author: Howell, J.

text:
    No. 1019.
    Canal and Banking Co. v. M. J. de Lizardi.
    Where a judgment has been voluntarily executed, though not coming strictly and technically within the rule of the thing adjudged, can neither be attacked nor questioned by a party who has voluntarily acquiesced in its execution.
    A judgment acquiesced in must, as to the parties to it, have the force and effect of the thing adjudged.
    A judgment of the District Court, dismissing a party from the office or trust of liquidating partner, and ordering him to turn over all the assets in his hands to the executor of the estate, having been executed by the liquidator complying, cannot afterwards be questioned by him, nor can it be questioned by any other party who sought by appeal to have the judgment dismissing him reversed.
    Appeal from the Fourth District Court of New Orleans, The ird, J.

      Campbell, Spufford & Campbell and Bradford, Lea & Finney, for plaintiffs and appellants.

      B. Hunt, P. H. Morgan and G. LeGardeur, for defendant and appellee.
   Howell, J.

On the 15th July, 1861, the plaintiff brought this suit by attachment against the defendant, a citizen of Mexico, on twenty-eight promissory notes, amounting to $110,268 60, made, respectively, by lie ary Brothers and Trasimond Landry, and alleged to be endorsed by the commercial firm of J. Y. de Egana, composed of said Egana and the defendant, as general partners. The defendant denied that there ever existed such a partnership, or that he is in any manner liable on said notes, and subsequently pleaded the peremptory exception of res judicata, averring that on the 11th January, 1861, the Second District Court of New Orleans rendered a judgment declaring that “ the partnership in commendam, once existing between M. J. de Lizardi and J. Y. de Egana, expired by, limitation on the 30th September, 1853, and that no partnership, commercial or otherwise, existed between said parties from and after that date;” that on 22d January, 1866, the Supreme Court dismissed the appeals, taken from said judgment by the present plaintiff, and others, on the ground that the appellants, having ratified the execution of said judgment, had assented to and acquiesced in the same, and were.bound thereby; and that plaintiff, who was a creditor of Egana, and party with defendant to said judgment, cannot be permitted to raise anew and question any of the points passed upon and determined therein.

The District Judge overruled the exception, but on the. merits decided that the defendant was a partner in commendam of J. Y. de Egana, and not responsible for the notes sued on, and the plaintiff has appealed.

The cause has been ably and elaborately argued before us, both orally and by briefs, upon all the points involved, and we have given to it the consideration which its importance demands, and the time, which we could devote to the very voluminous record, affords.

Our attention is first directed to the peremptory exception, to the effect that on the 11th January, 1861, the Second District Court decided that the defendant was not a partner of Egana, as charged herein, and that plaintiff, having ratified the execution of said judgment, has acquiesced therein, and is estopped from again raising the question of said partnership.

In the Succession of J. Y. de Fgana, (reported in the 18 A., pp. 59 and 263) this Court held that the Canal Bank, plaintiff herein, and other creditors of said succession, had ratified the execution of, and acquiesced in the said judgment of the Second District Court, rendered on 11 th January, 1861, and on that ground dismissed their appeal therefrom, upon the motion of the defendant herein and another. And we see no reason for changing that opinion. It seems only necessary, therefore, to determine now whether or not the question of partnership, between Egana and Lizardi, was so raised and settled in that proceeding as to bind the parties to this suit.

The facts necessary to this inquiry, selected' from a great variety contained in the record from the Second District Court, are the following: Juan Y. de Egana, having died in April, 1860, leaving a will, J. M. Caballero was qualified as executor, and entered upon the duties of his office. Manuel J. de lizardi, the defendant herein, was appointed liquidator of the-commercial firm of J. Y. de Egana, upon his allegation, that he was the partner in commendam of the said Egana, and entered upon his duties.

During the progress of these two administrations, the executor, upon the demand of creditors, filed two accounts, showing, among other things, that he had paid to the liquidator $436,104 48, in cash and notes, in part payment of the indebtedness of the deceased to the late firm, and admitting Lizardi to be a creditor, individually, for about $64,000. To these accounts numerous oppositions were filed by creditors, (among them the Canal Bank, for the notes now in suit) which contain the specific allega-, tion, that Lizardi was the general partner of Egana, and bound in solido with him for all the debts. The liquidator was also required to file two accounts, to which similar oppositions were made.

From the one presented, on behalf of the Canal Bank with others, we quote the following:

“ Now come into court the hereinafter named parties, creditors of the commercial firm of Juan Y. de Egana, composed of said Juan Y. de Egana and Manuel Julian de Lizardi. * * * * *

Further opposing, they say that said Manuel Julian de Lizardi has rendered himself, and must be held liable to your opponents for the whole amount of their respective claims, with interests and costs, in consequence of the foregoing facts and allegations, etc. * * * That by his very accounts, informal, incomplete and incorrect as they are, it is shown that said Manuel Julian de Lizardi had, from the beginning, the absolute control and management of the affairs, both of the partnership and of the succession;: that it was his duty to liquidate the concern within one year from the day he tools charge de facto of the liquidation. * * Wherefore, they pray that this, their opposition, be sustained; that the two accounts of said Manuel Julian de Lizardi be rejected in tolo, as informal, incomplete and incorrect; that they (your opponents) be acknowledged as creditors of the firm of Juan Y. de Egana, and of the estate of Juan Y. de Egana, and of said Manuel Julian de Lizardi, in solido, to-wit: *******

The New Orleans Canal and Banking Co. $100,000, with eight percent, from the maturity of every note until paid, costs of protest and the costs of suits.

They further pray that the said Manuel Julian de Lizardi, and the testamentary executor, Jóse Maria Caballero, be decreed to be personally liable for, and condemned in solido, to pay the whole due to your opponents by said Juan Y. de Egana, say $254,321 60, with interests and costs, as above specified; ” and in the alternative, they pray for the ratification of the accounts as stated in the opposition.

It is proper here to remark, that the notes above referred to, are the same on which this suit had been brought, and was then pending in the Fourth District Court, and that as a matter of history, there was no Judge then presiding in said court.

