text:
    Billow v. The Western Marine and Fire Insurance Company.
    No indemnity can be given to tbe plaintiff, in an action on a policy of insurance on a steamer, for a general average loss, without evidence of the value of the cargo and freight.
    Wages and provisions of the crew cannot form p art of a claim for p articular average.
    APPEAL by the defendants from a judgment of the District Court of the First District, Buchanan J., rendered in favor of the plaintiff for $309 57„ with interest from judicial demand.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff is the assignee of the claim of one Ridgely, who obtained from the defendants a policy for $3,000, on one eighth of the steamer Alton, her body, engine, tackle, &c., said one eighth valued at $4,000; the entire boat, her body, engine, tackle, &c., being valued at $32,000. The insurance was for one year, the boat to navigate the Mississippi river and its tributaries. The premium was $300. By the memorandum it is agreed, “that the steamboat is warranted by the assured free from average under fifteen per cent, unless general; and when a simple average loss shall be on account of repairs, or the loss of apparel and furniture (anchors excepted), the assurers shall be answerable for only two-thirds of the expenses of reparation, or replacing the property lost, the other third being considered as the general difference of value between new and old materials.”

It appears principally from the admissions contained in the briefs of counsel, for the evidence is very meagre, that the steamboat Alton, on her voyage from New Orleans to St. Louis, when near Cape Girardeau, was injured by striking a snag, or some other object beneath the surface of the water, which made it necessary to put back to Cape Girardeau, and take out her cargo. She then proceeded to St. Louis for repairs, which being completed, she returned to Cape Girardeau, took in her cargo, and returned to St. Louis, her place of destination. It is also alleged by plaintiff, though of this there is no proof, that “there were no means of repairing the boat at Cape Girardeau; that when the boat arrived at St. Louis, it was some days before she could go into dock; that during the time, the boat still leaking, and the danger from the ice very imminent, it was deemed necessary, for the preservation of the boat, that the captain and crew should be kept on board, the engine being generally at work both day and night; that after being repaired, and ready to return to Cape Girardeau to take in her cargo, and complete her voyage, the ice was so very thick that it was some days before .she could proceed, during which time the captain and crew were kept on board to preserve the vessel, and to be ready at the first favorable moment to proceed. After tire ice was sufficiently removed, she did proceed to Cape Girardeau.” See plaintiff’s brief.

An account of charges, originally relied on, presented a total amount of $6,608 23. But a revised bill was subsequently presented, which both plaintiff and defendant agree that we shall consider as the subject of the controversy, and which we now proceed to examine.

This bill, exhibiting a total of $5,015 24, which is stated as “ gross amount of loss on the whole boat,” exhibits the following items:

Amount of dry dock bill,.'.$926 22

Amount of bills allowed, and subject to reduction of one third,.$1,253 02

Deduct one third, new for 61d,. 417 67 835 55 $1,761 77

The residue of the bill is composed of two items, to wit: “ Wages account and board horn Cape Girardeau to St. Louis to repair”..... $919 94

“Wages account at St. Louis and boarding, while repairing.” The items are then given, being for captain, mate, carpenter, five men, engineers, board, wood, coal and labor, and blankets,. 2,333 53 3,253 47

Total, ,$5,015 24

Q. B., and L. C. Duncan, for the plaintiff. Maybin, for the appellants.

Now, on the plaintiffs own showing, it is evident that a large portion of these charges, if recoverable at all, could only be recovered on the ground of general average. But the plaintiff has given us no means of ascertaining the proportion of the boat in a general average contribution, for we have no evidence of the value of cargo and freight. Without these data, it is impossible to give the plaintiff any indemnity on the score of a general average loss;- and hence the judgment of the court below, which is based solely on the footing of general average, is erroneous.

The claim then of the plaintiff, as the ease has been presented to us by the evidence, must rest entirely upon such rights as the plaintiff can establish for a particular average. It is well settled that wages and provisions of the crew cannot enter into a claim for particular average. Some of the decisions go so far as to say, that wages are so chargeable, when the crew is proved to have assisted in executing the repairs. But this would not aid the plaintiff, for he has not proved such employment. It is unnecessary, therefore, for us to inquire which of the two conflicting doctrines is the more just and reasonable. See 11 Johnson, 315. 1 Conn. 239. 5 Hammond, 306. 6 lb. 73. We must, therefore, begin by deducting from the total amount of charges, being ¡5>5,015 24, the sum of S3,253 47. This leaves an amount of $1,761 77. As the whole value of the boat was 3532,000, of which f4,000, or the eighth, was the valuation in the policy of the interest of the assured, the result exhibits a loss of much less than fifteen per cent. The amount of loss to come up to fifteen peí-cent, should have been, on the most liberal calculation for defendants, $450; whereas it is only $220 22. This loss, therefore, under the policy, is not recoverable from the defendants. It is to be observed that in this calculation we have not considered whether the one third should be deducted from the dry dock charges of $926 22, it not being necessary to do so. Nor is it necessary to consider whether the per centage should be calculated on $3,000 or on $4,000, as in either case the loss would be under fifteen per cent. Nor would it make any difference as to the result, if the items loosely charged for wood, coal and labor, were considered as not to be exoluded, being only a sum of $436 89, the one eighth of which would only increase the above amount of average loss to $274 83.

It is, therefore, adjudged and decreed, that there be judgment for the defendants, and that the plaintiff pay the costs in both courts.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Jorda v. Lewis et al.
    A sale of moveables, unconditional on its face, not accompanied by delivery, is void as to third persons. C. C. 1916. The creditors of the vendor may treat the sale as a nullity and seize the property under a fi. fa., without resorting to an action to annul the sale. C. C. 1917.
    from the Parish Court of New Orleans, Maurian, J.
   The judgment of the court was pronounced by

Slidell, J.

Ramon Farias having instituted suit against De LizardifyCo. in the First District Court, the defendants reconvened, and obtained judgment in reconvention against Farias. Farias appealed, and the judgment against him was confirmed. The decree of the Supreme Court was filed in the District 'Court on the 7th June, 1843, and a fteri facias against Farias was issued on the following day. On this writ certain goods were seized, which the plaintiff alleges were his property. He claims its restitution, or judgment for its value, and also claims damages for the alleged trespass. His alleged title is a notarial act of sale, which will be hereafter considered. The action is brought against the sheriff and his deputy, who have called De Lizardi Co. in warranty. The defendants pleaded specially that the sale was simulated, and made with the fraudulent intent of defeating the rights of De Lizardi 8f Co., and that the property seized was the property of then- debtor, Farias, at the time of the seizure.

It appears that, on the 8th June, 1843, Farias executed an act of sale in favor of Jorda, before a notary in New Orleans, of a slave and of tire stock of a cigar shop, described as “.established in a'house situate in St. Charles street, No. 88, with all the merchandise and other objects detailed in an Inventory, dated 7th June, 1843, made between the parties and hereunto annexed for reference,” etc., “which establishment belongs lawfully to the seller, he having established it at his own cost and expenditure, as he declares, with which declaration the purchaser acknowledges himself satisfied.” The price of the slave, goods and establishment are then stated at $2000, which the seller acknowledges to have received in cash. By the usual clause the purchaser acknowledges himself to be put in possession.

On the 12th June, 1843, being a day or two after the writ of execution came to the sheriff’s hands, his deputy exhibited the writ to Farias, at the shop described in the act, and demanded payment. Farias hesitated, inquired the amount of the claim, and at length refused to pay. The officer then threatened to seize the goods in the store, upon which Farias took from a drawer, which he unlocked, a copy of the notarial act, and said the shop was not his, but had been sold to Jorda. The production of the document was elicited by the inquiry of the officer, why, if the shop was not his, he kept his own name on the door, and showed by the appearance of every thing about the shop that he was the real owner. Farias, after producing the act of sale, called Jorda, who appeared much confused. The officer told them they had better reflect on the matter, retired, consulted counsel, returned the same day and made a seizure. When the seizure was made Jwda said nothing, and was not present when the goods were subsequently taken away by the officer. Before taking away the goods in controversy, the officer put a keeper to watch the property; and while the officer was gone, a person, apparently at the instigation of the wife of Farias, came and began.to carry off the goods, whereupon, as the property was fast disappearing, the officer took possession of as much as he considered sufficient to cover the writ, and carried it away. The occurrences after the levy, as stated by tho officer, are confirmed by the person employed.as keeper.

The plaintiff has offered in evidence the notarial act, unaccompanied, however, by any inventory; also, a general notarial power of attorney, executed by Jorda to Farias, on the 18th July, 1843, one month after the institution of this suit, in which Jorda is described as a resident of Havana. He also offered a single witness, This witness proves very little that is pertinent to the issue. • He speaks of having sold Farias cigars at Havana, which were paid for by Jorda, who is a large manufacturer there, and says that Jorda and Farias have had business transactions together, the nature of which, however, he does not detail. He gives no evidence of the particular value of the goods seized. On his cross-examination by the defendants, he states that Jorda never resided in New Orleans, and that the slave is still (February, 1845,) in the possession of Farias, who continues to occupy tho same shop.

The judge below gave judgment in favor of Jorda against Lewis, the sheriff, decreeing the return to Jorda of the cigars seized, and, in default of such return, judgment for $1009 40, and a further sum of $50 damages. Judgment was rendered in like manner in favor of the sheriff against Le Lizardi Sf Co., as warrantors. Lewis and Le Lizardi Sf Co. appealed.

