author: Voorhies, J.

text:
    R. Patrick & Co. v. D. V. Murphy.
    Novation is not presumed ; the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt. C. 0. 2186,
    C. 0. 2181, 2185, 2188.
    APPEAL from the District Court of the Parish of Natchitoches, Ohaplin, J.

      A. H. Pierson, for plaintiffs. W. J. Hamilton, for defendant and appellant.
   Voorhies, J.

The defendant is appellant from a judgment rendered against him on a promissory note, drawn by the late commercial partnership of Hertzog & Murphy, of which he was a member, which note is dated the 30th of August, 1852, and payable twelve months’ after date.

In the spring or summer of 1852, Poitwent Bludworth, Junior, became a partner in commendam of the partnership. Shortly afterwards, Hertzog died. On the 22d of December, 1852, the defendant conveyed all his interest in the partnership to Bludworth, the latter stipulating, among other things, as the consideration of the sale, to pay all the debts contracted for the purchase of goods, wares and merchandize, for the benefit of the partnership, either by notes, drafts or acceptances, and to exonerate his vendor from any liability resulting therefrom, and also to liquidate said partnership.

It is shown that Bludworth continued to carry on the business of the partnership in his own name, from January, 1858, to the 18th of October, 1853, the period of his death. An instrument, signed by several creditors of the partnership, on the 19th of February, 1858, is introduced in evidence. It purports to be an agreement granting an extension of time to the firm of Hertzog & Murphy, for the payment of their debts on certain conditions, but not to be considered obligatory unless agreed to by all their creditors. The record shows creditors to a large amount, whose names are not attached to it, and nothing shows that they have ever yielded their assent to it. On the 1st of February, 1853, it appears that Bludworth executed two promissory notes in favor of the plaintiffs, one for §676 59, payable 12 months after date, and the other for $702 79, payable 18 months after date, as collateral security for the payment of the note sued on. At the meeting of the creditors of the estate of Bludworth, A. H Pierson, as the agent of the plaintiffs, claimed the amount of these notes as such collateral security, and voted for syndic.

It is contended by the appellant, on this state of facts, that the note sued on is extinguished by novation. To constitute novation, two stipulations are essential ; one to extinguish an existing obligation, and the other to stipulate a new one in its place. 0. 0. 2181. Novation takes place in three different ways, one of which is, “ when a new debtor is substituted to the old one, who is discharged by the creditor.” 0. 0. 2185. And this, it is urged, was done in this instance. “ Novation is not presumed ; the intention to make it, must clearly result from the terms of the agreement, or by a full discharge of the original debt.” 0. 0. 2186. The terms of Article 2188 of the Civil Code are explicit: “ The obligation, by which a debtor gives to the creditor, another debtor who obliges himself towards such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation.” Tested by these principles, it is perfectly clear to our minds, that the appellant’s defence has no legal ground to rest on. The case of Walton v. Beauregard, 1 R. R. 301, on which the appellant relies, is clearly distinguishable from the present. There the creditor, without the consent of the original debtor, had granted to the delegated debtor, a delay which impaired the security, so as to make the obligation more onerous to the original debtoi'. But here it appears to have been otherwise. The evidence repels the presumption, that any intention existed on the part of the plaintiffs to novate their debt, or that they were intended either directly or by legal implication, to discharge the defendant. The notes of Bludworth, it is shown, were given to them as collateral security. Apart from this, nothing shows that the plaintiffs ever consented to grant any prolongation of payment. The agreement relied on, depended on a certain contingency, which never happened, and must consequently be viewed as not having any legal effect. Even admitting it was legal, it would only amount to a prolongation granted to the partnership, and not to Bludworth individually. As the facts are presented by the record, we do not think that the notes of Bludworth could have operated as an estoppel, or prevented the plaintiffs to coerce, in the meantime, the payment of their debt against the partnership. We are at a loss to discover how the acts of the plaintiffs in this matter could have operated to the prejudice of the defendant, or rendered his obligation more onerous. The doctrine of novation is clearly announced in the case of Jacobs v. Calderwood, 4 An. 509, and is directly in point.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be .affirmed, with costs in both courts.


source: Caselaw Access Project

author: YoonniES, J.

license: Public Domain

text:
    Hugh Lynch & Co. v. The Mayor and Council of Alexandria.
    The corporation of Alexandria imposed an annual ad valorem tax of one-half of one per cent., on all the goods, wares and merchandize, kept for sale in any shop or store in the town of Alexandria, where the assessed value of the said goods, wares and merchandize, shall exceed the sum of $2000. Held: That the ordinance was in effect “ equal,” “ uniform,” and constitutional.
    APPEAL from the District Court of the Parish of Rapides, Gushman, J.

      Hyman, for plaintiffs and appellants. Elgee & Hymns, for defendants.
   YoonniES, J.

The plaintiffs have enjoined the collection of a tax imposed by the.corporate authorities of the town of Alexandria, under an ordinance passed on the 7th of January, 1853, to provide a revenue for the requisite expenditures and government of the corporation. By that ordinance, the corporation have imposed “an annual ad valorem, tax of one-half of one per cent., on all the goods, wares and merchandize, kept for sale in any shop or store in the town of Alexandria, where the assessed value of said goods, wares and merchandize, shall exceed the sum of $3000.” The constitutionality of the tax is denied, on the ground that it is not equal and uniform. Evidence was adduced to show, that there are fourteen storekeepers in Alexandria, who keep goods for sale, who pay no tax, because their stock in trade does not amount to $3000, and by this ordinance the tax is only imposed upon the excess value over $2000 of merchandize kept for sale. "We think the principle of equality and uniformity required by the Constitution has been observed in the ordinance , , ,, , . , „ imposing this tax, because all persons keeping goods for sale enjoy equally an exemption from the tax on their goods, to the extent of $2000, and all are equally taxed for any excess over that amount. The obj'ection that a few merchants, having a large stock of goods, might, in the practical operation of this ordinance, have to bear the principal burthen of supporting the expenses of the government, is one which cannot be avoided, and as an evil and inconvenience results rather from the inequality of the fortunes of individuals, than from a want of uniformity and equality in the tax.

Our jurisdiction in this case, in which the amount involved is less than $300, is confined to the question of the constitutionality and legality of the tax as imposed by the ordinance in question.

We are of opinion that the tax is legal and constitutional, and that the judgment of the court below is therefore affirmed, with costs.


author: Buchanan, J.

text:
    Susan E. Compton, f. c. w. v. Scipio E. Compton, f. m. c.
    A wife sued her husband for separation of bed and board; the husband responded, “ that his wife had been unfaithful to the marriage bed; that she had committed acts of adultery since her marriage, and even since the institution of the suit.” Held.: The allegations of adultery were too vague to allow the introduction of evidence of any specific act of adultery — no particulars of time, place or person, being given.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      Eelhj & Isaacks, for plaintiff. JSyan & Hyman, for defendant and appellant.
   Buchanan, J.

This appeal turns upon two bills of exceptions to the rejection of evidence, which substantially involve the same point.

On the trial, the defendant offered witnesses to prove, that the plaintiff, since the institution of this suit, committed an act of adultery with John A. Stiphens, and also, that plaintiff, at the time of this trial (6th May, 1854), is in a state of pregnancy.

The plaintiff sues the defendant for separation of bed and board, on the ground of illtreatment, by beating her, and turning her and her children out of doors, and neglecting to provide for their subsistence; also on that of gross and habitual intemperance.

Defendant pleads “ that plaintiff has been unfaithful to the marriage bed; that she has committed acts of adultery since her marriage with defendant, and even since she instituted this suit.*’ He demands a divorce.

We agree with the Judge below, that these allegations of adultery are entirely too vague to allow the introduction of evidence of any specific act of adultery. No particulars of time, place or person were given, which could have put the plaintiff on her guard, and rendered it possible for her to procure rebutting evidence. In a case of separation of bed and board, Chief Justice Eustis used the following language: “Vague and general alligations cannot support a petition in an ordinary civil suit. The cause of action, the object of the demand, and the nature of the title, must be stated with such certainty as to apprise the defendant of every circumstance necessary to put him on his just defence, and to bar a subsequent investigation of matters once decided. Sound policy requires that there should be no relaxation of these rules in proceedings of this kind, which involve the fate of individuals, and the most important interests of society.” 8 Ann. p. 16 and cases there cited.

Judgment affirmed, with costs.


text:
    Gallian, Tutor of the Minor Heirs of Hughes, v. Cox, Curator of Stafford et als.
    B. opened the succession of A. and qualified as administrator in the parish of Caddo. B. died and C. opened his succession, and qualified as curator in the parish of Sabine. The minor children of A. through a dative tutor, sued C. as curator, in the parish of Sabine, for the inheritance coming from their father A. The defendant contended that the action should, under Art. C. P., 988 and 1008, have been brought in the parish of Caddo, where A. died; and that the action should have been for a settlement of the account of B. as administrator. But held,: that the action was properly brought.
    Parol evidence is not admissible to prove that a judgment of homologation was rendered at cham-An administrator will not be permitted to reap advantage from his own illegal acts.
    APPEAL from the District Court of the Parish of Sabine, Bulla/t'd, J.

      Mam & Hamilton, for plaintiff. Hyams, J. B. Smith & Safford, for defendants and appellants. Bamidson, for absent heirs.
   Buchanan, J.

Walter Hughes died on the parish of Caddo, in the year 1840, leaving a widow and two minor children. His estate was administered in said parish by Thomas S. Stafford, who rendered an account of his administration which was homologated.

Stafford married the widow of Hughes and moved to the parish of Sabine. Mrs. Stafford (formerly Mrs. Hughes) died; and after her Stafford himself died in the parish of Sabine, in the year 1860. There was no issue of the marriage between Stafford and his wife.