It is true, as urged by plaintiff’s counsel, that the controversy in the Second District Court was between the creditors, the executor and the liquidator, and grew out of the accounts rendered by the two last in their official capacity; but as to the parties now before us at least, we think the question of a general commercial partnership, between Egana and Lizardi, was clearly and distinctly presented, and the liability of the latter, on the commercial paper held by plaintiff, was alleged; and on the issues made up, the Judge of the Second District Court, on the 11th January, 1864, rendered the following judgment:

“For the reasons assigned, and with full reservation of the rights of creditors and heirs against J. M. Caballero, executor, for all properties, moneys, rights and credits, shown to have come to his hands in his said capacity, and for such damages as the law allows in cases of this nature, as also against Manuel J. de Lizardi and Manuel A de Lizardi, his agent:

It is adjudged and decreed, that all the property named in the inventories of this estate, as well as the property of the commercial firm of J. Y. de Egana, be declared, in whole and in part, to belong. to the succession of the deceased; that the partnership in commendam, once existing between Manuel J. de Lizardi and the deceased, expired by limitation on the 30th September, 1853, and that no partnership, commercial or otherwise, existed between said parties from and after that date; that Manuel J. de Lizardi was never the legal liquidator of the accounts of the commercial houses of J. Y. de Egana; and that all the acts of the said Manuel J. de Lizardi, and of his agent, Manuel A. de Lizardi, in this succession, from the 19th April, 1860, till the present time, have been wrongful, and the acts of intermeddlers, without the sanction of law or right, and that said acts' have made them liable for all the damages sustained by this succession, as also for such assets thereof as have come to their hands.

And it is further ordered, that the accounts of Manuel J. de Lizardi, filed on 26th of August, 1861, and on the 30th May, 1863, as liquidator of the commercial house of J. Y. de Egana, be rejected; that he be dismissed from said office; that he, or his said agent, Manuel A. de Lizardi, do presently hand over to the executor, J. M. Caballero, to be distributed by said executor according to law, the sum of $436,712 15, wrongfully taken possession of by them; also, the one-half proceeds of sale of lots, slaves, crops, Citizens’ Bank shares pertaining to Grande Isle plantation, and proceeds of Fisk’s refinery, amounting in the aggregate (after deduction of $21,060 Citizens’ Bankmortgage) to $50,266 04, and retained by them as the property of M. J. de Lizardi; also, proceeds of sales of furniture, slaves William, Nancy and Fanny; slaves sold in January, 22d May and 28th December, 1861, and mules, etc., sold 28th October, 1861, and amounting in the aggregate to $22,499 16, as received by him or his agent, and whether the same be represented by cash or notes.

And ifc is further ordered and decreed that there be judgment in favor Of J. M. Caballero, executor, and against Manuel J. de Lizardi and Manuel A. de Lizardi, in solido, for the sum of §725,540 40 assets of the commercial house, in bills receivable, debts due the house, cash, stock in trade, and Canal Bank shares received by them at the time they took possession of said assets, with legal interest, from 21st April, 1860, with reservation to creditors and heirs of the right to pursue either Manuel J. de Lizardi or his said agent, Manuel A. de Lizardi, for any further assets of the commercial house or separate property of Egana, that may have come to third hands in the course of these proceedings.

And it is further ordered that the said Manuel J. de Lizardi, or his said agent, do presently hand over to the said Caballero, executor, the mortgage notes of Kearv Brothers, on which suit has been brought, amounting say, to the sum of §278,000, and also the mortgage notes of Trasimond Landry, to the amount of say §80,000, and generally all evidences of debt in his hands belonging to the house of J. Y. de Egana — the rights of creditors and heirs being reserved, as before, against the said parties, in case any loss or damage arise .to the estate by reason of their having got possession of said notes, and thereby prevented the legal administrator of the estate from collecting them at the time they should have been collected.

And it is finally ordered that the said M. J. de Lizardi, or his agent, pay. all costs resulting from their proceedings in the succession from 19th April, 1860, till this decree be finally executed.

And it is further ordered, adjudged and decreed that the payments named in executor’s account, amounting to the sum of §9,078 .30, as also the item of §2,000, in favor of Pierre Soulé, and finally, the costs and attorney’s fees, amounting to $1,619 50, which he proposes to pay,” be approved and homologated; that the payment of §436,712 15, appearing upon the tableau as an amount of cash and notes paid'by the executor to M. J. de Lizardi, be disregarded and disallowed as void and of no effect, and that said amount be charged to. the account of J. M. Caballero, executor; that the statement under the head of “ various creditors, per balance sheet, 31st December, 1861,” be stricken from the tableau, without prejudice to bona fide creditors to assert their claims under a future account, and that the item, §690,958 34, charged as a debt of the deceased to the commercial house of J. Y. de Egana, be in like manner stricken from the account.

And it is finally ordered, that the executor’s account, as filed the 11th April, 1863, be approved and homologated, so far only as is consistent with, this judgment, and the funds bo distributed accordingly; and that the said J. M. Caballero, executor, do proceed with all dispatch with the execution of the will of the deceased, and to the final settlement of his estate. ’■’

It will be readily perceived, that the main force of this judgment was directed against M. J. de Lizardi, and that by it he was made to hand over to the executor assets in money, notes, etc., to the amount of about one million and six hundred thousand dollars; and that the charges made in' the executor’s accounts necessarily resulted from the deoree against Lizardi, And if there be anything - definitely settled by the judgment it is, that Lizardi was not a partner of Egana after the 30tK September, 1853; that he was dismissed from office as liquidator, and held responsible to creditors and heirs for all damages that might result from his connection with the estate of Egana; that all the property included in the inventories of said estate, and all the property of the commercial firm of J. Y. de Egana belonged solely to the succession of Egana, and was, in consequence, restored to the executor to be administered according to law, and with dispatch, for the benefit of the creditors and heirs of EgaDa.

The Lizardis attempted to obtain a new trial, but were successfully resisted by the creditors, and among them was the plaintiff in this action.

The judgment was executed by the sheriff, and the proceeds arising therefrom, in part at least, were distributed by a tableau filed by the executor, and a pro rata portion received by the plaintiff. Subsequently the creditors, including plaintiff, appealed from the judgment, and we have seen that their appeal was dismissed, on the ground that they had ratified and acquiesced in the execution of the judgment, and could not be heard to complain of it. 18 A. 59, 263.

The conclusion is irresistible that plaintiff, who was one of the appellants, is bound by that portion of the decree which declared that M. J. de Lizardi was not, at the date of the notes sued on in this action, a partner of J. Y. de Egana, the endorser, and that all the property pertaining to the commercial house of J. Y. de Egana, belonged solely to his succession; and, as a legal consequence, M. J. de Lizardi cannot be held responsible or liable to plaintiff on said notes as a partner of Egana. Plaintiff is perpetually barred by said judgment from pursuing him as a partner in said commercial house, whether the judgment be correct or not. It is now beyond our revision, and we can only inquire into its effects in this proceeding.

Whatever rights may have been reserved therein to the bank, we think it clear that the right to have Lizardi declared a partner of Egana, and held liable for these notes, was not reserved; for the Judge of the Second Court considered that question to be before him (whether rightly or wrongly, cannot now be determined) and his decision thereon is final, as to the parties before us in this suit.

