison, it has been said that-jurors may not be able to read, and therefore incompetent to make the comparison. This does not appear to be satisfactory; for if the jurors cannot read, they may nevertheless receive the evidence of witnesses who are able to make the comparison. It has also been suggested, that, if such a comparison were to be allowed, an unfair selection of specimens might be made for the purpose of comparison. This, however, would be open to inquiry and observation, and scarcely seems to-be a ground for the total exclusion of such evidence; and perhaps, after all, the most satisfactory reason is, that if such a comparison were to be allowed, it would open the door to a great deal of collateral evidence, which might branch out into very inconvenient length.. Eor in every case it would be necessary to go into distinct evidence to-prove each specimen produced to be genuine, and even in support of a particular specimen (if the present rule was to be broken through), evidence of comparison would be receivable in order to establish the specimen, and so the evidence might branch out to an indefinite-extent.” 2 Starkie on Evidence, 374, 375, and authorities there cited.

Mr. Phillips also states the existence of the general rule of excluding evidence by comparison of handwritings, and gives the same reasons, remarking, that he considers the best “reason for rejecting such a comparison is, that the writings, intended as specimens to be compared with the disputed paper, would be brought together by a party to the-suit, who is interested to select such writings only as may best serve his purpose; and they are not likely, therefore, to exhibit a fair specimen of the general character of handwriting.” He also states, that “ within a recent period, a rule has been established, which amounts to a considerable relaxation of the strictness of the law in regard to the direct comparison of handwriting. Upon a question respecting the identity of handwriting, the jury maybe allowed to take other papers which have been proved to bo the handwriting of the party whose handwriting is disputed — -provided they are part of the proofs in tho cause — and may compare them with the disputed writing for the purpose of forming their opinion whether the disputed writing is genuine. The principle on which this relaxation of the old rule has been allowed, is stated to be, that the jury, having the documents before their eyes and being obliged to look at them for another purpose, it would be impossible to prevent their forming some opinion with respect to the papers being like or unlike the disputed writing.” * * *

“But,” he adds, “it is an established qualification of the last mentioned rule, that documents, irrelevant'to the issues on the record, are not to be received in evidence at the trial in order to enable the jury to institute such a comparison.” 2 vol. Phillips on Evidence, 255, 256. See also Cowen & Hill’s Notes to Phillips on Evidence, pages 1326, 1327 and 1328, and authorities there cited. See also G-reenleaf on Evidence, vol. 1, pages 612 and 615, section 578 and section 580.

It is true, American decisions are not uniform on this subject; but as the rule has been so clearly settled and upon the highest authority in England, we think it best to adhere to it.

We are not aware that the question has heretofore been presented to this court lor adjudication

The writing, offered to the jury in this case and received by the court for the purpose of instituting a comparison of handwriting only, was not admissible; and the defendant has been convicted upon illegal evidence.

The other points presented by the defendant are of no force.

It is tlieroiore ordered, that the judgment appealed from be avoided and annulled, and that this cause be remanded for new trial, and to be proceeded in according to law.


text:
    3078.
    Gustave Boudreau v. Gerasine Boudreau
    In this caso it was held that tlio recording of a sworn statement by the heir was not sufficient to give him a legal mortgage on real estate, which had been sold by ill© tutor to a. third party, prior to the recording of his claim
    APPEAL from the Parish Court of Lafourche.

      Joseph Nicholas, Parish Judge. N. W. JDlalcc, for appellees.

      Isaiah 1). Moore, for S. Meyer, a third party, appellant.
   Taliaferro, J.