• We cannot affirm the judgment of the Parish Court without overthrowing a principle of vital importance to the interests of commerce, and based on sound considerations of public policy. Our law does not recognize, as against third persons acting in good faith, a sale of moveables unaccompanied by delivery. “ With respect to personal effects, although the consent to transfer vests the property in the obligee, yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor, being in possession, should, by a second contract, transfer the property to another person who gets possession before the first obligee, the last transferree is considered as proprietor, provided the contract be made on his part bond fide, and without notice of the former contract.” Civil Code, art. 1916.

“ In like manner if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor to seizure and attachment, in behalf of his creditors.” Civil Code, art. 1917.

Though in some countries non-delivery in the sale of chattels is conclusive as between the purchaser and a seizing creditor, and in others the non-delivery is permitted to be explained, yet in every system of jurisprudence known to us there is a perfect harmony to this extent, that the continuance in possession by the vendor of a moveable, in case of a bill of sale absolute on its face, is indicative of fraud.

In the present case, the vendor having continued in possession of moveables professedly sold by a bill of sale absolute on its face, the creditor was authorized to seize. Judge Martin, in delivering the opinion of the court in Garritson's case (7 La. 551) says, that even in a defeasible sale, the property does not pass from a vendor with regal’d to third parties till tradition takes place, and that in the contract of sale generally, before tradition the vendee has jus ad ran, and not jus in re. This doctrine, in its most enlarged extent, has been uniformly maintained in this State, both under the old and new Codes. The enforcement of the doctrine exhibits no hardship on this occasion, for we can, under all the circumstances, come to no other conclusion than that Jorda was not a bond fide, but a mere simulated, vendee. He professes by the act to have paid $2000 cash for a negro and a stock of goods on the very day when the writ of fieri facias was issued against Farias ; the copy of the act of sale remains in the possession of Farias; the slave and goods are left in the vendor’s possession; the name of Farias appears at the door of the shop, and Farias himself at the counter; and though simulation and fraud are expressly pleaded by his adversary, no proof to the payment of the $2000 is offered by Jorda, except the acknowledgment in the notarial act.

We cannot concur with the judge a quo, that in a case of this sort Le Lizardi Sf Co. were inhibited from seizing, and should have first brought suit against Jorda to annul the sale. We will not here consider the question proposed ly counsel, whether the doctrine of the necessity of an action to annul, applies to moveables as well as to immovables. It is sufficient that, as against the seizing creditor, this sale to Jorda, absolute on its face, was incomplete without deliverry Even had Jorda shown that he actually paid the $2000, he could not have any relief at our hands, without establishing an actual delivery and possession.

C. Q. De Armas, for the plaintiff. L. Jarán, for the appellants.

It was said, and we believe correctly, by the former Supreme Court, in Weeks v. Flower, that although its decisions were numerous, “that when a purchaser is in possession under a conveyance, the question of fraud cannot be inquired into collaterally, commencing by a seizure, but the party complaining must bring a revocatory action,” yet “ in all the cases which have turned upon that principle, the purchaser was in possession.” 9 La. 379.

We find, on a careful examination of the cases in which the doctrine referred to has been maintained, that they are all, with but rare exceptions, cases of contest as to lands or slaves. The only case involving corporeal moveables, which we have found in a series of decisions, covering several years, is the recent case of Presas v Lanata, 11 Rob. 289. There the fi. fa. had been levied on the contents of a coffee-house, previously sold by the defendant in execution, and it was proved that the purchaser had been in open possession for two months, had taken a lease and a license in his own name, had put his name upon the door, and in all respects acted as owner. The plaintiff in execution was accordingly considered as having acted unjustifiably in proceeding by seizure, and treating the sale as a nullity. What may be the rule with regard to possession us to im-movables, it is not pertinent to our present purpose to inquire; but anyjother rule, in case of moveables left in the vendor’s possession, than that which we now recognize, would not only violate the manifest will of the legislator, but expose creditors to expense, delay, and often to the utter loss of their just claims.

It is, therefore, decreed, that the judgment of the Parish Court be avoided ; and judgment is now rendered in favor of the defendants, the plaintiffs paying She costs in both courts.


text:
    The New Orleans Canal and Banking Company v. Hagan.
    The insertion in a mortgage executed to secure a debt due by a third person, of a clause by which the mortgagor u confesses judgment for the amount of the debt, and agrees, in case of its non-payment as provided by the act, that the law, in such cases made and provided, may be strictly enforced and summarily put in execution/’ is not evidence that the mortgagor intended to bind himself personally for the payment of the debt. The clause was intended merely to give the remedy by executory process against the hypothecated property. It does not authorize the tailing out of a fi.fa. against other property of the mortgagor, nor the registry of the act so as to operate as a judicial mortgage. C. 0. 3263.
    The execution of a mortgage to secure the fulfilment of an obligation of a third person, gives no right of action against the mortgagor personally. C. C. 3264.- Whether the mortgagor intended to bind himself personally, is a question of intention, tobe determined by a just and reasonable construction of the whole instrument.
    Contracts of suretyship must be construed strictly. The law favors the surety.
    Suretyship cannot be presumed. C. C. 3008. Nor does it imply a mortgage on the property of the surety. No mortgage exists unless expressly stipulated. <3. C. 3010.
    Defendant obtained a loan from a bank prohibited by its charter from taking more than a certain rate of interest on any of its loans, on the condition of his executing a mortgage on cer. tain property to secure its repayment, with the highest rate of interest which the charter of the bank allowed, and of his granting a second mortgage, on the same property, to secure a debt due to the bank by a third person. In an action to enforce the mortgage executed to secure the debt due by such third person: Held, that by requiring the second mortgage, the bank stipulated for sometliing more than the payment of the highest rate of interest allowed hy its charter, that the stipulation was usurious and illegal, and that the mortgage to secure the debt due hy such third person cannot he enforced.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      F. B Conrad, for the plaintiffs. L. Janin, Benjamin and Micou, for the defendant. Preston, appellant, pro se.

   The judgment of the court was pronounced by

Slidell, J.

It is unnecessary to recite the peculiar circumstances under which the numerous and conflicting interests presented by this record, have become the subject of discussion in one suit. It will suffice to state what the parties ask at our hands. The Canal Bank, having obtained an order of seizure and sale upon a mortgage note for $12,000, Preston and Adams claimed an interest in the proceeds of sale, as mortgage creditors to the amount of $68,000, and interest, not disputing, however, the validity of the mortgage in favor of the bank. They, also, claimed a judgment against John Hagan, personally, for $67,510, with large arrearages of interest. Other relief, as to the mode of selling the property, &c., was asked by Adams and Preston, which it is unnecessary to detail. Plagan resisted the claims of Adams and Preston upon three grounds principally, to wit: that they were not the owners of the alleged mortgage claim; that if they were, he had never incurred any personal liability, and was a mere mortgagor; and lastly, by a plea filed during the progress of the trial, that the contract of which Preston and Adams professed to be the assignees, was void for usury.

The material facts of this case are as follows: On the 22d May, 1839, John Hagan executed a notarial act of mortgage in favor of the Canal Bank and the Exchange Bank, for loans made to him by these corporations respectively, being $20,000 by the Exchange Bank, and $12,000 by the Canal Bank. Two notes were given by Plagan for these amounts, each payable at one year from the date of the act; the one of $20,000, to the order of the Exchange Bank, bearing seven per cent per annum interest, from date till final payment, and the one of $12,000, to the order of the Canal Bank, bearing interest at eight per cent per annum, from date until final payment. Hagan acknowledges the receipt of the full amount of the respective loans in cash, on the day on which the act and notes were executed.

On the 25th May, 1839, being three days subsequent to the giving of the mortgage, and the receipt of the above loans, Hagan executes another act of mortgage, before the same notary, in favor of the same banks, upon the same real estate. The debts to be secured, and the circumstances under which the mortgage was agreed to be given, as well as the extent of Hagan’s contract, will be best exhibited by citing the language of the act: “ Personally came and appeared John Hagan, of this city, who declared that Messrs. Hagan, Niven & Co., Buchanan, Hagan & Co., and Thomas Barrett & Co., of this city, merchants, are justly and truly indebted unto the Exchange and Banking Company of New Orleans, as follows, to wit: the said firms of Hagan, Niven 8f Co., and Buchanan, Hagan & Co„ jointly, in the full sum of $21,000, and the said firm of Thomas Barrett Sf Co., in the full sum of $60,000, to secure the payment of which debts, the said firms have respectively furnished and delivered certain collateral securities now in the possession of, and held by the said company. And, furthermore, that the said Hagan, Niven & Co., are justly and truly indebted unto the New Orleans Canal and Banking Company, in the full sum of $26,508 85, fin- which they have furnished their promissory note, drawn to the order of, and endorsed by the said Buchanan, Hagan Sf Co., dated on the second day of August, 1838, and made payableon the eighth day of August, 1840, fixed, to secure the punctual payment of which note, he, the said appearer, granted a special mortgage in favor of the said New Orleans Canal and Banking, on certain property situated in this city, by an act passed before William Christy, a notary public in this city, on the second day of August, 1838; and whereas the said companies have loaned unto him, the said appearer, the aggregate sum of 32,000, that is to say, the sum of 20,000 by the said Exchange and Banking Company, and the sum of $12,000 by the said New Orleans Canal and Banking Company, to secure the payment of which amounts, he, the said appearer, granted a special mortgage in favor, of the said companies respectively, on c'ertain landed premises, by an act passed before me, notary, on the twenty-second day of May instant, which loans were made and .granted as aforesaid, on the express condition, and with the understanding, that he, the said appearer, should still further secure the payment of the debts and liabilities due and owing by the said firms respectively, to the said companies, as hereinbefore mentioned, by granting another special mortgage in favor of said companies on the same landed premises, last above referred to and mentioned.

