text:
    Master and Wardens of the Port of New Orleans v. Ship Martha J. Ward et als.
    The 8th section of the Constitution of tho United States, which declares that Congress shall have power to regulate commerce, does not prevent the exercise of such power by the States, as far as is necessary for the police regulations of their domestic commerce, in regard to which, Congress has not deemed it expedient to make any regulations.
    The Act of the Legislature of 1855, relative to the Board of Master and 'Wardens, which provides for the payment of services actually rendered or the tender of such services, is not a violation of the clause of the Constitution of the United States which gives to Congress the power of regulating commerce.
    The fees allowed to tho Master and Wardens are in no sense imposts or duties on imports or exports.
    PPEAL from tlie Third Justice’s Court of New Orleans.
    XA C. Roselius and M. Hahn, for plaintiffs. Gaither & McPheeters for defendants and appellants.
   Cole, J.

The Master and "Wardens of the port of New Orleans instituted this action to recover ten dollars for fees of survey, and five dollars for entrance fee.

There was judgment for plaintiffs, and defendant has appealed.

The duties of the Master and Wardens are detailed in the Acts of 1855, p. 489, and in those of 185Y, p. 88. By the former, they are obliged, if called upon by the captain of any ship or vessel arriving from sea, to inspect the manner in which the hatches of such ship or vessel were secured previous to the opening thereof for the purpose of discharge, and to be present at the opening of the same. They are also surveyors of damaged goods brought into the port of New Orleans iu any ship or vessel, and, with the assistance of one or more skillful carpenters, surveyors of any damaged vessel, and any vessel deemed unfit to proceed to sea. It is their duty, also, to order and direct the sale of damaged goods by public auction.

Eor these services fees are designated.

By the Act of 1851, a certain supervisory control over pilots, and other duties relative to the pilots, are vested in the Master and Wardens, for which no fees are provided. This control and these duties are contained in sections 4, 5,13, 15,16,11 and 20 of the Act of 1851.

The constitutionality of the Act of 1855 is the only question in the case.

It is contended that it is opposed to the 8th and 10th sections of Article 1st of the Constitution of the United States, which declare that “ Congress shall have power to regulate commerce with foreign nations, and among tho several States, and with the Indian tribes,” and that no State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws,” &c.

The creation of a Board of Port Wardens has never been deemed an usurpation of the power of Congress to regulate commerce, within the intendment of the Constitution of the United States.

The statutes organizing and establishing a Board of Port Wardens are of the same class as those relative to inspection, quarantine and pilotage laws, or those for the regulation of the internal commerce of a State. 9 Wheaton, p. 1, Gib bons v. Ogden; 11 Peters, p. 102, City of New York v. Geo. Milne; 2 Peters, p. 245, Wilson et al. v. Black Bird Creek M. Company ; 18 Howard, p. 421, Pennsylvania Bridge Company.

The 8th section of the Constitution of the United States declares, that Congress shall have power to regulate commerce, but it does not say, it shall have the exclusive power; and in the event it does not think it expedient to exercise this power, there is no prohibition against the exercise of it by the States, as far as is necessary for the police regulations of their domestic commerce.

In Wilson v. The Black Bird Creek Marsh Company, the question arose in the Supreme Court of the United States, whether the State of Delaware had the right to stop a navigable creek, through which the tide ebbed and flowed.

The counsel for the plaintiffs in error argued that the right insisted upon came in conflict with the power of the United States “ to regulate commerce with foreign nations and among the several States.”

Marshall, C. J., delivering the opinion of the court, said : “ If Congress had passed any Act which bore upon the case; any Act in execution of the power to regulate commerce, the object of which was to control State legislation over those small navigable creeks, into which the tide flows, and which abound throughout the lower country of the Middle and Southern States; we should feel not much difficulty in saying that a State law coming in conflict with such Act would be void. But Congress has passed no such Act. The repugnancy of the law of Delaware to the Constitution is placed entirely on its repugnancy to the power to regulate commerce with foreign nations and among the several States ; a power which has not been so exercised as to affect the question.” 2 Peters, p. 252.

In Cooley v. Board of Wardens of port of Philadelphia, in which a question arose, whether the laws for the regulation of pilots and pilotage enacted by the State of Pennsylvania were in conflict with the power of Congress over commerce and the laying of duties on imports and exports, Curtis, J., delivering the opinion of the court, said : “ The power to regulate commerce embraces a vast field, containing not only many, but exceedingly various subjects, quite unlike in their nature; some imperatively demanding a single uniform rule, operating equally on the commerce of the United States, in every part; and some, like the subject now in question, as imperatively demanding that diversity which alone can meet the local necessities of navigation. Either absolutely to affirm or deny that the nature of this power requires exclusive legislation by Congress, is to lose sight of the nature of the subjects of this power, and to assert, concerning all of them, what is really applicable but to a part. Whatever subjects of this power are in their nature national, or admit only of one uniform system, a ¡flan of regulation, may justly be said to be of such a nature as to require exclusive legislation by Congress. That this cannot be affirmed of laws for the regulation of pilots and pilotage is plain.

“We are o£ opinion that this State law was enacted by virtue of a power residing in the State to legislate, that it is not in conflict with any law of Congress ; that it does not interfere with any system which Congress has established by making regulations.”

Daniel, J., concurred in the decree, but upon different reasons. His opinion was “ that the power of enacting pilot laws, although in some degree connected with commercial intercourse, does not come essentially and regularly within that power of commercial regulation vested by the Constitution in Congress. The power delegated to Congress by the Constitution relates properly to the terms on which commercial engagements may be prosecuted ; the character of the articles which they may embrace ; the permission or terms according to which they may be introduced ; and do not necessarily nor even naturally extend to the means of precaution and safety adopted within the waters or limits of the States, by the authority of the latter, for the preservation of vessels and cargoes, and the lives of navigators or passengers. These last subjects are essentially local; they must depend upon local necessities which call them into existence, must differ according to the degrees of that necessity. They have no connection with contract, or trafic, or with the permission to trade in any subject, or upon any conditions. They belong to the same conservative power which undertakes to guide the track of the vessel over 'the rocks or shallows of a coast or river; which directs her mooring or her position in port, for the safety of life and property, whether in reference to herself or to other vessels, their cargoes and crews; which, for security against pestilence, subjects vessels to quarantine, and may order the total destruction of the cargoes they contain. This is a power'which is deemed indispensable to the safety and existence of every community. It may well be •made a question, therefore, whether it could, under any circumstances, be surrendered ; but certainly, it is one which cannot be supposed to have been given by mere implication, and as incidental to another, to the exercise of which it is not indispensable.” 12 Howard, 319, 326, Cooley v. Board of Wardens of the port of Philadelphia.

In Gibbons v. Ogden, Marshall, O. J., delivering the opinion of the court, and speaking of inspection laws, said:

They form a portion of that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to a general government ; all of which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.

“ Since, however, in exercising the power of regulating their own purely internal affairs, whether of trading or police, the States may sometimes enact laws, the validity of which depends on their interfering with, and being contrary to, an Act of Congress passed in pursuance of the Constitution, the court will enter upon the inquiry, whether the laws of New York have, in their application to this case, come into collision with an Act of Congress. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power ‘ to regulate commerce with foreign nations and among the several States, ’ or in virtue of a power to regulate their domestic trade and police. In one case and the other, the acts of New York must yield to the law of Congress. 9 Howard, 203, 210, Gibbons v. Ogden.

The preceding quotations are applicable to the case at bar. The laws relative to the Master and Wardens of the Port of Orleans, cannot, in the sense of the Constitution of the United States, be said to regulate commerce, although they are upon a subject incidental to it, and are incidentally necessary for the carrying on of commerce.

Quarantine laws and Pilotage laws are embraced in the deSnition of regulating commerce, and affect it as much as the laws relative to Master and Wardens. If the former can be passed by the States, the latter can also.

The Constitution of the United States declares, that Congress shall have': power to establish uniform laws on the subject of bankruptcies throughout the United States.” Constitution United States, Art. 1, g 8. This court, however has declared : “ That the insolvent or bankrupt laws of a State, if not suspended by the enactment of a uniform bankrupt law by Congress, are constitutional and valid as to all posterior contracts entered into between citizens of the State where such laws exist.” Northern Bank of Kentucky v. Squires, 8 An. 339 ; Story on the Constitution, §1066, 1109.

The power given to Congress to esi ablish bankrupt laws is just as plenary as that to regulate commerce; if, then, in the absence of national legislation the States can pass laws relatives to bankruptcy, they can also pass those laws relative to commerce, which do not attempt to interfere with the peculiar sphere of Congress, but only endeavor to give force to the laws of Congress relative to commerce, such as those now under consideration relative to Master and "Wardens.

In the absence of national legislation for the protection of commerce, there is an inherent right in the States to protect themselves.

Commerce is of vital importance to the States, and unless there are pilots to conduct the shipping to safe harbors, officers vested with the duties of Master and Wardens, and other persons authorized to perform the official acts necessary for the operations of commerce, the merchant will seek other ports for the disposal of his merchandize.

It is the interest of every State to attract as much commerce as possible ; each State will, therefore, essay to create such police statutes relative to commerce, as will be of the greatest convenience to it.