The plaintiff instituted this suit against his father and natural tutor (who, being an absentee, was represented by a curator ad hoc,) to require an account of tutorship and to establish the amount due bjr him as tutor; the plaintiff alleging that his father and former tutor received large sums of money from the succession of his mother and from the successions of two brothers and a sister of plaintiff, who died without descendants; that the tutor has failed to present any account of his administration of these successions, or to pay over to.the plaintiff any portion of the proceeds of the same. The plaintiff alleges that, at the time of the death of his mother, his father was in possession of a tract of land and plantation thereon on the Bayou Lafourche, the said land and plantation being community property, acquired during the marriage of his parents. He specifies this tract of land by its boundaries and- superficial contents, and claims a legal mortgage upon it, as security for the liabilities to him by the tutor resulting from the said tutorship. It appears that on the twenty-sixth of December, A. D. 1869, in order to preserve the legal mortgage thus claimed against the specified property, the plaintiff caused to be recorded in the mortgage book, kept in the office of the recorder of the parish of Lafourche, an instrument sworn to by him, in which it is ■stated that his father received from the successions, aforesaid, the sum of five hundred and ninety-four dollars, to which plaintiff was entitled and which the tutor never paid over. This affidavit farther sets out that the tract of land before mentioned was sold by his'father and former tutor to Solomon Meyer and conveyed by notarial act on the twenty-second of November, 1866, and that the seller in that act declared ihat he was indebted to the plaintiff as stated; and that this declaration of indebtedness by the tutor is the only evidence, left to him, of his right of mortgage upon the property sold by his tutor to Meyer. The curator ad hoc presented an account of tutorship), in which the claim of the plaintiff was recognized for $679 35, principal and interest, and as entitled to legal mortgage on the land before referred to. An order homologating the account was rendered, and a judgment pironounced in favor of the plaintiff for the sum of $679 35, with legal mortgage against the land sold to Meyer, as well as all other property then and previously owned by the defendant. A fi. fa. issued on this judgment and was returned nulla bona. After this judgment was rendered, and without having been a party to it, Meyer appealed.

We are of the opinion that the judgment, so far as it accords to the plaintiff a legal mortgage on the property of the appellant, was rendered upon insufficient evidence, and to that extent it should be avoided. Without, therefore, disturbing the judgment as between the plaintiff and defendant decreeing the indebtedness of the defendant to the plaintiff, it is ordered that it be annulled and set aside so far as it decrees and recognizes a legal mortgage on the property of the appellant, arising from the tutorship aforesaid; that this decree reserves to the plaintiff all rights, if any, that he may have to establish and enforce the legal mortgage he claims against the property , now or heretofore belonging to his tutor that may be subject to such mortgage.


author: Ludeling, C. J.

text:
    No. 2190.
    Annie C. Diggs v. James Maury.
    A lessee can not set up, in defense to a claim for rent, that the building was uninhabitable, and that he has suffered damages to his furniture in consequence thereof. In such a •case, the lessee was authorized, if the lessor has failed or refused, to have the necessary repairs made, and deduct the cost from the rent.
    APPEAL from the Second Judicial District Court, parish of Jefferson.

      Pardee, J. Percy Roberts and Says & Smv, for plaintiff and appellee.

      P. M. Pay and A. Oasabat, for defendant and appellant.
   Ludeling, C. J.

The plaintiff sues to recover the rent for a house and square of ground in Jefferson. The defendant filed a general ■denial, and further alleged the house was uninhabitable, and that in •consequence of the want of repairs he was greatly damaged by the deterioration of his furniture, etc.

The plaintiff has proved her claim. The claim of the defendant in reconvention is untenable. If the lessor refused or failed to make necessary repairs, the lessee might himself have, caused them to be made, and deduct the cost from the rent, on proving that the repairs were indispensable, and that the price paid by him was just and reasonable. C. C. 2694 [2664]; 4 Rob. 428 ; 21 An. 714; 22 An. 292.

It is therefore ordered that the judgment of the court a qua be affirmed, wifli costs of appeal.


author: Howe, J.

text:
    No. 2068.
    C. F. Lex and Wife v. The Southern Express Company
    To enable a defendant to obtain a continuance of the cause, on the ground that the testimony of a material witness is not in the record, it must be shown that due diligence has been used to procure such testimony.
    APPEAL from the Fifth District Court, parish of Orleans.

      Peaximont, J. W. TV. Sandlin, for plaintiffs and appellees.

      S, J. Peovy, for defendants and appellants.
   Howe, J.

When this case was called for trial in the court below, the counsel for defendants made an application for a continuance on the ground of the absence of the superintendent of the defendants, whom he alleged to be a material witness. The judge refused the continuance, and, proceeding with the trial, gave judgment in favor of plaintiffs, from which the defendants have apxiealed.

They claim that the judge erred in refusing a continuance. The record, however, does not show due diligence on defendant’s part. The suit was instituted March 20, 1868. The answer, a general denial, was filed Axn'il 7, 1868. Testimony was taken for plaintiffs by commission during the summer and in the clerk’s office in November, 1868. The cause, we presume, was regularly called and fixed for trial at least a week prior to the sixteenth of December, 1868, the day on which the ax>plication for a continuance was finally made. The affidavit did not show why the testimony of the absent superintendent had not been taken, why he had not been notified to be present, and especially did not state what the defendants expected to prove by him or by any witnesses whom he might furnish. It is quite possible that if this latter statement had been made, the plaintiffs, by proper admissions, would have removed any desire for a continuance.