Stafford's estate is in course of administration in the parish of Sabine. His heirs are his father, brothers and sisters, residing in Ohio.

Walter Hugheys minor children bring this suit, through their dative tutor, against the curator of Stafford, and against his heirs, represented by their attorney in fact, who is also assignee of one of the heirs.

The first defence made to this action is a plea to the jurisdiction. It is contended that, inasmuch as the estate of Hughes was opened in Caddo parish, the only proper suit by any party claiming his inheritance is a suit for an account, to be brought before the court who appointed the administrator of Hughes's estate. The articles 988 and 1008 of the Code of Practice are relied upon in support of this plea.

We think those articles do not apply to this case. First. Because Stafford, the administrator of Hughes, is dead, and his succession opened in a different parish from that of Caddo. Secondly. Because Stafford did render an account of his administration of the estate of Hughes, which was homologated. In fact, ho rendered two accounts, which we will more particularly notice when we come to the merits of the case.

The next plea of defendants is, that the form of the action is unwarranted by law. The plaintiff sets forth that the inventory of the estate of Hughes amounted to a certain sum; on which, deduction being made of the debts due and paid, according to an account filed by Stafford, as administrator, there would remain a balance due them, which they claim.

There are other claims embraced in the petition, but this is the only one necessary to be considered in connection with the objection of defendants. That objection is, that the suit should be for an account, and is based upon the articles already cited of the Code of Practice. We think the objections unfounded.

The next objection of defendants is, that the effect of the present suit will be to ratify a sale made, without legal formalities, of the immovables and slaves of the ancestor of the minors whom the petitioner represents; and such ratification cannot be made by the tutor to the prejudice of his minors, neither would it be binding on the minors.

This argument is a manifest perversion of the plaintiff’s pleadings. The sale of Hughes’s property alluded to, which was made on the 4th March, 1848, and at which the whole of the property of Hughes was knocked off to Stafford, the administrator, item by item, is so far from being adopted by plaintiff that he utterly repudiates it, and holds the estate of Stafford liable for the amount of the inventory first made by him, instead of the amount of this pretended probate sale, which is much less than one-half of the said inventory.

Upon the merits we think the District Judge has arrived at a sufficiently accurate conclusion with regard to the amount of the rights of the minors of Hughes against the estate of Thomas S. Stafford, growing out of the administration of the estate of their father. The counsel of appellant contends that the liability of Stafford’s estate should be measured by the second inventory of Hughes’s estate instead of the first But this we cannot agree to. The facts are simply these. Immediately after Walter Hughes’s death, in November, 1840, Thomas S. Stafford presented his petition for administration, and had an inventory of Hughes’s estate made by the Parish Judge, (on the 9th Nov., 1840,) the amount of which inventory was six thousand three hundred and sixty-two dollars and twenty-nine cents. In November, 1841, Stafford filed an account of his administration, and a list of the debts paid and unpaid of the estate. In this account he credits the estate of Hughes with the full amount of the inventory, ---------- - $6,362 29 and debits it with the payments and the debts still unpaid; total of

debits,.. 2,908 69

Balance in favor of the estate of Hughes, according to this account, $3,458 60

This account was published and in due course, judgment of homologation was rendered upon it, which was signed on the 24th January, 1842. Nearly a year after this judgment of homologation, however, Stafford presents a petition to the court alleging that the appraisement of the property of Hughes in the first inventory had been too high, and praying for a new inventory and appointment, which was accordingly made on the same day (7th November, 1842.) The amount of this inventory, which was composed of the same items as the former one, was $4,044 11, or something less than two-thirds of the former appraisement

The record shows that Stafford, had already provided himself, the day before this inventory, or on the 6th November, 1842, with an order for the sale of all the property, real and personal, of Hughes’s estate, for cash; which order was granted at chambers, upon a petition representing it to be necessary to sell all the property to discharge the debts of the estate. And note, that out of the list of debts of this estate contained in the homologated account mentioned above, which list amounted to $2,908 69 in all, two of the items, respectively, $150 and $1845, or collectively, $1695, were charged as due Thomas S. Stafford, leaving, according to that account, but $913 69 due to all other persons besides himself. <.

The next thing that this record shows is the sale of all the real estate, slaves and personal effects, on the 4th March, 1843, for cash. The only purchaser was Thomas S, Stafford himself, the administrator, and the total amount of sales was two thousand six hundred and forty-two dollars.

There next appears an account of administration of Hughes’s estate, of which the debits and credits balance each other within a few dollars, and a mass of vouchers annexed. The only evidence of the filing of this account is contained in a publication in the Caddo Gazette, of date the 23d April, 1843, by which the Clerk of the Court of Probates of the parish of Caddo announced the filing on that day of a tableau and account by Thomas S. Stafford and Olm’istiana Hughes, administrators of the succession of Walter Hughes, and called upon all whom it might concern to make opposition within ten days, or that the said account and tableau would be homologated and the administrators discharged.

This document, the newspaper notice, is endorsed by the Clerk of the Probate Court of Caddo, “ filed Oct. 29th, 1845,” and here the record of the succession of Hughes ends. But there is an attempt to prove by parol that there was a judgment of homologation rendered at chambers, in October, 1845. Such proof is clearly inadmissible. But in the present case, more particularly, were there a record judgment of homologation of this pretended account, it would not avail; inasmuch as we view the amended inventory of the 7th November, 1842, the order of sale of the same day and the sale of the 4th March, 1843, as nullities. Every step of those proceedings shows a determination of Stafford to appropriate to himself the property of Hughes. To accomplish this end the forms of law are entirely disregarded and oven his own account of November, 1841, and the judgment of homologation of January, 1842, therefore, are treated by him as if they had no existence.

To exhibit the illegality of the proceedings in a still stronger light, it must be observed that Stafford was under tutor, duly qualified, of the minors of Hughes.

We think that, in strict justice, the plaintiff would be entitled to a somewhat larger sum than is allowed by the judgment of the court below, but as there is no prayer for an amendment by the appellee, we will affirm it as it stands.

Judgment affirmed, with costs.


author: Ogden, J.

text:
    David B. Cumming v. Police Jury of Rapides.
    Article 123 of the Constitution, which requires taxation to be equal and uniform throughout the State, applies to municipal and parochial, as well as to State taxes.
    The ordinance of the Police Jury of the parish of Rapides, passed under the authority of an Act of the Legislature, to compel the inhabitants .of a certain portion of the parish to pay the whole amount of a tax the Police Jury found it necessary to impose, in order to defray the expenses of certain embankments and other works which they had caused to be made for the purpose of protecting a portion of the parish from being overflowed by the waters of Red Riyer, is unconstitutional.
    APPEAL from the District Court of the Parish of Rapides, Ouahman, J.
    Hyman, for plaintiff and appellant. O. H. Ogden, for defendant.
   Ogden, J.

This is a suit commenced by an injunction to prevent the police from collecting a special tax imposed by them on lands subject to inundation in the parish of Rapide^. The ordinances of the Police Jury were passed in pursuance of the authority granted to them by an Act of the Legislature of 1848. See Acts of 1848, p. 15. By the first section of this Act, the Police Jury are authorized to impose a special tax on all lands inundated in 1844, for the purpose of paying for embankments which they had caused to be constructed across bayous connected with Red River. The Police Jury was by that Act, authorized to lay off the parish into districts. They passed ordinances to that effect, and imposed a special tax of five and a half per cent, on the lands situated in the parish of Rapides, south of Red River, which were inundated in the year 1844, The plaintiff, whose land is situated in a district south of Red River, designated as No. 1, resists the payment of this tax on the following grounds;

1st. Because the Police Jury exceeded the powers granted by the Act of 1848, by including in the amount to be levied by special tax, not only the costs of the embankments, but likewise the expenses incurred in attempting to collect, by process of law, the special tax imposed under the Act of 1845.

2dly. Because the tax is levied to pay for filling up a navigable stream whose waters communicate with the Mississippi river.

3dly. Because the tax is to defray the expense of embankments made in the parish of Natchitoches, which, at the time of their erection, the Police Jury of Rapides had no authority to construct,

4thly. Because it was the intention of the Acts of 1848 and 1845, that the property taxed was to be benefited by the embankments that were to be made, and that the land of plaintiff is so situated as not to be benefited by them.

And 6thly. Because the tax is not equal and uniform.

We consider it only necessary to notice the last ground of objection to the tax, to wit, that it is not equal and uniform. In the case of the city of New Orleans praying for the opening of Benton street, 9th Ann. R., the present court have decided that Article 123 of the Constitution, which declares that taxation shall be equal and uniform throughout the State, is a principle established by the organic law, equally applicable to parochial and municipal taxes, with State taxes. In this case, an attempt is made, under the authority of an Act of the Legislature, to compel the inhabitants of a certain portion of the parish of Rapides, to pay the whole amount of a tax the Police Jury have found it necessary to impose, in order to defray the expenses of certaim embankments and other works which they had caused to be made for the purpose of protecting a portion of the parish from being overflowed by the waters of Red River.

The Police Jury is composed of representatives of the people of the parish from every portion of it — it is the representative body for the management of all affairs relative to the internal police of the parish, and has ever since its institution exercised ample powers in regard to the construction of levees, roads and canals, with the power of imposing taxes on the people to defray all such expenses as might be occasioned by such works. Under that system, public works have been carried on for many years, and as long as the tax imposed by the Police Juries was a general one, no complaint was heard. But a system of taxation has lately sprung up altogether different, and which it has been thought is justified, for the reason that the inhabitants of the low lands, being principally benefited by the levees and embankments which became necessary to protect the lands from being overflowed, they alone should be taxed to pay for them. If the power by which this tax is imposed, could be lodged in the hands alone of representatives of the people from the district subject to overflows, and they, exercising the power delegated to them by the Legislature, as a subordinate political body, should impose the tax, it would be free from the constitutional objection, because it would be equal and uniform within the limits of the exercise of such delegated powers ; but under the present system, to render a tax for such purposes constitutional, all the inhabitants of the parish must be taxed alike, whether their lands are subject to overflow or not.