The duties performed by the Master and Wardens, do not clash with the powers of Congress to regulate commerce. If Congress desired, it might perhaps be within its exclusive dominion, to appoint officers to execute the duties now incumbent upon plaintiffs.

Congress has not deemed it prope” to use the power, being no doubt of opinion that as the regulation of the operations of commerce, so far as relates to the case at bar, are ministerial and the conveniences of commerce may require them to be different in the several states, that it would be wiser to abstain from legislating thereupon, and allow each State to enact its own laws. The States have, therefore, the right to do what is essential for the protection of the shipping entering their ports, and of the merchandise conveyed in such vessels.

As the creation of a Board of M ister and Wardens is not in conflict with the Aj-ticle of the Constitution relative to the power of Congress to regulate commerce, neither is it opposed to that part of the Constitution which prohibits the States from laying any impost or duty on imports or exports.

The Act of 1855, relative to the Board of Master and Wardens, merely provides for the payment of services actually rendered, or the tender of such services. The fees accorded, cannot be regarded as imposts or duties on imports or exports; it is a contradiction of terms so to mew them.

The remarks of the Supreme Court of the United States relative to the Pilot laws, are applicable to the present case. In Cooley v. Board of Wardens of port of Philadelphia, in speaking of the law of Pennsylvania which appropriated the half-pilotage fees for the purpose of forming a charitable fund for distressed or decayed pilots, they say: “ The provision of the Constitution as to imposts and duties was intended to operate upen subjects actually existing and well understood when the Constitution was formed. Imposts and duties on imports, exports and tonnage were tlien known to the commerce of the civilized world to he as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their pilot-laws, as they were from charges for wharf-age or towage, or any other local port-charges for services rendered to vessels or cargo ; and to declare that such pilot-fees or penalties are embraced within the words imposts or duties on imports, exports or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who used this language.” 12 Howard, 314, Cooley v. Board of Wardens.

“ An impost, tax, or duty,” says Judge Martin, “ must be confined to the idea which they commonly present to the mind; exactions to fill the public coffers, for the payment of the debt, and the promotion of the general welfare of the country, not to a retribution, provided to defray the expenses of building bridges, erecting causeways, or removing obstruction in a water course, to be paid by such individuals only who enjoy the advantage resulting from such labor and expense.” 11 M. p. 324.

In the case of The Master and Wardens of the port of New Orleans v. Prats, Judge Martin said : “ The constitutionality of the. Act of 1805, which first allowed fees to the Master and Wardens, (B. & O’s. Dig. p. 465), has never been questioned, although they have been claimed for nearly forty years.” 10 Rob. 460.

It is, however, contended, that even if it is not contrary to the Constitution of the United States, to allow fees to the Master and Wardens for services actually rendered, that the sixth section of the Act of March 15th, 1855, is unconstitutional.

This section is a reenactment of that of 1821, and provides : “ That in addition to the fees allowed to the Master and Wardens, they shall be entitled to demand and receive for each vessel arriving in the port of New Orleans from sea, the sum of five dollars, whether they be called upon to perform any services or not, which sum they shall be entitled to demand of the captain, owner, or consignee of every such vessel, and in case of failure or refusal to pay the same, they shall have the right to proceed for the recovery of the same against the said vessel, before any Justice of the Peace, or other competent tribunal. Session Acts, 1855, p. 490. § 6.

Even if the Master and Wardens performed no direct services as a compensation for the fee of five dollars, still this section could not be considered as laying a duty or impost on imports or exports, or as a burden imposed upon commerce by taxing vessels coming from sea.

The Master and Wardens are obliged to be always ready to perform their official services for any vessel that may need them. They are appointed for the benefit of the shipping, and their compensation in such cases can be likened to half-pilotage.

Section 18 of the Act of 1851, relative to Pilots, p. 90, provides : “ That if the master of any ship or vessel coming or going out of any of the mouths of the Mississippi river, shall refuse to receive on board and employ a pilot, the master or owner of such ship or vessel, shall pay to such Pilot, who shall have offered to go on board and take charge of the vessel, half-pilotage.”

The Supreme Court of the United States in Cooley v. Board of Wardens of port of Philadelphia, in speaking of a provision Of the law of Pennsylvania, relative to pilots, which allowed half-pilotage, when no direct services were rendered, say:

“ We think this particular regulation concerning half-pilotage fees, is an appropriate part of a general system of regulations of this subject. Testing it by the practice of commercial States and countries legislating on this subject, we find it has usually been deemed necessary to make similar provisions. Like other laws, they are framed to meet the most usual cases, qua frequentius accidant; they rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation, by taking on board a person peculiarly skilled to encounter or avoid them, upon the policy of discouraging the commanders of vessels from refusing to receive such persons on board at the proper times and places ; and upon the expediency, and even intrinsic justice, of not suffering those who have incurred labor and expense and danger to place themselves in a position to render important service generally necessary to go unrewarded, because the master of a particular vessel either rashly refuses their proffered assistance, or, contrary to the general experience, does not need it. There are many cases in which an offer to perform, accompanied by present ability to perform, is deemed by law' equivalent to performance. The laws of commercial States and countries have made an offer of pilotage service one of those cases, and we cannot pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage as to be deemed, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating on this one.”

If, then, half-pilotage fees are not contrary to the Constitution of the United States, it would seem that the sixth section of the Act of 1855 is not unconstitutional.

There is, however, another reason why this section is constitutional.

The Act of 185 V, p. 88, in sections 4, 5,13,15,16, IV and 20 vest the Master and Wardens of the Port of New Orleans with various powers and obligations, for which no fees are allowed.

An examination of these sections will show, that they provide by the intervention and action of the Master and Wardens for the maintenance of order and discipline among the pilots, and for other things which tend to the advantage and safety of vessels coming from sea into the port of New Orleans.

If these duties were not performed by the Master and Wardens, it would be necessary to have them executed by other officers, who would necessarily be paid by a tax laid upon vessels coming from sea into the port of New Orleans. We say they would be thus paid, because these duties are for the benefit of such vessels, and, without the performance of such duties, they would be exposed to be lost, and of course it is just that they who receive the benefit should bear the expense.

Suppose that one of the pilots had been appointed by the Governor, by virtue of a statute, to execute the same duties as are detailed in these sections, and that the law had authorized the pilot to charge five dollars upon every vessel coming into the port as compensation for his duties, certainly no one could dispute the constitutionality of such a tax, without at the same time contesting the constitutionality of the pilot laws which provide for the compensation of pilots; because, if pilots be necessary, they must also be subjected to certain regulations and to the supervision of persons in authority, so that they may faithfully do their duty, and safely and skillfully guide vessels from the sea into the port of New Orleans.

The principle is the same whether these duties are to be performed by a pilot' or by the Master and Wardens. It is indeed wiser that they should be the province of the latter than of the former; for the Master and Wardens would not probably have such intimate relations with the pilots as one pf their own number, and their impartiality would not be affected thereby.

The law has provided against the risk of partiality and interest, for the fourth section of the Act of 1855, (Sess. Acts, p. 490,) declares, “ that neither the Master nor any of the Wardens aforesaid shall be concerned, directly or indirectly, in any pilot-boat, or with any branch-pilot, in respect to the business of his trust.”

Although the services directed by these sections are not directly rendered by the Master and Wardens to the vessels coming- from sea, yet they are rendered through the pilots, because the latter perform their official duties to the vessels 'with more fidelity and skill, under the supervisory care of the Master and Wardens, than would otherwise be the case. 2 An. 538, First Municipality v. Pease; 11 M. 324, State v. Navigation Co.; Cooley v. Board of Wardens, 12 Howard, p. 299.

As these services are performed indirectly, the plaintiffs are as much entitled to be paid for them as if they were done directly, and indeed, from the nature of the services, it is impossible they should be directly performed.

The payment of five dollars is, therefore, the compensation for services received by vessels, which services are necessary for their safety, and is not - against’the Constitution of the United States, in the absence of any law of Congress providing for the performance of the same services as those rendered by the Master and Wardens.

Judgment affirmed, with costs.

Vooehies, J., absent.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    Succession of Baker Woodruff.
    The testator provided for the emancipation of a number of his slaves as follows : “As soon as possible after my decease, I wish all my negroes freed that I will name, and sent to Pennsylvania, and bread and meat found them for one year, all at the expense of my estate.” Held: that it was the in tention of the testator that the negroes should be freed in this State and then be removed to Pennsylvania, and that it was not competent for the court here to grant an order authorizing the executor to remove them and to pay the expenses of their transportation and maintenance, after the Act of March 6th, 1867, preventing their emancipation here.

      k PPEAL from the District Court of the Parish of St. Bernard, Foulhouze, J.

      Lea & Marr, for executor, appellant. J. E. Morse, J. Gilmore, P. E. Bonford and J. Vanmatre, for appellees.
   Cole, J.

Baker Woodruff died in the month of May, 1857, leaving a last will and testament, which was dated on the 22d day of February, 1855. This will was admitted to probate on the first day of June, 1857.

In this will there is a testamentary disposition directing that a large number of his slaves should be freed.