The plaintiffs’ case seems to be fully made out on the merits. They have prayed for damages for frivolous appeal.

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


text:
    No. 2157.
    Charles Case, Receiver of the First National Bank of New Orleans, v. A. Marchand et als.
    Tlie maker of a note iu favor of a bank can not urge, as a defense to its payment, that tbe appointment of a receiver by tbe government, to liquidate its affairs, was not regular. It is sufficient for tlie maker to know that a receiver was appointed, who holds the note, and that he will be discharged by paying it.
    A bank, by refusing to pay checks drawn upon it, does not incur a liability in favor of the payee. Therefore, the holder of checks on a bank can not, after payment has been refused, plead them in compensation against his note held by the bank or its receiver.
    APPEAL from the Fifth District Court, parish of Orleans.

      Beaumont, J. J. D. Bouse, for plaintiff and appellee.

      G. Schmidt, for defendant and appellant.
   Wyly, J.

The defendant, Marchand, sued as the maker of a promissory note, has appealed from the judgment against him.

The defense is, that the preliminary proceedings, under the national bank act, were not complied with in appointing Case the receiver, and he can not sue as such. Also, before the receiver was appointed, to wit, on the sixteenth or seventeenth of May, 1867, this defendant tendered paj^ment of the note sued on, and the same was refused.

It is no defense to the note for the maker to complain that the receiver, appointed by the government to liquidate the bank to whom the note was given, was not regularly appointed. It is enough for the maker of tlie note to know that Case was appointed receiver, and as such holds the note on which he is sued, and that he will be discharged by paying it.

In reference to the alleged tender of payment on the sixteenth or seventeenth of May, 1867,- we will remark that the bank was not bound to receive it, because the note had not then matured. The fact that the defendant presented cheeks or drafts on the bank, on the sixteenth or seventeenth of May, 1867, and was refused payment, is of no consequence. The drawee incurs no obligation in favor of the payee by refusing to accept or pay the draft or check.

The defendant, as holder of checks which the bank refused to accept, can not compensate his debt due the bank therewith, because there are not two debts equally liquidated and demandable. C. C. 2205. The bank having refused to accept, was not the debtor of the defendant. See Casey, Receiver, v. Henderson et al., just decided.

The plaintiff has asked for damages for frivolous appeal, and we think he should have them.

It is therefore ordered that the judgment be affirmed, with costs. And it is further ordered that the plaintiff have judgment against the appellant for two hundred dollars, damages for frivolous appeal.

Rehearing refused.


text:
    2156.
    City of New Orleans v. Home Mutual Insurance Company.
    Bonds issued by corporations and owned "by tlio city of New Orleans, do not constitute a part of the franchises of the city, nor are they essential to the existence or proper exercise of tlio functions of the corporation. A judgment creditor of the city may therefore cause such bonds to be seized and sold in satisfaction of his debt
    APPEAL from Seventh District Court, parish of Orleans.

      Collens, J. Rufus Waples, Assistant City Attorney, for plaintiff and appellant.

      Lacey efi Butler, for defendant and appellee.
   Taliaferro, J.

The Home Mutual Insurance Company, having obtained judgment against the city of New Orleans, issued execution and caused to be seized, as property of the city, certain bonds of the Commercial Water Works and of the Now Orleans and Jackson Railroad, and was proceeding to sell them, when the city obtained an injunction restraining the sheriff from making the sale.

On trial of the case in the court below, the injunction was dissolved, and five hundred dollars as damages were awarded the defendant. The plaintiff in injunction appealed.

In this court the defendant prays an amendment of the judgment rendered by the court a qua, decreeing in its favor eight per cent, interest and twenty per cent, damages on the amount enjoined.

The injunction was prayed for on the ground that the bonds seized have the character of public property, and that an individual creditor can not appropriate to his individual benefit property of that kind destined for the use and benefit of the corporation and of the. people. We are referred to the case of Egerton v. The Third Municipality, 1 An. 435, and the case of the Police Jury v. Michel, 4 An. 84.