That this point was decided by the Second Court seems to be conceded by plaintiff; for in the brief, filed on the motion to dismiss the appeal in this court, we find the following language, to which our attention is directed as pertinent in defendant’s argument: “But as to the liquidator, Lizardi, the Court, whilst reserving the appellants’ rights, and giving judgment against him as an intermeddler for a certain amount, has gone still further, and declared, contrary to the allegations and prayer of the opponents, that Lizardi was not a commercial partner of Egana. This, appellants contend, is an egregious error, highly prejudicial to their interests. And on this ground alone, they claim the right to have the judgment appealed from revised and corrected.”

As said by ns in the matter of the Succession of Egana, already quoted, the plaintiff, by its own voluntary acts therein, became a party to the whole proceeding, and privy to the judgments rendered, and having acquiesced therein, is bound by their finality.

We conclude, that the voluntary execution of a judgment is conclusive evidence of its being acquiesced in; that a judgment, though not strictly and technically coming within the rule of the thing adjudged,” can neither be attacked nor questioned by a party who has voluntarily acquiesced in it; and that a judgment acquiesced in must,- as to the parties to it, have the authority of the thing adjudged; and that plaintiff, having by its own acts and its agent, the executor, executed, and thereby acquiesced in the judgment of the 11th January, 1864, pleaded as a bar to this action, is estopped from pursuing the defendant as a partner of J. Y. de Egana.

The exception was, in our opinion, properly taken, and should have been sustained by the lower court.

And for these reasons it is ordered, adjudged and decreed that the judgment appealed from, which was in favor of defendant, be affirmed, with costs.

Rehearing refused.


source: Caselaw Access Project

author: Hvman, C. J.

license: Public Domain

text:
    No. 1592.
    Jules Levy et als. v. Valerien Bergeron.
    Defendant received a lot of cotton on deposit from plaintiff, for safe keeping, while the war was going on; and while the cotton was in his possession, bodies of armed men were in the neighborhood burning cotton: defendant removed the cotton from his gin to a more secure place, which was found and burned by the so-called Confederate authorities. Defendant reoeived no compensation for keeping the cotton: Said — That the cotton was not at the risk of the depositary at the time it,was burned, and it having been burned without his fault and in opposition to his efforts to prevent it, he is not liable to the owner for the value thereof.
    APPEAL from the District Court, Parish of Pointe Coupée, Gooky, J.

      Edward Phillips, for plaintiffs and appellants.

      F. H. Farrar and A. Provosly, for defendant and appellee.
   Hvman, C. J.

Plaintiffs sue to recover of defendant the value of twenty-one bales of cotton, alleged by them to have been deposited with him.

His defence is, that the cotton was burned by the Confederate forces.

The evidence shows that the defendant removed the cotton from his cotton-gin in which he had stored it, and where it was unsafe, to a house more secure than the gin, and some distance from it. Defendant’s design in removing the cotton was to prevent its being discovered and burned by the cotton-burners of the so-called Confederate States.

In and with the house it was burned before any demand was made for its delivery.

At the time the cotton was burned, the cotton-burners were in the neighborhood burning cotton, and the evidence tends to show that it was burned by them.

The deposit was not made at defendant’s request nor for his advantage.

Defendant received no compensation for keeping the cotton, and he used sufficient diligence to preserve it. ■ See Civil Code 2908.

We perceive no reason to reverse the judgment in favor of defendant rendered pursuant to the verdiot of a jury.

Let the judgment be affirmed, and let plaintiffs, who are appellants, pay the oosts of this appeal.


author: Ilsley, J.

text:
    No. 1681
    William Pratt v. Thomas R. Craft.
    The object of putting in default is to secure the other party in his right to demand damages, or a dissolution of the contract, so that the other party can no longer defeat this right by executing or offering to execute it.
    An offer to execute the contract after the party has been put in default comes too late.
    Where one party to a contract, after being put in. mnra, offers to execute the contract, the other party has, at his option, the legal right to olaim damages.
    Appeal from the District Court, Parish of St. Helena, Ellis, J.

      J. Wilson and Race, Foster <& E. T. Merrick, for plaintiff and appellant.

      E. T. Russel and J. H. Muse, for defendant and appellee.
   Ilsley, J.

This is the revival of the suit between the same parties, in which this Court nonsuited the plaintiff, for a want of putting in mora. 19. An. 130.

The present suit is to recover damages for the non-delivery of thirteen bales of cotton, under a written contract, or receipt, which is in these words:

“ Received of William Pratt, this 3d of December, 1863, one thousand dollars, part payment on thirteen bales of cotton, at the rate of forty-seven cents per pound. Cotton to be delivered at Pratt’s plantation in good order. Payment in full on delivery of cotton,”

(Signed) “Thos. R. Ceaet.”

The defence is, the alleged want of proof of the putting in default, and also a reconventional demand, alleging the tender of the thirteen bales, and demanding fourteen hundred and forty-four dollars, the residue of the price.

The case was tried by a jury, and a verdict and judgment were rendered in favor of the defendant, rejecting the plaintiff’s demand, and sustaining the defendant’s reconventional demand for the amount therein claimed, with five per cent, interest, from the 13th November, 1867, with a proviso, that no fieri facias shall issue until said defendant shall have delivered or tendered to the said plaintiff, at his plantation, in the parish of East Baton Rouge, thirteen bales of cotton in good order; said bales averaging four hundred pounds in weight each, and that plaintiff pay all the costs to be taxed.

In the opinion first rendered by this Court in the present controversy, it was held “ that the plaintiff might have claimed an immediate performance; and that no damages could be claimed by him, without proof of his having put the defendant in default in one of the three different ways pointed out by law.

In the present suit, the putting in mora is specially alleged, and deary proved.

The obligations of the contract were reciprocal. The defendant sold and undertook to deliver at once, at the plaintiff’s plantation, thirteen bales of cotton, for the price of forty-seven cents per pound; of this price, one thousand dollars were paid before the execution of the agreement, the ¡balance being exigible, upon the delivery of the cotton, in the manner Stipulated in the contract,

Although delivery was to be made forthwith, and notwithstanding demand legally made .by the plaintiff on the defendant, the latter made no attempt to comply with his part of the contract, until more than two years after it was entered into, and after he had been put in mora, and after the first suit for damages had been instituted against him.

No valid reason is shown for the non-compliance of the defendant’s obligation; it is, on the contrary, shown that it was entirely feasible to move cotton long before, and that the defendant himself had done so without obstruction.

Had the defendant delivered the cotton immediately after the war, the plaintiff would have received it then, but when- the offer or tender was made, it was too late.

In the ease of Moreau v. Chauvin, 8 Rob. 161, the Court says: “The object of the putting in default is to secure to the creditor his right to demand damages or a dissolution of the contract, so that the debtor can no longer defeat this right by executing or offering to execute the agreement. After the debtor has been put in mora, his offer to execute Ms engagement comes too late, and cannot be listened to.” 6 Toullier, No. 255.

And this rule applies to this case, wherein the default was long previous to the defendants tender of the cotton to the plaintiff.