The tax has been imposed, in our opinion, in violation of the Constitutional requisition; and judgment was properly rendered in the court below, perpetu ating the injunction.

The judgment of the court below is therefore affirmed, with costs.


text:
    W. R. Brown v. Martin & Crenshaw.
    A purchaser of property subject to a lease, is entirely unaffected by the contract of lease, unless it has been reduced to writing.
    O. 0. 2704, 2712.
    THIS case was tried by a jury before Gushman, J., holding sessions in the
    Parish of Avoyelles. 3. & B. L. Tmjcon, for plaintiff. J. P. & W. W. Waddell, for defendants and appellants.
   Ogden, J.

The plaintiff, by act under private signature duly acknowleged and recorded, purchased a tract of land, a part of which the defendant, Martin, had rented by a verbal contract of lease from the plaintiff’s vendor previous to the sale. Ma/rtin made a sub-lease of the land to the defendant Cren-sTiom, both of whom are sued in the present action for the delivery of the land, and for damages for the illegal detention of it. We have no doubt from the evidence, that there was a renewal of the lease for the year 1853, and at all events there was a tacit reconduction for that year, and the only question is, whether the defendants could be expelled from the premises before the expiration of the term of the lease. Art. 2704 of the Code declares, that if the lessor sells the thing leased, the purchaser cannot expel the lessor until the expiration of the time fixed for the lease, unless the right to do so has been reserved in the contract of lease itself. Art. 2712 says, that if the lease is not made in writing, the purchaser is not bound to make any indemnification to the lessee.

Although the lease of even a predial estate may be made by either a verbal or a written contract, we think the proper construction of our Code on that subject is, that a purchaser of property subject to a lease, is entirely unaffected by it, unless the lease is evidenced by a written contract. The violation of such a verbal contract by the lessor, in selling the property before the expiration of the lease, without reserving the rights of his lessee, might give rise to an action of damages against the lessor, but his vendee acquires the property free from any incumbrance, by reason of the lessee.

The judgment of the court below is affirmed, with costs.


author: Yoorhies, J.

text:
    Succession of Hargrove—Opposition to Tutor’s Account.
    A tutor is entitled to commissions on the net and not the gross amount of the proceeds of sales of crops made on the minors’ plantation, under Art. C. C. 342.
    APPEAL from the District Court of the Parish of Avoyelles, Qushman, J.

      J. P. & W. W. Waddell, for petitioner and appellant. Oullum, for opponents.
   Yoorhies, J.

Jacob Q. Keller and his wife, Martha G. Ka/rgrove, both died, leaving a large estate, consisting of a plantation, aratory utensils, slaves, horses, mules, oxen, &c., estimated at upwards of sixty thousand dollars. In October, 1850, Mathew Yernon was appointed dative tutor,to the minors Amelia Keller, Susan Keller, and Q-eorge Keller, sole issue of said marriage. By the advice of a family meeting, all the property of the estate was preserved in kind and administered by the tutor for the benefit of the minors. The minor, Amelia Keller, having been emancipated by her marriage with Lewis A. Webb, an account of the tutorship was rendered to her.

The only item disputed in the account is, that for the commission of the tutor on the gross amount of the proceeds of the sales of the crops made on the plantation. It is contended by the appellee, that this charge or commission should be limited to the net proceeds of the crops.

The charge is based on Article 342 of the Civil Code, which declares : “ The tutor may retain as his commission for his care and labor, ten per cent, on the annual amount of the revenues of the property committed to his charge.” The question which arises under this article, apparently plain in its meaning, is by no means free from difficulty. If it be conceded that the gross amount of the proceeds of the sales of the crops constituted the revenues, then it would be perfectly clear, under this article of the Code, that the commission was properly charged by the tutor. But is it so ? The Judge a quo, in support of his views that the commission should be limited to the net proceeds, adverts to the Code of 1808, and the Statutes of 1809 and 1811, in connection with this article. The Code of 1808, required the property of minors to be sold, and the proceeds to be placed at interest. This was modified by the Statute of 1809, by allowing the father or mother, acting as the tutor or tutrix of the minor, to retain the property in kind. Under the 6th section of that Act, the tutor was entitled to claim a commission of ten per cent, on the annual revenues for his administration on the minor’s estate, previously deducting therefrom all expenses, &c. By the Act of 1811, the tutor’s commission was limited to the net proceeds of the minor’s estate. Be this as it may, we consider these provisions to be abrogated, as the case under consideration has been specially provided for in the Code of 1825, to which alone we must look for the law. Upon mature consideration, however, we are of opinion, that the Judge a quo did not err in his conclusion, that the net proceeds of the sales of the crops must be considered as the revenues meant under the provisions of that article.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs in both courts.


text:
    Hugh Lynch & Co. v. C. P. Leckie, Sheriff, et als.
    Where the plaintiff in execution instructs the Sheriff to make a seizure, which renders it necessary for the Sheriff to retain the writ beyond the return day, in order to effect the sale, he will not be liable for his failure to return it on the return day.
    In an action against a Sheriff, by the plaintiff in execution, for releasing a seizure, the Sheriff cannot plead the illegality of the seizure in justification of the release, for it was his duty to make a legal seizure. But the subsequent conduct of the plaintiff may amount to a ratification of the release and thereby relieve the Sheriff from liability.
    Before releasing a seizure which he has already made, and accepting a surrender of property pointed out by the defendant in execution, it is the duty of the Sheriff to use due diligence to ascertain whether the property offered to him is in such a condition as to afford a reasonable prospect of its being made available to satisfy the writ in his hands*
    A Sheriff who releases a seizure made under one writ, and gives an illegal and unjust preference in favor of another, and a subsequent writ, will be liable to the plaintiff in the first execution.
    C. P. 629. O. P. 767.
    APPEAL from the District Court of the Parish of Rapides, Cushman, J.

      W. B. Lewis, fer plaintiff. J. Thomas, for Bennistoun & Co. H. B. Kelly, for LeeToie, defendant and appellant. Hymns, for sureties and appellants.
   Ogden, J.

This is an action to render a Sheriff and the sureties on his official bond, liable for the amount of a judgment, which the plaintiffs aver, by the neglect and various acts of malfeasance on the part of the Sheriff, they have lost all chance of recovering.

It is necessary to state many of the facts disclosed by the record, to show clearly the points which we are called on to decide.

The plaintiffs obtained a judgment against Lames A. Me Waters, for $2452 73, and interest. The judgment was rendered on the 27th of May, 1851 — an execution was issued thereon and placed in the hands of the defendant, Leelde, as Sheriff, on the 11th of November, 1851.

A. & J. Bennistoun & Co., who were the factors of Me Waters, obtained two judgments against him in May, 1851. One of these judgments was for $11,247 57, and interest, and the other for $40,000, with the benefit of a special mortgage on the plantation and slaves of MeWaters, in the parish of Ra-pides. It appears, that besides these judgments, Me Waters was indebted to the Dennistouns in other large amounts, and that they held other mortgage claims against his property. No executions were issued on the judgments in favor of A. & J. Dennistoun & Go. until the 2d of January, 1852 ; and the proceedings of the Sheriff under the execution, first placed in his hands by the plaintiffs, anterior to the issuing of the execution in favor of the Dennis-touns, were as follows: On the 11th of November, 1851, he made an actual seizure of sixty barrels of molasses, and, what is called by the defendants, a paper seizure of one hundred and seventy hogsheads of sugar, belonging to the defendants. The Sheriff states in his return, that he had not seen the one hundred and seventy hogsheads of sugar, but that he made the seizure on the instructions of the plaintiffs, and on the same day it appears, he notified Me-Waters of the seizure, and that, on the 13th of November, Me Waters claimed the privilege of pointing out to him the property he wished to be seized, which consisted of a large plantation, and negroes, &c. The Sheriff thereupon released the seizure which he had made of the personal property, and on being told by the plaintiffs’ counsel that he would be held responsible, he replied that he would take the responsibility, and that he was indemnified. The plantation and slaves were affected by special mortgages to a very large amount. They were first advertised to be sold on the 3d of January, and the Sheriff states in his return, that on that day, by agreement of the parties, the plaintiff and defendants, the appraisement of the property was waived and dispensed with, also the formality of reading the advertisement and the certificate of mortgages, and the property required to be readvertised on twelve months’ credit. It was accordingly offered for sale on the 7th of February, 1842, and there being-no bid made for an amount over and above the special mortgages, no sale was made, and there ended the attempt to satisfy the plaintiffs’ execution out of the incumbered real estate surrendered by the defendant in execution. In the mean time, the Dennistouns had issued their two executions, and the Sheriff had the three executions in his hands on the 8th of January. Nothing- had then been done with the executions in favor of the Dennistouns, and as it has been stated, he had released the seizure first made of the sugar and molasses under the plaintiffs’ execution, and had under seizure to satisfy the writ, a plantation and slaves, so largely incumbered with mortgages, that, as the result showed, it was impracticable to make any sale of it. On that day, the 8th of January, the plaintiffs required him to make a seizure of 152 barrels of molasses, at th^ railroad depot, which he did; and at the hour of 1 o’clock, a. m., of the following- day, the executions of the Dennistouns were levied on the 152 barrels of molasses which had been previously seized under the plaintiffs’ writ, and also on the plantation and slaves, with 450 hogsheads of sugar and 45,000 gallons of molasses. At 10 o’clock of the same day, on the demand of the plaintiffs, the Sheriff made a seizure under their writ of the same 152 bbls. of molasses which had been seized irregularly the day before, and also of the sugar and molasses on the plantation, which he had levied on for the Dennistouns, at one o’clock of that day. The sugar and molasses were afterwards sold under the three several writs on twelve months credit, not having brought two thirds of the appraisement on the first offering — they wrere adjudicated to A. & J. Den-nistoun & Go. for $19,760. No bond appears to have been taken from the Den-nistouns, and nothing further was done by the Sheriff until the 20th Of May, after the institution of this suit, when he returned the plaintiffs’ execution, stating in his return substantially the above facts, and that as the sale was made under those several writs, and Dernistouns & Co. claimed a privilege on the whole proceeds of the sale, he should wait a decree of the court ordering him to pay over the proceeds to the creditors legally entitled ■ to them. It further appears that the sugar and molasses, after being adjudicated to the Den-nistouns, was shipped to. them in New Orleans, and sold for $25,234 T7, and that the proceeds were placed in general account to the credit of MoWaters. A. & J. Bennistoun & Co., on the 14th of January, 1851, gave the Sheriff an indemnifying bond to protect him from any loss or injury, and they are only parties to this suit, as warrantors by that bond.