These cases, in our view, do not sustain the doctrine contended for.. In the former, the principle was elaborately announced that the paramount interests of public order and the principles of government forbade the right claimed by the plaintiff, as a creditor of the corporation, to seize and sell taxes due to the .corporation; that the authority under article 637 of the Code of Practice granted to creditors to seize under execution “ all sums of money which may be due to the debtor in whatsoever right,” refers exclusively to that class of rights defined and protected by the constitution as the rights of property, and that taxes imposed for the protection of those rights form no part of them. In the latter case cited, the same principle was recognized. The police jury of West Baton Rouge enjoined a seizure, made by a creditor of the parish, of the courthouse, jail, recorder’s office, clerk’s office and office furniture. The decision was adverse to the pretensions ot the seizing creditor. In the case of Egerton v. The Third Municipality, our predecessors, following the reasoning and line of argument used by the Supreme Court of the United States in the great case of McCulloch v. The State of Maryland, said: “ The power to seize the tax in this case involves the power to destroy the corporation; the power to destroy the corporation may defeat and render useless the power to establish it, and that there would have been a plain repugnance in conferring on any individual the right to arrest or impede the action of a constitutional power in the function of government.”

The bonds, seized in the case now before the court, can not bo regarded as having the same character as that of the tax due the Municipality, or of that of the public buildings in the cases relied upon in the-First and Fourth Annuals. They are not essential to the existence of the corporation nor to the useful and proper exorcise of its functions. The corporation might be dejirived of them without impairing in any degree its capacity to exercise the functions contemplated by the act. of incorporation.

We do not think the circumstances require an amendment of the-judgment.

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


text:
    No. 2173.
    Mrs. M. L. Vaughn and Husband v. R. Terrell and Dr. H. F. Wade, Testamentary Executors.
    The action to recover tli© wages of a person employed as a nurse is prescribed by onoyear. C. C. 3534.
    APPEAL from the Second District Court, parish of Orleans.

      Duvigneaud, J. Cotton & Levy, for plaintiffs and appellees.

      T. &■ J. A. Gilmore, for defendants and appellants.
   Ludeling, C. J.

This is an action against the executors of Mrs. Lucretia Wade to recover five thousand dollars for services, as a nurse,, rendered to the testatrix during her last illness.

The defendants have plead the prescription of one year in bar of the suit.

The plea must be maintained. The plaintiffs’ action comes within that class designated , in the fifth paragraph of article 3534 [3499] of the Civil Code — ■“ Celle des ouvriers, gens de travail et de service, pour le paiement de leurs journees, gages et salaires.”

Mr. Marcado says of nurses, gardes-malades, “ ce sont des gens do travail, rentrant sous Particle précédent.” Mar. Prescription, p. 216.

It is therefore ordered, that the judgment of the district court be annulled, and that there be judgment against the plaintiffs, rejecting their demand, with costs of both courts.


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    No. 2155.
    B. L. Britton v. Aymar & Bryant and Jerome Bradley & Co.
    A depositary is bound, in the absence of any judicial proceedings, to hold the property deposited,'subject to the order of the depositor. C. C. 2920, 21 and 29. A depositary can not therefore bo held liable in damages, in the absence of proof of fraud, for obeying the orders of the depositor.
    In this case, the evidence in the record shows that the plaintiff deposited a lot of cotton in the defendants’ warehouse; that a lien was given and recognized by the depositors for the payment of the charges of storage; that the cotton was, two days thereafter, seized by the treasury agent of the United States. Held — That the depositary, not being able to resist the seizure and consequent custody of the cotton by the United States, acting through the Treasury Department, could not be held liable in damages lor the failure to deliver it, when demanded by the depositor. Per curiam: The fact that the seizure was-subsequently reloased by the authorities of the Treasury Department of the United States, is not to he taken and construed against the depositary. The agents of the Treasury Department are presumed to have acted honestly in the discharge of their duties, and therefore collusion, with the defendants, in making the seizure, will not be presumed.
    APPEAL from Fourth. District Court, parish of Orleans.

      TMard, J. James Brewer and Miles Taylor, for plaintiff and appellant.

      Billings & Hughes, for Jerome Bradley & Co., defendants and appellees.

      Baoey & Butler, for Aymar & Bryant, defendants and appellees.
   IIowe, J.