‘1 Now, therefore, in consideration of the premises, and in order to secure the full and final payment of the above mentioned and recited debts and liabilities, within the space and term of three years, to commence and be computed from the date hereof, he, the said John Hagan, moreover declared, that he does, by these presents, mortgage, alfect and specially hypothecate, in favor of the said Exchange and Banking Company of New Orleans, and New Orleans Canal and Banking Company, both duly incorporated institutions of this State, in the proportion of the amounts to them respectively due and owing by the above mentioned firms, all and singular the following described property, to wit.” Then follows the description of the property, and the act proceeds : “ And the said John Hagan, doth hereby bind and obligate himself not to sell, alienate, nor encumber the hereinbefore described and mortgaged premises, nor any part thereof, to the prejudice of this mortgage. And doth moreover, by these presents, confess judgment for the amounts of the said debts and liabilities of the said firms respectively, as hereinbefore set forth and expressed; and agrees that, in case of non-payment of the same, as herein stipulated, the law in such cases made and provided, may be strictly enforced and summarily put into execution. It being, however, agreed and expressly understood by and between the parties hereto, that the said companies shall not proceed against the said described property, and attempt to make the same liable under the present mortgage now being granted, until they shall have first exhausted the collaterals and mortgage securities now in their possession and herein above referred to and mentioned, or made all due and reasonable efforts to realize and make good the same.”

The Exchange Bank having become insolvent, its affairs were placed in the hands of commissioners, who, in 1844, made a sale at public auction of its assets. At this sale Adams became the purchaser of four notes of Thomas Barrett Sf Co., endorsed by Hermann, Briggs Sf Co., amounting in all to a principal sum of $54,850, the whole adjudicated at the price of $210. Preston became the purchaser of two notes of Buchanan, Hagan Sf Co., endorsed by Hagan, Niven & Co., amounting to a principal sum of $6,100, at the price of $200 ; of four notea of J. B. Marks, endorsed by Hagan, Niven & Co., amounting to a principal sum of $1060, at the price of $40; and of a draft of Buchanan, Hagan & Co., on Redmond, and Hagan, Niven 8f Co., for a principal sum of $5,500, at the price of $30. These assets accord with the principal sum of $67,510 claimed by Adams and Preston, as above stated. After the adjudications, Adams and Preston entered into an agreement of equal partnership in the assets thus purchased. Adams, however, discontinued, as'to himself, the claims set up in this' suit, during the progress of the trial.

The first point of defence urged by Hagan is, that the obligations or debts thus purchased by Adams and Preston, are not the debts which the mortgage of 25th May, 1839, was given to secure. This point was laboriously contested in the court below. We do not consider it indispensable now to examine it; and assuming, therefore, for the purposes of our present inquiries, the identity of the indebtedness, we proceed to the second point of Hagan's defence.

Preston contends that the act of 25th May, 1839, imposes-on Hagan a personal responsibility for the indebtedness of the parties therein recited; Hagan, on the contrary, maintains that by that act he did nothing more than mortgage his property.

“ It is not necessary that the mortgage should be given by the person contracting the principal obligation; it may be given for the contract of a third person.” Civil Code, art. 3262. “ When a person has given a mortgage on his property for the obligation of a third party, it is necessary to inquire whether’ he only gave the mortgage, or whether he bound himself personally for the ful-filment of the obligation.” Ibid, art. 3263.

“ In the former case, that is if he has only mortgaged his property to secure the fulfilment of an obligation by a third person, no right of action exists against' him personally, but merely an action of mortgage against the thing, to have it’ seized and sold, so that, if it perishes, he who mortgaged it shall be released-from every species of obligation.” Ibid, art. 3264.

“ On the other hand, if the person who has given a mortgage for another, has-bound himself personally for the fulfilment of the obligation, independently of the mortgage, there shall exist against him a right of personal action, and he shall not be released, even if the thing mortgaged should perish.” Ibid, art. 3265.

The question, then, is a question of intention, to be solved by a just and reasonable interpretation of the whole instrument, and the expressions therein used: by the parties. Though the several debtors to the bank, recited in the act, had given notes, Hagan was not required to endorse them. In the recitation of the agreement upon which the loans of $12,000 and of $20,000. were made, the language is not that he shall personally bind himself, but that he shall still further secure the debts and liabilities of the said firms, by granting another special mortgage in favor of said companies on certain real estate.

The mortgaging clause declares that “ in consideration- of the premises,” that is, the pre-existing agreement thus recited, and in order to secure the full and’ final payment of those debts of the firms named, he mortgages, affects and specially hypothecates the described property.

In the stipulations for time, it is agreed that the bank shall not proceed against the mortgaged property until the lapse of three years, nor until they shall first exhaust certain collaterals. If Hagan had intended to be personally bound, wo cannot believe ho would have omitted to stipulate for a like freedom from personal pursuit.

The clause of confession of judgment, is much relied on by Hagan's adver-salT- Tbat clause is found in its usual position in the notarial act, to wit, in that portion which provides safeguards and remedies for the enforcement of the mortgage. ^ follows the pact de non-alienando, which is a clause intended to relieve the mortgagee from the necessity and delay of action against a subsequent purchaser. The object of the confession clause is to give in distinct terms the remedy of executory process against the land. Such a clause does not authorize a fieri facias against the mortgagor’s other property, nor a registration in the nature of a judicial mortgage. It is, in our opinion, a mere provision that concerns the mortgagee’s remedy against the hypothecated property.

Again, in the accepting clause of the act, the language is, the presidents of the respective banks, &c., “ do by these presents accept the foregoing mortgage, with all and singular the rights, benefits and privileges resulting therefrom,."

Suretyship is construed strictly. The law favors the surety. “ Suretyship cannot be presumed; it ought to be expressed; and iá to be restrained within the limits intended by the contract.” Civil Code,, art. 3008. Suretyship does not operate a mortgage1 on the property of the surety, unless there has been an express agreement. Civil Code, art. 3010. And, by parity of reasoning, a mortgage m property as security, should not operate the personal responsibility of the mortgagor, unless so expressly declared.

"We, therefore, are of opinion that Hagan contracted no personal liability for the debts thus proposed to be secured. But, however this may be, the first and second points above stated are merged in the thud point, which we now pro-, ceed to consider.

In opening the argument on the question of usury, the counsel for Hagan, aware that this plea is usually an odious one in public opinion, and is also, scanned with something like disfavor by courts of equity, has defended the reputation of his client, bysuggesting that Hagan has never sought to invalidate, as he says he might successfully have done, the claim of the Canal Bank for its-full debt of $12,000, and eight per cent interest, and that he has only taken; refuge under this plea, at a late period of the trial, to aid himself in resisting a vigorous effort made by his adversary to impose-upon him a personal liability for debts amounting, in principal alone, to $67,510, and bought by his antagonists for $470. This is a question which concerns the reputation of Hagan, rather than the legal merits of this controversy; but it is perhaps just to say in passing, that the remarks of the counsel with regard- to his client’s motives and conduct, seem justified by the record.

The intervenor has strenuously contended that a lawful consideration for the mortgage of 25th May, 183.9, is to be found in the delay which he says is accorded to the embarrassed merchants, the friends and relatives of Hagan, whose-debts are thereby secured. An examination of the act has not satisfied us that such delay was thereby stipulated in favor of those parties. It is true that, under the article of the Code which he has cited, a person may, in-his own name, make-some advantage for a third person the condition or consideration of a commutative contract; and, if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked. But has there been< such a stipulation here ? The stipulation is “that the said companies shall not proceed against the said described property, and attempt to make the same liable, under the present mortgage now being granted, until they shall have first axhausted the collaterals and mortgage securities now in their possession, and herein above referred to and mentioned, or made all due and reasonable efforts to realize and make good the same.” In a preceding part of the act, upon which the counsel relies, is also to be found this expression: “ To secure the full and final payment of the debts and liabilities of the firms within three years from the 25th May, 1845,” Hagan grants the mortgage, &c.

We do not see in these expressions and stipulations a contract by the banks which would have inhibited them from immediate action against those debtors. The natural and fair construction is this: I, Hagan, for the loan you have given me, not only have promised to pay the loan, and seven per cent interest, but I also agreed to give, and now give you a mortgage on my own property to secure the full and final payment of the debts due by the firms mentioned; but you must not resort instantly to my property, but only after a certain period, and after having done your best to exhaust other securities.

In defining the nature and extent of suretyship, our law expressly declares that, while it cannot be contracted under more onerous conditions than are imposed on the principal debtor, yet it may be under more favorable conditions. Si ille pure promisserit, fidejussor sub conditione promittere potest. Non solum autem in quantitate, sed etiam in tempore minus aut plus intelligitur. Plus est enim statim aliquid dare ; minus est post tempus dare. There is nothing in the instrument which shows an intention on the part of either Hagan or the banks, to disarm them of their power against tire principal debtors.

Not only is there no delay given to these debtors, and no statement in the act of mortgage that such delay is its consideration, but the mortgagor and the mortgagees have themselves declared, in express and unequivocal terms, which exclude all implication and conjecture, the real and true consideration for which the mortgage was given. The act announces in language susceptible of no miscon.struction, that the loans of the 22d May, 1835, “were made and granted as aforesaid on the express condition, and with the understanding, that he, the said ap-pearer, should still further secure the payment of the debts and liabilities due and owing by the said firms respectively to the said companies, as herein before mentioned, by granting another special mortgage in favor of said companies on the same landed premises last above referred .to and mentioned. Now, therefore, in consideration of the premises,” &c., Hagan, to secure the debts, &c., mortgages, &c.

The mortgage, then, is given in fulfilment of the recited promise, and its consideration is the loans made on the 22d May, three days previous. What, then, ■was the consideration given by Hagan, for the loan made to him by the Ex-change Bank?