It is in these words : “ As soon as possible after my decease, I wish all my negroes freed that 1 will name; ” (here follow the names of the negroes,) “ and sent to Pennsylvania, and bread and meat found them for one year, all at the expense of my estate.”

The testamentary executor applied for an order of court authorizing Mm to remove the slaves to the State of Pennsylvania, to be there emancipated, and setting apart a sufficient sum to defray the expense of their transportation and their maintenance.

Notice of this application was given to the heirs present in .the State and to the attorney of absent heirs.

Opposition was made to this application, on the ground that the dispositions of the last will of the deceased, relating to the manumission of the slaves and their removal to Pennsylvania, are contrax-y to the laws of the State of Louisiana, and to public policy, and are absolutely null and void.

The District Judge maintained the opposition and rejected the application of the executor.

Prom this judgment the executor has appealed.

It appears to us that the intention, of the testator was, that the negroes should be freed in this State and then be removed to Pennsylvania.

In the absence of any provision of the will exhibiting an adverse intention, a testator must be presumed to have intended that the provisions of his will should be executed in accordance with the laws of the State where it is made, where he lives and has his property, rather than in accordance with the laws of a foreign State.

. If the law prohibiting emancipation had not been passed, it would have been the duty of the executor ¡under this will to have applied in this State for the emancipation of the slaves, and afterwards for a sufficient sum of money to be taken from the estate to buy for them food for their sustenance in Pennsylvania, where they were to be sent after their emancipation.

If the executor had demanded of the court permission to take the slaves to another State to be emancipated, whilst our laws would have allowed him to have freed them in this State, it is evident that the permission would have been refused, because the intention of the will was, they should be liberated in this State.

The statute approved March 6th, 1857, prevents their emancipation; the sending of them to Pennsylvania, which was to be the consequence of their freedom, cannot then be effected. Sess Acts 1857, p. 55.

The testator lived a sufficiently long time after the enactment of the law prohibiting emancipation to have adopted some other method of enfranchising his negroes, if his intentions, as manifested in the testament, had remained unchanged.

It is unnecessary to express any opinion upon the right of a testator under our present law to authorize his executor to remove his slaves to another State for the purpose of emancipating them.

Judgment affirmed, with costs.


text:
    Municipality No. 2, for the use of James Pigrau, v. Arthur Guillotte.
    Tlio power of the municipal corporation, to make contracts for tlie pavement of streets at the expense partially of proprietors, is clear.
    In the absence of proof of fraud, the acceptance by the corporation of work which it was authorized to contract for, is prima facie evidence against the defendant, so far as relates to its completion and the manner in which it was done.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    XX C. Hunt and C. T. Bemiss, for plaintiff and appellee. R. N. Ogden, for defendant and appellant.
   Cole, J.

This suit was instituted by James Pigrau to recover the amount of two bills for paving- Felicity Road, in front of his property, with interest thereupon.

There was judgment for plaintiff’, and defendant has appealed.

On the 22d of March, 1849, Pigrau entered into a contract with the city of Lafayette and the Second Municipality of New Orleans, for the paving of Felicity Road, from its end nearest the river to Appollo street.

The said corporations subrogated Pigrau to all the rights of the Mayor, Aldermen and Inhabitants of the city of Lafayette and of the Second Municipality of New Orleans, to collect from the proprietors of property on each side of Felicity Road, one-third from each proprietor of the cost of the paving, and empowered Pigrau to institute suits for the recovery of the portions of the said road-way pavement, which might be due by the front proprietors aforesaid.

The Second Municipality having ceased to exist, and being now represented by the Mayor and Aldermen of the city of New Orleans, by Act of the Legislature, approved 23d of February, 1852, this suit was accordingly revived under the style of the city of New Orleans, for the use of James Pigrau v. Arthur Guillotte.

The authority of municipal corporations to enter into contracts of this character, is clear. O’Leary v. Sloo, 7 An. 25.

Felicity Road, which Pig-au undertook to pave, was the boundary line between the city of Lafayette and the Second Municipality.

The property of the defendant .was on the Second Municipality side.

It is established that the work was done, and accepted by the Second Municipality.

In the absence of proof of fraud, the acceptance by the corporation of work ■which it was authorized to contract for, is prima facie evidence against the defendant, so far as relates to its completion and the manner in which it was done.

A consideration of the evidence induces us to believe that the work was as well done, as the price charged therefor permitted.

Judgment affirmed, with costs.

Re-hearing refused.

VooKniEs, J., absent.


author: Hkrbick, C. J.

text:
    John W. Murrell v. R. H. Dixey and H. C. Dixey.
    The common carrier owes indemnity to the shipper of goods for delay in the transportation, and legal interest npon the price of the goods during 1 he period of the delay may be recovered, as the measure of such indemnity.
    The shipper cannot recover, as damages, the premium paid by him for insurance upon the goods, while the vessel was lying in a port to which she was driven for repairs, by reason of her unseaworthiness. The carrier in such case becomes the insurer.
    PPEAL from tlic Fourth District Court of Now Orleans, Frica, J.

    Xi. Benjamin, Bradford & Finney, for plaintiff. Durant c§ Honor, for defendants and appellants.
   Hkrbick, C. J.

The defendants are sued as the captain and owners of the ship Plymouth. The plaintiff, having' a contract with the French government, shipped on board of defendant’s ship a quantity of naval lumber, consisting of masts, bowsprits, beams, deck plank, &e, from Mobile, Alabama, to Cherbourg, Prance. At the contract prices, the value of the lumber was $26,674.

The ship left Mobile harbor on her voyage, on the 18th day of October, 1856, at six o’clock P. M. At 8 o’clock, the ship had six inches water in the hold. The pumps were used during the night. At 12 o’clock M. the next day, the leak having greatly increased, it was determined to alter the course of the vessel and make for the port of New Orleans, where she arrived on the 22d of the same month, still leaking badly. On her arrival the usual proceedings were had, which resulted in an order that the cargo should be unladen, and the ship was ordered into dock as unseaworthy.

The cargo was reshipped on board the Trenton, at the cost of defendants. The latter ship sailed from New Orleans on the 18th day of February, and delivered her cargo at Cherbourg, where it was received, without objection, on the part of the French government.

This suit has been brought to recover damages occasioned by the delay and transhipment of the cargo, and the controversy is confined in this court to three items of damage allowed by the Judge a quo.

They are as follows, viz :

Premium paid for harbor risk, whilst, the vessel lay at this port, §192 08.

Amount paid Cazenave for superintending cargo and forwarding same, §200.

And interest at five per cent, on $26,674, from 23d October, 1856, to 18th of February, 1857.

There has been some discussion of the question, whether the ship was seaworthy while she lay at the port of Mobile. The Now Orleans witnesses are almost unanimous that the ship could not have been seaworthy at that time. The Mobile witnesses are equally positive that it was seaworthy.

The District Judge believed the New Orleans witnesses, and we cannot say that he erred.

The ship did not encounter any bad weather, and if she was not unseaworthy otherwise, she became so from her bad stowage.

It becomes necessary to consider the elements of damage controverted by the defendants and appellants.

I. As to the premium paid for the harbor risk. There is no reason to suppose tliat defendants were aware of the nnseaworthy condition of the ship, and they cannot be charged with bad faith.

On the arrival of the ship in the port of New Orleans, the plaintiff had the option of two inodes of proceeding. 1st. To dissolve the contract of affreightment and resume possession of the cargo; or, secondly, to insist upon the contract and compel the defendant to deliver the cargo as he had agreed to do by his bill of lading.

The latter cause appears to have been adopted in this instance, as it is proved that the lumber was reladen on the Trenton without cost to plaintiff, under a contract made by the consignee (Captain Dixey) and agents of the Plymouth, and that the agent of the plaintiff made several demands upon the agent of the Plymouth, who complied with the same, but owing to high prices, not as soon as plaintiff’s agent desired.

The consequence of this was, that the cargo whilst in the port of New Orleans, where it had arrived by reason of a deviation occasioned by the unseaworthiness of the vessel, was at the risk of the defendants as insurers. Angell on Car. secs. 175, 176, 177 ; Abbott, 340 ; Parson’s Merc. Law, 348-351.

It does not, therefore, (in the absence of authorities) appear to us reasonable, that the defendants should be compelled to insure the cargo, and at the same time, be held responsible for such re-insurauce (for in that light it ought to be viewed) as the plaintiff may be pleased to procure. Such damage, if it may be so called, being optional with plaintiff whether he will incur it or not, seems too remote to be supposed that it entered into the consideration of the parties when the bill of lading was signed.

II. The preceding remarks apply with equal force to the $200 paid Cazenave by plaintiff as his agent. By holding defendants to their contract, the cargo was in their charge, and as they employed and paid for the necessary agents and laborers in accomplishing the transhipment, they cannot be compelled to pay for - any others.

III. Defendants contend that interest cannot be sued for, separate from the principal, and that timber does not produce the fruit known as interest, nor is the premium paid for the use of timber ever known by that name.

It appears to us that the common carrier must be held responsible for unnecessary delay in the delivery of the merchandise intrusted to him for transportation. The fact that the merchandise has not deteriorated during the interval, is not a sufficient answer to the holder of the bill of lading, who may, in the meantime, have experienced great inconvenience and loss.

