author: Eustis-, C. J.

text:
    Barker v. York et al.
    A ship-owner cannot he made liable for any contract or expenditure made by the captain in a foreign port, unless for some object necessary under a fair view of his interests.
    Where, on an attempt by one representing himself as an agent for a ship owner-andhy the consul of the nation to which the vessel belongs, to remove a master from the command of his vessel, the latter employs counsel to maintain his right to the command, the owner, if his interests are shown to have been in conflict with the course pursued by the master, cannot he made liable for the fees of counsel employed by him. Per Curiam: Where counsel sue for fees for professional services, their claim must rest upon the conscientious and exclusive application of those services-to the business and interests of those who are called upon to pay them.
    from the Fifth District Court of New Orleans, Buchanan, J.

      H. A. Bullard, for the appellant.

      Barker also appeared pro se.

      Winthrop, for the defendants-
   The judgment of the court was pronounced by

Eustis-, C. J.

Thisease was before this court during the last year on a question of jurisdiction,, and was remanded for further proceedings, the issuebetween the parties being simply one of indebtedness- An answer was filed by Thomas H. Holderness; the case was submitted to a jury, who found a verdict for the defendant, Holderness, and the plaintiff has appealed.

The plaintiff in his petition alleges, that William Broder York, master of the british barque Aldebaran, together with the owners of said barque, are indebted to the petitioner in solido, in the sum of one thousand dollars, for services rendered and expenses paid, he having been employed by the said'To?7c, as commander of said barque, the said York being duly authorized to engage such services in behalf of the owner of said vessel to defend and sustain said York in the command of the said vessel against ail unlawful interruptions in the prosecution of the voyage in which she was engaged, also in reclaiming the chronometer which had been used for the safe navigation of the said barque, and in claiming damages for such seizure, and in defending said York against all illegal and unwarrantable complaint which had been made against him, the said York apparently for interrupting his command; that the said amount has been amicably demanded, but still remains due and unpaid. The prayer of the .petition was for judgment in sólido against the parties, and for general relief.

When this case was first before us, we considered the plaintiff’s allegations as amounting to no more than a claim for an ordinary debt against the defendants, and as there was nothing before us but a plea to the jurisdiction, and not being able to distinguish this claim from any other ordinary suit for a sum of money, we overruled the plea to the jurisdiction of the court, and remanded the case. The defendant Thomas H. Holderness then pleaded that he was the sole owner of the Aldebaran; he denied the allegations of the plaintiff’s petition, and charges that so far from the said plaintiff ever having been engaged by him as counsel, he the said plaintiff has been constantly engaged in endeavoring to annoy and harrass him, the respondent, impeding the movement of the said barque, disturbing the good order and discipline thereof, thereby causing great loss and injury to the respondent, subjecting him to heavy expenses, to an amount of at least one thousand dollars, for which he prays judgment in reconvention against the plaintiff. York confessed judgment for the amount claimed, and the case is before us under these pleadings, the evidence, and the vefdict of the jury.

The sole question to be considered by this court is, whether, under the evidence, the defendant Holderness is indebted to the plaintiff as alleged in the petition. Although the plaintiff has not thought it material to allege in his petition his professional capacity in which his services were required, we shall consider the action as one instituted by an attorney and counsellor at law for his fee or compensation.

The plaintiff was never employed by Holderness, but was employed by Capt. York, against whom he has judgment by confession, on the original petition filed against him and the owner of the Aldebaran. The relations of counsel and client between the plaintiff and York, only become important as fixing an obligation to pay money on the defendant, which is now the subject of consideration. The plaintiff insists that, under the circumstances in which York found himself, he was authorized to employ counsel, and that the owner was bound by his acts, as, for.the purpose of protecting the property in his charge and the furtherance of the voyage, the captain may be considered as the general agent of the owner, and has authority to bind him for all necessary expenditures.

In March, 1845, the british barque Aldebaran arrived in this port, under the command of Capt. York. For certain causes, which to that officer were deemed sufficient, the british consul removed him from the command of the vessel. His name was stricken from the register, which was in the custody of the consul, and that of Scott, the chief mate, was placed temporarily in command, and substituted in his place. The consul acted with the concurrence of R. H. Chilton, who claimed to be the agent of the-owner. The authority of both was denied by York, and a litigation and contest ensued, of which we shall only notice such portions as are deemed material to the subject of our enquiry.

The answer of the defendant Holderness raises, however, a previous question, and that is as ,to the application or direction of the services rendered by the plaintiff.

It must be admitted that the situation of Capt. York, on the attempt to remove higi from the command of the Aldebaran, was one of great responsibility and embarrassment, and which required the assistance and advice of the best counsel; and whether the owner would or not be responsible for the fees, is a very different question from that before us. The defendant in this case has approved of what has been done by the british consul and Chilton, and has disapproved of the conduct of York, and of the counsel and acts of the plaintiff, and as far as he can, has negatived the allegation that, what was done by the latter was in the interests, and for the benefit, of the owner. The british government has also expressed its opinion that the conduct of its officer was entirely justified by the circumstances, and accordingly approved of it. The defendant under date of the 16th May, 1845, ratified the doings of Chilton, and gave him a full power of attorney, the effect of which it is contended was to make the previous acts of Chilton as valid as if done under a formal and sufficient authority.

Itis urged by the plaintiff that these subsequent acts do not affect his rights, as acquired under a different state of things, in reference to which he was called upon to act in giving his professional assistance. But the question then arises, in whose interest did the plaintiff act? Did he act in the interest of the defendant, or in that of York? Were those interests identical, or at variance with each other ? Who was really the client, York, or the owner of the Aldebaran ? We are not aw.are that a ship-owner can ever be rendered liable for any contract or expenditure in a foreign port, unless for some object which is necessary under a fair view o.f his interests.

The learned connsel for the plaintiff, at the close of his written argument, has thus stated the propositions which his view of the case established. 1st. That the plaintiff was employed by Capt. York, while he was acting as the special agent of Haldernesp, and for the purpose of maintaining his rights, and that York was acting within the scope of.his authority. 2d. That the act of the .consul was a nullity, and that even when ratified afterwards, the ratification could have no retroactive effect upon the contract already entered into between York and the plaintiff, before the power was revoked and he was notified of the revocation. 3d. That the court erred in charging the jury that the decision of the british ministry in relation to the official conduct of the consul is conclusive upon the plaintiff, and in refusing to admit ev.iden.ee that York offerred to surrender the barque on the production of authority from the owner. 4th. That the court erred in charging the jury that they should presume the legality of the proceedings of the british consul at this port', in deciding between the master of the british vessel and a person pretending to be the agent of the owner, as to the right to control said vessel. 5th. That the court erred in further charging the jury as .set forth in the sixth head of the charge. And the .counsel thus concludes : If th.e court should agree with us, that the court below erred, we venture to express a hope that they will put an end to this controversy, by awarding to the plaintiff what the record shows to have been the value of his services, without sending us back before the same court to litigate our rights.”

Not being able t.o concur with the learned judge from whose decision this appeal is taken, in his .charge to the jury in relation to the proceedings of the consul, the questions raised in it being of grave moment and not necassary to be determined under the view we have taken of this .case, it is not material that we should give our views in relation to them; and, under the request of the plaintiff, we shall not remand this cause, but proceed to consider the claims of the plaintiff as they appear by the record.

The suit in the District Court of the United States, in which the profession» al services of the plaintiff are alleged to have been rendered, was instituted by libel in the name of Holderncss, the defendant, for the recovery of the possession of the barque, which, it was alleged, was wrongfully withheld by York, from the agent of the owner. Chilton, under color of his authority as captain, though he had been superseded and deprived of his command for violent, improper, and illegal conduct, by the agent, and the british consul acting in his official capacity. On a rule taken on York to show cause why the barque should not be delivered up to Chilton, the judge of the admiralty court discharged the rule, and the libel was discontinued. The barque had been seized under admiralty process; and, pending these proceedings, she was cleaved at the custom house, and under the command of Capt. Turner, appointed by the british consul, went to sea. The excuse given for this proceeding was to be considered by the judge of the admiralty whose process it was contended was abused. The means adopted it is urged were necessary to save the owner from the consequences of the detention of the vessel to await the result of a suit in admiralty, and were taken in his best interests,, and for the furtherance and completion of the voyage for which the vessel was loaded at the time.

The judge of the admiralty court, in giving his reasons for discharging the rule, adverted to the question of jurisdiction, though not raised by the pleadings or in the argument, and enforced with great clearness the rule on which courts of admiralty in this country and in England, we believe, almost uniformly act, referring the disputes of foreigners relating to foreign vessels to their own tribunals for adjudication, and never interfering except in cases of necessity. The learned judge considered that the .consent of both parties was given to the jurisdiction, and that, in such a case, he might with propriety decide as to the party entitled to the possession of the barque, but discharged the rule in the absence of the necessary evidence to establish the alleged ownership and agency.

■ The answer of York to the libel, contains among other matters, this sentence, after alleging in the preceding sentence that he refuses to surrender the vessel until she returns to Hull: “ When a claim on him was first made, he was willing to do so, to any person duly authorized to represent the owner, ( waiving his legal rights,) for which purpose he demanded to see the credentials of the person pretending to be authorized ; this being denied him, and a most relentless war commenced, and which continues to be carried on by Richard Harrison Chilton, the pretended agent, this respondent now puts himself on his legal rights, and insists that so long as he continues to prosecute the voyage agreeably to his instructions there is no power competent to remove him from his command until the voyage has terminated.”