It is first contended, that the failure of the Sheriff to return the execution on or before the return day, has rendered him responsible under Art. 767 of the Code of Practice. Such would have been the consequence if the plaintiffs had not themselves instructed him to make the seizures of the 9th of January, which made it necessary for him to retain the writ beyond the return day, in order to effect the sale.

The second ground relied on to render the Sheriff responsible, is the release which he made of the first seizure. We think the objections urged by the defendants that there was no actual seizure of the 170 hhds. of sugar, is one which cannot be listened to as coming from the Sheriff — it was his duty to have taken possession of the sugar, and after notifying the debtor in the execution that he had made the seizure, it is too late for him to deny that there was one. It is next urged, that the defendant in execution has a right, by Art. 649 O. P. to point out the property he wishes to be seized and that he cannot be deprived of that right as long as the Sheriff has not advertised for sale the goods seized. We are of opinion the Sheriff has no right to release a seizure and accept a surrender of property thus pointed out, without using due diligence to ascertain whether the property offered to him is in such a condition as to afford a reasonable prospect of its being made available to satisfy the writ in his hands. 3d. But it is contended that the plaintiffs, by their subsequent conduct, adopted the acts of the Sheriff — that by attending the sale of the plantation and consenting to dispense with the appraisement and other formalities, and joining the debtor in the execution in requiring the property to be re-advertised for sale without those formalities, and by causing subsequent seizures to be made, they waived any right they might have had to hold him responsible for his previous acts. On this point, we are of opinion that the conduct of the plaintiffs’ has produced that effect,'and that the Sheriff cannot be held liable on the ground of having released the first seizure.

The third ground of liability is, that the seizures of the 9th of January, should be considered as made at one and the same moment, and that if the plaintiffs’ seizure made on that day is placed on an equal footing with those of the Benmstouns, there would have been a sufficient amount on a pro rata division of the proceeds of the sale made under all the writs to satisfy that of the plaintiffs. This ground, we think, must prevail. The Sheriff must have been aware on the 9th of January, that he had driven the plaintiffs to a fruitless attempt to make their money out of the plantation and slaves, because he is presumed to have been in possession of the certificate of mortgages on the third day of January, when he was to have first offered the property for sale: that certificate made it manifestly impossible that the plaintiffs could realizo any thing by the seizure then made under the plaintiffs’ writ. The Sheriff had been previously remonstrated with for releasing a seizure of personal property sufficient to satisfy the judgment, and accepting in its stead property which could not he sold, and, under those circumstances, to permit him by a midnight seizure in favor of another creditor, to give him a preference over one whose writ had been so much longer in his hands, on all the available property of the debtor that remained, would be not only inequitable, but, as a precedent, would justify almost any degree of favoritism which a Sheriff might choose to exercise in the discharge of his official duties.

A great deal has been said in argument, on the subject of a privilege asserted for A. & J. Dennistoun, on this fund, for supplies to the plantation. No such privilege has been claimed by the Dennistouns in this suit, and the Sheriff has no right to make use of that as a defence — -it is his duty to pay over the money he has made on an execution, to the plaintiff in the writ, unless by order of the court, on a claim so set up by a third party, he is restrained from doing it.

The plaintiffs are entitled to a judgment against the defendant, Leakie, for the full amount of their claims.

The sureties on the Sheriff’s bond are also before us. The additional de-fence set up by them is, that these acts of the Sheriff were not committed during the term of office when they were his sureties. The bond bears date the 4th day of December, 1847, and is conditioned for the faithful performance by Leokie, of the duties of the office of Sheriff, to which he had been elected. His term of office was fixed by the Constitution at two years, and it commenced on the 1st Monday of November, 1847 — two terms of the office had consequently elapsed, and the third term was entered upon at the date of the plaintiffs’ execution being issued. The Act of the Legislature of 1887, provides that Sheriffs shall continue to perform the duties of their office until their successors, or themselves in case of reappointment, shall be inducted into office, by performing the formalities required by existing laws; so that no interruption may occur in the discharge of any public duty required by said officers, under the same penalties, bonds, obligations and securities, as were given and entered by them when they were first appointed to said offices. The law also gives to sureties the right to have themselves discharged from their bond at any time, and by virtue of these two provisions, it is contended that, as the sureties did not ask to have themselves discharged, it must be presumed that they were willing to continue bound as sureties of the Sheriff during the two terms subsequent to that for which they had originally bound themselves. It is not alleged in the petition, that Leokie was reappointed to the office for the term subsequent to that for which the bond was given, and there is no evidence in the record, that he acted as Sheriff during the second term. The acts complained of, commenced during the third term, and without either allegation or proof to that effect, we cannot presume that the Sheriff was reappointed for both of these terms, and failed to have himself regularly inducted into office by performing the formalities required by law. It was essential to allege and prove that the liabilities of the sureties had been extended beyond the first term; facts, the existence of which, the court cannot presume. We think the plaintiffs have failed to make out the case against the sureties.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, except as regards the defendants, William 0. James, Robert G-. Leokie, Ralph Smith, Samuel W. Henasie, and Henry M. Hyams; and jn regar(j to them, the judgment of the court below be reversed, and judgment rendered in their favor, as in case of non-suit, and that the costs of this appeal be paid in equal proportion by the plaintiffs and appellants, except the sureties of LecMe.


text:
    Same Case—On an Application of Defendant for a Rehearing.
   Ogden, J.

The defendant, Leolde, has applied for a rehearing, and the only point relied on by his counsel is, that placing the executions of A. & J. Dennistoun & Co. and that of the plaintiffs on the same footing, as having been levied on the sugar and molasses at the same moment of time, the proceeds of the sale were insufficient on a pro rata division to satisfy the plaintiffs’ judgment. There is no doubt this position would be correct, if we are to consider that nothing was realized on either of the writs of the Denrdstouns from the sale of the plantation and negroes, which were levied on by the Sheriff under those writs, at the same time he made seizure of the sugar and molasses. But the judgment for $40,000, on which one of these writs issued, was for a debt secured by a special mortgage, on the plantation and negroes. The Sheriff, although called on to do so, failed to take a bond for any portion of the proceeds of the sale toward the satisfaction of the plaintiffs’ writ, or to make any return by which it could be ascertained what amount had been realized on the execution. If no part of the mortgage debt was satisfied by the sale of the plantation and negroes which he also had under seizure, it was incumbent on him to establish that fact, in order to show that the plaintiffs were not placed in duriori earn by his acts.

We are satisfied that full justice has been done, and the rehearing is therefore refused'.


author: Preston, J. Eustis, 0. J. and Rost, J.

text:
    C. B. Sherrod, Trustee, &c., et al. v. D. E. Calleghan et al.
    Effect will be given to marriage settlements made in another State, after the removal of the parties to this State, so far as those settlements do not create prohibited substitutions, fidei commissa, or new tenures of property unknown to the laws of Louisiana.
    The appointment of a trustee in a marriage settlement under the common law, is matter of form merely, and does not affect the substance of the contract, A trust resulting from such an appointment will be recognized in this State.
    Where a marriage settlement is made in a common law State, by which all of the wife’s property is secured to her; in an action by her trustee in this State to recover slaves, parol evidence will be admissible to identify the slaves as being covered by the settlement, although they were not named in it.
    "Where, before marriage in another State, the wife had secured to herself her property, by a settlement, valid, under the laws of the State where made, her husband will not be permitted to defeat the settlement, by a sale of the negroes in this State.
    Ilecordiug a marriage settlement in the county of the domicil of the parties, is not, under the registry laws of Alabama, essential to its validity.

      APPEAL from the District Court of the Parish of Avoyelles, Cushman, J.

      H. Taylor, tor plaintiffs Waddill and F. Cullum, for defendant. Hiteh-born, for warrantor.
   Preston, J.

This suit was brought to recover two slaves named Daniel and Mary, claimed by the plaintiffs, and for the value of their services. The defendant sets up title to the slaves, by virtue of a sale to him from John Flan-nagan, on the 1st of January, 1849, for the price of thirteen hundred dollars, and calls Flannagan in warranty ; he being absent, a curator ad hoe was appointed for him.

Unimportant exceptions of the warrantor being overruled, he and the defendant denied title in the plaintiffs, and alleged a good title and bona fide possession in the defendant.

There was a verdict and judgment in favor of the plaintiffs for the slaves, and the value of their services, and the defendant and warrantor have appealed.