It appears that in December, 1865, the plaintiff was in possession, claiming to be owner of a quantity of cotton, at Camden, in the State of Arkansas; that nine hundred and twenty-five bales thereof were there seized by O. H. Burbridge, an agent of the Treasury Department of the United States, and by him shipped to New Orleans by the steamboats Alabama and May Bruner; that upon its arrival in New Orleans, in January, 1866, it was sequestered by plaintiff in a suit begun by him in the United States Circuit Court against Bur-bridge, as an officer of the government; that, in virtue of the writ of sequestration, it was taken by the United States Marshal and stored with Jerome Bradley & Co., who seem to have kept a warehouse for the purpose of receiving cotton of this description, and that Jerome Bradley & Co. advanced a large amount of freight and charges on the same, and held it subject to further orders and to the payment of theii charges.

About the first of February, 1866, Jerome Bradley & Co., who had rented the place of deposit, “ Orleans Yard No. 2,” from the co-defendants, Aymar & Bryant, gave up this yard to their lessors, leaving the cotton claimed by plaintiff on store with Aymar & Bryant, and still subject to the order of themselves, (Jerome Bradley & Co).

On the sixth of March, 1866, the United States Marshal gave an order, addressed to “Orleans Yard No. 2, or Jerome Bradley & Co.,,: for the delivery to plaintiff or his order of the cotton in question, with the condition that “the press customary charges will be paid by Mr. Britton or his agents, as well as any charges or outlays due by said cotton.”

The plaintiff indorsed this order, “ Please deliver to Richard Lloyd,” and on the seventh of March, 1866, the order was indorsed by one ol the firm of Aymar & Bryant, defendants, as follows:

“By virtue of this order, I have this day delivered the within cotton to Benjamin L. Britton, who has delivered the same to Richard Lloyd.

For Merchants’ Press E. K. BRYANT.”

It appears as matter of fact from the record, that this last indorsement was made subject to the condition expressed in the Marshal’s order, and with the understanding that the claims of Jerome Bradley & Co., the depositors of Aymar & Bryant, should be satisfied before the cotton should be actually given up to the plaintiff or his agent, Lloyd. There has been some discussion between counsel as to whether this collateral agreement could be established by parol. It suffices to say that the testimony on this point was received without exception.

On the same day, March 7, 1866, Jerome Bradley & Co. notified Aymar & Bryant, in writing, that they must not give up to plaintiff the cotton, as he refused to pay the freight and charges. On the next day this notice was repeated, in writing, with a statement of the amount of charges. On the day following, March 9, 1866, the defendants, Aymar & Bryant, were notified by the Collector of Customs, acting for the Secretary of the Treasury, to hold this and all other cotton claimed by plaintiff, and inspectors were detailed to compel obedience to this order. On the twelfth March, 1866, B. F. Flanders, General Agent of the Treasury, ordered Bradley to hold all cotton in his hands, claimed as government cotton, and Bradley, in turn, notified Aymar & Bryant to the sanie effect.

On the tenth of April, 1866, Flanders, as General Agent, notified Jerome Bradley & Co. that he was ready to adjudicate and decide the case of the plaintiff’s cotton — “the Britton cotton.” On the twelfth April, Burbridgo, as “Supervising Special Agent of the Third Agency” of the Treasury, notified Jerome Bradley & Co. to hold the cotton claimed by B. L. Britton, marked B. L. B. and other marks, subject to my official order, any release or order to the contrary notwithstanding.” On the same day, Jerome Bradley & Co. notified Aymar & Bryant, in writing, and at considerable length, to retain the cotton. On the seventeenth of April the cotton was released by Burbridge, as Supervising Special Agent, and Jerome Bradley & Co. gave an order to Aymar & Bryant, in favor of plaintiff, for its delivery to him, and it was delivered. Thereafter, this action was instituted to recover from Aymar and Bryant and Jerome Bradley & Co., as wrongdoers, in solido, damages for

First — Depreciation in price of cotton from March 6 to April 17, 1866.

Second — Value of difference in Quantity delivered to defendants and that restored by them.

Third — Injury from bad storage.

Fourth — Damages by substitution of rubbish for good ordinary cotton.

After trial the court below rejected the demand of plaintiff and also a reconvenfional demand for damages set up by Aymar & Bryant, and the plaintiff alone appealed.