In the case of Rathbone v. Neal, 4 An. 567, this court held, that “ the carrier undertakes to transport the goods not only in good safety, but within a reasonable time. She is bound to account for their value at the expiration of that time. It is as much a part of his contract, as to deliver them in good condition, and in commercial adventures time is one of the elements upon which they are undertaken and controls their result. Nor do we think that the plaintiffs have lost their rights to recover from the defendants, for the delay in the delivery of the goods in consequence of having received them, and disposed of a portion of them at private sale.”

In the ease before us, there is no other proof of special damage than that resulting from the fact, that the plaintiff was delayed nearly four months by the act of defendants, in receiving $26,674 contracted to be paid him by the French government. The defendants, therefore, have occasioned the plaintiff damage, equal to the amount of interest which he would have received on his money in that interval. This is not a remote damage, but one which may be supposed to have been contemplated by the parties. O. 0. 1928, No. 1. The question of the increased charge for freight is reserved by the parties.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed; and we do now order, adjudge and decree, that the plaintiff recover and have judgment against the defendants in solido, for the sum of four hundred and thirty-three dollars and twenty-four cents, with a privilege upon the property attached, the plaintiff paying the cost of appeal, and the defendants those of the lower court.

Voorhies, J., absent.


author: Land, J.

text:
    Mary Ann Logan, f. w. c., v. P. T. Hickman and H. M. Robertson.
    The general rule is, (hat the defendant must be sued at the place of his domicil or usual residence, and a suit for freedom has not been made by the lawgiver an exception to this rule.
    To obtain a sequestration, both an affidavit and bond are required, and the lawmaker has made no exception in favor of negroes held in slavery, who may sue for their freedom.
    from the Third District Court of New Orleans, Dumigneaud, J.

      Semines <& Labatt, for plaintiff and appellee. A. N. Ogden & Stansbwy, for Hickman, appellant. J. & E. Bermudez, for Robertson.

   Land, J.

The plaintiff sues the defendant for the recovery of her freedom, and caused herself to be sequestered on the affidavit of her attorney and without giving bond.

The defendant filed the following exception :

“ Now comes Peter T. Hickman, the defendant, and excepts to this action brought against him and for cause shows : that this respondent is a citizen of the State of Louisiana, having his domicil in the parish of Rapides, and is not subject to the jurisdiction of this honorable court; wherefore respondent asks that this exception may be sustained, plaintiff’s petition dismissed, and defendant hence dismissed.”

On the trial of the exception, the residence of the defendant was admitted to he in the parish of Rapides, as alleged.

The exception was overruled, and the defendant took a rule to show cause why the writ of sequestration issued herein should not be set aside on the following grounds:

First. — That the sequestration is unauthorized by law.

Second. — That there is neither bond nor affidavit as required by law.

The rule was discharged and the defendant answered to the merits, reserving the benefit of the exception by bim filed.

There was judgment for the plaintiff, and the defendant has appealed.

The District Judge erred in overruling the exception to the jurisdiction of the court. The general rule is, that the defendant must be sued at the place of his domicil, or usual residence, and a suit for freedom has not been made by the lawgiver an exception to this rule. C. P. 89, 162, 163, 164. It has already been decided by this court, that a negro held in slavery, who sues for his freedom, must sue liis master, or tlie person liolding' him in slavery, at the place of his domicil or usual residence.

This decision is not only founded on express legislation, but also in considerations of public policy, and cannot be departed from, by reason of the hardship which may result from the application of the rule in any particular case.'

The District Judg'e also erred in discharging the rule to set aside the writ of sequestration. To obtain the conservatory process of sequestration, both an affidavit and bond are required, and the lawmaker has made no exception in favor of negroes held in slavery, who may sue for their freedom, and the courts have no authority to make any such exception. O. P. 276.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed ; the verdict of the jury be set aside, and that this suit be dismissed, with costs in both courts, without prejudice to plaintiff’s right of action at the domicil of defendant.

Re-hearing refused.

Voorhies, J., absent.


author: Laxd, J.

text:
    Hillery Kemp v. Heirs of Diana Cornelius.
    Whenever it becomes necessary to institute a separate and distinct action, from the one in which the judgment was rendered, the prescription of ten years under Art. 3508 of the Civil Code, is applicable to such action.
    from the District Court of the parish of East Feliciana, Ratliff, J.

      Muse & Hardee, for plaintiff and appellant. J. & C. McVea, for defendants
   Laxd, J.

The plaintiff, alleging himself to be a creditor of the estate of - Cady Raby, for the sum of two hundred and fifty dollars and twenty-five cents, with five per cent, interest thereon, from the 5th of July, 1831, (as is shown by a judgment rendered October 26,1831,) and that the heirs of Cady Raby and Diana Cornelius, are about to make a final partition of their estates, he prays that said partition be so amended as to set apart a sufficient amount of property, or the proceeds of the sale of said property, to pay said judgment.

To this demand, the heirs plead the prescription of five, ten, twenty and thirty years.

The action in this case is a personal one, and is prescribed by ten years. C. C. 3508.

“Whenever it becomes necessary to institute a separate and distinct action from the one in which the judgment was rendered, the prescription of ten years is applicable under Article 3508 of the ’ Civil Code. To avoid this prescription, the creditor must be in a condition to enforce the collection of his judgment, without the aid of an original suit.

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

Merrick, C., J., being a creditor with another upon the tableau, declined taking part in this case.

Voorhies, J., absent.


author: Buchanan, J.

text:
    G. W. Hulse v. S. W. Dorsey.
    A party who bid j for land at a public land sale, is estoppod from denying the validity of the sale on the ground that it was land liable to private entry, which he had unsuccessfully applied to the Register and Receiver i)f the Laud Office to enter.
    PPEAL from the District Court of the Parish of Tensas, Farrar, J.
    Xi A. Snycler, for plaintiff and appellant. J. P. Farrar, for defendant.
   Buchanan, J.

Plaintiff, by petition filed in the District Court of Tensas Parish, on the 6 th of June, 1857, demands that patents issued by the General Government to defendant on the 24th November, 3849, for lands adjudicated to the latter at a public sale by the Register and Receiver of the Land Office at Munroe on the 10th July, 1848, be decreed to enure to his (plaintiff’s) benefit, and that he recover possession of the land, with damages at the rate of five dollars a year per acre, for its detention.

The ground alleged by the petition for this claim is, that after the land in question had been once offered at public sale, without being sold, and had thereby become liable to private entry, the plaintiff had applied to the Register and Receiver of the Land Office at Monroe, Louisiana, to enter said land, and had been by them refused. Whereupon, plaintiff had a second time applied to enter said lands, by locating upon them Internal Improvement Land scrip issued by the State of Louisiana, which application was also refused by the said Register and Receiver ; that in violation of plaintiff’s rights, the said Register and Receiver offered said lots afterwards at public auction, when the same were adjudicated to defendant, and patents afterwards issued to him for the same; that plaintiff having complied with all the requirements of law, is equitably entitled to said land.

The answer of defendant alleges that plaintiff was present at the public sale of the lands claimed, by an agent, and bid for the lauds in opposition to defendant, to whom, as the last and highest bidder, the land was publicly adjudicated ; that plaiutiff then protested against said sale, and appealed to the proper authorities at Washington, who after examining thoroughly the matter, under the advice of the Attorney General of the United States, decided in favor of defendant. He therefore pleads, first, that plaintiff having bid for the land at the public sale at which it was adjudicated to defendant, is thereby estopped from denying the validity of the sale ; second, that the decision of the authorities at Washington having been invoked by plaintiff in the premises, such decision is final and conclusive against him and has the force of the thing adjudged, and cannot now be disturbed, after an acquiescence of many years by plaintiff in the correctness and finality of such decision.

The facts alleged in the answer are established by sufficient evidence, written and oral, received without objection and constitute, in our opinion, a bar to this action. We would observe, in reference to the bid made by the agent of plaintiff at the public sale in Monroe, that the said agent declares he made that bid on his own account, and not on account of his principal, the plaintiff. But the iact of this witness being the agent of plaintiff to enter these lands, is admitted by plaintiff. The witness declares that he was plaintiff’s agent for the purpose of locating Louisiana State land scrip upon these lands. Under these circumstances, if the land had been adjudicated to the witness in his own name, we entertain no doubt that the plaintiff would have had a legal right to claim the benefit of the purchase. This bid must, therefore, be viewed as the bid of plaintiff He cannot be allowed to disavow the acts of Ms agent for one purpose, while he adopts them for another.

There is no proof of any application on the part of plaintiff to locate his land scrip, except through the witness in question. See the case of McMasters v. Commissioners of the Atchafalaya Bank, 1st An., p. 11.

Judgment affirmed with costs.

Yoorhies, J., absent.


author: Merrick, C. J.

text:
    City of New Orleans v. L. Boudro.
    Where an appeal is taken by the defendant in a suit, brought by the city to recover a tax or license less than $300 under a city ordinance, it is the duty of the defendant to bring up with the record the ordinance alleged to be illegal or unconstitutional, otherwise the case presents nothing for the decision of the court and the appeal will be dismissed.
    from the Second District Court of New Orleans, Morgan, J.