Another suit in which the plaintiff claims compensation for professional services is that of the State v. York, a prosecution by Chilton for an intended breach of the peace on the part of York, in interfering with, and intruding himself, and making a disturbance, on board the Aldebaran, &e„ which was examined into before the recorder of the Third Municipality, and dismissed. York at the commencement had been arrested and imprisoned, and on his release the services of the plaintiff were engaged to assist Capt. York professionally, in the difficulties in which he was involved in relation to the barque Aldebaran. The services in those suits form the grounds of the plaintiff’s claim.

We take it for granted that, when counsel sue for professional services, their claim must rest upon the conscientious and exclusive application of those services to the business and interests of those who are called upon to pay them; with such an application, the extension of their services to any antagonist interest is incompatible, and we cannot recognise the position of counsel thus placed as constituting any basis for compensation. The relations of counsel and client are too sacred, too confidential, too important to be endangered by the presence of any adverse interest. The plaintiff was employed by York, who is bound to pay him. In the relentless wqr carried on against him by Chilton, York threw himself upon his legal rights. His interests, to say nothing of his passions, required that, he should be reinstated or maintained in the command of the barque. But the defendant’s interests? In respect to them, we only feel ourselves called upon to say that, they were not identical with those which were avowedly maintained on behalf of York-, indeed, under a full view of the critical and embarrassing circumstances with which those interests were surrounded, we consider them to have been in conflict with the course which York felt himself at liberty to adopit for the. protection of what he considered to be his legal rights.

For the services for which the defendant is sought to be made liable, the plaintiff has a judgment against York, rendered by his consent on confession. It has not been seriously urged that the claim against both ought to be for the same amount. Such a proposition would not be reasonable. And if there were any distinct services rendered in the interest of Holderness we have no evidence before us on which we could give the plaintiff a compensation for them. The only evidence in which any value is given to the professional services of the plaintiff, is that of a gentleman of the bar who states that, from a mere glance at the records shown him, from the time consumed and the matter being much contested, he should say that a fee of one thousand dollars would not be extravagant.

In conclusion, we can see no ground for the claim for professional services of the plaintiff as an attorney and counsellor at law against the owner.

Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Robertson et al. v. Wilcox et al.
    Where a compromise between a debtor and creditor stipulates that the latter shall receive payment of several notes, with the interest due on them, in treasury warrants at par, and provides for the transfer of bank-stock and for other payments in money, an alleged error, in charging the debtor with interest on one of the notes from maturity only, when it was due from its date, consisting in the term from which the interest was calculated, is one of fact, and not of calculation; and where the agreement has been executed, the note given up, and the other debts paid in accordance with its terms, the creditor, who does not sue to rescind the compromise, cannot separate this item from the rest, correct the error, and leave the rest of the transaction in full force.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Clarke, for the plaintiffs,
    cited Civil Code, art. 3045.

      Josephs and Mott, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

The principal matter in dispute between these parties relates to the correction of an alleged error in the amount of interest on a note of §31,265, which the assignees of the Bank of the United States, who are the plaintiffs, allege to have been made in a settlement between the Bank of the United States and Wilcox, Anderson Co., in August, 1840. The amount claimed is §2,501, the interest for one year. The error is said to consist in the interest on the note having been calculated from its maturity, instead of its date.

It appears that the bank was the holder of notes to a large amount, drawn by Wilcox, Anderson Co., secured by mortgage, through their agents, and agreed to settle with the debtors in Mississippi in treasury warrants at their nominal value; and in carrying out this agreement the error is said to have heen made. The following extract from the resolutions of the board of directors of the bank shows the agreement under which the treasury warrants were delivered:

Wilcox, Anderson Co. had deposited §55,839 90, in said warrants, with which they wished to pay their notes for §31,265 06, with interest due thereon, and raise the mortgage on the property in Julia street, now mortgaged for security of said note; whereupon it was resolved that the president be directed to settle said note, and raise the mortgage on said property in Julia street, and apply the balance of said warrants, amounting to §19,245 20, after paying the note of §31,265 06, and §5,328 44, interest on same, as follows, &c.”

The note of §31,265 was only one of several, the payment of which with interestwas stipulated in the compromise, which also provided for a transfer of a large quantity of bank stock and payments in money.

Thus it appears that the debtors had made the deposit for the purpose of paying their note and the interest due thereon, and the amount of interest due was stated in figures as §5 328 44, when in point of fact there was a year’s interest more due on it, to wit, the sum of §2,501. This agreement was executed ; the note was given up, the mortgage released, and the balance of the warrants applied to the payment of other debts due by the parties to the bank. The error is said to have been one of calculation, which, according to our understanding, applied to this matter, means the computation by numbers. But there is no mistake in the figures or in the computation, but the error consists in the amount of interest due, or the term from which it was computed. The error is not of calculation, but of fact.

Can the party be relieved against this error of fact ?

Our impression is that the agreement between the bank and its debtors in relation to this debt was a transaction or compromise, which has between the parties the effect of res judicata to a certain extent. Civil Code, arts. 3038, 3045. The counsel who argued the cause bases his claim for relief on the ground of the error being one of calculation, which in a transaction may be always corrected; but deeming the error, if any existed, one of fact, and the present action being not to rescind, but to correct, the error, it remains for us to ascertain how the transaction stands affected by this error of fact.

Transactions may be rescinded on the ground of error in the person or in the subject matter, as well as on the ground of fraud or violence, but they cannot be attacked on account of error in law or any lesion. When the error is of a character to affect the principal cause of the contract, by establishing the presumption of a want of consent of a party, it may invalidate the contract; but it is not every error as to the subject matter that has that effect. In this respect the rule is the same in relation to transactions as to other conventions-6 Toullier, § 72.

The immediate consequence of correcting the error complained of in the plaintiffs’ petition would be materially to change the whole arrangement, and to substitute another in its place. The agreement was entire ; it has been long since executed by both parties; no recision is claimed on the ground of error, fraud, or breach of condition. We find no authority in the law to enable one party to separate this item from all the others, isolate it entirely from the surX'ounding and dependant facts which have been closed by the execution of the contract, correct this error, and leave the rest of this transaction in its full obligatory force. On the question of law we think the case is with the defendants. In relation to the" fact, it is obvious that, to enable a party to rescind a transaction which has so long gone into effect, there must be no question as to the existence of the error, and of its effect on the consent which is necessary for the formation of the contract.

On a review of the rules on which courts of equity proceed in according relief to parties for errors of fact, we find them in principle not materially different from those existing in our jurisprudence, and have met with no precedent which would warrant an interference in a case of this kind. Story’s Equity Jurisprudence, § 141, 152.

It is therefore decreed that the judgmeut appealed from be reversed, and judgment is rendered for the defendants, with costs in both courts.

       Slidell, J. did not sit, having been of counsel.


text:
    City of New Orleans v. The Commercial Bank.
    The separation of the administration of the banking business of a company from the other business of the corporation, for the purpose of winding up the former, under the provision of sec. 7 of the stat. of 5 Eebruary, 1842, and sec. 27 of the stat. of 14 March, 1842, could produce no change in its obligations to its creditors or stockholders; and an injunction will he granted to restrain the officers of the company from paying any dividend to the stockholders while there are any debts, created by its former banking operations, unpaid or unprovided for.
    from the Fifth District Court of New Orleans, Kennedy, J. presiding.

      W. W. King, for the plaintiffs.

      L. Peirce, for the appellants.
   The judgment of the court was pronounced by

Eustis, C. J.

An injunction was obtained at the instance of the plaintiffs against the defendants’ paying to the stockholders a dividend of $2 a share, and after a trial before the Third District Court of New Orleans the injunction Was made perpetual, and the defendants have appealed.

One of the grounds upon which the injunction was granted was that, the banking affairs of the company are in liquidation under the laws of the State for the liquidation of banks. By a decree of the late court of the First Judicial District, certain proceedings were homologated, by which the appointment of commissioners was recognized to liquidate the hanking affairs of the Commei-cial Bank under the exclusive control of the stockholders, with the proviso contained in the 27th section of the' act of 14 March, 1842, entitled An act to provide for the liquidation of banks, &a. Under the 7th section of the act of 5th February, 1842, relating to the charters of the banks in New Orleans, the corporation of the Commercial Bank, having constructed its water works, retained its powers and privileges necessary to manage and conduct the same until the expiration of the term fixed by its charter. By a decree of the late court of the first district, previous to the appointment of the commissioners, the charter of the corporation, so far as it related to its banking powers, had been dissolved, and since that period its affairs have been distributed — those relating to the banking concern under the control of commissioners, and its water-works under that of a board of directors, both appointed by the stockholders. The situation of this institution is anomalous ; but there appears to be but one object in the laws under which its peculiar situation has been created, and in the stockholders at whose instance this anomaly was produced in the management of their own property, and that is, that its banking concerns should be liquidated and terminated, and the business of the corporation exclusively confined to the water-works. As long as there are debts of the former bank which are unprovided for, it strikes us as self-evident that the making of dividends is totally inconsistent with the liquidation of its affairs. We are aware of the caution which a court of justice must exercise in interfereing in the affairs of a private corporation under ordinary circumstances, and of the discretionary power necessarily vested in those who have the responsibility of conducting them, but the claims set up by the plaintiffs grow out of a state of facts which, under our peculiar legislation, we think calls for interposition.