The defendant’s breach of his contract gives the plaintiff, at his option, the legal right to claim damages. C. C. 1920; 18 La. 310; and, under the law and the evidence, he is entitled to claim, besides, the refunding of his advance payment, the difference of value between the stipulated price and the market price at the time of the default; that is between forty-seven and sixty cents. 13 La. 229.

This disposes of the reconventional demand.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment of the Distrct Court be annulled, avoided and reversed; and proceeding to give such judgment as should have been rendered by the Court below,—

It is ordered, adjudged, and decreed that William Pratt, the plaintiff, do recover and have judgment against Thomas R. Craft, the defendant, for the sum of sixteen hundred and seventy-six dollars, and that on the defendant’s reconventional demand there be judgment in favor of the plaintiff and against the defendant. It is further ordered that the defendant pay all costs in both courts.


author: Hyman, C. J.

text:
    No. 1690.
    Succession of Robert K. Kennedy.
    All parties interested in maintaining the judgment of the lower court, must be made parties to' the' appeal, otherwise the appeal will be dismissed.
    Appeal from the District Court, Parish of East Eeliciana, Posey, J.

      John MoYea, for administrator and appellee.

      Cross & Hardee and Race, Foster é E. T. Merrick, for M. Bradford, appellee.

      Kernan, Me Yea <6 Hunter, for opponents and appellants.
   Hyman, C. J.

The administrator of the estate of Robert K. Kennedy-filed a tableau, classifying the debts owing by the estate, (which he terms in his petition an account,) setting forth therein the assets of the estate, and the various claims against it, which were privileged, and which exceeded its assets. He also plead in the tableau various ordinary , claims.

He prayed that he be allowed credit for payments made by him as per vouchers filed, and that he be also allowed to pay the amount yet unpaid as per his account.

He prayed that the account be homologated, etc.

W. W. Chapman, A. Levy, W. H. Letchford, I. Bloom, J. J. Pearson,,, opposed the tableau and its homologation, on the ground that the claims stated to be privileged were not privilege claims. They averred other grounds of opposition.

The Court rendered judgment, decreeing that the claims opposed by the opposing creditors and some other small claims, were privileged, and ordered the administrator to pay them as such, decreeing that on his filing receipts for the payment of these privileged claims he be fully discharged from liability on account of the estate, and also decreeing that the claims of the opponents were ordinary claims.

At the same term of the court in which the judgment was rendered, A. Levy, I. Bloom and J. J. Pearson, obtained by motion an order to appeal from the judgment, and gave bonds in favor of the administrator and others opposing.

A motion has been filed in this court to dismiss the appeal, because all parties interested in maintaining the judgment have not been made parties to the appeal.

No citation of appeal was served, and none was required under the order of appeal.

The appeal bonds, therefore, stand in the place of citation, and the parties to the appeal are only those who gave the bonds and those in whose favor they were given.

The appeal bonds limit and restrict the obligation of the appellants to the administrator of the estate and those who opposed his tableau.

The bonds, therefore, are not in favor of the creditors who have privileged claims placed on the tableau, and who did not oppose it, and they are not parties to the appeal.

They certainly are interested in maintaining the judgment in their favor.

Let the motion be maintained, and let the appeal be dismissed,


author: HowjbedIi, J.

text:
    No. 1152.
    Jacob Barker v. Union Bank of Louisiana.
    AU banking institutions ill Louisiana, organized under the Free Banking Law of 1855, are exempt from, paying interest on their notes in circulation.
    Appeal from the Sixth District Court of New Orleans, Duplantier, J.

      Hunt <£• Denegre, for plaintiff and appellant.

      Bradford¡ Dea & Finney, for defendant and appellee.
   HowjbedIi, J.

The plaintiff has appealed from a judgment which does not allow him five per cent, interest on the bank-notes of the defendant, a banking institution established under the Free Banking law of 1855, page 214.

The claim for interest is resisted, and we think successfully, under the provisions of said Act, which prescribe the mode of making default and the penalty for a refusal on the part of the bank to pay its notes, and which provisions have not been complied with by plaintiff.

The notes of these banking institutions are made currency; they circulate as money and are regulated by the law authorizing their issuance.

They are to be executed and signed “in such a manner as to make them obligatory in law as promissory notes, payable to bearer on demand, and without interest, at the place of business of the company,”

Sections 19 et seq. of the Act 1855 direct the mode in which a demand and protest shall be made, the proceedings to be had, and the penalties to be enforced. The statute, in our opinion, requires a formal protest, and provides that, in lieu of interest, the holder of a note protested shall be entitled to damages at the rate of twelve per cent, per annum. The rights of the holder are governed and limited by this Act; and the notes issued under it, not being “ documents for debts” are not subject to the rules of ordinary promissory obligations, (4 A. 89,) and, consequently, are not subject to the Act to “regulate the rates of interest.” Acts 1850, p. 352.

Without the prescribed formality, the bank could not well know what notes would bear interest, as, after such a demand as was made in this case, the.holder might pass off the note, and make its identification impossible. A bank on a particular day may be unwilling or unable to redeem notes presented, and on the next day may redeem them. A particular mode or system is essential, in this respect, for the protection of both the bank and the note-holders, and when a bank fails in its obligations to a holder of its notes, the latter must conform to the provisions of the statute which directs how the notes shall be issued and redeemed. The Free Banking Act is exceptional, and exempts the notes of the Free Banks from the operation of the Act regulating interest.

Judgment affirmed.


author: InsnEY, J.

text:
    No. 627.
    W. H. Lewis v. E. A. Patterson.
    A party employed as foreman in a job printing office has no privilege on tho job material to secure his wages.
    lío privilege exists in favor of the holder of a promissory note.
    Appeal from the Third District Court of New Orleans, Fellowes, J.

      G. L. Bright, for plaintiff and appellee.

      Whitaker, Fellows & Mills, for defendant and appellant.
   InsnEY, J.

The defendant has appealed from a judgment rendered against him in favor of the plaintiff, for the sum of six hundred and five dollars arid interest, with a lien and privilege to secure the same on all the property and materials in the establishment, known as the Bulletin Job Printing Office,

The plaintiff’s claim was a promissory note, drawn by the defendant for five hundred and twenty-five dollars, and the balance for work done by him as foreman in the job office.

The judgment is correct as to amount, but the law accords to the plaintiff no privilege, even for the work performed by him. 3 An. 128; 17 L. 139; 13 An. 52.

The plaintiff having died since the pendency of the present appeal, his succession, by the representative, is made a party. The judgment rendered by the District Court is reversed, and it is so ordered, adjudged and decreed.