The plaintiff, Harriet Flannagan, was married to Flannagan in Marshal county, in the State of Alabama, on the 12th of October, 1846. The testimony induces me to believe, that she resided at the same time in Madison county, in that State, and he in Texas.

It is proved by the will of her former husband, also by the testimony of Ma/ry MeGaley, Robert and Albert Shenoood, to which no formal exception has been taken, that she owned three slaves, and others, before her marriage with Flannagan. '

A marriage settlement was made between them, by which all her property was conveyed in trust to C. B. Sherrod, for her use, to be held separately from her intended husband and at her sole disposal, notwithstanding her intended marriage. The marriage settlement was recorded in the county where the marriage was celebrated, but not in the county where the spouse resided and held the slaves. In 1841, the parties moved with the slaves to, and settled in Victoria county, in the State of Texas, and the marriage settlement was duly recorded in that county in that year.

¥e officially know that slaves are personal property in Alabama and Texas, that such settlements are legal and equitable means in those States, of securing to wives their property, which would otherwise vest in the husband by marriage, and that the trustee holds the legal, while the equitable title and possession remains in the wife.

I am not satisfied that the neglect to record the marriage settlement in the county of Alabama, where the slaves were at the time of the marriage, deprived the wife of her rights to them under the settlement.

They were not named or described in the marriage settlement; but they were personal property — she settled upon herself all her property, at the time of her marriage. It might have been identified in Alabama by parol, and she cannot be deprived of her property by the act of her husband in carrying it evidently to a State where the slaves became immovable property, and parol proof as to title is inadmissible.

Shortly after their location in Texas, Flannagan clandestinely left that State, without the knowledge of his wife, took the slaves in controversy with him, and fraudulently sold them to the defendant, residing in the parish of Avoy-elles, subsequently to the record of the marriage settlement in Texas, where the parties resided.

The facts stated, brings this case precisely within the principles recognized in the case of Youngblood et als. v. Flagg, 11 La. 341, the husband could not divest the wife of the property or convey any interest in or right upon it, and the sale subsequently to the recording of her title, even if the registry was necessary at all, produced no effect.

The slaves sued for are fully identified by Robert Sherrod, with two of those owned by the plaintiff before her marriage with Flannagan. And although the marriage settlement does not specify and describe the slaves, yettestimony, that of Albert Sherrod and Mrs. MoQ-aley, which was not excepted to, shows conclusively that they were a part of the property embraced in the marriage settlement. The objection and exception to the marriage settlement as evidence, was as to give effect not to its admissibility in evidence, and being admitted and aided by the testimony of these witnesses, shows'a perfect title in the wife and her trustee.

It becomes unnecessary, therefore, to examine the exception to the testimony of the other witnesses to the same effect.

If we did not officially know the laws of Alabama and Texas, on the subject under consideration, we should be obliged, for the want of evidence, to consider them similar to the laws of our own State, which would render the rights claimed by the wife more indispensable.

A reasonable allowance was made by the jury for the value of the services of the slaves.

The verdict and judgment meet the justice of the case, and do not conflict with any principle of law.

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

Eustis, 0. J. and Rost, J.

The plaintiff, Harriet Flannagan, seeks to recover from the defendant, two slaves which she alleges are her separate property, under a marriage settlement executed in Marshal county, State of Alabama, previous to her marriage with John B. Flannagan, her husband.

The defence is, that the marriage settlement under which the plaintiff claims cannot operate to his injury, because the slaves claimed are not named therein. That under the laws of Alabama, the title to those slaves being in the wife at the time of the marriage vested in the husband from whom he acquired them in good faith, and for a valuablo consideration. It is further urged, that the marriage settlement, if otherwise valid against the defendant, would be inoperative in Alabama against creditors of bona fide purchasers, for want of recording in the proper county, and it could have no greater effect in this State than it would have there. The judgment below was in favor of the plaintiff, and the defendant has appealed.

This case is in many respects similar to that of Young v. Templeton, 4th Ann. 254. In that case, we considered a marriage settlement executed in the State of Mississippi, in the same light as we have often considered marriage contracts executed in foreign countries, where the civil law prevails, by persons domiciliated in those countries, and disposing of property there situated in both cases alike. We feel bound to give effect to such contracts, after the removal of the parties here, so far as they do not create prohibited substitutions, fldei eommissa, or new tenures of property unknown to our laws.

The marriage settlement in this case, if otherwise valid, vested in the plaintiff a title known to our laws. She was to remain under it, the absolute owner of the property of which she was possessed at the time of her marriage.

The appointment of a trustee was a matter of form, not of the essence of the contract; it might have been dispensed with and, in that case, the husband would have been held in law the trustee. 2d Kent Corns., No. 162, and cases there cited. I have said this much to point out the distinction between marriage settlements and other titles in trust, which we uniformly refuse to recognize.

On the merits, I am of opinion that the case is with the plaintiff. The act of settlement is sufficiently formal, and under the equity system of jurisprudence prevailing in Alabama, parol evidence would have been admissible therein and of the description it contains, to identify the particular property claimed. Cartwright et ux v. Hutchinson, 2 Rob. 407.

I am satisfied that, under the registry laws of Alabama, the recording of the deed in the county of the domicil of the parties, was not indispensable to its validity. Swift v. Fitzhugh, 9 Peters’ Reports, 39, 59, and Smoot v. Fitzhugh, 9 Peters’ Reports, 72 and 75.

Rehearing refused.

      This case was decided in June, 1852. Present, JSusUs, C. J., Host, J., and Preston, J. An application for a rehearing was made and refused, but at what term, and what Judges were present, the record does not show.
      It may not be improper to state that none of the Records from. Alexandria give thenameofthe Judge who delivered the opinion of the court. The Reporter being familiar with the handwritng of the Judges, has been guided by it, in affixing their names to the several judgments.


author: Rost, J.

text:
      W. H. Bassett v. School Directors of the Second District.

      Mandamus against defendants to compel them to levy a tax to an amount sufficient to pay plaintiffs’ judgment refused. And, by the Cow't — However general and comprehensive the disposition of Art. 830 of the Code of Practice may be, we assume that the power of courts to issue the writ of mandamus must be restricted to the cases in which their authority can be vindicated by the enforcement of the process. We are unable to perceive how this can be done in this case.
    APPEAL from the District Court of the Parish of Avoyelles, Cushman, J.

      H. Taylor, for plaintiff and appellant. Waddill, for defendants.
   Rost, J.

On the 6th day of November, 1850, the plaintiff obtained a verdict and judgment against the School Directors of the Second School District of the parish of Avoyelles, for the sum of twm hundred and seventy-five dollars, with five per cent, interest, from the 22d of May, 1849, and costs, that being the amount of a contract made with the plaintiff, as undertaker for a school house located within the district, and accepted by them.

On the 24th of December, 1850, a fi. fa. issued and was returned nulla tona, and the Sheriff, to whom said writ was issued, states in his return, that he made a seizure of the school house, but prior to the day of sale, it was burned down. On his examination as a witness, he states that the defendants in the suit pointed out no other property, and the writ was returned.

Some changes having subsequently been made in the direction of the school, and all efforts having failed to obtain payment of the judgment, he petitioned for a rule on the School Directors to show cause why a mandamus should not issue from the Judge of the District Court of Avoyelles, to compel them to levy a tax to an amount sufficient to satisfy the amount of the debt, interests and costs, say $473 60.

The affidavit required by law was made, and on this petition, the Judge granted the rule prayed for.

On the hearing of the rule, the court dismissed it, and from this judgment of dismissal, Bassett has appealed.

Only one of the three directors cited answered, and stated in his answer, that the other two had resigned before the service of the citation, and that he had resigned since. He further denied his power to levy a tax in the manner claimed.

There is nothing to show that the resignation of the defendants was accepted, but supposing them to be still directors, no judgment by default was taken against those who did not answer, and it would not be in our power in the present situation of the case, to give the plaintiff relief, if he was otherwise entitled to it.

The District Court was called upon to issue a mandamus commanding the School Directors to assess on the property within their district, and cause to be collected an amount sufficient to pay the plaintiff’s claim, or, in other words, to compel the exercise of the power to legislate, vested in them by the Act of 1847, and to carry into execution the law they might enact. However general and comprehensive the disposition of Art. 830 of the Code of Practice may be, we assume that the power of Courts to issue the writ of mandamus, must be restricted to the cases in which their authority can he vindicated by the enforcement of the process. We are unable to perceive how it can be enforced in this case. In the case of Claiborne v. The Police Jury, 7 Mart. 4, a similar application was refused, and the inextricable difficulties in which the enforcement of the writ, in that case, would have involved the court, are forcibly stated in the opinion; they would be still greater in this case. Granting, for the sake of argument only, that the court would have the power to imprison the School Directors, until they obeyed the writ, although one of them might be in favor of obeying it, we could not prevent them from resigning, or their resignation from being accepted.

The next application would in that case be, for a mandamus to compel an election of other directors, and if the voters refused to vote, as they probably would do, process would have to issue against them, under which it would become necessary to send them all to jail and to keep them there until they exer-' cised the first and highest prerogative of freemen.

We do not consider that the Code of Practice has, or could have given us, the powers which our predecessors declared, they had not in the case of Glai-borne.

The levying of taxes is the highest exercise of sovereignty, and is vested by the Constitution in the legislative branch of the government. All delegations of that power to corporations or individuals, and the exercise of it under those delegations, so far as they do not infringe on the Constitution and laws, are as the power itself exclusively under the control of the Legislature. If it were otherwise, the judicial and legislative powers of'the government, could not be kept distinct and separate.

If the agents selected by the Legislature in this case, have failed to perform their duty, and the plaintiff is injured thereby, his remedy is an application to the Legislature, to resume the delegated power, and order the collection of the special tax, which the defendants have neglected to assess and collect.