. The plaintiffs, representing the corporation of the city of New Orleans as it formerly existed, are stockholders of the bank, having five thousand shares, for which bonds of the city were issued payable in forty years from date, bearing an interest of five per cent per annum, payable semi-annually. They were made in favor of the bank, and were negotiated under its endorsement at a profit. The dividends on the stock held by the city were tobe retained by the bank, and applied, first, to the payment of the interest due on these bondsj and the surplus to be passed to the credit of the city, to be set apart as a sinking fund applicable alone to' the payment of the bonds when they should become due. , t

The unqualified and imperative appropriation of these dividends to the payment of the interest on the bonds, as well as tile principal, at the time they fall due, is not only fixed by an article in the charter of the bank, but has been sanctioned without any reservation whatever in two decisions of the Supreme Court, in cases between these identical parties. 11 Louisiana Reports, 219. 5 Rob. 235.

The interest on these bonds has not been paid by the bank since 1842 or 1843, notwithstanding there is an accumulation of dividends at the credit of the city amounting to $130,000. For this omission we have been unable to find any reasonable excuse or justification, and the rights of the plaintiffs to’ insist on the execution of this provision of the charter, which was one of the conditions on which the privileges secured by it were granted, we cannot refuse to them. The division of the administration of the banking portion from the other business of this corporation produces no change in its obligations to its creditors or the stockholders; its debts, and the duties imposed by the charter, remain as before the surrender of their banking privileges under the liquidating law.

From the evidence we are satisfied that the best interests of the stockholders themselves require that their charter should be in all things respected, and that no dividends should be made until their just debts are paid or safely provided for.

Our opinion in relation to the payment of this interest on the city bonds being as stated, it is unnecessary to examine the other points which have been presented in argument. Judgment affirmed.


author: Rost, J.

text:
    Blanchard, Executor v. Lockett.
    Defendant purchased, with two other persons, certain ground for the purpose of dividingit into lots and re-selling it, taking the title in his own name, and giving a counter-letter binding himself to sell and account to his co-proprietors. One of the latter executed his notes, which were endorsed by the defendant and discounted, and the proceeds applied on account of the maker towards paying his portion of the price of the land. The defendant was afterwards obliged as endorser to pay the notes. The maker having died, defendant and his surviving co-propriotor agreed with the executors of the deceased that the whole property should be sold by the register of wills, and at the sale defendant became the purchaser. The executor having demanded from the purchaser the whole price of an undivided third, alleging that purchasers at probate sales cannot compensate against the price claims due them by the deceased, and that for his advances defendant was only an ordinary creditor of the succession, which was insolvent: KeU, that defendant had the right to retain any advances made by him out of the proceeds of the property in his hands. C. C. 2992.
    from the Third District Court of New Orleans, Kennedy, J.

      Le Gardeur, for the appellant.

      Goold and Micou, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This case has already been before the Supreme Court, and was remanded for the introduction of evidence, which the court below had refused to admit. The facts are fully stated in the opinion of the court, in 4 Rob. 370.

The controversy grew out of a real estate speculation, entered into between John A. Merle, Theodore Nicolet, and the defendant. The subject was a lot of ground and improvements, and the price $30,000. The property was purchased in the name of the defendant, who bound himself to divide it into lots, effect sales thereof, and account to Merle and Nicolet, who took a counter-letter which was deposited in the office of Grima, the notary before whom the sale was passed. Pending the negociation, Nicolet informed the defendant that Jules Ze Blanc owned an interest in the property, which it was desirable to extinguish. For the purpose of purchasing that interest, Nicolet made notes for $10,000,.which were endorsed by the defendant. Those notes were discounted to the amount of $6,900, and the proceeds were paid to Jules Be Blanc for account of Nicolet. The defendant was subsequently obliged, as endorser, to pay those notes. Nicolet died, and in order to settle his rights in this property, Merle and the defendant agreed with his executor that the register of wills should make sale of the whole. The defendant became the purchaser at the price of $20,000. The executor now demands the whole price of an undivided third, alleging that purchasers at probate sale cannot compensate claims due them by the deceased, and that, for any advances the defendant has made, he is an ordinary creditor of the succession, which is shown to be insolvent. The judgment in the court below was in favor of the defendant, and the plaintiff appealed.

The legal title to the whole of the property was in the defendant, and he could not have been divested of it against his consent, without a decree of court on a proper showing. The counter-letter gave Nicolet nothing more than ah equitable claim to one-third of the nett proceeds of the adventure, which it. authorized the defendant to close. He could have transferred no more in his life-time, and nothing more passed to his legal representatives, at his death. Lockett had tirade advances under the mandate, and had the right to retain those advances out of the proceeds of the property in his hands. Civil Code, art. 2992. It is contended that, the share of Nicolet was no longer in his hands, after he consented that it should be sold by the register of wills with his own. Such is not the necessary consequence of his assent. Believing that, under the power he held, he could not sell the property himself, after the death of Nicolet, he agreed that it should all be sold at auction,- as the only means of closing the adventure. It would be inequitable to consider this involuntary change in the execution of the mandate, as implying on his partan abandonment of vested rights. He might have retracted his assent at any time ; the legal title was still in him on the public records of the country; and if, before the adjudication, a third person had purchased from him in good faith, that purchaser would not have been affected by the latent equities existing between his vendor and the succession of Nicolet. Hyams v. Richardson, 1 Annual Rep. 286.

There is no error in the judgment appealed from.

Judgment affirmed.

       Eustis, C. J. did not sit on the trial of this case, having been engaged as counsel.


text:
    The General Council of New Orleans v. Lockett.
    The late police jury of the parish of Orleans was authorized by law to impose taxes to meet the disbursements it was required to make. The stat. of 7 April, 1824,is conclusive • on the subject. The power of the Police Jury in this respect was unaifected by the Stat. of 8 March, 1836, dividing the city of New Orleans into municipalities.
    from the Fourth District Court of New Orleans, Strawlridge, J.

      King, for the plaintiffs.

      Goold,, for the appellant.
   The judgment of the court was pronouncd by

Eustis, C. J.

This suit is instituted for the recovery of certain taxes, assessed and imposed on the defendant’s property by the late police jury of the parish of Orleans, to which the party plaintiff has succeeded. The defendant denies the existence of any law by which the police jury could impose the tax. There was judgment against the defendant for $198 35, and, under the 63d article of the Constitution, he has appealed.

The police jury of the parish of Orleans was charged with providing for certain expenditures attendant on the administration of justice within the parish. The salary of the parish judge, afterwards that of the judge of the Court of Probates, and that of the judge of the City Court, the expense of suitable places for holding courts, of prisons, and several other matters of a like sort, were to be provided for by the police jury. How was this expenditure to be defrayed except by taxation?

Our opinion is that the power of the police jury to levy taxes to meet the . disbursements necessary for those objects has been fully given by the statutes, and that the law of April 7th, 1824, is conclusive as to that power. The law of 1836, dividing the city into municipalities, gave no authority to the councils of either of the municipalities to provide for the subjects committed to the police jury, whose power over them remained unaffected thereby.

The different laws on this subject are by no means clear or free from difficulty, if their litteral meaning be alone fpllowed; but of their legal import, we think, there can be np question, Judgment affirmed.


text:
    Taylor v. Rostrop.
    A general mortgage resulting from the recording of a judgment, does not operate upon slaves after their emancipation, unless there was fraud on the part of the emancipator. C. C. 190_ One who purchases slaves subject to the condition that they shall be emancipated in a certain time, and who subsequently emancipates them under a decree of court rendered in due form, cannot afterwards be sued in an hypothecary action as a third possessor of the slaves, by the holders of a judgment which had been registered while the slaves were in the possession of their original owner', Per Curiarn: The defendant is not a third possessor, nor can he be treated as the real emancipator. The slaves hold their actual status under a decree of court, which will be binding until overruled in a direct action against {hem and the judgment debtor.
    from the Fourth District Court of New Orleans, Strawbridge, J.

      Durant, for the appellant.

      Beecher, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This is an hypothecary action. The plaintiff is the holder of a judgment duly recorded against JUlie Victor Maroiie, who was at the time of the recording in possession of certain slaves, upon whom Samuel Fagot held a special mortgage to secure the payment of a sum of $2500, with interest at the rate of ten per cent per annum. Marotte, subsequently sold Louise and her child, two of those slaves, for the sum of $1300, on condition that they should be emancipated by the purchaser within three years from the sale. Fagot intervened in the act, received the price, and raised his mortgage on those two slaves. In the certificate of the recorder of mortgages produced on that! occasion, the judical mortgage of the plaintiff is not mentioned. Maindrault, the purchaser of the slaves, sold them on the same condition to the defendant, who emancipated them under a decree of court rendered in due form of law. The plaintiff now proceeds against this defendant as a third possessor, and prays that the slaves be sold to satisfy his mortgage. The defendant resisted the claim on the ground that he had emancipated the slaves in good faith, and that after the emancipation he cannot be viewed in the light of a third possessor. He farther avers that the plaintiff has no mortgage on which he could in anj case maintain his action.