It is further ordered, adjudged and decreed that judgment be and it is hereby rendered in favor of the plaintiff, Wm. H. Lewis, and against the succession of E. A. Patterson and his representative, in the sum of six hundred and five dollars, with interest thereon at the rate of five per cent, per annum on five hundred and twenty-five dollars, from 27th March, 1861, and on the remainder of the amount, from April 9fch, 1861, with costs in the court below; the plaintiff and appellee paying the costs of appeal.


author: Labatjve, J.

text:
    No. 1665.
    William Wells v. Ashford Addison.
    A contract of agency whereby the agent was placed in possession of Confederate treasury notes and ; bonds of the Confederacy (so-called) to invest in the purchase of cotton for the benefit of the principal is illegal, and cannot be enforced.
    Appeal from the District Court, Parish of St. Helena, Ellis, J.

      J. E. Wilson, for plaintiff and appellant.

      Me Vea & Hunter and E. J. Ellis, for defendant and appellee.
   Labatjve, J.

This is an action brought by the plaintiff to recover of defendant forty-five bales of cotton, averaging 100 pounds to the bale, or in lieu thereof, its value, ten thousand dollars, ($10,000) with legal interest for this, to-wit: that he placed in the hands of Ashford Addison two Confederate States treasury bonds for the sum of $1,000 each, and bearing eight per cent, interest; and also the sum of $1,795 in Confederate States treasury notes, which notes, at that time and long since, were a circulating medium of the country, which, by the request and agreement of the said Addison, were to be by him invested for the use and benefit of your petitioner, in cotton at thirty cents per pound in the lint, and delivered to your petitioner in good marketable order. Also, said Addison received from your petitioner, bagging, rope, twine and baling needles, to the amount in the aggregate of $1,217 10; also, received from petitioner one barrel flour, at $30, and one pair boots at $25; and also the further sum of $300 in cash, which said Addison promised to invest for petitioner in cotton at thirty cents per pound, which would make in the aggregate, forty-five bales averagine 100 pounds each.

This demand is met by the defendant with a general denial. He admits that plaintiff deposited with him two Confederate States treasury bonds of the denomination of $1,000 each, for investment in cotton, He denies that he ever invested in cotton the Confederate States treasury notes which the plaintiff deposited with him; admits that plaintiff furnished him with one barrel of flour and a pair of boots, but avers that he was only to chai-ge the flour at $12, and that the boots were a gift in consideratign of services rendered by him to plaintiff; admits that he received from plaintiff, as his agent and friend, some bagging and rope; but denies that it was worth the price charged in plaintiff’s account. Defendant then assumes the character of reconvenor, and alleges that the plaintiff is indebted to him in the sum of $1,310 50, which reconventional demand was dismissed on his own motion.

Defendant also filed, to-wit, on the 5th day of November, 1867, what he termed his peremptory exception, founded in law, as a perpetual bar to plaintiff’s action, to-wit: “That all of the matters and claims set out in plaintiff’s petition, arose out of blockade-running transactions, in violation of the positive law prohibiting all commercial intercourse between citizens of the United States and the so-called Confederate States, said plaintiff having been a citizen of the United States at the date of the account sued upon, and the defendant, a citizen of the Confederate States, and said plaintiff, a blockade-runner.”

This case was submitted to a jury, who found a verdict for defendant, and rejected plaintiff’s demand; and a motion for a new trial having been overruled, the Court gave judgment accordingly, and the plaintiff appealed.

Under Art. 2956, Civil Code, reading thus:

“ The object of the mandate must be lawful, and the power conferred must be one which the principal himself has a right to exercise,” we are satisfied that we cannot entertain the plaintiff’s action to compel the defendant to render an account of his agency, in buying cotton for the plaintiff with Confederate papers, as described in the petition; the object of this agency was unlawful and against the policy of the government, in giving currency and circulation to such papers which were issued to overthrow this government.

On the face of the petition, the action is founded upon this agency, and we cannot compel the defendant to account to his principal without giving effect to and recognizing this agency. That branch of the case is dismissed.

As to the account sued upon, composed of ropes, bagging, twine, baling needles, cash, flour and boots, amounting to $1,602 40, we see no illegality in that transaction; both parties resided outside of the Federal lines, and could act together;- but, on examining the testimony, we believe that plaintiff failed to make out a clear case, and that justice requires the remanding of that branch of the demand, to be tried according to'law.

, It is therefore ordered and decreed that the judgment be reversed, as regards the said account of $1,602 40, and that as amended, it be affirmed. It-is further adjudged that the said claim, founded on the account for $1,602 40, be remanded for a new trial, and that defendant pay costs of


text:
    No. 1085.

    A. B. James v. Moses Greenwood.
    The putting in default of a depositary is a preiequisite to enable the depositor to recover where the thing deposited has been lost or destroyed.
    Where an agent or mandatary, or person having property on deposit at a lime when he is not menaced by any overpowering force, allows the property to be taken from his possession without the consent or authority of the owner, he becomes responsible therefor, and the putting him in default is unnecessary.
    Appeal from the Sixth District Court of New Orleans, Buplantier, J.

      P. H. Morgan, for plaintiff and appellant.

      Bradford, Lea & Finney, for defendant and appellee.
   Howell, J.

On 26th April, 1861, one R. B. Griffin gave to A. B. James & Oo., the following order:

“New Orleans, April 26th, 1861.

Moses Greenwood, Esq.:

Please deliver to the order of A. B. James & Oo., twenty-two bales of cotton in your hands belonging to me; and also, transfer to their order bill of 'ading for ten bales cotton, .more or less, that will be consigned to you by me, which are not yet arrived. The last ten bales on-

(Signed) R. B. Gbieein,

per A. Gordon.”

Across the face of this is the following:

“This cotton or proceeds shall be delivered or paid to A. B. James & Oo.

(Signed) Moses Greenwood.”

“ April 27, 1861.”

It is alleged that the defendant subsequently received twelve other bales of cotton belonging to said R. B. Griffin; but that he has failed to deliver any of the cotton or proceeds according to said agreement; that it was all shipped to England, and there sold for account of defendant, and worth at the time four thousand dollars, which he refuses to pay, though amicably demanded.

On the 1st May, 1861, one N. S. Williams gave to the said A. B. James & Oo. the following draft:

“ Lewisburg, Arkansas, May 1, 1861.

Mr. Greenwood:

Please pay to A. B. James & Oo. one thousand dollars at ten days after sight, and charge to account of your obedient servant.

(Signed! N. S. Williams,”

Upon its presentation, Greenwood replied as follows:

“ New Orleans, May 9, 1861.

Messrs. A. B. James & Co., present:

Bear Sirs — The draft of N. S. Williams in your favor, at ten days’ sight for 11,000, will not he accepted.

“ Mr. Williams has in my hands 22 bales cotton, on which I have advanced, say $150; there is also the freight, river and fire insurance, and the charges of drayage, storage, sampling, weighing and commissions. I will deliver the cotton to be shipped to Liverpool for Mr. Williams’ account, you paying me the above advances and expenses, or I will ship it to Liverpool, you having proceeds, less my account, etc.