      W. O. Denegre, for plaintiff. J. J. Lugenbiihl, for defendant and appellant.
   Merrick, C. J.

This suit is brought to recover $101 as a tax or license on the defendant as keeper of a restaurat.

The assignment of errors was not filed within the delay required by Art. 891 C P. and cannot be considered. See Byrne v. Ridell, 2 An., 11.

The defendant denies the existence of any ordinance which compels him to pay the license claimed, and further answering says, if there be one the same is illegal and unconstitutional and not adopted according to law, and that it does not apply to him. ,

No ordinance appears in the record in this case, neither is there any evidence certified. And as the record contains no bill of exceptions, there is nothing exhibited by the same within the appellate jurisdiction of this court.

The existence or non existence of an ordinance is a question of fact of which the District Court has (in a controversy involving less than $300) the exclusive jurisdiction. So too it is a question of fact, whether a party resides within the limits embraced by an ordinance legal upon its face. See Board of Health v. Pooley, Nicol & Co., 11 An. 743.; Police Jury v. Villaviabo, 12 An. 788.

It was the duty of the defendant to place on the record the ordinance which he ' alleges to be illegal or unconstitutional, in order that the court might decide the question of law arising upon the same. Not having done so, the case, as already observed, presents nothing for us to decide.

It is, therefore, ordered, adjudged and decreed, that the appeal in this case be dismissed at the costs of appellant.

Voorhies, J., absent.


author: Merrick, O. J.

text:
    Mrs. J. K. Hauly v. R. Crozier et al.
    l'u matters relating to the interests of minors much discretion must be exercised by the Judge of the Second District Court, but a judgment of nonsuit only, should be rendered in a case where the representative of minors has improperly dispensed with the production of the proof necessary to establish a claim against them.
    PPEAL from the Second District Court of New Orleans, Morgan, J.
    &5l Semmes & Labat and J. McConnell, for plaintiff and appellant. Collens & Wooldridge, for defendants.
   Merrick, O. J.

This is an action for the partition of the succession of James Hauly, deceased. The facts set forth in plaintiff’s petition are of a character somewhat extraordinary and induced the District Judge to render judgment in favor of the defendants, notwithstanding the plaintiff’s right had been admitted in the deliberations of a family meeting, the answers of the defendants, and an agreement of counsel on file also signed by the tutors ad hoc.

It appears by the pleadings (if they are to be credited), that James Hauly and the plaintiff were married in Dublin, in Ireland, many years ago, the deceased then bearing the name of Haulon; that they had one child, who is now dead, issue of the marriage; that her husband abandoned her and left her in want; that she did not hear from him for seventeen years; that he then sent for her to come to this city; that he had after his arrival married another woman, Joanna Grifen, by whom ho had three children, the minor defendants in this suit; that after the death of Joanna Griffen, he sent for petitioner, as above stated, and was married to her a second time in this city. She claims a partition of the estate with the children of Joanna Griffen.

The counsel for the defendants state in this court, that the reason why they did not put at issue the allegations of plaintiff’s petition, was that the parties were satisfied that the plaintiff had abundant evidence to prove her marriage with Hatdy in Ireland, and it would be useless to controvert it.

We think in a large city like this, much caution must bo exercised by the Judge of the Second District Court in matters of this kind, and it is his duty to see that the estates of minors and orphans are not wasted and dilapidated. But in this instance, whatever may have been his suspicions, instead of rendering a final judgment against the plaintiff, he ought to have ordered a new trial and re-instated the case upon the docket. With the admissions and pleadings in this case, a final judgment could not be rendered against the plaintiff.

The appellants aver that they only desire an opportunity of exhibiting their testimony. To this they are clearly entitled.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and. reversed, and that this case be remanded to the lower court for a new trial and further proceedings according to law; the defendants paying the costs of the appeal.


text:
    I. U. Ball v. Felix Greaud.
    A waiver of protest "by an endorser, is not a waiver of the notice of non-payment. An accommodation endorser is entitled to notice, as any other endorsev.

      i PPEAL from the District Court of the Parish of Iberville, Wilson, J., presiding.

      Barrow <& Pope, for plaintiff and appellant. Z. Labauve, for defendant.
   Merrick, C. J.

This suit is brought against the defendant as an endorser and surety upon a promissory note.

The note was made payable to the order of defendant and endorsed by him.

Before its maturity, he signed the following agreement upon the back of the note.

I hereby waive protest on the within note, and hold myself bound for the payment of the same, as if legally protested.

(Signed) F. G-reaud.”

The defendant, in his answer, avers that he signed the note as surety.

It does not appear that any notice of non-payment was given the defendant and he invokes the decisions in the cases of Wall v. Bry, 1 An. 312, and Breaux v. Leblanc, 10 An. 97, to show that the plaintiff has failed to make out his case inasmuch as the waiver of protest is not a waiver of the notice of non-payment.

The plaintiff replies that those cases cannot control the present case, because the defendant alleges he signed the note as surety, and, therefore, is not entitled to strict notice, and, moreover, Greaud, before maturity, offered to give his own note to the plaintiff in the place of the note sued on, and thereby waived the protest and notice under the authority of Sigerson v. Matthews, 20 How. 498.

The note was made payable to the order of the defendant, and he was, therefore, a necessary party to the instrument, and must be considered an accommodation endorser, and entitled to notice as any other endorser. 10 An. 97 ; Peets v. Wilson, 19 La. 478 ; 9 La. 334.

The proof on which plaintiff relies, is a conversation between the defendant and the witness, in which the former, in speaking of what occurred before the maturity of the note at the time he had signed the agreement to waive the pro. test, said further, that he had no money then, but if he could get time, he would pay the note, and that he had offered plaintiff to give him a note payable in a year for the note sued on. Subsequently he told witness that he had seen a lawyer and should not be obliged to pay the note. Here the conditional offer of the defendant was not accepted as the plaintiff chose to rely upon the note. There was then no absolute promise to provide for the note at its maturity, which would bring the case within the doctrine of Sigerson v. Matthews.

The case of Wall v. Bry, has been acted upon since it was rendered, and the rules of commercial law ought not to be lightly disturbed.

The defendant is entitled to the benefit of the decision, and the judgment must be affirmed.

Judgment affirmed.

Voorhies, J., absent.


text:
      G. W. Helme v. C. W. Pollard & Co.—Gruman & Co., Garnishees.
    Tho answers of garnishees, when categorical, are conclusive, unless disproved.
    PPEAL from the Fifth District Court of New Orleans, Eggleston, J.
    XA. C. Roselius, for plaintiff. W. D. TIennen, for garnishees and appellants.
   Land, J.

The plaintiff, the judgment creditor of the defendants, garnisheed Gruman <& Co., under the Act of the 20th of March, 1839.

. The answers of the garnishees to the interrogatories propounded, deny explicitly that they have in their possession or under their control any property, rights or credits belonging to the defendants. They answer, that they have in their possession certain promissory notes payable to the order of defendants, and endorsed by them in blank, — but that they are not the property of defendants.

The plaintiff, .alleging that the answers were evasive and untrue, took a rule on garnishees to show cause why they should not be condemned to deliver up these notes or pay the amount of plaintiff’s judgment.

The rule was made absolute, without any evidence contradicting or impeaching the truth of the answers of garnishees. The judgment is erroneous. The answers of the garnishees, when categorical, are conclusive, unless disproved.

It is, therefore, ordered, adjudged and decreed, that the judgment be reversed, and that there be judgment in favor of Gruman & Co., the garnishees, with costs in both courts.

V oobiiies, J., absent.


text:
    Archibald Borron v. W. W. Mertens.
    An affidavit for a continuance, is insufficient, when it does not disclose the namo of any witness, by whom it is expected to prove any particular fact or facts, and does not state within what time the party expects to obtain tho testimony of his witnesses.
    PPEAL from the Third District Court of New Orleans, Duvignaud, J.
    Ü. Rudd & Lambert, for plaintiff. Durant <& Hornor, for defendant and appellant.
   Land, J.

This suit is for the recovery of five hundred and fifty dollars and twenty-four cents, for re-weighing and inspecting cotton. The answer was a general denial. On the trial, the defendant filed an affidavit for a continuance, which was refused. There was judgment for plaintiff, and defendant has ajipealed. It is urged in this court that the Judge below erred in refusing the continuance.

The affidavit was insufficient. It did not disclose the name of any witness, by whom the defendant expected to prove any particular fact or facts. It did not state within what time the defendant expected to obtain the testimony of his witnesses.

It is, therefore, ordered, adjudged and decreed, that tho judgment be affirmed, with costs in both courts.

VoonuiES, J., absent.


text:
    Executors and Heirs of McMichael v. Gaston T. Raoul, Tutor.
    "Where a particular item of an account claimed by the defendant in a suit for the liquidation of a partnership is not fully sustained by the evidence^ a judgment will be rendered in favor of plaintiil', as in case of nonsuit, upon that particular claim.
    The natural tutor who supervises the interest of his minor child in the liquidation of a partnership of which the deceased mother of the minor was a partner, cannot claim for services rendered the partnership ] he has only a claim against his ward in his account of tutorship.
    PPEAL from the District Court of the Parish of Livingston, Beale, J.
    _ljl lessee R. Jones, for plaintiff. G. W. Watterston, for defendant and appellant.
   Buchanan, J.