The case was tried before a jury, and the judge instructed them that a general mortgage resulting from the recording of a judgment did not, by thf laws of Louisiana, operate upon slaves after their emancipation, unless theraj ■was fraud on the part of the emancipator. To this charge the counsel of thJ plaintiff excepted. There wag a verdict and judgment in favor of the defend.] .ant, and' the plaintiff appealed, |

The charge of the judge is in strict accordance with art. 190 of the Civil Code; and as no fraud is alleged or shown, we could not interfere, even if the proper parties were before the court. But the proceedings are in other respects irregular. The defendant is not a third possessor, nor can he be considered as the real emancipator. The slaves hold their present status under a deeree of court, which is binding until annulled in a direct action against them and the judgment debtor. Judgment affirmed.


text:
    Peterson v. McRae.
    Where a curator appointed to represent an absentee against -whom a suit had been instituted, excepts to the jurisdiction of the court on the ground that, no property of the defendant's had been attached and no personal service of process made, the petition must be dismissed.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Peyton and 1. W. Smith, for the plaintiff,
    cited George v. Fitzgerald, 12 La. 604. State v. Judge of Parish Court, 15 La. 81.

      T. R. Wolfe, for the appellant,
    relied on JDupuy v. Hunt, 2 An. R. 562.
    The judgment of the
   court was pronounced by

Eustis, C. J.

This is a suit brought against the defendant, who is aresident in the State of Mississippi. There was neither property of the defendant attached, nor personal service of process made. A curatorwas appointed to represent the defendant, who pleaded to the jurisdiction of the court. The plea was overruled, there was judgment for the plaintiff, and the defendant has appealed.

The decision in this case, was made by the district judge previous to that rendered by this court in Dupuy v. Hunt, 2 Annual Rep. 562. On the authority of that case, the plea of the curator ought to have been sustained.

The judgment appealed from is therefore reversed, and the plaintiff’s petition dismissed, with costs in both courts.


author: Slideli,, J.

text:
    Bach v. Cohn.
    A bankrupt discharged from bis debts under the act of Congress of 19 August, 1841, is still bound in foro conscientim, and this obligation is a sufficient consideration for a new promise. C. C. 1753. But there can be no legal obligation to pay such debts without a new agreement, which may be verbal, or be proved by presumptions where the known fact on which the presumption rests draws after it the unknown fact as an almost necessary consequence. C. C. 1810,2367. The presumption must be precise, and inapplicable to other circumstances than those intended to be established.
    from the District Court of Jefferson, Clarke, J.

      Larue, for the plaintiff.

      Brewer, for the appellant.
   The judgment of the court was pronounced by

Slideli,, J.

This suit is brought upon two notes, signed by the defendant to the order of, and endorsed by, H. C. W. Milhoff, dated in 1841. The defendant pleads in bar of the action his certificate and discharge in bankruptcy, in 1843, under tlie act of Congress. The only question which this cause presents is, whether, since his discharge, a new promise to pay has been made by the defendant.

A witness offered by the plaintiff testifies, “ that, in 1844, the defendant asked him whether he would endorse for the amount of $500, being the amount which he owed to Mr. Bach — witness refused to endorse. Cohn owed this amount to Bach for two notes which said Bach held against him, and had received in payment for two lots sold to Henry Mithoff. The request of Cohn to witness, to endorse for that amount, was reiterated several times. Does not recollect hearing any conversation between Bach and Cohn on this subject. Defendant appeared willing to pay Bach the amount, and desired to pay him.” This witness, on his cross examination, states that he had never seen the notes before their exhibition to him at the trial of the cause; but that he knew the notes given to Bach for the two lots, were drawn by Cohn, and endorsed by H. W. C. Mithoff, but was not able to say that they were the identical notes sued upon. Another witness, Henry Mithoff, identifies the notes as the same given in payment by him, the witness, to Bach, for some real estate purchased by himself of Bach. This is the only testimony offered by the plaintiff to destroy the effect of the bankrupt’s certificate and discharge. The court below gave judgment for the plaintiff, and the defendant has appealed.

The decree of the bankrupt court, as embodied in the certificate, is that Cohn is fully discharged from all his debts, owing by him at the time of the presenta, tion of his petition to be declared a bankrupt, to wit: on the 28th January, 1843. This decree and certificate follow the act of Congress. Their effect was, in the language of the lawgiver, a full and complete discharge of the debt in question. The act of Congress in this particular appears substantially to have followed the bankrupt system in England, and we may therefore with propriety look to the decisions of the english courts in ascertaining the legal effect of this discharge.

Upon an examination of them it will be found that, the effect of the certificate may be avoided by a new contract, entered into bond fide by the bankrupt after his discharge; and that as the debt, notwithstanding the legal discharge, is due in foro conscieniice, the moral duty is deemed a sufficient consideration to support the new promise. But we have met with no case in the english authorities in which any thing less was deemed sufficient in avoidance, than direct proof of a new contract.

In Lyruby v. Wightman, 5 Esp. 198, the action was assumpsit for money lent. * There was a plea of the general issue and bankruptcy. It appears by the report of the case that the plaintiff meant to rely on a new promise to pay, made by the bankrupt subsequent to his bankruptcy, and for that purpose was giving evidence of general declarations by the bankrupt that he would pay every body, and that his effects would pay twenty shillings in the pound, but there was no specific promise whatever proved to have been made to the plaintiff. Lord Ellenborough said, “that in order to bind a bankrupt, by a new promise he should expect a positive and specific promise to pay, not given in such general terms as it was offered here,” In Fleming v. Hayne, 1 Starkie, 370, the same learned judge again held, in even stronger terms, that the promise to pay must be distinct and unequivocal.

Even thus guarded, the rule seems not to have proved consistent with the spirit of the bankrupt system, or with public policy. It was probably found to open a door to perjury, or at least to be dangerous in exposing discharged bankrupts to a new responsibility, upon unguarded promises made upon the impulse of moral duty. Hence we find that by the 131st sec. of 6 Geo. 4, c. 16, it was provided that, no bankrupt should be liable to pay any debt from which he shall have been discharged by his certificate, unless such promise be made in writing, and signed by the bankrupt.

It is certain that a bankrupt discharged under our statute is still bound in the forum of conscience. It is also true that this moral obligation is a sufficient consideration for a new promise. Civil Code, art. 1752. But it is equally true that no legal obligation can arise to pay the discharged debt without a new agreement, which agreement, though it may be made verbally, requires, like any other, the consent of the parties. This indeed is not disputed by the counsel for the plaintiff. He acknowledges that there must be a new agree-ment. He also acknowleges that no positive promise has been directly proved in this case. But he contends that the agreement may be established by circumstantial evidence, and that the facts proved amount to such evidence.

There is certainly such a thing as presumptive evidence of a contract; but it is equally true that those presumptions which are not established by law but are left to the discretion of the judge, must, in the language of the Code, fye weighty, precise, and consistent — graves, precises, et concordantes. Civil Code, 2267, 1810. 1 he known fact on which the presumption, reposes must draw with it the unknown fact, as an almost necessary consequence. The presumption must be precise, and not susceptible of application to other circumstances than those which it is sought to establish. See Rogron, 1352. Here the facts from which we are asked to presume a new agreement between the plaintiff and the defendant amount to this: that the defendant, in repeated conversations with the witness, out of the presence of the plaintiff, asked the ¡witness if he would endorse for him for the amount of $500,' which he owed Bach on two notes held by him, appearing to be willing to pay Bach and desiring to pay him; which request the witness refused. This certainly does not necessarily draw with it the presumption that, at the time of the conversatioh, the defendant had already promised to pay the discharged debt. It is consistent with the hypothesis that he spoke of the debt as one due in good conscience, and merely contemplated a settlement of the claim in the form of two notes endorsed by the witness; and that intention might well be coupled with some contemplated gain to himself, upon thus renewing an obligation from which in law he was fully liberated. If such conversations of a certificated bankrupt, had with a third persons out of the presence of the creditor, were received by courts of justice as proof of a new promise, bankrupt certificates would speedily become waste paper, which the framers of the bankrupt law certainly did not contemplate. It is not for us to consider the wisdom or justice of that statute. We must look to the object and policy of the law, and not defeat the intention of the legislator by reviving a discharged debt upon vague and inconclusive presumptions.

Judgment reversed, and judgment for defendant, with costs in both courts.


author: King, J.

text:
    Succession of Fortier.
    Where a wife dies .without issue, leaving a sucoesssion valued at $26,000, and the only property of the husband, who was twenty six years old, and healthy, but without any profession or calling, consists of two slaves of the value of $1,100, the property will bp considered as inadequate to his support, and that fact will entitle him to claim, under art. 2359 of the Civil Code, one fourth of the succession of his wife. Per Curiam: The object of the law is, to provide for the support of the survivor out of the property of the deceased, without reference to his ability to Support himself by his personal industry; and the only question that can arise is, as to the sufficiency of the pecuniary means of the husband for his support.
    APPEAL from the Second District Court of New Orleans, Canon, J.