1st. He promises to pay, at the end of one year, the principal sum loaned.

2d. He promises to pay seven per cent interest on said principal sum.

3d. He gives .a mortgage on lands to secure the payment of principal and interest.

4th. He promises (and three days after fulfils that promise,) to give the Exchange Bank a mortgage on the same lands, to further secure the payment of The debts of third persons to said bank, amounting to-$81,000.

Is this last branch of 'the contract, to wit, the mortgage to secure the payment of those debts due by third persons, void ?

The charter of the Exchange Bank contains the following provisions: “ That the said company shall not take more than seven per centum per annum upon .any of its loans or discounts; nor shall it take more than six per centum pejr annum upon any of its loans or discounts made on promissory notes, which sbab ^ Payable at f°ur months, or less, after such loan or discount.”

According to all reasonable rules of intei'pretation, we consider an agreement t0 ta^e’ an<* a ta'™gi aB equally covered by the statute. The bank, then, is not only incapable of making an agreement to take more than seven per cent interest on a loan, but it is prohibited from so doing. The statute is a prohibitoxy .statute. It rests on grave considerations of public policy, and whether that policy be unsound, as the counsel suggests in argument, or sound, we are not permitted to enquire. Being a prohibitory statue, if the agreement made by Ha-gan, to give the mortgage of the 25th May, and the subsequent execution' of that agreement, be an evasion of, and a fraud upon the statute, no court of justice can enforce it.

Is it, then, such a violation ? The mere statement of the case carries its own answer with it. The bank stipulated for seven per cent intei'est; in stipulating that the further mortgage should be given, it stipxxlated for something more than seven per cent interest, and when that stipulation was fulfilled, three day’s afterwards, it received more. It received a mortgage for the further security of $81,000, due to it by third persons.

“ A profit made, or loss imposed upon the necessities of the boiTower, whatever form, shape, or disguise it may assume, where the treaty is for a loan, and the capital is to be returned at all events, has always been adjudged to be so much profit upon a loan ; and to be a violation of those laws which limit the lender to a specified rate of intei'est.” Owen’s case, 2 Peters, 537.

Here the bank, taking advantage of the necessities of Hagan, who was pressed with an enoi'mous load of debts, and particularly .by a debt to Le Breton, of $36,000, maturing in the latter part of May, 1839, the price of the land subsequently mortgaged to the bank, extorts from him, in addition to the highest l'ate of interest allowed by its chai'ter, a mortgage for an enormous debt due by third persons. That the partners in these houses were, as suggested by the intervenor, Hagan’s relatives and friends, makes the case against the bank sti'onger l'ather than weaker, since, as we have seen, there was no stipulation for their benefit. It was taking advantage not only of Hagan’s necessities, but of his affection and family pride.

There can be no legal remedy for that which is illegal, and as the Exchange Bank could not have enforced this mortgage, the intervenor, supposing him to have purchased the lights intended to be conferred by the hypothecaxy contract of Hagan, can stand in no better position. “ No court of justice,” said the learned judge in Owens’ case, “ can be made the handmaid of iniquity. Instituted to carry into effect.the laws of a country, how can it become auxiliary to the consummation of violations of law?”

In piinciple, it is impossible to distinguish Owens’ case from the pi’esent. The Bank of the United States, as the Exchange Bank, was pi-ohibited from taking more .than a cei'tain rate. By the discount of the note, she did evasively take a greater rate by a profit on depi'eciated paper given to the borrower at its nominal value, instead of cash, and the case was decided upon the prohibitory clause in the chai'ter, and without reference to .the usury laws of Kentucky, where the contract was made. Judgment affirmed.


author: Rost, J.

text:
    Bernard v. Auguste.
    Action to rescind, on the ground of simulation, a sale made to defendant by one E., as agent of the plaintiff. It was proved that the property in contest belonged to E., who was an insolvent, but had been purchased in the name of tho plaintiff, his concubine, for the purpose of screening it from his creditors; that at the time of the purchase plaintiff had no moans of her own; that E. acted as her attorney in fact; and that, suspecting the fidelity of the plaintiff, he made, as agentofthe latter, a simulated sale to the defendant. Per Curiam: No issue can be formed in relation to such frauds and simulations, between the parties implicated in them, which a court of justice ought to try. Petition dismissed.
    APPEAL from the Parish Court of New Orleans, Maurian, J.
   The judgment of the court was pronounced by

Rost, J.

The parties to this suit are all persons of color. The evidence discloses it to be a contest between the adulterous concubine of a fraudulent bankrupt and his confidential friend, for property which he has so far succeeded in withholding from his creditors.

“Procul, O procul este, profani! The temple of the justice of your country is the house of God, it should not be made a den of thieves.” These were the words used by the venerable presiding judge of the late Supreme Court, in a case bad indeed, but not tainted, like this, with every species of conniption. Mulhollan v. Voorhies, 3 Mart. N. S. 46.

With these words we had stopped the counsel, at an early stage of the argument, but for the hope that the cause of justice might hereafter be advanced, by the disclosures made in the course of the trial.

The plaintiff alleges that she is the owner of a house and lot, situated in the city of New Orleans, rented for §100 per month, which she purchased at a sue • cession salo, in 1832.

That on the 2d March, 1833, she was pursnaded by one Louis Ferrand, in whom she placed implicit confidence, to give him a power of attorney, authorizing him to purchase real estate in her name, and to administer, hypothecate and sell her property, moveable and immovable.

That Louis Ferrand, acting under that power, sold the property claimed to the defendant, for the pretended consideration of §9,000, without her knowledge or consent, and that she was kept in utter ignorance of that sale by the collusion and combination of her attorney in fact with the defendant.

That she has never received any part of the consideration, and that, in fact, no consideration was given, but that the sale was simulated, null and void.

That the defendant was so conscious of these facts that, although the sale was passed on the 6th October, 1835, he never pretended to have any claim or title to the property conveyed, till the beginning of May, 1843.

That tho petitioner believed herself in possessioh during all the intervening time, and receiving, as she supposed, the rents, through her agent, Louis Fer-rand, whom she never called to account.

She prays that the sale passed by Ferrand to the defendant be adjudged to be simulated and the property restored to her, together with back rents and damages.

The defendant filed a general denial, and subsequently averred:

1. That tho plaintiff never possessed tho means of paying for the property described in her petition.

2. That, at the time of the purchase, she was living in open concubinage with Louis Ferrand, who was the real owner, and procured the means of paying the price by loans or otherwise.

3. That Louis Ferrand had children by his said concubine, and was at the time legitimately married to another woman, who was then living.

4. That Louis Ferrand was known to the defendant, and to the public generally, as the real owner; that he acted as such; that the property was assessed in his name, and that he collected the rents up to the time of the sale; that he often advertised it, sold one-third of it to Charles Hatrel, and after various unsuccessful attempts to dispose of the remainder at auction, finally sold It to the defendant for a valuable consideration, paid and delivered in the presence of the notary.

5. That the present eontest originates in the immoral relations which existed between the plaintiff and Louis Ferrand, wherefore the present action cannot be maintained.

6. That it arises from the fact of the plaintiff having lent Ferrand her name, while she lived in adulterous concubinage with him, for the purpose of concealing from his creditors the property she now claims; all of which is alike illegal, immoral and contrary to public policy.

The parties went to trial upon the foregoing allegations, and the court of the 'first instance having adjudged the property to the plaintiff, the defendant appealed.

Simulation is proved on both sides; and this is one of the rare instances in ■which the evidence of each party, leaves the other without either title or just •possession.

Louis Ferrand married in 1813, failed in 1823, took the plaintiff as his concubine, and soon after found means to purchase in her name the property in controversy, and much more besides. The proof of the destitution of the plaintiff at the time,and of her inability to pay the price, leaves no doubt on the minds of the court that she was -the willing instrument of Ferrand’s villainy, and that •she could not, and did not consider herself as the owner of the property purchased.

The title of the defendant is of precisely the same character. He does not know whether the act under which he claims is a contract of sale or a contract of suretyship. After attempting to show by a great number of witnesses that it was a sale, and making the fact more improbable at every step of his progress, he has resorted to many indirections and devices to show that Ferrand was in his debt, and that this deed was passed for the purpose of securing a part of the amount of that indebtedness. The fact is not so. At the date of the sale Fer-rand owed him nothing, and was of great assistance to him in many ways. The property continued to be assessed in Ferrand’s name, and Felicité Bernard positively swears that, in a conversation between Ferrand and the defendant, both admitted that nothing had been paid by the defendant at the time of the sale. An attempt has been made to discredit this witness, but it is shown that she was one of the confederates, who, with the plaintiff and the defendant, aided and assisted Ferrand in his frauds. If they all trusted her, there is no reason why we should not; and we are satisfied that in the sale to the defendant, the friend did nothing more than take the place of the concubine, whom Ferrand .suspected of infidelity, and could trust no longer.

F. B. Conrad and Benjamin, for the plaintiff. Preaux, L. Janin and D.. Seghers, for the appellant.

Besides the fact of the previous failure of Ferr arid, the record contains evidence showing the object and use of these simulations. He had been appointed syndic of the creditors of one John Fleming, some time in 1834, and had filed in court, in 1840, a tableau of distribution, showing a large sum in his hands. On his failure to pay over the dividends to the creditors, a rule was taken upon him to show cause why he should not bring into court the proceeds, of the estate of the insolvent. His answer to the rule was as follows:

“ That he had no money deposited in bank to the credit of the estate for which he was syndic, but that he had employed the funds in his own affairs, prior to the passage of the act which renders syndics liable to a criminal prosecution in such cases, with the intention of making those fund'si productive, and' in the expectation of being able to produce and distribute them among the creditors of John Fleming, whenever required to do so; but that owing to the sudden and continued pecuniary distresses and commercial embarrassments which had afflicted the State, and still continued to afflict it, he had been utterly ruined, and had lost not only all his property, but also the funds belonging to the-creditors of Fleming.”