This is a suit for the settlement of a partnership. The defendant had judgment for a balance of fifteen hundred and ninety-six dollars and twenty-nine cents, bearing interest at eight per cent, from the last day of January, 1854. He appealed, and asks that this balance be increased by the amount of four items of his account rejected by the court.

1. “ Amount of draft given to George McMichael by Moore, Wittie & Co. on Messrs. T. C. Bates & Co., for railroad work performed by the copartnership, $3213 25.”

It is unnecessary to pass upon the bill of exceptions taken by defendant to the rejection of the deposition of George F. Wittie, offered to prove this item, inasmuch as the deposition comes up with the record, and if admitted, would not have availed as sufficient proof of the charge.

The witness does not specify either the number of the drafts, nor their amount, which his firm drew upon Bates <& Co. in favor of Gemge McMichael. His answers are as vague as the interrogatories, and his evidence, at best, is but secondary. If those drafts were paid by Bates t& Co. to George McMichael, as charged in defendant’s account, that fact could have been proved by the testimony of Bates & Co. and by the drafts themselves, which must be in Bates tSk Co.’s possession. Hpon this item, we will amend the judgment of the lower court, by decreeing a nonsuit.

2. “ Paid T. G. Davidson, for securing title to Carthage land, $600.”

This item was properly rejected. The evidence offered in support of it is obviously insufficient. It proves no payment of any sum whatever for the supposed services of Mr. Davidson. Neither does it prove to our satisfaction that he rendered any services in the premises, for which he would have been entitled to make a charge.

3. Services rendered the copartnership since George McMichael’s death, (January 14th, 1854) $500.”

There is a bill of exceptions taken by defendant to the rejection of evidence to support this item. The District Judge did not err. The partnership between George McMichael and the wife of defendant was dissolved by the death of the latter; which,'it is admitted in argument, took place in November, 1853, some months before that of George McMichael. The defendant, as natural tutor of his minor children, issue of his marriage with the deceased, (the sole capacity in which he is before us,) was bound to supervise and manage for the said minors their interest in the liquidation of the partnership. For such services, he can claim nothing more than the compensation allowed by law to tutors : a claim to be made against his wards in Ms account of tutorship.

4. Sundry small items of freight and passage amounting to $32 10.-

The deposition of a witness, named R. P. Gwyard, was offered in support of these charges by defendant, and rejected by the court. It is unnecessary to pass upon the bill of exception to the rejection of this deposition; for we find (the deposition being annexed to the bill of exception,) that the testimony of this witness would have amounted to nothing, had it been admitted.

The plaintiffs and appellees, on their part, have answered the appeal, and complain of the allowance of two items of account by the judgment of the court below in favor of the defendant.

Those items are:

1st. $2400, with interest, for price of the “ Pay tract,” with an adjoining fraction of land, and a stock of cattle, horses, &e., &c.

2d. $1103 for hire of slaves.

The first of these items was due by the plaintiff’s ancestor, McMicliael, under the articles of copartnership. The second is justified by the evidence.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended; that there be judgment in favor of plaintiffs, as in case of nonsuit, upon the claim of defendant for $3213 25, drafts given to George McMichael by Moore, Wiltie é Co., upon T. C. Bates & Co; that, in other respects, the judgment be affirmed ; the plaintiffs to pay costs of appeal.

Yooehies, J., absent.


text:
    R. Pochelu v. G. A. D. Kemper.
    Wliere a party has sued and obtained judgment against a company, as a corporation, he is estopped from afterwards denying its corporate capacity.
    PPEAL from the Pifth District Court of New Orleans, Eggleston, J.

      XX. Benjamin, Bradford & Finney, for plaintiff. Singleton <6 Clack, and M. M. Cohen, for appellants.
   Cole, J.

Plaintiff is the holder and owner of the following described note :

New Orleans, April 12th, 1855.

$1020. Sixty days after date, the New Orleans Bone Black Company promise to pay to the order of D. C. Lowber, agent, ten hundred and twenty dollars, value received.

R. G. Lasting,

President.

D. C. Lowbek.”

(Endorsed)

Pive hundred dollars were paid on this note on the 14th June, 1855.

On the 24th of January, 1856, plaintiff instituted suit and obtained judgment upon the balance due upon the note against the New Orleans Bone Black Company.

This suit was conducted as against a corporation.

On the 29th May, 185G, execution was issued on the judgment, and was returned “ no property found.”

Whereupon plaintiff instituted this suit, in which he avers that the New Orleans Bone Black Company was a manufacturing company, and composed of certain persons who are jointly and severally liable to him for the payment of the note and judgment aforesaid.

The District Court rendered judgment in favor of plaintiff. Defendants have appealed.

The former suit against the company, apparently as against a corporation, tends to show that plaintiff took and considered the note as an obligation of a corporation, and not of a commercial partnership.

We are of opinion, that the plaintiff is now estopped from denying the New Orleans Bone Black Company to be a corporation, because he sued it and obtained judgment against it as such. East Pascagoula Hotel v. West, 13 An.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that there be judgment in favor of appellants against the claim of plaintiffs, and that appellee pay the costs of both courts.

Be-hearing refused.


text:
    Laura Scott v. John McDougall.
    Where a promissory note has been transferred, by a verbal contract, without the indorsement of the payee, such verbal transfer cannot have the effect of an indorsement and give the paper a character of negotiability.
    from the Fourth District Court of New Orleans, Price, J.

      Elmore <& King, for plaintiff. A. T. Steele, for defendant and appellant.
   Merrick, C. J.

The plaintiff, the widow of JR. L. Scott, deceased, held a promissory note against Daniel Mayes, in Mississippi, payable to R. L. Scott, for $800 and interest.

Mayes declined paying the note to plaintiff, because no letters of administration had been granted the plaintiff, a resident of Texas.

Her Attorney obtained in the courts of Mississippi letters ad colligendum, and thereupon Mayes transferred, (in payment of the note due to Scott’s estate,) verbally and without indorsement, the note sued upon, which is in these words :

“ March 1st, 1853.

$1060. One year after date, I promise to pay to the order of Daniel Mayes one thousand and sixty dollars, for value received.

(Signed) John T. Jeter.

(Endorsed) Jno. McDougalu.”

“ This note is made for purchase of land, as per deed given 20th of April, A. D. 1853.”

(Signed) J. D. Mayes.”

“ Deceived one hundred and sixty dollars and sixty cents on the within note.”

(Signed) J. D. Mayes/

: The J. D. Mayes whose name appears above is the son of the payee of the note.

Judgment was rendered against McDougall, as surety on the note for the remainder due, and he appeals.

The defendant contends that the plaintiff has shown no title in herself and cannot recover.

Had the note been indorsed by the payee, it then would have been transferable by delivery, and under the authority of Montgomery v. Myers, 2 An. 276, the action probably could have been maintained in plaintiff’s name.

But instead of a transfer by delivery under an indorsement in blank, plaintiff claims title in virtue of a special verbal contract in no manner resting upon the commercial law. It is evident that such verbal transfer cannot have the effect of an indorsement and give the paper a character of negotiability. Bee Burton v. Chaney, 3 An. 338 ; 2 L. R. 91, 92 ; 14 L. R. 423. A.t most, it can only have the effect of transferring the thing, the promissory note to the transferee. And this latter must transfer it in the same manner, for the paper having been taken out of the forms of commercial usage, becomes subject to the rules governing-ordinary contracts.

The transfer in the present case was made to Seal, who held the letters ad colligendum. The transferror expressly denied the right of the plaintiff to the note. Seal had no power except what was conferred upon him by the laws of Mississippi. And the power thus conferred ceased when he caused his letters ad colligendum to be dismissed.

It is not shown that any principal administration was ever granted upon R. L. Scott’s estate, nor that the plaintiff was entitled to Scott’s property in virtue of a will, although she claimed such right, which was disputed by Mayes.

The only shadow of title which plaintiff can have under the evidence, arises from the fact that Seal, after he found he could not collect the note from Jeter, forwarded the same to W. A. Elmore, Esq., of this city, for collection for the plaintiff.

This does not appear to us to be sufficient. Seal himself ceased to have power over the paper when his letters ad colligendum were dismissed. The plaintiff acquired no rights under Seal's partial administration. The letters of the latter' being dismissed, and there being no principal administration upon Scott’s estate, Seal does not appear to have the interest of a bailee in the note, and could hardly maintain an action in his own name on the note. The plaintiff does not pretend to sue as his agent, nor does she set up any transfer from Seal as administrator, even if the auxiliary administration could confer on him the right to transfer the ¿hoses in action of the estate.

It is possible that plaintiff may have a claim to the note as legatee, or by some other title which does not appear in this record, and we shall render a judgment of nonsuit.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of defendant as in case of nonsuit, with costs in both courts.