The 12 bales for R. B. Griffin will also be delivered to you if desirous. Please let me know your decision, and oblige, Yours, &c.

(Signed) Moses Greenwood.”

It is alleged that the latter portion of the above proposition was accepted, and the 22 bales left in the hands of defendant to be shipped accordingly, which was done, and that the proceeds thereof amount to three thousand five hundred dollars, which defendant refuses to pay, although amicably demanded; and plaintiff, as receiver, asks judgment for the two sums, amounting to $7,500.

The defendant denies all liability, as charged, and avers that at the time the Ch-iffin order was presented, he had in his possession only 13 bales, (one of which was badly damaged) to which said order could refer; that he had then shipped 9 bales to Liverpool, and on 29ih May received 6 bales, making in all 28 bales covered by said order; that he has rendered full account of the 9 bales shipped to Liverpool, and repeatedly offered to deliver the remaining 19 bales to A. B. James & Co., who declined and neglected to receive the same; that in consequence of the blockade of the port of New Orleans in 1861, it became impossible for him to sell or ship said cotton, which remained on storage until the-day of April, 1862, when, without his fault, it was destroyed by the military authorities having control of this city; that as respects the Williams draft, he refused to accept it, but offered to transfer to James & Co., or ship for their account, 22 bales of the drawer’s cotton on certain conditions, which alternative offer was refused; and that in consequence of the blockade he was unable to ship or sell the same, and it was likewise destroyed as the Griffin cotton was. In a supplemental answer, he admitted owing the plaintiff (receiver) $490 93 proceeds, with interest, of the 9 bales Griffin cotton shipped to Liverpool, and also having $20 48 to the credit of Williams, which, though not bound so to do, he is willing to pay to plaintiff, and deposited said sums in court. • -

The District Judge gave judgment in favor of plaintiff for the sums deposited, and condemned him to pay costs after date of deposit, from which he appealed.

It will be perceived that the defendant is charged with having shipped to England, and sold for his own account the cotton in the Griffin order, and with having shipped the Williams cotton for account of Jamos & Co.; which he says, that at the date of the first order, he had already shipped 9 bales of the Griffin cotton to Liverpool, for which he accounts, and that he offered to deliver the balance, comprised in both demands; that neither of his offers, in regard to the Williams cotton, was accepted; and that in consequence of the blockade of this port he could neither ship nor sell any of said cotton, and it was burned without his fault.

The evidence satisfies us that the 9 bales were shipped as alleged, and that the balance of the cotton, except a few bales, was taken from the press, without defendant’s consent, and destroyed by lawless men, upon the approach to this city of the Federal fleet, in April, 1862; but it is difficult, from the peculiar pleadings and the conflicting testimony upon the question of a default, to determine who must bear the loss.

Plaintiff’s clerk ‘fies that the defendant agreed to ship the cotton to Liverpool for account of plaintiff; that he called frequently on defendant in regard to it, and was answered that the returns of sales had not been received from England, and that in these interviews no particular1 cottgn was specified, ho being under the conviction that the cotton fig spoke of was the Williams and the Griffin cotton. While the defendant’s clerk testifies that the answers to the former witness, who merely inquired about the matter of Williams and Griffin, referred to the -cotton which had been shipped, and that the said witness was informed that the balance, not shipped, was at plaintiff’s disposal.

In this conflict of testimony, we must be guided by the opinion of the lower Judge, who had the witnesses before him, saw their manner of testifying, and was better able than we are to give just weight to, their respective statements. And he, it seems, gave greater creditto defendant’s witness, and relieved the defendant from responsibility. We are sustained in this course by the rúle, that the plaintiff must make his case clear. The facts in this case raise the presumption that his witness was mistaken.

And under this state of facts the defendant must be viewed as a depositary of the cotton in his possession, and it was the duty of the plaintiff to put him in default, of which there is no satisfactory proof, the demand shown having reference only to the returns of the cotton that had been shipped.

We do not construe the defendant’s answer, as admitting necessarily that he agreed to sell or ship.as charged, but in the light of the evidence, as accounting for the cotton being exposed -to destruction after such a lapse of time, the plaintiff having neglected to demand or receive the delivery, and the port having been closed, it became impossible for him (defendant) to dispose of it.

It appears, however, from the testimony of the proprietor of the Louisiana Ootton Press, that the defendant gave an order for-the delivery of sixty bales to a Confederate gun-boat, and among that number were eight bales of the cotton now in controversy, and which were not destroyed as set out in the answer; for this occurred in September, .1861, prior to the transfer of his cotton from said press to Terrill’s press, from which latter press the cotton was taken and destroyed in April, 1862. There is nothing in the record which excuses the defendant for making this disposition of the cotton or explains the object thereof, and he cannot be protected by the supposition that had he not delivered it to the gun-boat, it would have been burned with the other. This was a voluntary act, in violation of his obligation as depositary or agent, and his responsibility attached before any overpowering force was used as to the other cotton.

Upon the evidence before us, we estimate those eight bales to be worth $441 60, which, added to the two sums allowed in the lower court, makes the sum of $953 01 to which plaintiff is entitled.

It is therefore ordered that the judgment appealed from be reversed, and that plaintiff, as receiver, recover of defendant, Moses Greenwood, the sum of $953 01, with legal interest from judicial demand, and costs in both courts, subject to a credit of $511 41 on 18th April, 1866.


author: Labaove, J.

text:
    No. 1620.
    Wm. H. Wells v. The City of New Orleans.
    Where under the law a corporation is exempt from giving bond in all judicial proceedings to which she is a party no appeal will lie from an interlocutory decree dissolving an injunction withoutbond.
    An injunction against the City of New Orleans may be dissolved on motion without bond. The statute exempting the City from giving bond in all judicial proceedings to which she is a party i« general, and applies to the dissolution of injunctions.
    PPEAL from the Sixth District Court of New Orleans, Buplaniier, J.

      Sambola & Buoros, for plaintiff and appellant.

      J. B. Augustin, for Pomeroy & Co., appellees.

      A. M. Buchanan, City Attorney, for City.
   Labaove, J.

This is an appeal taken by plaintiff from an interlocutory judgment, and the first question raised is, whether or not an appeal lies.

The plaintiff alleges that the defendant had sold or leased to him the collection of the revenues on stands and stalls to be erected by him on a certain space of ground, from the 1st August, 1866, to the 31st December, 1867, for $27,250. That pursuant to his agreement, he has put up stands and stalls at an expense of upward, $6,000, and that the defendant is bound to indemnify him for the same, and that he is entitled to keep possession until indemnified. That the Mayor of the City has threatened to dispossess petitioner by violence, and ordered Waldo to collect the revenues of said stalls.