"When subsequently, on the trial of this cause, he was called upon to testify— a fit witness in such an issue — he stated on his voir dire, that whatever the decision might be, he could but gain, and refusedto be sworn in chief on the-ground of scruples of conscience. 0

The relations in which the plaintiff and defendant stood to Louis Ferrand', and to each other, would be sufficient to induce the belief that they knew and approved all his acts, and joined on all occasions to assist him in giving color to them. These facts, however, do not rest upon mere probabilities, for it is iw evidence that, on one occasion, a promissory note of"the plaintiff, paid by herself and delivered to her by the holder, was subsequently placed ini the hands of the defendant, and by him given in payment to Ferrand, in presence of the notary, as the consideration of a sale of slaves from- Ferrand to him.

These persons have no right to soil judicial records with their turpitudes, and the Parish Court erred in suffering them to do- so. Simulation gives no titler and contracts prohibited by law, or contrary to good' morals or public order, can-have no effect. Hiriart v. Roger et al. 13 La. 126. Gravier’s Curator v. Carraby’s Administrator, 17 La. 118.

Between the parties implicated in' these frauds and simulations, no issue can be formed in relation tot them which a court of justice ought to try; nor should any act of theirs affecting the property claimed, to the prejudice of the creditors of Louis Ferrand, be noticed. We leave that property where the dishonest acts of the parties have placed it. Whoever claims it hereafter, must come before us with clean hands.

It is ordered, that the judgment of the Parish Court be reversed, and then plaintiff’s petition dismissed, with costs in both courts.


author: Kino, J.

text:
    Stevens v. Wellington.
    A power to soli a slave must be in writing. O. 0. 2415, 2961, 2966.
    Where an agent empowered to sell a slave on certain terms, sells him on conditions less favorable to the principal, the latter will not be bound by his act, unless subsequently ratified* C. 0. 2979, 2980.
    A sale of a slave, accompanied by delivery, has effect, as to third persons, from the date of its registry. Such a sale, unaccompanied by delivery, is without date as against third persons* C. C. 2417.
    Where property has been placed in the hands of an agent for the purpose of being sold, and the principalis subsequently made a garnishee in an action against one of his creditors, and the facts warrant the presumption that the agent must have been aware that his principal had been made a garnishee, his authority to sell must be considered as suspended from service of notice on the garnishee.
    APPEAL from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

Kino, J.

This suit was instituted by Stevens for the recovery of a negro man slave, of whom the defendant is alleged to be in possession, claiming to be the owner, and for $300 for the wrongful detention. During the pendency of the action, Stevens was declared a bankrupt, and received his discharge. At a sale of his property made under an order of the United States District Court, R. L. Cauthorn purchased all the rights of Stevens to the slave in question, and was substituted as the party plaintiff in this suit, which he now prosecutes.

Both parties claim to derive title from Robert Cook; the plaintiff, by a sale from Cook to him, and the defendant, by a transfer from John L. Wilson, professing to act as the agent of Cook, to Palmer, from whom the defendant pup chased. Both of the acts of sale were under private signature, and admitted to record on the same day in the office of the parish judge of Ouachita, where Cook resided.

Cook, the original vendor, and Stevens, his vendee, were both examined as witnesses upon the trial of the cause, and gave the following history of the transactions out of which the present controversy grows,

Palmer & Scott, of this city, were the judgment creditors of Cook, for upwards of $600. In November, 1840, Cook authorised Wilson, one of the attorneys of Palmer <!y Scott, to sell the slave in contest, who was then a runaway, to Palmer, or to any other person, provided he would credit the judgment of Palmer & Scott with $500, and pay the expenses which the slave had incurred during his absence.

Early in the spring of 1841, the slave being still absent, Cook contracted, verbally, to convey him, when recovered, to Stevens, for $500. On the 2d of April, 1841, Cook obtained possession of the slave, and on the nineteenth of the same month, by an act under private signature, sold him to Stevens for $500, the possession having been previously delivered under (lie verbal contract. On the same day, the act was proved and admitted to record.

Wilson, acting under the authority of Cook, which appears to have been verbal, by an actunder private signature, bearing date the 24th March, 1841, sold the slave to Palmer, one of the judgment creditors, for $500, stated in the instrument to have been received in cash. There was no delivery of possession however. This act was also proved and admitted to record on the 19lh April, 1841.

Before the sale from Wilson had been made, Scott, of the firm of Palmer & Scott, had instituted a suit against Palmer & Whiting, to which Cook had been made a party garnishee.

When this conflict of title arose, Cook proposed to Palmer still to cause the slave to be conveyed to him upon the terms on which Wilson had been autho-rised to sell, to wit, upon a credit of 35500 being allowed upon the judgment of Palmer & Scott, and the payment of the expenses which the slave had occasioned while a runaway, and upon the further condition that he should be released from the liabilities growing out of his garnishment. This proposition Palmer declined.

The slave remained in possession of Stevens until the autumn of 1841, when he again ranaway, was taken up and lodged in the parish prison of Carroll, whence he was withdrawn by Wilson and Palmer, the latter of whom took possession of him, and subsequently sold him to the defendant.

The sum of $500, mentioned in the act of sale from Wilson to Palmer as the price of the slave, was not credited upon the judgment of Palmer & Scott against Cook, but on the contrary, the amount of that judgment was subsequently made out of the property of Cook, upon a fieri facias against him as garnishee in the suit of Scott v. Palmer & Whiting; nor were the jail fees of the slave paid by Palmer or his attorney, but they were settled for by Cook himself, who paid a part in cash and for the remainder gave his note.

There are Severn! fatal objections to the title of the defendant:

1. No written procuration from Cook to Wilson has been produced; the only information we have in reference to the authority of the latter is derived from the testimony of Cook, and from this we infer that it was verbal. Such authority is sufficient to enter into those contracts which may be established by parole evidence. But our laws require that all sales of slaves and immovables shall be made in writing; and it has been held that the authority to execute such acts must be evidenced by an instrument of equal dignity. The mandate to enter into those contracts, can only be supported by written proof of the agent’s authority. Civil Code, arts. 2415, 2961, 2966. 2 La. 596.

2d. The agent can only bind the. principal while he acts within the scope of the authority committed to him, and all the acts of the mandatary which exceed his trust are null and void as regards the constituent, unless ratified. Civil Code, arts. 2979, 2980. Stoiy on Agency, 165. In the present instance, the agent was authorised to sell upon the condition that $500 should he credited upon a judgment, and that the expenses of the slave, while absent, should be paid. Neither of these conditions has been performed. The sale to Palmer purports to be for $500 in cash, which sum has not been credited upon the judgment, and no provision has been made by the agent or creditor, for the payment of the charges created by the slave. In both these respects the agent has exceeded the express limits of his trust, his act is more onerous than that contemplated by the mandate, it has not been confirmed, and, as to the principal, is null and void.

3d. The sale from Cook to Stevens was accompanied by delivery, and consequently had effect against third persons from the date of its registry. There , was no delivery to Palmer, and until such delivery the sale to him is without date against third persons. This ground is equally fatal to the pretentions of the defendant, who could acquire no better tittle than that of his vendor. Civil Code, art. 2417.

Stockton and Steele, for the appellant. G. B. Duncan, for the defendant.

4th.- The agency of Wilson expired, or was at least suspended from the mo-men(: notice of the garnishment was given to Cook, of which proceeding, as the attorney of Palmer, who was present at the date of the sale, he must be presumed to have been cognizant. From that time Cook became the stockholder for the parties litigant in the suit of Scott v. Palmer & Whiting, and could only have paid the judgment to Scott at his peril; nor could Wilson, in the faithful discharge of the duties of his trust, have paid it for his principal.

The plaintiff has claimed damages. Although we are satisfied that the acts of the defendants and of his vendor have been wrongful, that the possession which the former acquired of the slave was tortious, and that damage must have been sustained, the evidence upon this point is too vague and indefinite to enable us to determine, its extent.

We think that the judgment of the court below is erroneous, and ought to be reversed. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; and it is further ordered that the intervenor, Cauihorn, recover of the defendant, the slave, Drew, described in his petition, that said slave be delivered to the said Cauihorn, and that the defendant pay the costs of both courts. It is further ordered, that the defendant, Wellington, recover of his warrantor, Palmer, $500, the price of the slave Drew, and the costs of suit in both courts.


text:
    Hadwin v. Fisk.
    A factor cannot pledge, nor give in payment for his own debts, property consigned to him.
    THE defendant appealed from a judgment of the Commercial Court, in an action to recover a quantity of tobacco in hogsheads, alleged to have been pledged to him by the consignees of the plaintiff, for a debt due by the consignees. The plaintiff claimed the tobacco or its value. The defendant alleged that he had purchased the tobacco from the consignees. A jury found a verdict for the plaintiff, and there was judgment accordingly. The case turned upon the question of fact, whether there had been a purchase tona fide. In regard to the only question of law involved, the court, per Siibelu, J., say : On the-question of law the doctrine is well settled that a factor cannot pledge for hi» own debts, property consigned to him, nor can he give it in payment for his own. debts. The judgment below was affirmed.