Voobhibs, J., absent.


text:
    Heirs of Delord Sarpy v. City of New Orleans.
    The warrantor is not liable for the fees of the attorney omployed by the party evicted.
    Attorney fees cannot be recovered as either costs of the suit or as damages, under Art. 2482 of the Civil Code.
    The party evicted from real estate, cannot recover the difference between the costs of tho improvements made by him, and the enhanced value of tho soil.
    PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Janin <& Griffon, for plaintiff. J. J. Micliel, for defendant and appellant.
   Cole, J.

This suit is the sequel of that instituted by the same plaintiffs against the city, and reported in 11 An. 699.

In that case, the court decided the principles upon which the division line between the battures of faubourgs St. Mary and Dolord is to be laid out. The plaintiffs, however, had claimed, in the first suit, but a part of the ground to which that division line entitled them. This suit is for the remainder.

As this case presented no new facts and no new question of law, so far as the right to the land is concerned, the city did not contest plaintiff’s-title.

The District Judge, in his judgment, succinctly and correctly states the questions presented in this case, in the following words :

“ There being no dispute as to the title, .the only questions to be determined, relates to the boundaries fixing the portion of said property no longer wanted for public purposes, the enhanced value of the property from the improvement, and the amount or cost of the improvements to be awarded to the evicted third person.”

The plaintiff’s claims for damages, fruits and revenues, were reserved.

John Slidell was one of the defendants sued by the plaintiffs, as being in possession of their property. He had purchased his part of the lots of the city of New Orleans, whom he called in warranty.

There was judgment for plaintiffs against Slidell, and in his favor against tho city, his warrantor.

The city has appealed, and contests only the allowance of $1,500 for attorney’s fees in favor of John Slidell, and the allowance in the judgment of $2,890 for tho the difference between the cost of the improvements and the enhanced value of the property.

I. The warrantor is not liable for the fees of the attorney employed by the party evicted. There is no reason why they should be allowed in favor of parties evicted against their warrantors, and not also in every other case. It is often as injurious to a creditor to be forced to sue upon an obligation, and to abide the tedious process of law, as it is for a vendee to be evicted from land or other property.

Art. 2482 of the Civil Code declares, that if the buyer be evicted, he has the right to claim against the seller — 1st. The restitution of the price ; 2d. That of the fruits and revenues, when he is obliged to return them to the owner who evicts him ; 3d. All the costs occasioned, either by the suit in warranty on the part of the buyer, or by that brought by the original plaintiff; 4th. In fine, the damages, when he has suffered any, besides the price that he has paid.

Costs in the third clause of-this • Article,- refer to the taxed costs of suit, and not to the'fees of attorneys.

If fees of attorneys were comprehended in costs, then the warrantor would be liable to pay not only the attorney’s fees of the vendee, but also those of the party suing for the land, for by the third clause he is obliged to pay the costs caused by the call in warranty of the buyer, and also those of the plaintiff who claims the property.

But as he is the warrantor of his vendee, and not of the plaintiff, the latter can of course only claim the costs of suit.

Damages in the fourth clause of this section, do not refer to the fees of attorneys employed by the warrantors.

If they did, the legislator would hardly have said: “ In fine, the damages, when he has suffered any, besides the price he has paid,” for in almost every case of eviction, the buyer is obliged to employ an attorney to call his vendor in warranty.

The Article is treating of the consequences of eviction, and “ damages” evidently refer to the losses proceeding from being deprived of the property, and not to the money expended by him for fees of attorneys, in order that he might keep possession of the property. Attorney’s fees are not a consequence of eviction, but an expenditure in order to prevent eviction. As the costs of suit are mentioned, it seems reasonable to suppose that the fees of attorneys would also have been enumerated, if such had been the intention of the legislator.

It is true, that in Tear v. Williams, 2 An. 870, fees of counsel wore recovered against the warrantor, but it was decided otherwise in Melangon’s Heirs v. Ro-bichaud’s Heirs, 19 La. 360, and we consider this decision more in accordance with the proper construction of the law. The liability of the warrantor in the case of Melangon’s Heirs, was determined according to the provisions of the old Civil Code, inasmuch as the contract of sale, by the ancestor of the warrantor, was made under that Code ; but Art. 54, p. 354 of the old Code is the same as Art. 2482 of the now Code.

II. The court erred in granting compensation for the difference “ between the costs of the improvements and the enhanced value of the soil.” C. C. 2482.

The old Code permitted such allowance. Art. 57 declares, that if, at the time of the eviction, the thing sold has risen in value even without the buyer having contributed thereto, the seller is bound to pay him the amount of said augmentation of value above the price of the sale.”

The old Code contained the same provisions for the relief of the evicted purchaser in Art. 54, as are embraced in Art. 2482 of the new Code; but the former also provided for further relief in a certain event, as explained in Art. 57. The omission of this last Article by the framers of the now Code, shows that their intention was not to allow such compensation.

If, however, the District Court intended to make the city pay for any part of the improvements, or for any part of their depreciation in value, the judgment was erroneous.

The judgment of the District Court decreed that John Slidell should recover from the plaintiff the sum of $17,890, of which $15,000 were for the present value of the improvements, and $2,890 for one-half of the .difference between their present value and their original costs; and also that Slidell should recover from the city of New Orleans $17,750, the price paid by him for the lots, $2,890 aDd $1,500 for special damages for lawyer’s fees. The plaintiff’s have not ap-. pealed, or asked any amendment of the judgment.

The warrantor cannot be made to pay $2,890, the other half of-the difference between the present value of the improvements and their original costs. Young v. Lebeau, 13 An.; Young v. Courtney, 13 An.; and City v. Hale, 14 An.

It is, therefore, ordered,, adjudged and decreed, that the judgment be amended-as follows : that the part of the judgment which decrees that John Slidell shall recover from the city'of New Orleans two thousand eight hundred and ninety dollars, difference “ between the costs of the improvements and the enhanced value of the soil,” and fifteen hundred dollars special damages for lawyer’s fees, with interest thereupon, be avoided and reversed, and that the said claims be rejected ; and that the judgment so amended be affirmed, and that the appellee, John Slidell, pay the costs of appeal.

Buciianan, J., recused himself.

Yooriiies, J., absent.


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    Charles McDermott v. Elijah Cannon.
    In cases whore it is admissible to dispense with personal service of a notice, tho notice ought in genor. al to be served in. the form, required for citations and other analogous proceedings.
    from the Fifth District Court of New Orleans, Egglestoni, J.

      T. A. McDannold, for plaintiff. Michel <& Koontz, for defendant and appcP lant.
   Merrick, C. J.

This is a redhibitory action. The contract sought to be rescinded is the sale of a slave alleged to be affected with scrofula and addicted to running away.

Among other defences to the action, it is objected by defendant that the slave has never been tendered to him or offered to be returned. See 4 Rob. 381; 2 N. S. 411 ; 4 La. 198 ; 19 La. 283 ; 11 An. 215 ; 4 An. 562.

The proof- on this branch of the case is, that Messrs. Henderson & Peale, the merchants of the plaintiff, addressed a note to the defendant, wherein they stated that they were requested to collect the value of the slave from defendant, and informed him that the negro was unsound and a runaway, and in jail in this city at defendant’s expense, and requested defendant to call and settle the matter.

The note was delivered to a negro boy standing in front of the door (as is supposed) of defendant’s house.

This is not sufficient proof of an otter to return the negro. If it be conceded that it was not necessary actually to produce the negro and demand a rescission of the sale, still we think the delivery of an important document to a negro boy standing in front of a house, cannot be considered as a service of the same upon tho person having his domicil in the house. If personal service be dispensed with, (in cases where it is admissible to dispense with such service,) the notice ought in general to be served in the form required for citations and other analogous proceedings.

The judgment must, therefore, be reversed, and one of nonsuit entered.

It-is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant as in case of nonsuit, with costs of both courts.

Yoorhies, J., absent.


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    John H. Ruddock v. Wesley Mallory.
    Where, during tho pendency of charges against him, the Clerk of a court resigns lus offleo, the appointment made of a Clerk pro tempore terminates with the resignation.
    A vacancy in the office thus occurring, mu}* be filled under Art. 79 of the Constitution, by the Judge presiding in term time where the vacancy occurs, in place of the Judge of the District in which tho court is held.
    from the District Court of the Parish of St. Tammany, Beale, J., presiding.

      A. Bowie and W. E. Walker-, for plaintiff. Penn & Martin, for defendant and appellant.
   Merrick, C. J.

The facts of this case and points in controversy, are correctly stated by defendant’s counsel as follows, viz :

“ Certain charges having- been made by Marcus T. Carter, District Attorney, and Mr. Alfred Hennen, a practicing attorney in the Eighth Judicial District, against William B. Hosmer, the Clerk elect in said district for the parish of St. Tammany, the Hon. Julius E. Wilson, Judge of the said district, on the 14th of July, 1858, granted an order suspending Hosmer, and appointed the defendant, Wesley Mallory, Clerk pro tempore.

“ On the lOtli of November following, Hosmer tendered his resig’nation as Clerk to the Hon. Robert G. Beale, Judge of the Sixth Judicial District, then presiding at said court, who accepted the same, and appointed John PI. Ruddock, the plaintiff herein, Mallory refused to give up the possession and archives of the office upon the grounds :

“ 1. That he had been appointed by the Judge of the court, the lion. J. E. Wilson, until certain charges made against Hosmer were heard and decided, which had not been done.