It seems plain, from the facts above stated, that Aymar & Bryant were the depositaries of Bradley & Co., and were bound, in the absence of a judicial proceeding on the part of Britton, to hold the cotton subject to the order and control of the depositors. C. C. 2920, 29.21, 2926; Pothier Depot, No. 40; 7 M. 284; 2 N. S. 284; 6 La. 34; 21 An. 596.

In the absence, then, of proof of fraud and collusion, we must think that Aymar & Bryant can not be held in damages for obeying the orders of the depositors, Jerome Bradley & Co. But, even if the facts do not justify the application of this familiar principle of the law to the whole case, there is another element which perfects the defense. It will appear from the dates above recited that the detention of the cotton, w’hothor by Aymar & Bryant or Bradley & Co., for the.purpose of enforcing a settlement of an alleged claim for advances and charges, lasted but two days, March 7 and 8, and that on the ninth the government came in to assert a claim by a power which could not be resisted; and that this irresistible power of the United States, acting through the Treasury Department, reinforced by the Department of War, hold the cotton until the seventeenth of April, 1866, when it was finally released. It is true that no military guard was placed over it, but that was not necessary. A large military force was present, commanded by a vigilant general, and the war had not yet been declared at an end by the political department of the government. The agents of the treasury, engaged in the important business of collecting and saving for the people of the United States the large quantities of cotton surrendered by the defeated insurgents, are presumed to have acted honestly and regularly in this case, and there is no evidence to rebut this presumption and to show that their seizures were made by collusion with the defendants. During the two days of detention, which may be, perhaps, ascribed to the acts of the defendants, it does not appear that there was any decline'in the value of the cotton. At the most, then, it was damnum absque injuria. The decline which took place afterwards and up to April 17, must, so far as we can perceive, be accepted by plaintiff as one of the misfortunes, incident to a time of civil turmoil.

We have thus far directed our attention chiefly to Aymar & Bryant. The detention by the Treasury agents, from March 9 to April 17, is-equally a defense for Bradley & Co., there being no evidence that, these official seizures were made by collusion, with Bradley & Co.

The other items of damage claimed are not clearly established.

Judgment affirmed.


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    No. 2191.
    Margaret Love, Testamentary Executrix v. R. L. Adams & Co.
    The defendants, R. L. Adams & Co., were sued for a balance due Joseidms Lore. E. T. Jennings, one of tlio firm of E. L. Adams & Co., averred tliat the indebtedness of Love, if it ever existed, was due by the former firm of It. L. Adams & Co., of which he was-not a member, and not by the present firm, of which he is a member and against whom, suit is brought., The evidence shows that at the time Jennings entered the firm of E. L. Adams & Co., he was made acquainted with the debt standing against the former firm in. favor of Love; that he made no objection thereto, but, on the contrary, made provision, for its liquidation by the now firm. Held — That these acts on his part amounted to an. assumption of this liability as a partner.
    APPEAL from the Seventh District Court, parish of Orleans.
    Oollens, J. liandolph, Singleton & Browne, for plaintiff and appellee.

      Ilgams & Jonas, lor defendants and appellants.
   Taliaferro, J.

The plaintiff, as executrix of her husband, Josephus-Love, sues the defendants on an instrument of writing in their hands, signed by Josephus Love, acknowledging the receipt by him of one thousand dollars in part payment of a balance owing to him by R. L. Adams & Co., leaving at the date of the instrument (twenty-ninth May, 1866,) due Love $4264 96, to bo paid by them in equal installments on the first of January and first of April following, without interest. The plaintiff prays judgment for this balance due, subject to several credits specified in ber petition. R. T. Jennings, one of the defendants, answering for himself alone, specially denied that the firm of R. L. Adams & Co., of which he was a member, was ever indebted to Josephus Love or his estate. He avers that the indebtedness alleged, if it ever existed, was by the firm of R. L. Adams & Co., composed'of R. L. Adams and J. J. Micliie, to which the firm now sued are successors. He denies that his firm, composed of R. L. Adams and himself, ever received any consideration Whatever for the alleged indebtedness. He also pleads the prescription of three years. Adams, the other defendant, made no defense. Judgment was rendered in solido against the defendants for the amount claimed, subject to admitted credits.

Erom this judgment, Jennings alone appealed.