      Le Gardeur, for the appellant.
    The husband is shown to have been in necessitous circumstances, in the sense of article 2359. “ pauvreté ne pas á riavoir précisément rien; on est estimé pauvre quand on n’a pas ce qui est nécessaire pour vivre selon son état.” See a decision reported by Merlin, Rep. de Jurisp. verbo Quart de Conjoint Pauvre, p. 690. The 53d novel of Justinian declares: “ Etiam hie servandis similiter quidem in viris, similiter autem in mulieribus, communem namque etiam, hanc super aisponimus legem.” The object of that law was to relieve the poverty of the survivor out of the fortune of the decedent: “et inopia conjugis per divitias salvetur alterius.” Lopez, in his commentary on the law 7, tit. 13, of 6th Partida, makes the following remarks: Licht uxor pauper esset industriosa, et manibus suis posset victum lu crari, adhuc habebit istam quartam, cum luce lex se referat ad ea, qua, habeat in facultatibus propiis,......quia ista quarta daiur in honorem preeterili matrimonii ut conserventur conjuges in solito statu.” Febrero, in his “Tratado de Particiones,” vol. 2, p. 296, no. 175, speaks nearly to the same effect: Corresponded la viuda pobre la quarta marital, aun que con su trabajo pueda alimentarse, porque se la concede en honor y por consuelo del matrimonio perdido, para que conserve casta viudedad, y su trabajo no es seguro.”

    The applicability of these rules to the surviving husband under our laws, is obvious: 1st, because art. 2359 makes no distinction between husband and wife, and the principle is well settled that “ ubi lex non distinguit, nec nos distinguere debemus;" 2nd, because the reason of those rules applies with equal force to a surviving husband who has no property adequate to his support. Why is the marital portion given to the survivor 1 It is given him in honorem pmteriti matrimonii, ut conserventur conjuges in solito statu. Why is he entitled to that portion, even when he has a profession and is capable by his labor to provide for his maintainance ? Because his labor is uncertain, su trabajo no es seguro, and the law wishes him to be in possession of secured and substantive means, ea quee habeat in facultatibus propriis.

      Grima, for the opponents,
    contended that the appellant was not in the necessitous situation contemplated by art. 2359, as entitling him to a fourth of| the succession of his deceased wife. I
   The judgment of the court was pronounced by

King, J.

Valcowr Fortier presented to the District Court his account as ad-j ministrator of the succession of his deceased wife, Catharine Delphine Labranche, in which, as well as in the accompanying petition, he claimed one fourth of the estate of the deceased, in full property, as the marital portion, averring that his wife had died without issue, and that he was in necessitous circunfstances. An opposition was filed by several of the heirs, contesting the right of the surviving husband to the marital portion. The opposition was maintained, and Valcour Fortier has appealed.

The account presented shows that the estate of the deceased amounted at her death, to more than $86,000. From the evidence it appears that the only property of the husband consists of two slaves, one of them infirm, and both valued at only $1,100. He is a young man Without profession or calling of any kind, has never followed any pursuit as a means of support, and since the death of his wife has Jived at the house of a friend free of charge. Efforts made by a friend to procure him employment have proved unavailing, in consequence of his ignorance of the engiish language. His property is inadequate to his support. These are the principal facts in the case. The district judge states the reasons upon which he founds his judgment, in the following words; “ The survivor is a young man, twenty six years of age, and healthy. He has no charge except his own maintenance, and has two slaves. In this country he cannot be called necessitous, according to the word used in the Civil Code, art. 2359, which word would certainly apply to a woman in similar circumstances. Let the opposition be maintained,” &e.

It is conceded that the right to the marital portion given by the 2359th art. of our Code, extends to the husband as well as to the wife. The law makes no distinction. The circumstances which would authorise the claim on the part of the wife, would equally authorise it on the part of the husband. If the object of the law were only to provide for the survivor who was unable, by industrious pursuits, to support himself, and was without other adequate means of support, the opinion of the district judge would undoubtedly be correct. But the rule, under the text of our Code, which establishes a perfect reciprocity or right in this respect between the spouses, would extend also to the wife. The principle upon which the law appears to be founded is that, neither of the married parties who have lived together in the common enjoyment of wealth and of the position which it gives, shall be suddenly reduced to want: and a part of the estate of the deceased, who has died rich, is appropriated to relieve the survivor, who, in the absence of it, would be reduced to poverty. 53d Novel of Justinian. Merlin, verbo Quart de Conjoint Pauvre. Gregorio Lopez, Com. on law 7, tit. 13, part 6. The object of the law is to provide a support out of the property of the deceased, without reference to the ability of the survivor to support himself by his industry or persona] exertions alone. The only question that can arise is, as to the sufficiency of the pecuniary means of the husband for his support. The evidence shows that they are inadequate, and this fact, in our opinion, entitles him to the one fourth part of the succession of his wife, who died comparatively rich, and without issue.

The judgment of the District Court is therefore reversed. It is further ordered that Valcour Fortier have judgment for, and recover, one fourth of the succession left by his deceased wife, Catherine Delphine Labranche, in full property ; the appellees paying the costs of this appeal.


author:
Eustis, C. J.
     Rost, J.

text:
    Arrowsmith v. Gordon et al.
    Plaintiff having sold bills of exchange on a foreign country to defendant, delivered to the latter, at the same time, hills of lading for certain property, under an agreement that they were to be held as security for the acceptance only of the bills of exchange, and were to be delivered to the consignee on his acceptance. Phe latter tendered an acceptance of the bills of exchange on delivery of the bills of lading, but the agent of defendant refused to give up the hills of lading before payment of the bills of exchange, and they were protested. Defendant's agent sold the property on its arrival, and applied the proceeds to tlie payment of the bills. There was no evidence of any loss sustained by plaintiff in consequence of the time when the sale was made as compared with the price of the article a reasonable time afterwards, nor that plaintiff intended the shipment for any particular purpose which was defeated by defendant’s acts; nor any proof of loss, actually-sustained from any injury to plaintiff’s credit iu consequence of the protest of the bills. In an action by plaintiff for damages for protesting his bills, and retaining the bills of lading, and appropriating the proceeds of the cotton: Held, that plaintiff is not entitled to recover, as damages, the increased value of the cotton at any time previous to the institution of suit; that defendant cannot claim commissions on the sale of the property, which he had no right to dispose of, and is liable for interest on the balance of its proceeds remaining in his hands beyond the amount of the bills; that the measure of damages in. cases of breach of contract is that which will indemnify the party injured; that in cases of breach of contract, even where there is fraud, the damages for which the debtor is liable are those which are the immediate and direct consequence of the breach; and that, where the law does not necessarily infer that the party has sustained damage by the acts complained of, the damage must be alleged and proved so far as the facts are susceptible of proof.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J, The facts of this case are fully stated iu the opinion delivered by Eustis, C. J. infra..

      Clarice, for the plaintiff.
    If the rights of the parties are to be governed by the common law, the defendants had no right to sell the cotton, until after the maturity of the bills. Story on Bailments, sec. 308. 2 Caines’ Cases, 202. If by the laws of Lonisiana, a fortiori, none. C. C. 3132. Garlick v. James, 12 John’s Rep. 146. If the jury regarded as the basis of plaintiff’s rights, the relative values of the cotton solely, the amount of their verdict was not excessive. “The value of the chattel at the time of the conversion is not, in all cases, the rule of damages in trover; if the thing be of a determinate and fixed value it may be the rule, but when there is an uncertainty or fluctuation attending the value, and the chattel afterwards rises in value, the plaintiff can only be indemnified by giving him the price of it, at the time he calls upon the defendant to restore it.” Cortelyon v. Lansing. 2 Caines’Cases, 215. If the chattel, after the conversion, increased in value, or be attended with other circumstances, the damages may be enhanced accordingly. Fisher v. L'rince, 8 Burr, 1363. A defendant was sued for a breach of contract, in not replacing a certain quantity of stock by a given day, and the court held, as the direction had been given to the jury, that the plaintiff was entitled to recover, not merely the value of the stock as it stood at the day, but the value as it stood at the lime of the trial. Shepard v. Johnson, 2 East. 211. Kent, in the case in 2 Caines, says: “I have no doubt it is just and right that the plaintiff in the present case ought to recover the value of the note at the time he chose to demand it; he has selected that time to call for his note and to liquidate its value, and no other measure of damages short of that, will indemnify him for the loss of the pledge. In trover, if the chattel be not of a fixed and determined value, its worth at the time of conversion is not the rule of damages; but they may be enhanced, according to the increased value of the chattel, subsequent to that time.” West v. Wentworth et at., 3 Cowen, 82. “ In trover, the jury are not limited to find as damages the mere value of the property at the time of the conversion, but they may find as damages the value at any subsequent time, in their discretion.” Greening v. Wilkinson, 1 Carr and Payne, 625. From these authorities it will appear, that the jury were at liberty to find as the measure of damages, the value of the cotton at any period between the time of conversion and trial. But the jury had other elements besides the values of the cotton, with which to calculate. They may have thought there was injury done to the plaintiff’s credit, consequent upon the defendants’ acts. His bills were protested.

      L. Janin, for the appellant.
    Jf this case should be considered as exhibiting an instance of breach of contract, it is at least not tainted with bad faith; and if the plaintiff should be entitled to damages, the question arises, what is tho measure of such damages ? And according to what law are these damages to bo assessed? According to the law of Louisiana, or the law of England?