“ 2. That the resignation of Hosmer could not take effect until notified to the proper power to take cognizance thereof, i. e. the Hon. J. E. Wilson.

“ 3. That the appointment of Ruddock was illegal, and in violation of Art. 79 of the Constitution of the State.

“The Judge a quo, however, granted a peremptory mandamus, on the application of the relator, commanding the defendant forthwith to deliver to him the possession of said office, together with all the books, papers, &c. And the defendant has appealed.”

We are not aware of any law which prevents the Clerk from resigning during the pendency of charges against him. The Constitution gives the Judges of the inferior courts power to remove their Clerk for a breach of good behavior, and tho Act of 1855, makes it the duty of the District Judge, on complaint made against the Clerk, to appoint a day for hearing the evidence. Phillips’ Revised Slat. p. 88, sec. 31.

By resigning, tho Clerk voluntarily brings about what a decree upon the complaint is intended to accomplish, viz, a vacancy in the office and the appointment of a new Clerk. “ The breach of good behavior,” whatever it may be, is not to be punished in this form of proceeding, further than by a.removal from office. If it be a criminal offence, it must be punished in according to the forms of the. criminal law.

At the time I-Iosmer sent in his resignation, the Judge of the Sixth Judicial District was holding court in the parish of St. Tammany, under the Act of 20th of March, 1858, p. 220. He had power to transact all business at the term at which he presided as District Judge, as fully and validly as the Judge of the Eighth Judicial District could have done, and as a consequence he could receive the resignation of the Clerk, and if he saw fit so to do, he had power to appoint a new Clerk for the unexpired term. He was District Judge for the parish of St. Tammany for the term at which he presided. State v. Judge of the Sixth District, 5 An. 756; State v. Ryan, 10 An. 510.

But it is contended, that the Article 79 of the Constitution declares, that it is the Judge of the court where the vacancy exists, (that is, the Judge of the Eighth Judicial District.) who is to make the appointment.

The Article is as follows :

“Art. 79. Clerks of the inferior courts, in this State, shall be elected for the term of four years, and should, a vacancy occur subsequent to an election, it shall be filled by the Judge of the court in which the vacancy exists, and the person so appointed shall hold his office until the next general election.”

The Code of Practice requires a defendant to be sued before his .own Judge. But the law is complied with, when he is cited to answer before any compel,ent Judge holding court at the place of his domicil; and pro hhc vice, such Judge is the Judge of the defendant. C. P., Art. 162. So, too, we think the Judge spoken of in Art. 79, is the Judge legally holding the court at the time the appointment is made, if it be made in term time, as was done in the case under consideration. This power would be necessary to prevent a failure of justice in case of the death, or resignation and absence of a Clerk, during the term held by a Judge of an adjoining district.

Art. 77 of the Constitution gives the Judges of the several inferior courts power to remove the Clerks thereof for a breach of good behavior. In case of relationship, it might happen that the Judge of the district would be compelled to recuse himself. If no other Judge could fulfil his functions, the case could not be tried. If another Judge could be called in to decide the controversy, then the same J udge, in the event of a vacancy, might appoint his successor.

We are aware that a Judge from a neighboring district would feel some delicacy in making an appointment, but this feeling would doubtless prompt him to defer the appointment where possible, and in making it, to consult the wishes of the Judge of the district as far as compatible with the public interests.

The^ro tempore appointment of the defendant, terminated with the ..resignation of Mr. Homer and the appointment of the plaintiff.

Judgment affirmed.

Vooehies, J., absent.


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    C Cummings and Husband v. J. H. Erwin.
    An appeal will be dismissed when all the parties interested in maintaining the judgment appealed from are not made parties.
    from the Sixth District Court of the Parish of Iberville, Beale, J.

      S. Mathews, for plaintiffs and appellants. D. N. Barrow, for defendant.
   Buchanan, J.

The defendant, sued as a third possessor of property subject to the general mortgage of a minor, called in warranty his vendor, who appeared pleaded to tlie action, and called in tlie heirs of the party under whom he had acquired the title of the property sought to be subjected to plaintiff’s mortgage. One of those heirs is the plaintiff herself, who was already in court, and there are two others, her half sisters, minors, represented by their tutors.

These parties also appeared and pleaded to the call in warranty.

There was judgment for defendant, and plaintiff appealed by motion. The appeal bond is made in favor of defendant alone, without any mention of the first or second warrantors.

■ Defendant and appellee moves to dismiss the appeal for want of proper parties, and his motion must prevail.

The principle is too well settled to require a citation of authorities, that all parties to the record, interested in maintaining the judgment appealed from, must be made parties to the appeal from such judgment.

The counsel of appellant urges, in answer to the motion, that his client only having given bond for costs, there is nobody but the Clerk of the District Court interested in the bond; and if he be satisfied with it, the defendant or his war-rantors have no cause of complaint. We are unable to admit the correctness of this position. It might even be said, that it proves too much; because the fair inference would be, that in appeals by plaintiff, (who, in the absence of a recon-ventional demand, is never bound for any thing but the costs,) the bond of appeal should be in favor of the Clerk of the court, and not of the opposite party in the suit, which would be plainly contrary to Articles 515 and 578 of the Code of Practice.

Rule absolute, and appeal dismissed with costs.

Yookhies, <T., absent.


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    Lucinda S. McCaleb v. Estate of D. J. Fluker.
    Where a judgment was rendered on an act of mortgage in which it was stipulated that it was to se» cure the payment of the notes, and any costs that may he incurred in collecting the same — Held: That a receipt in full of the amount of the judgment, and consent that satisfaction of the judgment should he entered up, was a release from any obligation under the contract to reimburse money paid by the plaintiff to counsel in prosecuting the collection of tho debt.
    from the District Court of the Parish of East

      J. McVea and J). Y. Duncan, for plaintiff and appellant. D. C. Hardee, for defendants.
   Buchanan, J.

The plaintiff sold the late David J. Flulcer, a plantation and slaves in the parish of Ouachita, for twenty thousand dollars, of which six thousand cash, and the balance in two promissory notes. The vendee mortgaged the land and slaves thus sold, to secure the punctual payment of the notes, and any costs that may be incurred in collecting the same. The notes not being' paid at maturity, were put in suit, and judgment obtained therefor.

Upon this judgment a writ of fieri facias was issued, upon which a receipt was endorsed, “ in full of the amount due us on that decree, including principal, interest, Clerk of court and Sheriff’s costs — the last installment of $7,000 and interest having been paid heretofore — and hereby consent that satisfaction in full be entered in the case.” Signed by plaintiff, authorized by her husband.

The present action is brought for reimbursement of money paid by plaintiff to the counsel employed by her in the District and Supremo Courts, in prosecuting the collection of this debr.

The administratrix of Flvker denies that the contract obliged the vendee to pay the fees of plaintiff’s attorneys, and pleads the receipt and consent for entry of satisfaction of judgment above mentioned, in bar of plaintiff’s demand.

We think the defendant has been released from the obligation of paying the charges now claimed, by the terms of the receipt and consent above mentioned ; even on the supposition that the obligation previously existed.

The debt, of which the notes and the act of mortgage were the evidence, was merged in the judgment; and the judgment is acknowledged to have been satisfied in full. C. C. 2195 ; C. P. 156.

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

Yoorhies, J., absent.


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    Succession of John Rice — On Appeal of W. Rice.
    A mandato is gratuitous, unless there lias been a contrary stipulation.
    The dismissal from office of a curator, does not involve the forfeiture of his commissions.
    from the Second District Court of New Orleans, Morgan, J.

      Colletts & Wooldridge and Hunton & Miller, for appellants. T. Gilmore T. G. Morgan, Jr. and Hyams & Jonas, for appellees.
   Buchanan, J.

Appellant claims to be a creditor of this succession for services rendered, as agent of Dr. John Rice, during fifteen years, at one thousand dollars per annum. The District court rejected the claim.

We find no error in this judgment. There is nothing in the evidence to support the claim. The case has a great resemblance to that of the Succession of Fink, 13 An. 103.

The claim is for compensation as mandatory. But Article 2960 of the Civil Code says : that a mandate is gratuitous, unless there has been a contrary stipulation. Besides, this claim is stale and suspicious. There is no evidence that the defendant ever demanded from, or was promised by his uncle, the deceased, any compensation for collecting his rents; especially a compensation amounting to about one-fourth of their gross amount. As was said in the case of Simpson v. Powell, 1 An. 555, the long delay in making such a claim, and the fact that it was never made of Rice in his lifetime, are to be taken into consideration and require explanation.

Appellees have answered the appeal by praying that the allowance made to appellant of commissions as curator of the estate, should be reversed, on the ground, that the appellant was dismissed from his curatorship.

The appellant was dismissed from office, and condemned to pay twenty per cent, per annum on a sum of $2,500, collected by him for the estate, and not deposited in bank. This is the full extent of the penalty prescribed in such a case by law. We do not find that a forfeiture of commissions is superadded by the statute. Of course, the penalty will offset the commissions, as far as it goes.

Judgment affirmed, with costs.

Yoorhies, J., absent.