      C. M. Jones, for the plaintiff. Elwyn and Roselius, for the appellant*


author: King, J.

text:
    Martino, Curator, v. Boggs et al.
    The owners of a steamer are liable for damage done to another vessel, by a collision produced by the negligence of the officers and crew of the steamer.
    "Wherein an action by a curator for damages for injury done to a vesserbelonging to the suc-«essdon administered by him, he offers in evidence the inventory of the succession for th« purpose of showing that the vessel formed a part of the succession, ha will not be thereby precluded from proving that the vessel exceeded in value the amount at which it was appraised iu the inventory.
    from the District Court of the First District, Buchanan, L

      Latovir, for the plaintiff. Elwyn, for the appellant.
   The judgment of the court was pronounced by

King, J.

The defendants are appellants from a judgment rendered against them for the price of a sloop sunk by a collision with the steamboat Sarah Bladen, which is alleged to have occurred in consequence of the negligence and want of skill of the captain and crew of the boat.

Although the evidence is in many respects contradictory, as usually occurs in such controversies, we think that the facts proved by the witnesses of the defendants themselves, show that the loss of the,sloop was occasioned by the negligent and imprudent management of the Sarah Bladen. The accident occurred at night, while the steamboat was ascending the river, but the evening was sufficiently clear to see the sloop when a half or three quarters of a mile distant. At that time, the witnesses say .that the course of the little vessel could not be determined. Upon a nearer approach, it was discovered that she was near a raft attached to the shore, to which it appears she was preparing to make fast for the night. The pilot and officers of the steamboat saw the raft so distinctly as to be able to steer within four feet of it. The sloop was from thirty to sixty feet from the raft; both objects were plainly visible. The boat passed between the two, and in doing so the collision occurred. Although the vessel had been in view for some time, and the steamboat could easily have avoided the collision by turning a few feet out into the stream, she persisted steadily in her course, leaving it to the sloop, the less manageable craft of the two, .to use the efforts necessary to avoid coming in contact.

Our attention has been called to a bill of exceptions taken to the opinion of the court below, admitting witnesses to testify that the value of the sloop exceeded $500, on the ground that the plaintiff had previously introduced in evidence the inventory of Martino’s succession, in which the vessel was appraised at that sum, and that he could not contradict his own testimony.

The inventory does not appear to have been introduced for the purpose of fixing the value of the vessel. It was probably considered a necessary piece of evidence to show that the sloop was a part of the property composing the succession which fell under the .curator’s administration, and offered for that purpose. The fact that it contained an estimation fixed by appraisers, did not conclude the plaintiff from showing the just value of the object. The objection was properly overruled.

We think that, under the evidence, the judge below has given a just valuation .of the sloop. Judgment affirmed.


text:
    Succession of Johnston.
    'The curator of a succession may sue the surety of a former curator for any:amount due to the succession by his principal; and where the surety is dead, the proceeding may ho by opposition to the homologation of an account presented by his administrator. C. P. in, ■&. C. 111».

      Where an administrator claims to ho allowed commissions upon debts due the estate from which nothing has heen collected, it is for him to show that the debts were such as to entitle him to a commission upon their amount, and that he made unavailing efforts to collect them.
    Where in an action by a curator against the surety of a former curator for an amount due to the succession by his principal, the plaintiffhas proved the obligation of the principal and the amount of funds of the succession received by him, the burden of showing that the funds have been legally distributed devolves upon the surety.
    It is no defence to an action against the surety of a curator sued for funds of the estate received by his principal and not accounted for, that the debts due by the succession have been extinguished by prescription. Such extinction enures to the benefit of the succession, and not to that of the curator or his surety.
    APPEAL from the Court of Probates of New Orleans, Bermudez, J.

      Bodin, fcr the appellant. Hoffman, contará.
   The judgment of the court was pronounced by

King, J.

II. Swazey died in this city, leaving a vacant succession, of which A. G. Morris was appointed the curator, and he gave bond as such, with E. C. Johnston as his surety. In 1838 the curator filed a provisional tableau of distribution of the succession under his charge, in which he debits himself with $6126 26 as having been received, and sets forth a list of the privileged debts. He subsequently left the State, died insolvent in the State of Alabama, and Fink was appointed his successor in the curatorship. Since the date of the bond, Johnston, the surety, has also died insolvent, and his administrator has filed a tableau of distribution of the funds of his succession, the homologation of which is opposed by Fink, in his capacity of curator, on the ground that the succession of Swazey has not been placed upon it as a creditor for the amount which Morris had received as curator. Four other grounds of opposition were filed by Fink, the first of which was admitted in the court below to have been well taken, and the amendment of the tableau accordingly made, and the fourth was abandoned. The two remaining grounds of opposition are, that the administrator has not credited, as a part of the assets, the notes received for property in the jaubourg Saulet, and that he has credited himself with too large an amount as commissions. The court below ordered the tableau to be amended: 1st, by placing the succession of Swazey as a creditor upon it for $6,128; 2d, by adding to the account of assets $2,350 75, the amount of several notes; and 3d, by reducing the commissions of the administrator. From this judgment the administrator of Johnston has appealed.

Before proceeding to inquire into the merits of the several grounds of opposition, it becomes necessary to dispose of the objection urged by Johnston's administrator, that the curator, Fink, cannot maintain his opposition, founded as it is upon the bond of his predecessor Morris, and that none but the creditors, or heirs, of Swazey can proceed against the surety upon the bond.

The bond given by a curator is to secure the faithful administration of the estate committed to his charge. The obligation of the surety is that the principal shall faithfully administer, and the parties are bound in solido. Civil Code, art. 1119. 19 La. 468.

The duties of a curator are distinctly defined by law. He is required, among other things, to ascertain the assets of the succession, to reduce them to possession, and to cause them to be distributed among the creditors and other persons interested according to their respective rights. Upon his failure to discharge these obligations, those interested in the administration may require of him to account, and invoke the aid of courts of justice to coerce the performance of the duties of his trust. Swazey’s succession was unquestionably the creditor of Morris for the amount of its funds which had been collected and not accounted for by the latter, and was also the creditor of Johnston, the surety. The first duty of Fink, upon being appointed curator, was to ascertain what were the assets of the succession which he was about to administer, and to collect them for legal distribution. When he discovered that they were still in the hands of his predecessor, who had died insolvent, he properly proceeded against the surety upon the bond. Code of Pract. art. 111.

If the ground assumed by the administrator of Johnston be correct, it would be wholly unnecessary to appoint a successor to a curator who had died, resigned, or been removed, for after his appointment he would be powerless to act. He could require from his predecessor no account of his administration, collect no funds for distribution, and each creditor would be left to pursue his separate remedy. To what end then would a successor be appointed, and for what purpose does the law require such appointments to be made. Code of Pract., art. 111. The probate judge correctly overruled the objection.

The court below ordered the tableau of assets to be increased, by adding to it the sum of several notes, amounting in the aggregate to $2,350 75, of which a mere memorandum had been made at the foot of the account. We find, upon examination, that the sum ordered to be carried to the credit side of the tableau was composed of three notes, arising from sale of property in faubourg Saulet, for $737 50 each, and of three other notes amounting together to $143 25, resulting from sales in faubourg Delord, making collectively the sum of $2,350 75, showing no error of calculation. The court correctly ordered the tableau to be thus amended. To this it is objected that the court erred: first, in its calculation, the notes being for only $2,212 50 ; and, secondly, in ordering their amount to be credited as cash.

It was not necessary that the expense of a second tableau should be incurred for the purpose of accounting for the notes and distributing their proceeds. The order of the court is not that the amount of the notes be placed upon the tableau as cash in the hands of the administrator, but merely that the assets be credited with that amount. The administrator may still exonerate himself from his liability with regard to these notes, by producing them before the Probate Court, showing that they have not been collected, and that the failure to collect has not been owing to laches on his part.

The next alleged error in the judgment appealed from is, that the court deducted from the inventory the amount of bad debts, and allowed the administrator commissions upon the remainder; and further, that the judge allowed as an off-set against the commissions the amount of a receipt given by the administrator to Johnston, which it is contended is not an evidence of indebtedness, but merely a voucher for a note and draft returned. It is urged that in matters of succession the designation of debts as bad has a legal meaning; that these are described to be debts prescribed against, or due by bankrupts who have surrendered no property to be divided among their creditors (Civil Code, art. 1041); and that it has not been shown, that the claims rejected by the probate judge in computing the commissions fall within this description.

It was the duty of the administrator, if he claimed commissions upon unproductive demands, to render an account of them, to show affirmatively that they were such as were legally subject to that charge, and that he had made unavailing effoi’ts to collect them. This he has failed to do. On the contrary, although he has filed two tableaux, he has given no account whatever of $29,612, and it is to be presumed either that he has not administered that sum, or that it is composed of bad debts, so considered by himself; and in neither event is he entitled to commissions upon that amount.

He next contends that it rests upon the opposing creditor, in establishing his claim, to show that none of Swazey’s creditors have been paid. We think that the curator was only required to show the obligation of his predecessor, and the amount of the funds of Swazey’s estate which he had received. This he has done. The burthen of showing that these funds have been legally applied then devolved upon the surety. The ground taken that the debts of Swazey if not paid have been prescribed against, and 'that the surety is not accountable to that extent, is equally untenable; for, if they had been extinguished in that manner, the extinction would have enured to the advantage of the succession, and not to that of the curator, or of his surety.

Judgment affirmed.


text:
    Judson v. Lathrop.
    Where a person resides alternately in different parishes, and his residence in each appears to be nearly of the same nature, he may determine, by a declaration made in the manner prescribed by law, inwhichof the two he intends to have his domicil, and in such case he canbe cited onlyin the parish of his elected domicil. Miter, where the residence in each parish is not of the same nature.
    Defendant, who was domiciliated and doing business as a merchant in a country parish, removed to New Orleans, where he became engaged in trade. At the time of removing he filed in the office of the parish judge; both in New- Orleans and in the country, a declaration of his intention to preserve bis original domicil. It was proved that he passed eight months of each year, orthe business season, in New Orleans, and the remaining four months in the parish from which he bad removed, and where he still retained an interest in a partnership. Held, that defendant might be sued in the parish of Orleans.
    APPEAL from the Parish Court of Now Orleans, Mawrian, J.