He prays that the City and its officers be enj'oined from molesting - petitioner in his possession of said stalls and stands.

An injunction was accordingly granted.

On motion of defendant’s attorney, and on suggesting to the Court that the injunction granted herein is depriving the City of a revenue of about $97 a day, and that the provisional dissolution of the same, cannot work an irreparable injury to the plaintiff, it was ordered that the injunction herein granted be provisionally dissolved without bond and security being given, the City being dispensed by law from giving judicial bonds.

From that order or judgment, plaintiff appealed, on the ground that the Court erred in dispensing the City from giving bond, and that said order, even if granted on giving bond, inflicts upon plaintiff an irreparable injury.

This injunction was dissolved under the dispositions of Art. 307 C. P:

“Whenever the act, prohibited by the injunction, is not such as may work an irreparable injury to the jplaintiff the Court may, in their discretion, dissolve the same, provided the defendant execute his obligation in favor of plaintiff.”-- * * *

This article provides that this bond is given as a guaranty that the defendant will deliver the property in the same state it was in at the issuing of the injunction, and pay, besides, all damages sustained.

Therefore, if the defendant was bound in law to give a bond, the judgment of the Court, dispensing the City from, giving such a bond, might work an irreparable injury, and an appeal would lie; but the law provides:

“ That in all judicial proceedings where, by law, bond and security is required from litigants, the City of New Orleans shall be dispensed from furnishing bond or security.” Acts of 1856, p. 166, sec. 131.

This law is clear and general, and makes no distinction. Ubi lex non destínguü, nee nos distinguere debemus. This is certainly a judicial proceeding.

We consider the case as if a bond had been duly given; therefore, no irreparable injury can result in this case, for the want of security.

In other respects, we do not see that the judgment appeal from, can work an irreparable injury to the plaintiff. We cannot entertain the appeal. Art. 307 O. P; Jure v. First Municipality of New Orleans, ,2 A. 321.

Appeal dismissed, at appellant’s costs.


text:
    No. 1621.
    Mary Jane Wallace v. Hamilton McCullough, her husband
    Tlie wife’s mortgage on the property of her husband, to secure the payment of her paraphernal funds which have come into his hands, dates from tlie time the husband receives the funds.
    The wife has the right at all times to resume the administration of her paraphernal estate, and ,the husband is not responsible to her for failing to colleot funds or assets belonging to her during his administration of her affairs, she could at any time! resume the administration* arid protect herself. ,
    The wife must bear the loss which she sustains by failing to enforce her legal rights.
    A 1i. PPEAL from the District Court, Parish of Tensas, Farrar, J.

      Aroni & Collier, for plaintiff and appellee.

      B. Lewis, for H. McCullough.

      Farrar & Beeves, for intervenors and appellants.
   Hyman, C. J.

Plaintiff sued to have judgment of separation of property from Hamilton McCullough, her husband, to recover from him. $19,701 45, alleged by her to be the amount received by him of her paraphernal funds, and to have recognized and enforced her legal mortgage on all his property to secure the payment of said amount with interest,' which she alleged attached in 1851.

Martha Brannin, as tutrix of the minor children of J. W. Brannin, deceased, who are creditors of the defendant, intervened in .this suit, denied the allegations of the plaintiff, and prayed that her demand might be rejected.

The judgment of the Court was, that plaintiff resume the administration of her estate; that the community between her and defendant be dissolved; that she recover from him $13,155 25, with legal interest from the date of the judgment; that her legal mortgage be recognized to take effect from 1st January, 1851; that it be enforced; that all the property of defendant be seized and sold to satisfy his wife’s claim, and that the intervention be dismissed at the intervenor’s costs.

From the judgment the intervenor has appealed.

There being full proof that defendant is not able to pay his debts, the only questions raised by the parties in this Court are as to the amount of the wife’s claim, and as to the time when her mortgage attached.1

The evidence relied on by the parties, was taken down in a very loose manner, but it is established that, between 1st January, 1851, and 1st January, 1853, defendant received $10,000 of bis wife’s paraphernal funds. With such evidence, we can only know that, on the 31st December, 1852, the husband bad received $10,000 of his wife’s paraphernal funds, and we cannot ascertain, by this evidence, that any exact sum was received by him before that date.

It also, appears from the evidence that an amount of $3,155 25 was lost to plaintiff 'by the failure of defendant’s father, against whom plaintiff had a judgment, and it is contended by her that defendant is bound to her for that amount.

There being no evidence of hinderance by the husband to the wife’s administration of her paraphernal property, we cannot so conclude.

She was unobstructed in the exercise of her paraphernal rights, and should have enforced them.

The loss resulting from the non-enforcement of them must be borne by her.

It is orderded, that that part of the judgment appealed which dismisses the intervention and condemns the intervenor to pay the costs of intervention, be reversed. It is futher ordered that so much of said judgment as grants the plaintiff a mortgage on all of defendant’s property for $13,155 25, with interest to date from the 1st of January, 1851, and orders the seizure and sale of said property, be reversed as to intervenor, and it is decreed, as to her, that the wife’s mortgage on all the immovable property of defendant be recognized from the 31st of December, 1852, for the sum of. ten. thousand dollars only, with legal interest from the 19th day of October, 1866, and as such, let it be enforced.

The intervenor to pay costs of intervention in the lower court. The costs of appeal to be borne by plaintiff.


text:
    No. 866.
    The New Orleans Mutual Insurance Co. v. The New Orleans, Jackson and Great Northern Railroad Company.
    The New Orleans, Jackson and Great Northern Railroad took on the cars at Osyka, Miss., 57 bales of cotton, for which they gave a bill of lading of the following tenor: Received in good order and well conditioned to be transported to New Orleans, but it does not insure against risk by fire. The cotton took fire on the train and was entirely consumed. The New Orleans Mutual Insurance , Co pay the owners for the cotton $160 per bale, and sue the railroad company as common carrier, and base their right to recover on the ground that the fire and destruction of the cotton occurred through the fault and negligence of the railroad company and their employes: Meld — 'That inasmuch as the railroad company specially excepted the risk of fire, and it not being shown by the insurance company that the fire occurred through the fault or negligence of the company, the insurance company cannot recover.
    The common .carrier is bound for ordinary negligence, notwithstanding the special agreement excluding risk for fire.
    Appeal from tbe Fourth District Oourt of New Orleans, Théard, J.

      Bradford, Lea & Finney, for plaintiffs and appellants.

      Campbell,

      Spofford & Campbell, and Hays & Adams, for defendants and appellees.
   Ilsley, J.

This is a suit to recover the value of fifty-seven bales of .cotton, received for transportation at Osyka, Miss., on the 18th August, 1855, consigned to Cutrer and Harrison, at New Orleans, insured by the plaintiffs, destroyed by fire about nine miles above New Orleans, and paid for by the plaintiffs, in consequence of the insurance undertaken by them.