It appears in proof that the original firm of R. L. Adams & Co., composed of Adams and Micliie, owed Love, in April, 1860, a debt exceeding ten thousand dollars. In July, 1860, the co-partnership of R. L. Adams and R. T. Jennings was formed. It appears, also, that several of the accounts standing on the books of the first firm of R,,,L. Adams & Co. wore transferred to the books of the second firm having that style, and among those accounts so transferred was the account with Love. Jennings, in his own testimony, says that these transfers were made without his consent. This statement, Adams, the other partner, in his testimony, denies. He says that Jennings made no objection to the transfer. The partnership last formed expired, by its own limitation, on the first July, 1862. In 1861, Jennings paid Love, on account, $5000, and we infer that the entry of this payment was made on the books of the firm of R. L. Adams & Co., of which Jennings was a partner. In 1867, after the death of Love, a person instructed by the executrix called to see the state of the account, and Jennings directed the book-keeper to make it out, and the account was accordingly furnished. He knew that the account stood upon the books of the firm, of which he was a member, for he says himself that he protested against its being placed there. He was instrumental, in 1866, in adjusting the business with Love, who had threatened a law suit. He arranged the settlement with Love, which resulted in the payment of the thousand dollars and the giving of the Instrument of writing upon which this suit is based. We are satisfied that the transfer of Love’s account to the books of the firm of which Jennings was a partner, was with his consent. The reason for that consent seems sufficiently clear, namely, that the partners of the new firm desired to retain the customers of the former firm. Jennings says, in his testimony: We expected to do business with some of the parties whose accounts were transferred.” We consider that Jennings participated in the matter and became bound thereby. His plea of prescription can not avail him. We think the judgment appealed from correct.

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


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    No. 2178.
    L. Lastrapes et al v. Rosa Rocquet.
    The rule Quca temporalia sunt ad agendum, perpetua sunt ad ecccipicndum may he urged as a means of defense, but it can not be used as a weapon of attack. Therefore a purchaser of property, when sued for ike price, may urge in defense the redhibitory defects, the diminution in quantity and the like, although his right to recover by direct action for euck cause be prescribed.
    APPEAL from the Fifth District Court for the parish of Orleans.

      Leaumont, J. Armand Petot, for plaintiffs and appellants.

      Miller & Huntington, for defendants and appellees.
   Howell, J.

The plaintiffs seek to have a note for $10,000, due thirty-first March, 1862, and the mortgage securing its payment, given for the last installment of the purchase price of a plantation and slaves in St. Landry, canceled and extinguished, on the ground that the payments made far exceed the value of the land, improvements and movables purchased by them, the alleged proportion being $60,000 for slaves and $20,000 for the land, improvements and- movables, and the total paid being $60,000. The defense is that the demand is unfounded in law; that if admissible, the proportion is as three-sevenths .for the slaves to four-sevenths for the land, etc.; that the whole loss should not fall on the note, which fell to her share in the partition among herself and co-heirs; that plaintiffs are liable for the hire of the slaves, if they are released from payment of their price; and she prays the dismissal of the demand or its reduction, and, in reconvention, claims her proportion of $50,000 for the hire of the slaves ; and also file amount of said note with a recognition of her mortgage. To the reconventional demand the prescriptions of three, five and ten years and the constitutional inhibition were pleaded.

All the evidence, touching the relative value of the slaves and the other property, was introduced by the plaintiffs, and it sustains the proportion sot out in their petition. The only question for our decision is that of prescription, to which the defendant opposes the maxim,

“Quw temporalia sunt ad agendum, perpetua sunt ad exeipienclum.”

This appears to us a misapplication of the rule invoked, and one which must tend to render the laws of prescription inoperative. If the position taken by defendant be correct, the holder of a mortgage note actually prescribed lias the right to enforce its payment, because - the maker seeks to relieve his property or credit from the shadow cast upon it by the outstanding of such note. The rule is intended as a shield, and not as a weapon of attack; as, when a purchaser is sued for the price of property, he may set up a redhibitory defect, deficiency in quantity, and the like, although the right of a direct action, arising from such cause may be prescribed.

The defendant’s right to demand payment of the note: Her cause of action does not grow out of the right or cause of action on the part of the plaintiffs. It is an original, in dependant right, growing out of the obligation contra-ted by the plaintiffs in her favor) and that of plaintiffs rests on events occurring since the origin of said obligation, and which they say have extinguished that obligation. Defendant’s attempt seems to be a reversal of the ordinary application of the rule. No question is raised by her as to any renunciation of acquired prescription, and no interruption is alleged or shown.

Judgment affirmed