Judgment affirmed, with costs.

      This case was decided in May, 1852.


author: Dunbar, J.

text:
    Lemoin v. Moncla.
    In actions of bornage, a dividing line long established between the parties, and referred to in the proces verbal of sale of the plantation to the plaintiff, will be talien as the true one, in preference to running anew line more in accordance with the calls and distances, and which gives to plaintiff a larger boundary.
    APPEAL from the District Court of the Parish of Avoyelles, Gushman, J.

      H. Taylor, for plaintiff and appellant. Waddill & Generés, for defendant.
   Dunbar, J.

This is in fact an action of bornage or boundary. The District Judge gave judgment for the defendant and the plaintiff has appealed.

It appears from the evidence, that a dividing line or lane, as it is called by the witnesses, has been recognized and established between the lands of the plaintiff and defendant, and those persons under whom they claim, ever since 1827, more than twenty years previous to the commencement of this suit.

It further appears that, in 1848, the plaintiff, as widow in community, being entitled to one-half of the tract of land, the boundary of which is now in dispute, had the same adjudicated to her as bounded by the lands of Augustine Mayeux above, and Joseph Moncla, the defendant, below ; the aforesaid dividing line or lane between the land of plaintiff and defendant, being then well known, having been at that time established for about twenty years.

We have heretofore said, that “ in action of bornage, a dividing line long established between the parties, and referred to in the proces verbal of sale of the plantation to the plaintiff, will be taken as the true one, in preference to running a new line more in accordance with the calls and distances, and which gives to the plaintiff a larger boundary.” 19th La. 85, Williamson v. Hymil. Further, there is no evidence to satisfy us, that the plaintiff has not now in possession the full quantity of land which her title calls for, and if she could have shown the contrary, it was her duty to have done so.

Judgment affirmed, with costs.


text:
    S. M. Todd & Co. v. L. H. Place.
    Defendant sold property belonging to the succession of Ms brother, and there had been no probate proceedings, nor judicial order of sale — JUeld: That this was an interference with, and appropriation of the estate by defendant, sufficient to charge him as heir of his brother, under Art. 998 of the Civil Code.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      S. T. Says, for plaintiffs. J. Van Matre, and Benjamin & Miaou, for defendant and appellant.
   Buchanan, J.

This suit now comes before this court for the second time. When first tried before the court below, in April, 1851, the plaintiffs introduced, on the trial, testimony to show that defendant had taken possession of the estate of his brother, and sold the effects thereof for his own account. The Judge of the District Court considered that the defendant, by the part which he had taken after the death of his brother, had placed himself in the position of an executor de son tort, and brought himself within the 12th section of the Act of March, 1820, gave judgment in favor of plaintiffs for the full amount of their claim. From this judgment the defendant appealed. This court considering that the issue had not been made by the pleadings, and that the defendant may have been surprised by the introduction of testimony to show that he had interfered in the succession of his brother, remanded the case, that defendant might have an opportunity of meeting and rebutting such testimony.

Upon the second trial, in the court below, the plaintiffs offered the same evidence upon this head as upon the previous trial, and no rebutting evidence was adduced on the part of defendant.

The suit is an ordinary action for the price of goods sold and delivered; and the answer is the general denial. The evidence shows that at the time of B. B. Place’s death, about the last of October or first of November, 1850, he was the lessee and manager of the American Theatre, in New Orleans, and up to that time was in possession of the said theatre, including the scenery, &c., belonging to the same. The lease made by Oollis & Morgan to B. B. Place, dated 6th June, 1850, had one year or more to run at the date of the death of the lessee. On the 12th November, 1850, a few days after the death of B. B, Place, the defendant, his brother, took possession of, and sold all the movables in the American Theatre, with the unexpired term of the lease, to Mandell & Gharles.

This sale was not authorized by any judicial order, nor preceded by any probate proceedings. Among the effects thus sold, were a portion of the goods mentioned in the bill of particulars annexed to plaintiffs’ petition. That bill had been made by the agents of B. B. Place, in the months of September and October, 1850. It was for paints and other materials used in the painting and decorating of the theatre. Its amount is $400 62. The sale and delivery are proved. The portion of those goods remaining on hand at B. B. Place's death, and sold by defendant to Mandell & Gharles, was valued at .one hundred dollars.

These facts amount to an interference with, and appropriation of, the estate of B. B. Place, by the defendant, sufficient to charge him, as heir of his brother, according to Article 093 of the Civil Code. And it will not avail the defendant that the petition does not allege an intermeddling with the estate of B. B. Place, as the ground of defendant’s liability. The defendant had full notice of the nature of the claim, against which he had to contend. The cause was remanded by the Supreme Court expressly for trial upon the issue of defendant’s legal liability by reason of his acts in the premises. And all the evidence of those acts, parol and documentary, was received on the second trial, without objection. See case of McMasters v. Place, 8th Ann. 431.

Judgment of the District Court reversed; and judgment rendered in favor of plaintiffs against defendant, for four hundred dollars and sixty-two cents, with legal interest from 4th December, 1850, and costs in both courts.


author: Slidell, C. J.

text:
    R. H. Fraser & Co. v. James Thorpe.—James Thorpe & Co. intervenors.
    By the laws of Mississippi, the Sheriff under an execution on a judgment againstone partner for his separate debt, can only sell the actual interest which that partner has in the partnership, after the partnership accounts are settled.
    APPEAL from the Eirst District Court of New Orleans, Lamie, J.

      Mott & Fraser, for plaintiffs. Ha/nner & Hays, for intervenors and appellants.
   Slidell, C. J.

Goods belonging to James Thorpe & Go., a commercial firm established and domiciled in Mississippi, were attached here for the individual debt of one of the partners. James Thorpe & Go. intervened, claiming the goods as the property of the firm, and praying- that the attachment be set aside and the goods restored. The goods were delivered to them on bond, and at the final hearing, the court below made the following decree :

It is decreed, that the plaintiffs recover from the defendants the sum of $3931 75, with legal interest from the 1st of April, 1852, and costs of suit, with a privilege on the interest of defendant in the property attached. It is further adjudged, that James Thorpe & Go. be declared the owners of the goods attached in this case, and that they do recover the same, subject to the payment to the plaintiffs of such sum of money as may be shown to be the value of interest of defendant rtherein. And it is further adjudged, that any execution which may be issued upon this judgment shall be for $1225 less than the amount thereof, until it be shown that defendant has been released from all liability on account of a seizure made in his hands in the suit of Henry W. Brown v. R. H. Fraser & Co., instituted in the Circuit Court of Yazoo county, Mississippi, on the 2d day of April, 1852.

The intervenors have appealed, and the appellees ask an affirmance of the judgment.

As the appellees are content with the judgment and ask its affirmance, it is unnecessary to inquire whether, in any respect, the judgment should have been more advantageous to them.

As to the appellants, we think they have no sufficient ground to complain of the judgment. Testing the title and rights of the partnership as to the partnership property by the jurisprudence of Mississippi, in which State the contract of partnership was made, we do not find that title or those rights violated by the decree. In Sitler & Johnson v. Walker, 1 Freeman Ch. Rep. 78, the Chancellor uses the following language:

“ The bill is filed to enjoin the sale of the partnership property levied on for the debt of the separate creditor of one of the individual partners. The principle is now considered generally settled, although there are exceptions to the contrary, that the interest of one partner in the partnership property, may be taken and sold under an execution at law on a judgment against such partner for his separate debt, and equity will not stop such sale by injunction, until the partnership accounts are taken and liquidated. The only interest covered by such an execution, is the interest of the partner after the payment of the partnership debts. Any one purchasing such property, becomes a tenant in common with the other partner, and does not by such purchase acquire a right ipso faeto to a division or separate possession of the property so purchased. The Sheriff does not seize the effects. The other partner retains possession, subject to the lien of the partnership claims.”

In 7 Howard’s Miss. Rep. 320, it was said: In a judgment against one partner for his separate debt, his interest in the partnership effects may be sold by execution at law, though that has been much questioned. But the Sheriff can only sell the actual interest of such partner in the partnership property after the accounts are settled, or subject to the partnership debts.

As we understand the judgment of the District Judge, in the present case, it restores the goods to the possession of the firm, and makes the firm a trustee of plaintiffs for any residuary interest in these goods the partner may have, after the liquidation of the partnership affairs. Under the decree, the plaintiff may, by further proceedings, compel a liquidation and ascertainment of this interest.

In consequence of the view we have taken of this case, it is unnecessary to express an opinion as to what the rights of the partnership would have been, if the partnership had been formed and domiciled in this State.

Judgment affirmed, with costs.


text:
    Succession of C. M. Cabouret.
    An administrator cannot be put upon the proof of the correctness of the items of his account objected to, when the opponent offers nothing that can b$ considered as proof of his claim in whole or in part.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. G. David, for opponents and appellants, R. Grandmont, for F. Pra-Ion, administrator.
   Buchanan, J.

The administrator of the succession of G. M. Gabouret, filed an account of his administration, including a statement of the funds which had come into his hands as administrator, and of the debts due by the estate,

J. G. Devoid and Prosper Bideau filed opposition to this account, and have appealed from a judgment dismissing their .oppositions.

Both the opponents claim to be creditors of the estate; Devoid in the sum of five hundred dollars; and Bideau in the sum of one thousand. Their opposition is general to all the items of the account, which are allowed by the administrator as valid claims against the estate.

The opponents and appellants offered nothing that can be considered as proof of th?ir. claims, in whole or in part, in the court below. In this state of things, the District Judge properly considered that the administrator was not put upon the proof of the correctness of the items of his account objected to.