      This question is answered by the following extract from Story’s Conflict of Law, sec. 321, p. 266: “ In stating the foregoing rules, we have been necessarily led to the consideration of many of what are properly deemed the effects of contracts, which, like the validity of contracts, are dependant upon, and are to be governed by, the lex loci contractus. These effects are, the right conferred on the party for whose benefit the contract is made ; the correspondent duty of the other party, to fulfil it; the right of action which arises from the non-fulfilment of it; and the consequential right to interest or damages, for the injury done by such non-fulfilment, belonging to the injured party. The manner in which remedies are to be administered, will fall under another and distinct head.” Thus, the damages due by the drawer of a protested bill of exchange, are determined by the law of the place where the bill was drawn. If, in this case, the defendants had failed to forward the cotton to England, and had sold it in New Orleans, the damages would clearly have been determined by the law of Louisiana. The law of Louisiana on this subject, is contained in arts. 1928 and 1938 of the Civil Code. There being obviously no fraud or bad faith — “ no designed breach of faith from some motive, or ill will, or interest” in this case, the plaintiff could only recover such damages as entered into the contemplation of the parties at the time of the contract.- It is reasonable to presume that the acceptor of the bills would have sold the cotton to meet the bills, about the time of their maturity ; such being the customary course of trade, and that he would have charged the usual commission of two and a half per cent. This is exactly what was done in the present case. The result was the same as if the cotton had gone into the hands of Hoskins, and the plaintiff has,therefore, suffered no damages from the alleged state of things. The plaintiff, however, intended to demand the price, which, according to his opinion, the cotton would have brought at the time of the institution of the suit. The petition says that if the cotton had been kept longer, it would have brought ¿64,481 15s, which after deduction of charges, would have left to plaintiff $6,000 ; and for this amount he claims judgment.
    Is this pretension supported by law ? Clearly not by the civil law. If we consult the common law, we shall find much diversity of opinion. Se,d'gwick on the Measure of Damages, p. 505. But at our distance from the States in which these opposite and irreconcilable opinions are held, it seems most judicious to accept the Supreme Court of the United States as umpire.. That court, in a case of positive breách of contract, impelled by interest, held that the measure of damages was the value of the thing at the time of the conversion. Shepherd, v. Hampton, 3 Wheaton, 200. 4 Cond. Rep. 233. It is remarkable, that the counsel for Shephard et al. cited in support of their claim for a higher rate of damages, Corlelyon v. Lansing, 2 Caines’Cases, 215; Fishery. Prince, 3 Burr, 1363; Shepard’s Ew’r.y. Johnson, 2 East, 211, which are also relied on by the plaintiff in this case. The same opinion was expressed by Judge Story, in Walt v. Potter, 2 Mason, 76. And of the same tenor, are the decisions of this court in George v, McNeill, 7 La. 124. Porter v. Curry, 7 Ibid, 233.
    Yet supposing that the law was, that the value of the cotton at the time of the institution of this suit, was the true measure of damages, it will still appear that the verdict of the jury greatly exceeds this measure. But it is suggested that the jury might have been influenced by considerations of the injury done to the plaintiff’s commercial reputation. Such is not the fact — the whole character of the case shows it; even if the manner in which the verdict was calculated was not known to us, and if the jury had allowed any thing on that score, the verdict would have been doubly erroneous. The plaintiff sustained no injury in his standing.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff, in September, 1844, sold to the defendants two bills of exchange, amounting to ¿62,327 15 6 sterling, and with them were delivered bills of lading for six hundred and ninety-seven bales of cotton shipped on board the Coromando. The plaintiff and defendants were merchants in New Orleans; the bills were sold here, and were drawn on Henry H. Hoskins of Liverpool, to whom the cotton was consigned. It is alleged that the bills of lading were purchased under a special agreement; that they were given and held as security for the acceptance only of the bills of exchange, and were to be delivered up to the consignee on his acceptance. The acceptance of the bills was tendered by Hoskins on the delivery of the bills of lading. This was refused by the agents of the defendants, the bills of exchange were protested, Hoskins having refused acceptance on any other terms, and the defendants’ agents took possession of the cotton on its arriyal, sold it, and applied the proceeds to the payment of the bills. Another bill of exchange drawn for ■ ¿£500 on the same shipment, and negotiated by the plaintiff was protested, and returned in consequence of the refusal to deliver up the bills of lading. The plaintiff sues the defendants for damages for protesting his bills and retaining the bills of lading, and unjustly and in violation of the contract and agreement aforesaid appropriating the cotton to their own use.

By the retention and disposition made of the cotton in Liverpool, the plaintiff charges that he suffered a direct loss of $6,000, and that by reasons of the failure of the defendants to comply with their agreement aforesaid, and of the dishonoring of the bill aforesaid, his reputation as a merchant was greatly affected, and his commercial transactions, which were important and extensive, were embarrassed, that the dishonor of said bills becoming generally known in New Orleans, New York and Boston, to persons engaged in the bill business, with whom he had theretofore dealt, he could no longer with facility negotiate his bills in the ordinary course of his business as he could before, and that the loss and damage so sustained by him in his commercial reputation and business amounts at leant to $1.0,000, which he sues for* The petition concludes with a prayer for judgment for $16,000, and costs.

The agreement about the bills of lading is expressly put in issue by the defendants’ answer; it is charged that it was agreed that the cotton was to be their security until the Mils were paid. Other matters of defence are specially set forth, but as they come under the general issue it is not material to notice them particularly. This case was submitted to a special jury of merchants, who found a verdict for the plaintiff in the sum of $4,§43 91, on which judgment was rendered, and the defendants have appealed.

We are disposed to give great weight to the verdict of a special jury of merchants in a case of this kind ; but, in estimating the damages on so broad a surface of facts as the pleadings in this case present it is not at all surprising that, without any direction from the court as to the rules of law on that subject to which the evidence can be applied, the jury should have fallen into error. We giye full faith and credit to this verdict as settling all doubtful questions of fact, and all points of conflicting testimony, and we consider it as established : That the agreement was made as stated in the petition : That it was broken by persons for whose conduct the defendants are responsible: That the bills of exchange were protested without any reasonable cause, and that the defendants are liable to plaintiff for damages for those acts. The only question is, as to the amount- And in reviewing the verdict on this point, we do not conceive that we are interfering with any question of fact, but applying the law to the facts as they are in evidence. The jury has no more right to assess damages arbitrarily and without eyidence in a ease of this kind, than we have to sanction such a verdict.

The cotton was sold by the defendants’ agents from the 13th to the 16th December. The advance of price between that time was very gradual until the 10th March following, when there was an advance of a farthing per pound, which the cotton, had it been retained, would have produced. The suit was brought on the 13th March, and it is contended that, by the law of England where the contract was broken, the plaintiff is entitled to recover the increased value of the cotton at any time previous to the institution of the suit by way of damages. We have examined the authorities on which the plaintiff relies, and we do not think they establish that the rule is invariable. The true measure of damages in cases of breach of contract, is that which Will indemnify the party injured. In this case no evidence was offered to show that the plaintiff intended this shipment of cotton for any particular purpose, which was defeated by the acts of the defendants, nor that any unusual circumstances attended its origin or destination. It was to be consigned to Hoskins, and he was to have tha benefit or profits of the consignment. It was intended to be sold in Liverpool, and the proceeds applied to bills drawn upon it. No loss has been shown in consequence of the time at which the sale was made, as compared with prices a reasonable time afterwards, and we think it would not be just that the plaintiff should have the option of fixing on the defendant the price of the cotton in the month of March following. We do not think any fair rule of indemnity applied to the ordinary transactions of the cotton trader would authorise this, nor that any court in England could sanction such a test.

We think, under the finding of the jury, that the defendants had no right to retain the bills of lading, and thus to divert the consignment from its destination. They had consequently no right to sell the cotton, and still less the whole quantity of cotton contained in the bills of lading, for which there appears to be no apology. We are disposed to allow the plaintiff the extent of indemnity which his case warrants and the breach of the contract authorises ; but in so doing we are not disposed to award him any thing which a deliberate view of the law will not sanction, notwithstanding the verdict in his ffiyor. We think the defendants have no claim for the commissions on the cotton, which they had no right to dispose of, and that they owe interest on the balance of the proceeds of the cotton remaining in their hands, over and above the amount of the bills. New Orleans Draining Co. v. De Lizardi, 2 Annual R. 283. 6 Toullier, 268.

But it is said the jury had before them other elements besides the value of the cotton, on which they had a right to base their verdict — the injury done to the plaintiff’s credit resulting from the defendants’ acts. We have considered this subject with.great care ; but under the allegations of the petition and the evidence on this branch of the case, we are satisfied that the jury would not be authorised in assessing damages against the defendants for the injury alleged to have been done to the credit of the plaintiff. In the assessment of damages in mses of contracts, even where there is fraud, the damages for which the debtor s liable are those which are the immediate and direct consequence of the breach >f the contract; and, in cases of quasi-contracts, offences and quasi-offences nuch discretion is left to the judge or the jury; but in these cases that discre;ion ought to be directed by proper pleadings, and supported by sufficient evilence.

There can be no better rule than that which experience has imposed upon :ourts in other countries, as a necessary protection against the abuse and error o which an undue latitude in the assessment of damages exposes judges as veil as jurors. When the law does not necessarily imply that the plaintiff has uslaingd damage by the acts complained of, the resulting damage should be alleged and proved, so far as the facts are susceptible of proof, in order to prevent surprise at the trial, which might otherwise ensue. 1 Chitty on Pleading, 428. 6 Toullier, 289 et.seq.