      Hoffman, for the appellant,
    cited 16 La. 596. 3 Robinson, 243.

      T. A. Clarice, for the defendant.
    There is a distinction between domicil and residence. B. & C.’s Digest, 286 — 7. The declaration made by defendant of his intention to preserve his original domicil, is conclusive. Civil Code, arts. 44, 45. The exception was properly sustained below.
   The judgment of the court was pronounced by

Slidell, J.

In this case, the defendant declines the jurisdiction of the Parish Court of New Orleans, on the ground that his legal domicil is in - the parish of East Feliciana.

The facts established in this case show that, about the year 1840, the defendant came to Louisiana from the north, and soon after entered into mercantile business with one Nichols, in the parish of East Feliciana, under the firm of Nichols & Lathrop. In 1842, the defendant began to live during a part of the year in New Orleans, and transacted the business of a commission merchant itere, under the firm of C. C. Lathrop & Co. These two houses, composed of the same partners, existed at these respective places until 1843, when Nichols died. But Lathrop still, it seems, continues to have an interest in a store in East Feliciana, and has regularly continued the commission business in New Orleans since the New Orleans house was established. He has spent the principal portion of the year in the city, say eight months, or the business season, and, during the remaining four months, being the summer and fall months, he has usually spent his time in East Feliciana, at the house of his deceased partner’s widow. He has kept no furnished house in New Orleans, but has lived at a boarding house. In 1844, he voted at a municipal election in New Orleans, and paid municipal taxes.

The defendant, in January, 1843, presented in the Parish Court of this city, a petition, which was ordered to be filed, in which he declared “ that, though he has been a resident of New Orleans for some time past, his intention is to preserve his domicil in the parish of East Feliciana, in which parish he has been domiciliated.” A copy of this declaration was also filed in the parish judge’s office in East Feliciana. This suit was brought in April, 1845. The court below sustained the exception to the jurisdiction, and the plaintiff has appealed.

“ It is a general rule in civil matters,” says our Code of Practice, art. 162, “ that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence (residence ordinaire); but the rule is subject to several exceptions.” Article 166, declares that, “ if a defendant reside alternately in different-parishes, he must be cited in that in which he appears to have his principal establishment, or his habitual residence. If his residence in each appear to be nearly of the same nature, in such a case he may be cited in either, at the choice of the plaintiff, unless he has declared, pursuant to the provision of the law, in which of those parishes he intended to have his domicil.”

It will be observed that, when the party resides alternately in different parishes, the judicial declaration governs, when the residences appear to he nearly of the same nature — “ si sa residence dans chacune est á peu prés la meme.”

In the present case, the rule as to judicial declaration is not applicable, for the residences in the parishes of East Feliciana and in New Orleans cannot be considered as nearly the same in their nature. Two-thirds of the year are spent by the defendant in New Orleans ; he passes in the city what is called the business season — the season which is free from the sickness which, in a greater or less degree, annually visits the city, ■ and, acting with commercial causes, arrests the activity of trade. We do not think that, under such circumstances, he can decline the pursuit of his creditors in the courts of New Orleans, and compel them to go to another parish, where, during two-thirds of the year, his person could not be found.

The fact of the defendant’s voting here at a municipal election lends strength to the plaintiffs case, but is not, in our opinion, essential to the decision of this controversy.

It is, therefore, decreed, that the judgment of the Parish Court be reversed; that the exception of the defendant be dismissed; and that the cause be remanded for further proceedings according to law, the defendant paying the costs of this appeal, and those incurred in the court below by the filing, trial of, and decree upon this exception.


author: Eustis, C. J.

text:
    Fetter et al. v. Field et al.
    Plaintiffs having sold certain merchandize to defendants for cash, on the failure of the latter to pay the price, commenced an action against them, within eight days from the date of the salo, to recover the price, with a privilege as vendors upon the property or its proceeds. The property, which had been shipped, was sequestered. A creditor of the defendants, to whom bills of exchange drawn upon the shipment had been sold, and to whom the hills of lading had been endorsed and delivered previously to the commencement of the action, intervened, claiming the property. It was proved, that the defendants were in bad credit at the timo that the hills of exchange were sold to the intervenor, who took them in payment of a pre-existing debt, paying the defendants the difference between their amount and that of the debt due to him; that, according to the course of trade in the place where the transaction occurred, bills of exchange drawn on a particular shipment, accompanied by the bills of lading, usually represent the price of the property sold, or the means of re-imbursmg the price to some party; and that the intervenor had reasonable grounds to believe that the bills of lading received by him were for property which defendants had no right, at that time, to give in payment for a pre-existing debt, without violating the rights of some other person. Held, that, under the circumstances, the privilege of the vendors must prevail against the claims of the intervenor.
    [Notice to an agent is notice to the principal.
    Defendants having purchased certain merchandize in New Orleans, shipped it, and consigned it to the intervenors in New York, on whom they drew for the amount of the shipment. Subsequently to the depositing of the bill of lading in the post office directed to the consignees in whose favor it was made, but before its receipt by the latter, and before the bills of exchange drawn upon the shipment had been accepted, plaintiffs, on the failure of defendants to pay the price, and within eight days from the day of salo, commenced an action for the purpose of asserting their privilege as vendors, and sequestered the property. The consignees intervened, claiming the property. It was proved that the intervenors had paid the bills drawn on the shipment, and that they were not privy to the transactions between the defendants and their vendors. Held, that, after shipment, the property was held by the canier for the lawful holder of the bill of lading; that, by depositing the bill of lading in the post office, defendants parted with all control over it, and cannot be considered as having been in possession of the merchandize after that event; that, whether the possession be held to have been in abeyance during the transmission of the bill of lading by mail, or the rights of the consignees on the receipt of the bill of lading be considered as referring back to the time of depositing the letter, can make no difference as to the plaintiffs, who, under art. 3194 of the Civil Code, can claim a preference on the price of the property only while it remains in the possession of the purchaser; and that, the transaction between the defendants and intervenors having been according to the usual course of trade, and in other respects unim-peached, there must be judgment for the latter.
    JJu PPEAL from the District Court of the First District, Buchanan, J.

      Mott, for the plaintiffs.
    A seizure of property made by a creditor of the shipper, previously to the receipt of the bills of lading by the consignee, will be maintained. I Lá. 359. 12 La. 147. 13 La. 490. Bullard & Curry's Digest, 165. Civil Code, art. 3214. 5 Maul© and Selwyn, 349. 3 Durnf. and East. 119. 4 Espinasse, 82.
    Grymes, on the same side. C. M. Randall, for the defendants.
    Wharton, Benjamin and Micou, for the ajipellants,

      Corning fy Co. The endorsement of a bill of lading, for a valuable consideration, to a bond fide third party, vests a qualified property in the transferee at the instant of the endorsement. Abbott on Shipping, (Lond. edit. 1844,) 333, 532, 534-5. 3 Chitty’s Commercial Law, 405. 3 Kent’s Commentaries, 207. Nathan v. Giles, 5 Taunton, 558. 1 Peters, 386, 445. Cross on Lien and Stoppage in transitu,, p. 252-3, in 34th vol. Law Library. See also 1 Smith’s Leading Cases, pp. 388, 435. Haile v. Smith, 1 Bosanquet &c Puller, 571. Evans v. Nicholl, Comm. Law Reports, vol. 42, p. 325. Bryan v. Hill, 3 Meeson & Welby. Stanton v. Euger, 16 Pickering, 467. Under such circumstances' the vendor’s lien must yield to the claim of the endorsee of the bill of lading. Erwin v. Tor-rey, 8 Martin, 90. 3 Chitty Commercial Law, 405. 1 Campbell, 104, 180, b. A pre-existing debt is a valuable consideration, in the usual course of trade, for the assignment of a negotiable instrument. Swift v. Tyson, 16 Peters, 1.

      T. A. Clarke, for the appellants,

      Davis, Brooks & Co. A Iona fide transfer of a bill of lading conveys the property. 2 Kent’s Comm. 499, 549'. Abbott on Shipping, 369, 373. 9 Martin, 90. The purchasers having lost all control over the property by the transfer of the bill of lading, their vendors had no longer any privilege thereon. 4 Mart. N. S. 688. 7 Ibid. N. S. 139.
   The judgment of the court was pronounced by

Eustis, C. J.

In May, 1844, the plaintiffs sold to the defendants a quantity of corn and hemp for the sum of $5,572, for cash. It was delivered, but not paid for, and, within the eight days, the plaintiffs had it sequestered for the payment of the price, and brought suit for the enforcement of their privilege as vendors.

Corning & Co. have intervened in this suit, and claim two thousand six hundred and seven sacks of the corn, which they allege to have been shipped on* board the brig Ohio,' and for which they hold the bills of lading. They allege that the defendants had shipped the corn to New York, and drew on the shipment ; that they, the intervenors, purchased from the defendants the bills of exchange; that the bills of lading were regularly ti'ansferred to them; and that both were forwarded by them by mail, to New York, the place of destination of the shipment, before the service of the sequestration of the plaintiffs.

It appear-s that Corning & Co. were the agents of J. A. Knox in this business, by whom the bills of exchange were purchased.