Judgment affirmed, with costs.


text:
    Harry J. Spotts, Master, and Owners of Steamer William B. Clifton v. Cowan, Dykers & Spaulding.
    A person dealing with a known agent in a matter within the scope of his agency, gives credit to the principal.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Wolfe & Singleton, for plaintiffs. B. M. Zea/rney, and Ga/i'nett Dunca/n, for defendants and appellants.
   Slidell, C. J.

The plaintiffs, owners of the steamer Clifton, claim from the defendants $850, freight of two hundred barrels of molasses, which amount of cargo they allege defendants promised to furnish the steamer at Bayou Sara and a neighboring point, to be carried thence to Louisville. The answer of the defendants alleges that they acted merely as agents for principals disclosed at the time, and undertook no personal liability.

The whole freight engagement appears to have been made at one time, and was for two lots; one hundred and fifty barrels to be delivered to the steamer at Bayou Sara, and fifty at the plantation of one Goffmam, a few miles above that town. It is in evidence that the defendants are commission and forwarding merchants, doing business at New Orleans. Raley, one of their correspondents, a resident of Kentucky, but then at Bayou Sara, in this State, addressed them a letter from Bayou Sara, under date of 11th of February, 1852, in which, after instructing them upon other matters of business to be attended to for him, he uses this language : “You will please speak to the boat that Mr. Maxwell comes on, to take molasses at this place, say one hundred and fifty barrels, at city prices, for me.” This letter was shown to the steamer’s agent; freight was engaged accordingly, and the following letter was delivered open to the steamer’s clerk:

“ Now Orleans, February 14, 1862.

“Mb. F. Raley,

“Bayou Sara.

“ Dear SirThis will be presented to you by the steamboat W. B. Clifton, which we advised you yesterday that we had engaged to stop and take your one hundred and fifty barrels of molasses; also to stop and take a lot for Mr. Lancaster, at Dr. Coffman's plantation, four miles above Bayou Sara. The freight, as was advised you, is $1 75 per barrel to Louisville. If you wish us to insure the molasses, please advise us, and we will have it endorsed on our policy.

“ Respectfully, &c.

“ Cowan, Dyicers So S.

It is admitted that the steamer reserved sufficient room on her d' New Orleans, and stopped at the appointed places according to the but no cargo was furnished, and she was compelled to proceed oi with the room unoccupied.

Under the general principles of the law of agency, it is clear the cannot be held liable for the freight engaged for Raley. They wer knowledge of plaintiffs, acting as agents for Raley, under his written instructions exhibited at the time ; there was no express understanding that the defendants should respond for Raley's punctuality in the fulfillment of the agreement which he requested them to make for him, nor any circumstances from which an intention to make themselves personally liable for their principal, can be clearly deduced. The defendants are therefore absolved under the general rule, that a person dealing with a known agent in a matter within the scope of his agency, gives credit to the principal; unless they can be brought under some exception to that rule. To do this, the plaintiffs invoke the rule of the commercial law, which, in certain cases, holds the agent of a foreign principal personally liable ; and seeks to apply it to this case upon the theory, that a principal who resides in a State of this Union, is to be regarded as a foreign principal with regard to commercial contracts made by his agent in another State, and such agent may therefore be held personally.

"We deem it unnecessary in the present case to meet the question, whether the States of this Union are to be considered foreign to each other in such sense, as to let in the rule of the commercial law concerning the liability of a foreign factor. In looking to the circumstances of this case, we do not find a contract made by an agent here for a principal living abroad, and sending his orders hither from a foreign country. The principal was within this State when he gave the mandate, subject to the laws and amenable to the remedies of the creditor’s own forum ; and the agreement to put the cargo on board was to be fulfilled by himself within this State.

Although the evidence is not so explicit as to the portion of the agreement for Lancaster's freight, it seems to have been made on a similar footing.

It is proper to add, that there is not evidence of a usage of trade affecting this question.

Judgment reversed, and judgment for defendants ; plaintiffs to pay costs in both courts.


text:
    The State of Louisiana v. The Judges of the Sixth Judicial District Court of East Baton Rouge. Jacob Shalor, praying for a Writ of Certiorari in the Matter of Jacob Shalor v. J. & H. Perkins.
    The Supreme Court will not grant a writ of certiorari, when the amount in dispute is below its jurisdiction.
    The Supreme Court derives its jurisdiction from the Constitution, which declares it to be appellate, and it can exercise no control over the proceedings of inferior tribunals in causes in which no appeal would lie to it, and can only Interpose its authority when necessary for the maintenance or in furtherance of its appellate jurisdiction.
    JjlOR applicant, J. J. Burle.

   Slidell, C. J.

A writ of certiorari is asked with reference to a cause which came up to the District Court upon appeal from a judgment rendered by a Justice of the Peace, in a suit brought by the plaintiff against the defendant, to recover fifty dollars damages for the killing of the plaintiff’s cow. The applicant alleges that his counsel was stopped by the District Judge,- and not allowed to make an argument in his behalf; and bases his application upon the Arts. 855-6-7, &c., of the Code of Practice. The matter in dispute being below the jurisdiction of this court, the cause, and consequently its incidental proceedings, are not within our cognizance. Constitution, Art. 62.

This court derives its jurisdiction from the Constitution, which declares it to be appellate. It can exercise no control over the proceedings of inferior tribunals in causes in which no appeal would lie to this court, and can only interpose its authority when necessary for the maintenance, or in furtherance of its appellate jurisdiction. See also Succession of Macarty, 2 Ann. 979, and cases there cited.

It is therefore ordered, that the application for a certiorari be dismissed at the costs of the applicants.


text:
    B. Florance v. James Bonner.
    Where an appeal is evidently taken for delay, the appellee is entitled to damages.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      A. Mariis, for plaintiff. Goold, for defendant and appellant.
   Ogden, J.

The defendant has appealed from a judgment rendered against him on his own acceptance, for the sum of $1751 88. No appearance was made by the defendant in the court below, and no defence has been set up in this court. The appeal is evidently taken for delay, and the appellee is entitled to damages as prayed for in his answer.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs and damages for a frivolous appeal,to wit, the sum of $175.


author: Spoeeord, J.

text:
    M. M. Wooten v. Adam Geisser.
    The plaintiff charged in his petition, that defendant u had debauched a young woman who stood in the relation of daughter and servant to him, by means whereof he lost her ser vices and was put to great expense.” There was no allegation that either violence or craft was used by defendant. Held-: The nature of the title by which the plaintiff sued, was not disclosed with sufficient clearness.
    APPEAL from the Third District Court of the Parish of Jefferson, J. Oahitt J.

      Maries, for plaintiff and appellant. Michel, for defendant.
   Spoeeord, J.

The plaintiff sued for ten thousand dollars damages, upon the allegation that the defendant, contriving, and wrongfully and unjustly intending to injure him, had debauched a young woman who stood in the relation of daughter and servant to him, by means whereof he lost her services, and was put to great expense, ‘

The defendant filed an exception to the petition, in the nature of a demurrer, on the ground that there was no legal cause of action distinctly set forth. Thereupon the suit was dismissed.

We think the exception was properly sustained.

The plaintiff did not disclose with sufficient clearness the nature of the title by which he sued. The girl could not well be both his daughter and servant. The brief filed on his behalf in this court, speaks of her as his minor sister. There is no allegation in the petition that he was her tutor.

There is another defect. It is not alleged that either violence or craft was employed by the defendant, and we are left to infer that the woman was as guilty as himself.

It is unnecessary to decide whether an action of this description could be maintained under any circumstances.

The judgment is affirmed, with costs.


author: Spojtord, J.

text:
    Robert B. Woodworth v. Charles Lemmerman, E. Joublanc, f. m. c., J. L. Lewis and J. P. Freret, late Sheriffs, and Mandeville Marigny, Sheriff.
    A judgment i/ti rem, cannot be executed to the prejudice of third persons, upon any other property than the specific property attached.
    The Code of Practice makes it the imperative duty of the Sheriff in suing out a writ of attachment to seize and deta/m the property of the debtor, whether it consists of goods, effects, rights, credits or right of action. C. P. 256.
    He must take charge and keep possession of all the goods and effects, which he may have attached, with the exception of such sums as may be due by the garnishee, and he must make in the presence of two witnesses, an exact and minute inventory of the same, to be returned with all his doings to the court. C. P. 257.,
    Written evidences of debt, like all corporeal movables, must be reduced to manual possession by the Sheriff, to constitute a valid seizure; but if they cannot be laid hold of, because they are in the hands of a third person, who cannot or will not deliver them up, the only mode of procedure is to cite such person as a garnishee.
    A debt not evidenced by writing, is attached by making the debtor a garnishee
    Without an actual seizure or a citation in garnishment, there can be no attachment, therefore, Meld: That service of a mere notice on the clerk, who is the legal custodian of the records of his court, or even on the debtor against whom a suit is pending, is not a legal mode of attaching property, and is no more effective, than publication in a newspaper.
    APPEAL from the Eifth District Court, Augustin, J.

      T. A. Bartlette, for plaintiff and appellant. L. Costera, for E. Joublanc. M. Blache, for J. P. Freret.

   Spojtord, J.

The plaintiff appeals from a judgment discharging a rule which he had taken upon three successive Sheriffs of the Parish of Orleans and upon one Eugenie Joublanc, to show cause why he should not be paid the amount of a certain judgment he had obtained against Lemmerman, by preference out of the rents and proceeds of the sale of the property seized in the suit of Lemmerman, use of Eugenie Joublanc v. H. B. Moëller.

The record presents a melancholy waste of attachment suits, insolvent proceedings, orders of seizure and sale, injunctions and rules, through all of which the plaintiff has been seeking his money in vain.