A proper administration of justice requires that the rules established by law for the assessment of damages should be adhered to; for the article of the Civil Code which gives a discretionary power to judges and juries in certain cases, expressly declares that, in. other cases, they have none, but are bound to give a full indemnity to the creditor whenever the contract has been broken by the fault, negligence, fraud, or bad faith of the debtor, according to the rules provided therein.

Under the charge in the petition of the injury done to the plaintiff's credit by the acts complained of, we consider that there is no sufficient evidence to support the verdict. Under the other charge of loss of profits and damages for the breach of the contract, we have felt ourselves limited to such as were the immediate and direct consequence of the .breach. We cannot admit that a discretionary power of awarding damages in actions of trover vested in juries by the law of England, admitting it to be .as insisted on by .the counsel for the plaintiff, would be the standard by which the responsibility of the defendants ought to be tested in this action.

It is therefore .ordered that, there be judgment in favor of the plaintiff against the defendants, for the sum of §1762 45, and interest at the rate of five per cent, from the 28th March, 1845, until paid, and costs in the court .below; the .costs of this appeal to be paid by the plaintiff and appellee.

Same Case — On a Ne-heaeing.

ON a re-hearing allowed to the plaintiff in this case, the opinion of the court was delivered by

Rost, J.

We have considered with great care the argument submitted to us on the re-hearing in this case, without being able to change the conclusions first adopted. If, as alleged, the rule of damages for the breach of the contract by the defendants is to be that applicable to actions of trover, so far as the conversion of the cotton is concerned, we take that rule to have been correctly stated in the opinion of the court. We deduced it from the english.and.american cases within our reach, and we find it stated in nearly the same words by Ilir. Sedgwick, in his late valuable work on the Measure of Damages; “Unless the plaintiff has been deprived of some particular use of his property, of which the other party was apprised, and which he may be said to have thus directly prevented, the rights of the parties are fixed at the time of the illegal act, be it refusal to deliver, or actual conversion, and the damages should be estimated as at that time.” Sedgwick, p. 505. This is in fact the fundamental principle applicable to all breaches of contract that, as a general rule, the market value at the time of the breach is the rule of damages.

Admitting further that, as the arbitrary distinctions of the .common law in the form of actions do not obtain with .us, and the plaintiff is permitted to state his complaint according to the actual facts, he might claim exemplary damages for a fraudulent or malicious breach of contract as well as for any other willful wrong, yet the wrongs of which he complains must be proved. The counsel has re. ferrad us to decisions of the english courts, by which he maintains that consequences were held to be well inferred from wrongful acts: thus, where the injury consisted in firing guns so near the plaintiff’s decoy-pond as to frighten away the wild fowls or prevent them from coming there, or maliciously firing cannon at the natives on the coast of Africa, whereby they were prevented from coming to trade with the plaintiff, these consequences were held to be well inferred from the wrongful act of firing. But in these cases it was proved that, after the firing, the wild fowls did not come to the pond, and the natives did not come to trade ; and these facts, after being proved, were held to be well inferred from the wrongful acts. Had the defendants in these cases shown that the wild fowls came to the decoy-pond as usual, and that the trade with the natives had not been interrupted, no damages of any kind would have been allowed. 2 Green-leaf on Evidence, p. 210, and authorities there cited.

The plaintiff alleges that, by reason of the failure of the defendants to comply with their agreement, and by reason of the dishonoring of his bills, his reputation as a merchant has been greatly affected, and his commercial transactions, which were of an important and extensive character, have been greatly embarrassed; that the dishonor of his bills becoming generally known in New Orleans, in New York, and in Boston, to persons engaged in the bill business; with whom he had theretofore dealt, he could no longer as before negotiate his bills with facility in the ordinary course of his commercial dealing. But he has failed to establish the truth of those facts. On the contrary, Mr. Robb, an extensive banker of this place, testifies that, generally speaking, the protest of bills under the circumstances of this case would not affect the credit of the drawer; that he never heard of this protest, and has had since extensive dealings with the plaintiff. He cannot say what difficulties the plaintiff may have had with other persons, but he had none with the witness. Other witnesses testify that a protest when satisfactorily explained, does not effect the standing of the drawer, and the loss of credit of the plaintiff is not shown affirmatively.

Although english tribunals may at times infer certain established facts to be the natural consequence of other facts also established, it would be difficult to I find authorities to show that they have in any case inferred the existence of the facts themselves. Had the loss of credit been shown, the important question would still have remained, whether it was the natural and proximate consequence of the protest of the bills. According to the testimony of Mr. Robb, and other witnesses, it would not have been; and we incline to that opinion. At the time he sold his bills to the defendants, his credit was not the best, or he would not have consented to the transfer of the bills of lading; and many other causes, besides an accidental protest, might have affected his commercial standing, such as it was. In the case of Vickars v. Wilcocks, 8 East 1, the defendant had asserted that the plaintiff had cut his master’s cordage, and the plaintiff alleged that his master, believing the assertion, had thereupon dismissed him from his service. It was held that the discharge was not a ground of action, since it was not the natural consequences of the words spoken. Neither was the loss of credit, alleged in this case, the natural consequence of an accidental protest. How far we might deem ourselves authorised to follow the rules established by the english courts in questions of costs and of damages arising under contracts to be in part executed in England, it is unnecessary to say. Our own law provides that when the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of the contract. But even when there is fraud the damages cannot exceed this, and no discretion is left to the judge or jury. C. C. art. 1928, §2, 3. By bad faith in this rule is not meant the mere breach of faith in not complyingwith the contract, but a designed breach of it from motives of interest or ill will. C. C. art. 1928, §1. It embraces all fraudulent or malicious breaches of contract, and all willful wrongs to property held by the wrong doer under them. The rule of damages provided in cases of quasi-contracts, offences and quasi-offences, is not applicable to the present controversy. The judgment heretofore rendered must remain undisturbed.

       Slidell, J. did not sit in this caso, having been of counsel.


text:
    The Citizens’ Bank v. Nicolas et al.
    Under the stat. of 1st April, 1833. incorporating the Citizens' Bank, that bank was authorised to take mortgages to secure the repayment of stock-loans made by it.
    Where a mortgage was executed to secure the price of bank-stock subscribed for by the mortgagor under the provisions of°a bank charter which declared that each stock-bolder should be entitled on certain conditions to a loan to the amount of one half of his stock, the mortgage stipulating that the mortgaged property shall stand hypothecated for any stock-loan so to be made, it will not be declared void on the ground of its not being in compliance with art. 3277 of the Civil Code, which requires that the exact sum for which amortgage is given shall be Stated in the act.
    PPEAL from tlie District Court of Lafourche Interior, Randall, J. The facts of this case are stated in the opinion infra.

      C. A. Johnson, for the plaintiffs.
    It is contended by the intervenor that the mortgage to secure the stock loan is null, because the amount intended to be secured is not mentioned in the act of mortgage. In reply to this, we say that the charter fixes the amount of the credit to which each stockholder is entitled, and this, being matter of public law, the public was notified of it without its insertion in the act of mortgage. The latter informed the world that the mortgagor was a stockholder of a given number of shares of stock; and the law did the rest. It is not material that the act did not state to what exteut the stockholder intended to use this credit; the world were notified to what extent \tmight be used. The máximum, of prior encumbrances was clearly made known to subsequent creditors. The court cannot fail to remark the analogy of this case to that of a mortgage to secure endorsements, provided for by our Civil Code. All that the law requires is, that the maximum to which the endorsements may reach should be stated; and this is all that the reason of the rule requires. But the intervenor says that, the terms of our act of mortgage do not restrict the mortgage to stook loans, but speaks of all loans that the mortgaging party might thereafter obtain from the bank. We do not claim for the mortgage any such extent as this., We do not seek to avail ourselves of it for any loan but the stock loan, which is clearly included. We are at loss to conceive how the language of the act, by being broader than the law warranted, can prejudice us in that which we are clearly authorised to claim.

      Sigwr and Bonford, for the intervenor.
    Art.(jÍ3V7 of the Civil Code provides that, in order to render a conventional mortgage valid, the exact sum for which it is given shall be declared in the act. A mortgage, like any other instrument, may contain separate and distinct obligations separately secured. In the one we are considering, the mortgagees acknowledge that they owe 3526,400 for 264 shares of the capital stock of the bank, and mortgage property for its payment ; so far then as this obligation is concerned, the same is sufficiently set forth in the act. But, in addition to this, they declare that they mortgage to secure whatever loans they may make from the bank; what is the sum secured by the stipulation? There is none declared in the act. Whether these loans shall amount to ten, twenty, or thirty thousand dollars, we search the act in vain to discover. In the case of Linton v. Pardon. 9 Rob. R. 483, there was a sum mentioned in the act of mortgage, but it plainly applied as in this case, to a separate obligation secured in the same act; and the court held that the requisites of the Code had not been complied with. It is of the highest importance that subsequent creditors and alieenes should be able to ascertain from the mortgage act itself, to what extent property,is encumbered.
    In the french system, as in ours, a mortgage may be given for a future or conditional obligation. But where, as in this case, the mortgage is to take effect on a condition potestative on the part of the debtor, all the authorities agree that the mortgage vests only from the date of the happening of the condition. See Code Napoleon, art. 2125. Troplong, Hypotheque, 1st vol. no. 478. Merlin, Repertoire, Yo. Hypothéque, secs. 1 and 4. So by art. 2132 of the same Code, it is necessary that the sum should be certain and determined in the act, though where the obligation is conditional the creditor may preserve his inscription by an estimated valuation, to be settled between him and his debtor. This qualification is not contained in our Code.
    It is argued on the part of the bank, in reply to the objection that no determinate sum of Joan is mentioned in the act of mortgage that, a reference to the charter would show the precise sum the parties were entitled to borrow. To this we rejoin, that this does not meet the requirement of the law, which is that the sum be declared in the act; secondly, that a reference to the charter would show nothing more than that the stocldiolder is entitled to borrow up to one half of his stock as a stock loan, but it does not show to what extent he intends to make use of that privilege; and lastly that nothing is said in the mortgage act confining it to stockioans; it is said to bo given to secure all loans the parties may make — an expression which, at least, must be held to refer to other loans besides stock loans, inasmuch as stockholders have the same right as other individuals to borrow upon the mortgage to any indefinite extent.