It is proved, that the bills of exchange were drawn on this shipment, and that the bills of lading accompanying them were endorsed and delivered to the inter-veners, whose rights were complete, as the holders of the bills of-exchange and bills of lading, previously to the suit of the plaintiffs, and we have to consider them in opposition to the plaintiffs’ privilege as'vendors.

At the time of their suit, the property was no longer in the possession of the purchasers. It had been delivered on board ship, the bills of lading were in possession of the intervenors, and tho defendants had no longer any control over it.

The intervenors do not rest their rights on the change of possession, but set forth its cause and origin, and claim the ownership, for the purpose of the application of the proceeds of the shipment to the payment of the bills of exchange specifically drawn upon it. The mere question of possession is merged, therefore, in that of ownership, and we must proceed to investigate the claims in that respect.

On the 20th of April, 1844, Knox purchased from Willis, a broker, two bills of exchange, amounting to $5,800, drawn by the defendants on Benj. H. Field, in New York. These bills were protested for non-acceptance, and Knox was apprised of this on the 8th of May ensuing.' He sent for Willis, and, not being able to go out himself, directed him to see Field, and ascertain what arrangement he was disposed to make about the bills which were in sufferance. It must be observed, that Field, the son, then in charge of the business of this house, was a youth of nineteen. Willis called. repeatedly on Field that day, tho 8th, but could not find him until the next day, the 9th, when he said he had heard of the fate of the bills. On being asked to give security for the payment of the bills at maturity, he refused, and said he would pay the bills here that day or the next day, by giving a bank check for the amount. He kept promising from day to day until Saturday, the 11th, when he assured Willis that he would settle on Monday. Willis asked him what grounds he had to think he would do so. He replied,, that he expected to sell some exchange ; that owing to his credit being impaired, he had not thus far been able to sell any. Willis says: “ He asked me, if I could sell some exchange for him with bills of lading? I said I would try. He the® gave me three bills for $2,200 each, with bills of lading. From a memorandum given me, I found the bills were drawn for the full value of the produce shipped, and I saw it would be difficult to place them in that way. Before three o’clock, I returned to Mr. Field's counting room, told him. the bills were not sold,- and gave them back to him with the bills of lading. After having done so, I told him that as he intended to settle with Knox with the proceeds' of exchange on New York, he might as well let me take back again the same exchange which I had just returned, and which was then on his desk, and authorize me to pay Knox out of the proceeds, if I could sell them to any one else, and, in case I could not do so, sell them to Knox himself, and let him deduct the amount of the bills on Benj. H. Field, noted for non-acceptance. After some reflection, he said: Very well, I will do it. I asked him, then, to endorse the bills of lading, which he did, and handed them to me with the bills. In the afternoon I took the bills to Knox, who offered me a check for the difference. ' It being after bank hours, I told him I would call early on Monday. I did so the first thing in the morning, and immediately went to Field, and paid the money that was coming to him. At ‘ the same time, I handed him an account, which he said was correct, and receipted it.”

'Willis adds •, “ When I made tire arrangement on Saturday with Field, I had ne knowledge whatever of the nature of the engagements of his house, nor did I know or suspect that the produce for which he gave me bills of lading was not paid for. He told me he wanted four thousand dollars to pay that day, but I thought that the debt he wanted to pay was of the same nature as Knox's. I saw Depeyster repeatedly at Field's on Saturday, and I saw him finally take away some bill or bills of lading, and, having heard of his being intimate with Field, I imagined that it was a settlement for borrowed money. I must further say that, after I had paid over to Field the balance due him on the bills on Davis & Brooks, I offered to bring him an order for the dishonored bills on Benj. H. Field, and told him he might have them whenever he called' for it. These bills subsequently came back from New York, and I tendered thorn to Field, but he refused to receive them.”

Willis was a witness offered by the'intorvenors, and, determining the case on his testimony, we have come to the conclusion that Corning & Co. did not acquire this shipment in the usual course of business, and that their possession and ownership is not of that character which will prevail against the lien of the vendor. Our opinion is based upon a consideration of the following facts:

1. According to the course of trade in this city, the bill of exchange drawn on a particular shipment, accompanied by the bill of lading, usually represents the price of property sold, or the means of re-imbursement of the price to some party.

2. The house of Field & Son was embarrassed at the time of the transactions before mentioned. The bills held by Knox were already under protest in New York. Willis thought the §4,000 debt mentioned by Field, was one of the same character. Field told him that, in consequence of the credit of the house being impaired, he could not sell his exchange. His delays in arranging at once for the bills of exchange held by Knox, and -the impressions produced on Willie’ mind by Depeyster’s visits, were co-incident circumstances pointing to the same result, and were abundantly sufficient to put any prudent, right-minded person, upon his guard in his dealings with the house.

3. Field, the son, was a youth of nineteen. His father was absent in New York, and the son was entrusted with the business of the house. Of itself, this fact would have little weight under ordinary circumstances, but, coupled with those attendant on this case, we cannot withhold the impression that, under the trials to which he was subjected in the difficult and embarrassing position in which he was placed, his youth ought to have excited greater circumspection from those who were dealing with him.

There are some other facts which we have not noticed, because they all confirm the opinion which we have, after great consideration, adopted — that the state of things was such, that the intervenors had reasonable grounds to believe that the bills of lading which they received were for property which Field SfSon were not at liberty to give in payment, at thattime,for a pre-existing debt, without violating the rights of some other person.

We consider Willis as the agent of Knox, for the collection of the protested bills from Field & Son, and that notice to him was notice to Knox.

Davis Sf Brooks, merchants in New York, claim two thousand sacks of this corn. They were the factors and correspondents-of the defendants, and are the holders of the bill of lading of the shipment whieh was made in their favor, and received by them in New York, on the 16th May, 1844. They accepted and paid bills of the defendant’s drawn on this and other shipments, without any pri-vity as to the transactions in New Orleans. Every thing connected with this shipment and the bills, appears to be regular .and according to strict mercantile usage, so far as they are concerned.

The only question in relation to this shipment .is, whether the non-receipt of the bill of lading in New York by the consignees previous to the sequestration of the plaintiff, and the fact of the bills of exchange being accepted subsequently to ■that date, are facts which prevent the intervenors from acquiring rights on ,tho property paramount to the privilege of the vendors.

Was the property sold by the plaintiffs in the possession of the defendants at the time of the attempt to enforce the vendors’ privilege ?

It was on shipboard under a bill of lading. It was In the possession of the ■carrier, who possessed it for the lawful holder of the bill of lading, who had the only symbol of ownership, and had the sole control qf it, .and the sole power of disposing of it. By putting the bill of lading in the post-office, the defendants parted with all control over it, for they addressed it to the consignees in whos« favor the bill was made, and on whose signature the shipment was to be delivered. In no sense could the defendants be considered as b eing in the possession of the property after the shipment and transmission of the bill of lading towards its destination. It will be observed that our enquiry here is confined to the fact of possession, and the change of possession, according to the usual course of business. This is not the case of an attaching creditor, but of a vendor who sues to enforce his privilege, and a party relying upon his rights growing out of the fact of the purchaser having parted with his possession. When the shipment was made, and the shipper received his bill of lading in favor of the consignee, and put it in the post-office for transmission, as he was no longer in possession of the property, the civil possession must either be held to be in abeyance during the transmission by mail, or the right of the consignee, on the recept of the bill of lading, must be considered as referring back to the deposit of the letter in the post-office in New Orleans, neither of which hypotheses would benefit the plaintiffs, whose rights are based upon and limited to the provisions of this article of the code: “He who has sold to another any moveable property, which is not paid for, has a preference on the price of this property, over the other creditors of the purchaser, whether the sale was made on a credit or without, if the property still remains in thepossessionof the purchaser.” Art. 3194.

This article provides for the exercise of .the privilege only in the case of the property sold being in the possession of the purchaser, and appears to contemplate the conflicting claims of other creditors as opposed to the rights of the vendor, and not of those who base their claims on a want of possession in the vendee, or an adverse possession. Article 31S.6 is to the same effect. We have examined the jurisprudence of France as to the similar privilege allowed by the Napoleon Code, and can find no case in which it has been extended beyond the limitation which w.e consider to be imposed by article 3194. Vide also Laughlinv. Ganahl. 11 Robinson, 143. It is impossible to overlook the fact that contracts are made on bills of lading which are retrospective in their operation and relate back to the time of shipment, and that as to a change of possession, operated by the shipment and parting with the bill of lading by endorsement, and effecting the delivery .as far as in the nature of things a delivery can be effected, there can be but one opinion. Under a state offnets like this, where any rights are acquired in relation to the change of possession, it is our duty to give effect to them whenever the usages of commerce ar.e observed, and the transaction is, in other respects, regular and unimpeached.

It is, therefore, ordered that the judgment of the District Court be affirmed, except so far as relates to Davis, Brooks & Co.; and it is further ordered that the intervenors, Davis, Brooks & Co., recover from the plaintiffs, Fetter, Lons-dale & Gray, insólido, tlxe sum of $1900, and the costs of this appeal and of the court below.

       This action was commenced on the 13th May, 18-14-

       The judgment below was in favor of the plaintiffs.


text:
    Hewitt et al. v. Field et al.
    THIS case, which was brought up from the Commercial Court of New Orleans, Watts, J., on an .appeal by the plaintiffs from a decision in favor of the intervenors, Corning & Co.., presented the same question as that determined in the case of Fetter et al. v. Field et al., on the intervention of the same parties. The judgment below was, accordingly, reversed, the intervention dismissed, and the plaintiffs ordered to be paid by privilege out of the proceeds of the property sequestered.

      C. M. Jones; for the appellants. C. M. Randall, for defendants. Wharton, Benjamin and Micou, for the intevenors.