We regret that we cannot relieve him. But he has not placed himself in a position to complain of either of the defendants in the rule.

He has no personal judgment against his debtor, Lemmerman. He sued him as an absentee, and only brought him into court constructively by a pretended attachment of his property and service of citation, upon a curator ad hoc. His judgment, if of any validity, is merely a judgment in rem, and could not be executed to the prej udice of third persons upon any other property than the specific property attached.

But in this case nothing was attached. The return of the deputy Sheriff is in these words: “ Seized in the hands of Prosper Le Blanc., clerk of the Eifth District Court of New Orleans, by leaving a written notice of seizure at his office in the hands of J. S. Bacon, his deputy, (he being absent at the time,) informing him that I seize in his hands all the goods, chattels, &c., &c., which he might have in his possession, or under his control, belonging to the defendants, and especially all the right, title and interest, of said defendant, in and to a certain suit entitled 0. Lemmerman, for the use of Eugenie Joublanc, v. Martin H. Moëller, &c., and also the right, title and interest of said G. Lem-merman, in and to the notes filed in, said suit, from which seizure nothing came into my hands; and on the 26th, &c., I seized in the hands of Martin H. Mo-eller, by handing him in person a written notice similar to the one above described, in which I informed him that I seized in his hands especially, all the right, title, and interest of 0. Lemmerman, in the suit above mentioned, as also the notes filed in said suit, from which seizure nothing came into my hands.” No one was cited in garnishment.

An attachment so purely imaginary as this, can confer no real rights. The Code of Practice makes it the imperative duty of the Sheriff in serving a writ of attachment “ to seise and detain the property of the debtor, whether it consist of goods, effects, rights, credits, or right of aetions. C. P. Art. 256. He must take charge and keep possession of all the goods and effects which he may have attached, with the exception of such sums as may be due by the garnishee, and he must make, in the presence of two witnesses, an exact and minute inventory of the same, to be returned with all his doings to the court. C. P. 257.

Written evidences of debt, like all corporeal movables, must be reduced to manual possession by the Sheriff, to constitute a valid seizure of them. If they cannot be thus laid hold of because they are in the hands of a third person who cannot or will not deliver them up, the only mode of procedure is to cite such person as a garnishee. A debt not evidenced by writing, is attached by making the debtor a garnishee. Without an actual seizure, or a citation in garnishment, there can be no attachment. Service of a mere notice on the clerk, who is the legal custodian of the records of his court, or even on the debtor against whom a suit is ponding, is no more effective than publication in a newspaper would be. It is not a mode of attaching property pointed out by law. See Stanborough v. McCall, 8 An. 10. Goodrich v. Pattingall, 7 An. 665. Price v. Emerson, 7 An. 237. Hanna v. Bry, 5 An. 666, Stockton v. Downey, 6 An. 584, and the cases there cited.

We conclude, that the plaintiff is without interest to inquire whether Eugenie Joublanc has forfeited her right of pledge in the Moeller notes ; whether she has diligently prosecuted her order of seizure and sale; or whether the Sheriffs have squandered the rents.

In coming to this conclusion, we have not overlooked the fact, that two of the Moeller notes appear, at. one time, to have been actually attached at the suit of Woodworth v. Lemmerman. But that attachment was sued out from another tribunal, in a totally different suit, of which we get only a glimpse in the record before us. The plaintiff bases his claim in the rule primarily upon an attachment and judgment obtained in the Fifth District Court. Of the validity of that attachment alone, are we called upon to speak.

There is no error in the judgment complained of. It is therefore affirmed with costs.


author: Spofford, J.

text:
    John C. Shannon v. Maurice Langhorn.
    An accommodation acceptor has no right of action against the drawer until the maturity of the bill and payment by the acceptor.
    APPEAL from the Fourth District Court of New Orleans, Reynold.!*, J.

      Wolfe & Singleton, for plaintiff and appellant. J. Van Matre, for defendant.
   Spofford, J.

In April, 1853, the defendant, Langhorn, master and owner of the steamboat Pawnee, being in need of funds, applied to the plaintiff for assistance.

The result was, that Shannon, merely for the accommation of the defendant, accepted his draft for two thousand dollars, payable in ninety days, and at the same time took the defendants acceptance for a like amount, and payable in a like period, which acceptance he still holds.

On the 21st of May following, and about seven weeks before the maturity of both bills, the plaintiff having become suspicious of Langhorn's solvency and good faith, sued out a writ of attachment upon an affidavit, that the defendant, a non-resident, was indebted to him in the sum of two thousand dollars, and was about to remove his property out of the State before the debt became due. Under this writ, the steamer Pawnee was attached.

Thereupon the plaintiff filed his petition, detailing the foregoing facts, and asking judgment for the $2000, with interest from demand, to be paid by preference out of the proceeds of the steamer. The defendant having bonded the property, appeared by counsel and took a rule upon plaintiff to show7 cause why the order of attachment should not be set aside upon various stated grounds, which rule, after a hearing, was made absolute.

After taking this rule, the defendant’s counsel excepted to plaintiff’s petition, on the ground that the suit was premature, and no right of action had accrued or could accrue, until the draft accepted for defendant’s accommodation should mature and be paid by plaintiff, an event which might never happen. Long after the dissolution of the attachment, this exception was tried, and being sustained by the court below, there was judgment dismissing the suit.

The plaintiff appealed, and contends in this court, that the order of attachment should be reinstated, the exception to his petition overruled, and the cause remanded to enable him to show that ho has paid his acceptance which fell due the 10th-13th of July, 1853, which it seems he made no attempt to show the court below.

The view we have taken of the case, renders it unnecessary to notice several of the grounds upon which the dissolution of the attachment was asked, or to consider separately the motion to dissolve and the exception.

The material question is, do the pleadings and evidence show that there was a subsisting debt owing by defendant to plaintiff, at the inception of the suit, although payable in futura. Tf there was no such debt, the suit and the order of attachment must fall together.

It is well settled, that an accommodation acceptor has no right of action against the drawer, until the maturity of the bill, and payment by the acceptor. Groning v. Krumbhaar, 13 L. 404. Read v. Ware, 2 An. 478.

The plaintiff seeks to escape the consequences of this rule of law, by saying that his action is grounded not upon an implied contract of indemnity, but upon the defendant’s acceptance of an ordinary bill of exchange. We do not so read his petition. He has there furnished us the means of looking through the form into the substance of this transaction. The fraudulent procurement of his own acceptance to Lcmghorri? s bill, is the burden of his complaint. True, he mentions, as an incident in the history of their dealings, that “ with a view to meet the said draft at its maturity, the said Langhorn accepted the draft of the petitioner, for the sum of $2000, of even date with the above mentioned draft, payable ninety days from date thereof';” but this is the only allusion to it in the petition. A copy appears to have been filed with the petition, but it was not made a part thereof. The original parties to this draft, are the litigants before us; by the plaintiffs own showing, it had no consideration but the prior acceptance for the defendant’s accommodation ; if he never was called upon to pay that acceptance, or never did pay it, the draft could not be collected as between these parties.

The plaintiff cannot now be permitted to ignore these facts of his own disclosing, in order to reach the vantage ground of an innocent holder for value.

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


text:
    James Druhan v. Lewis Adam, and Louis Adam v. James Druhan.
    It is the duty of a tenant so to use the property of which he has the possession, as not to destroy it; otherwise he is liable in damages.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Clarice & Bayne, for James Druhan, appellant. T. W Collins, for Louis Adam, appellee.
   Buchanan, J.

Adam leased to Druhan, a feed merchant, a two story brick house belonging to the former. The lessee made use of the building leased, for storing grain. He had thus occupied the store for many years, when, on the night of the 3d of December, 1851, a portion of the joists which supported the floor of the second story, gave way in the centre, precipitating to the ground about nine hundred and fifty sacks of oats, weighing sixty-three to sixty-five pounds each, which (in addition to twelve or thirteen hundred more,) wore stored in the second story, and carrying away a portion of the back wall of the building.

Cross actions were instituted by the landlord and by the tenant; the former claiming to be reimbursed the amount which he paid for repairing the building, alleging that the accident had been caused by the fault of the tenant in overloading it; and the latter claiming damages, upon an allegation that the accident was the result of an inherent defect in the building.

The two suits were consolidated by consent of parties, and tried together. The case turns mainly upon questions of fact. Many witnesses have been examined, and their evidence leaves us in doubt what quantity of oats, in sacks, as a general rule, a store built in the manner of that occupied by Dru- han, ought to be capable of containing with safety in its second story. There is one fact, however, which is proved by witnesses on both sides, and respecting which, therefore, there can exist no doubt. It is, that for some time, a number of days before the accident, the joists wore observed to be yielding under the pressure of the oats stored in the second story, evidently menacing the disaster which ultimately befell; yet the tenant took no steps to prevent that disaster, by either placing temporary props or girders under the joists, or by removing a portion of the superincumbent weight; either of which measures, as the witnesses testify, would have had that effect. On the contrary, it is proved that the tenant, upon the landlord’s making the observation to him, the very day before the accident, that he ought to have put girders underneath the joists, replied, “this was Adam's own look out.” ^

We are of opinion, that the tenant, in this instance, mistook his own obligations and those of his landlord. It was his duty to have so used the property of which he had the possession, as not to destroy it. And when he perceived that the joists of the second story were cracking and bending beneath the weight which they supported, an indication that the weight was more than the joists could bear, he should have either diminished that weight, or have supported the floor by temporary props or girders. The furnishing of those temporary girders was no part of the repairs of the house, for which the landlord was liable. It appears from the evidence, that it is not usual to put permanent girders in a store of that size. j

It is therefore adjudged and decreed, that the judgment of the District Court be affirmed, with costs.