      Beatty, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs sue for the amount of a stock loan made under the provisions of their charter, and pray that the property mortgaged to secure the stock, which is also mortgaged for the loan, be seized in the hands of a third possessor, and sold to satisfy the judgment. The defendants have not made a serious defence,'but the third possessor has intervened, and opposes the claim: of the plaintiffs'on-the following grounds: 1st, That the" parties who mortgaged the property to the bank were not the true owners thereof, and held it under a simulated sale from-one Joseph Nicolas, who had made the transfer in fraud of the intervenor, to the knowledge of the plaintiffs. 2nd, That the bank could not legally take a mortgage to secure a stock loan, there being no power to that effect conferred by its charter. 3rd, That the mortgage is a nullity, because the amount1 of'the loan intended to be secured by it is nowhere mentioned in the act. There was judgment in favor of the plaintiffs against the defendants- and the intervenor, and in favor of one of the defendants against the intervenor, under warrnty of the latter. Erom these judgments the intervenor appealed. It is proved that the-sale made by Joseph Nicolas was originally intended as a power to the purchasers to subscribe for stock in the Union Bank, the vendor being at the time the cashier of one of its branches, and incapable as such to become a stockholder. The-power was used to subscribe for stock in the Citizens’ Bank, and the property was subsequently re-transferred to Joseph Nicolas, in whose possession it was seized and sold under a judgment of the intervenor, who acquired it subject to the mortgages of the bank. In the sale made to him by the sheriff, he binds himself to pay and satisfy “ all privileges and mortgages prior to his own, the said privileges and mortgages to be unaffected by the adjudication.” It is in evidence that the proceeds of the stock loan were either received by Joseph Nicolas, or applied to the payment of his liabilities. The intervenor has failed to show that he was a creditor of Joseph Nicholas at the time of the sale, and that the plaintiffs were apprised of the-r.eal character of the transaction. Had these allegations been proved, it is not perceived how they could avail him in this suit. The plaintiffs were not creditors of Joseph Nicolas. They gave in money the full consideration of the mortgages they took, and. we should judge from the results that they had a hard- bargain. The situation of the intervenor was certainly not made worse by the operation-; he continued to deal with Joseph Nicolas as before, and in such. a. manner as satisfies us that he was aware of what had taken place, and approved of it. He purchased the property with the full knowledge of the claims of the bank, and expressly assumed to satisfy them, and retained for that purpose the whole amount of the adjudication. A question so free from difficulty is seldom presented to a court of justice.

The other two grounds taken by the intervenor, were passed upon by this court in the cate of the Union Bank v. Grice, 2 Ann. Rep. 249, and determined in favor of the bank. No argument has been urged at all affecting the reasons upon which that decision rests.

Under the stipulation of the intervenor to pay and satisfy all mortgages prior to his own, Jean Omer Nicolas, one of the' parties who subscribed for the stock, and1 against whom a personal judgment has been rendered in this suit for three fourths of the claim, has obtained a judgment against the said intervenor for the whole amount thereof. This is an error. The same judgment should have been rendered in his favor under that stipulation, as was rendered against him in favor of the bank. In that respect the judgment must be changed.

It istherefore ordered that the judgment rendered in favor of the plaintiffs be affirmed. It is further ordered, that the judgment rendered in favor of the defendant, Jean Omer Nicolas, against the intervenor, be reversed, and that the said Jean Omer Nicolas have judgment against the said intervenor for three fourths of the amount of the judgment rendered in favor of the plaintiffs, with a stay of execution for ninety days; this judgment to stand as an indemnity for the judgment obtained by the plaintiffs against Jean Omer Nicolas, and to be of no effect so far as that judgment is satisfied by the sale of the property mortgaged, or by the intervener himself; the -intervenor to pay the costs of the court below, and those of the appeal to be paid in equal shares by him and Jean Omer Nicolas.

      The 11th sec. of the stat. of 1 April, 1833, incorporating the Citizens’ Bank, provides: “ That every stockholder in the said corporation, on depositing and pledging his certificate of stock, shall be entitled to a credit equal to one half of the total amount of his stock.”
      The act of mortgage recites that the mortgagees “ ayant souscrit pour deux cent soixantequatre actions do cent piastres chacune, formant ensemble la somme de vingt six millo quatre cents piastres au fonds capital de la Banque des Citoyens de la Louisiane, incorporée par un acte de la legislature, approuvé le promier avril mil huit-cent trente trois ; Eux les dites comparants so reconnaissent, par cos présentes, débiteurs conjoints et solidaires envers la dito banque de la somme de vingt six millo quatre-cents piastres, montant des dites actions; et en garantie de leurs actions au fonds capital de la dito banquo, ainsi qu’en garantie du paiement du capital et des intéréts de I’emprunt qui doit étro levé pour former le capital do la dite banque, pour l’émission d’obligations ou bons qui doivont étre signes par le président et eontre-signés par le caissier de la dite banque, lis affeetent et hypothéquent conjointement et solidairement par ces présentes, en favour de la dite Banque des Citoyens de la Louisiane Ies propriétés suivantos: &c. Lesquelles propriétés resteront ainsi hypotbéquées jusqu’au paiement final, et jusqu’au rachat de tous les dits bons en capital et intéréts, ou jusqu’á co que les dits comparants aient payé le montant de leurs actions et qu’ils aient remboursé l’omprunt qu’ils pourront avoir obtenu, a moins qu’ils n’aient auparavant transferé leurs actions, et qu’ils n’aient été entiéreinent déchargés par la dite banque. Les dits comparants consentent á ce que la presento obligation hypothécaire, donnée par eux en garantió des dites actions et de tons prets qu’ils pourront avoir obtenus de la dite banque, portent intéréts a raison do dix pour cent par an apvés l’échéance, s’ils n’étaient point ponctuellement acquittés, et a ce que les propriétés ci-dessus décrites demeurent également hvpotliéquécs en garantie du paiement des dits intéréts éventuols,” &c.


author: Ring, J.

text:
    Campbell v. Orillion.
    Where a plaintiff who had appealed from a judgment rendered in his favor hut fora less amount than he claimed, executing.a bond with surety for the costs only, subsequently causes a Ji. fa. to be issued against the defendant, it will be considered a voluntary execution of the judgment and an abandonment of therappeal. C. P. 567.
    from the District Court of Iberville, Burk, J.

      Edwards, for the appellant.

      Deblieux, .for the defendant.
   The judgment of the court was pronounced by

Ring, J.

The plaintiff being-dissatisfied -with a .judgment rendered in his favor for a less sum than he claimed to be due, took-the present appeal, giving a bond with surety for costs only. Subsequently he caused an execution to issue, in virtue of which property of the defendant’s was seized. No sale was effected for the want of bidders, the writ was returned not satisfied, and an alias fi. fa. issued, which is no.w-in the hands of .the sheriff. The defendant has moved for the dismissal of the appeal, on -the ground that the plaintiff has acquiesced in the judgment rendered in his favor, by thus voluntarily executing it. In support of his motion he -has produced a certified copy *of >the fieri facias which first issued, with the return thereon, and the certificate of the clerk that an alias fi. fa. is now in the hands of the sheriff. As these documents form no part of the record brought -up, the facts which they disclose could, in the absence of the consent of parties, only have been considered with a view to remanding the cause for the purpose-of trying the new issue now presented. In order to obviate the delay consequent upon remanding the cause, counsel have consented that the documents produced by the defendant may be considered as regularly before us.

The. plaintiff contends that, as his appeal was not suspensive but devolutive only, he was at liberty during its pendency to execute his judgment, without prejudice to his light of claiming its revision and correction in the appellate tribunal. Our law-expressly denies to a -party the right of appealing from a judgment, which he has voluntarily executed. Code of Pract. art. 667. He is not permitted at -once to -maintain the antagonist positions of affirming a judgment and seeking its reversal. The voluntary execution of the judgment is such an acquiescence in it as precludes the party who thus affirms it from subsequently contesting its correctness. For the same reasons the voluntary execution of a judgment after having taken an appeal, will be deemed an abandonment of the appeal. The plaintiff, by issuing a fi. fa., has acquiesced in the judgment rendered in his favor, and has -thereby forfeited the right to prosecute this appeal. Appeal dismissed.