The plaintiffs insured the cotton for the consignees, at $160 per bale, paid them the full amount insured, and claim to be subrogated to their rights and claims against the railroad company.

The bill of lading acknowledges the receipt of the cotton “in good order and •well-conditioned,” but it does not insure against risk by fire, which is thereby expressly excluded; and in order to fix liability for the loss upon the defendant, the plaintiffs charge the railroad company with “press fault, negligence and mismanagement.”

From a judgment in the lower court in favor of the defendant, the plaintiff has appealed. ;

The American authorities maintain the right of the common carrier to restrict his liability by special contract. Angelí on Carriers, 220, sec. 59, and notes; 6 How. 382; and this Court recognizes the same doctrine in Roberts v. Riley, 15 A. 103.

But the carrier, notwithstanding a special agreement, is liable for losses and injuries occasioned not only by gross but by ordinary negligence; or in other words, the carrier is bound to ordinary diligence. Thomas v. Ship Morning Glory, etc., 13 A. 269. 16 How. 474; 31 Maine Rep. 223.

The plaintiff, having proved the loss of the cotton, it devolved on the defendant to show that it was occasioned by one of the exceptional perils, and this being established, the burden of proof was on the shipper to prove that the carrier was guilty of negligence, and might with due care have prevented the loss. 10 A. 413. 13 A. 270.

The plaintiff attributes the destruction of the cotton to the fault and negligence of the railroad company and its employ és — in this, that it did not provide a suitable and sufficient vehicle to transport the cotton, the one furnished for that purpose being an open flat, by no means adapted to that kind of freight. Cotton being, as he says, one of the most inflammable materials in nature, and exposed to kindle from sparks; that no means were at hand when the cotton was burnt to prevent or arrest the fire. No buckets, with water in them or empty; not a drop of water for that purpose; no watchman on the train; and that no attempt was made to throw off the burning bales to save the rest. This is the plaintiff’s case.

The defendant shows contrarily: that to the knowledge of the shipper, the company was in the habit of carrying, cotton on fiats; probably, because it is safer for the whole train than any other; that the shipper was present when the cotton was shipped on the flat; that there were buckets on the train, but that it was impossible on a road so rough, as the defendant’s was, to carry water in them.

The nearest water to the spot where the fire occurred, was half ' á mile off — unless water had been taken from the tank, which supplied the engine — that being the only tank which is used on railroad trains. ' If water could have been spared from that, which is not shown, it was at -a distance of 300 feet from the burning car, and could not have - been used effectually to arrest the flames, which made rapid progress, as everything was “ so dry, with a strong wind blowing. ”

The employés attempted to smother the flames with branches, but ineffectually; and all they could do was to separate the train, by which means they prevented the fire from communicating-to any other part of it. ■

The bagging was worn and torn off at the ends, as is proved in the record, although ip the bill of lading it was inserted. being in good order and condition. This exposed it to ignition from sparks or otherwise. In the case of Oakey & Hawkins v. Gordon, 7 A. 235, one of an excepted risk by fire, and the destruction of cotton on a railroad, ignited, by sparks from a locomotive, it was held that the proprietors of the railroad were,not liable for such a loss.. “The transportation,” said the Court, “partly by steamer and partly by railway, was within the usages of trade. It is reasonable to believe it was in contemplation ,of the parties, and it might be inferred from the evidence that the greater risk of fire on the' railway was the cause of the exception in the bill of lading;” and if the loss happened through the negligence of the owner] in shipping his cottofi'so as to expose it to loss from fire, he could not recover, even if the, carrier was to ' blame.' Redfield on Railways, 26?. Angelí on Carriers, page 57.

■‘This, and ' the , shipper’s implied acquiescence, in the mode used to transport his cotton, brings his case within the principle recognized in 4 La. 211; 9 La. 33; and 2 A. 587, against which'the authority cited from 16 A.'223] does not militate; as in that'case, the owner of the cattle did. all he could to fender the only'means of transportation at the moment available, a safe one; and lost the 'cattle shipped by hind by the wilful obstin'ancy, fault and carelessness of the carrier, who acted, not in accordance'with, but'Contrary 'to, tile wishes of tlie shipper.

Although the' defendant, notwithstanding the special agreement, excluding risk froffi'fire,' was bound for ordinary negligence, he may well invoke’ the maxim' lex neminem cogü ad'vana sen impossibilia.. If no water cóüld be procured, it was unimportant what number of buckets on that occasion were on the cars, or what was the condition of those' on board. The only means at hand was to" smother the fiámes, which was attempted, bpt ineffectually.

¿The bales of .cotton¡burning on the flat were not thrown off it, because oydug. to,;the,r,apidprogress of the fire, it could not be done, as the evidence.proves,.......

Thq mornenj; was 9- critical,-one, and the attention.of every one was naturally; directed,tq the, cars jn, the .front and rear,of the burning ,car, to sever tfie train so as to prevent the fire communicating either way, was the first consideration.

,ilothing,.p9qld,haYe been done to .save .the burning car and its freight, as .th.ey;were,,.,evidently ,,doomed, to,..destruction from the moment the inflammable matter, in the car was ignited; and no diligence on the part of, the,,.carriers cojilcl, have rescued the property from destruction.; 12 A. 400.

The . happened by ,a eas. fortu.it, an accidental fire, which was unavoidable.-,

]CTq,.fault,,negligence,, carelessness or,mismanagement can be properly attyibuted.-to.the,railroad company. 7 R. 251.

The .Judge-of, the; Court below sustained his judgment by lucid re'asons]'and forthese reasons and those now given by us:

.Ttus .ordered, adjudged and decreed that the judgment of the District Court he and- the same is hereby affirmed, the cqgts of appeal to be paid, by the appellant^'


text:
    No. 1120.
    Mrs. S. A. Silliven, Wife of Charles Gayarré, v. Bellocq, Noblom & Co.
    The sheriff is bound to pay over to the judgment creditor the money collected on a writ of fieri facias He has the right to retain out of the amount the fees and charges allowed by law.
    Appeal from the Fourth District Court of New Orleans, Théard, J.

      Elmore & King, for plaintiff and appellant.

      A. &. M. Voorhies, for defendants and appellees.
   Howell, J.

The plaintiff has appealed from a judgment on a rule taken by her on the late sheriff, C. Bienvenu, for not paying to her funds in his hands made on a fieri facias, issued in this case. The sum in his hands is $1,491, and his bill of costs and charges amounts to $1,498 41, a large number of the items of which are either unauthorized or not .in conformity with the “fee-bill;” but plaintiff has limited her opposition in this court to the following items, to-wit:

Storage.................................................... $ 30 00

Expenses at sale, delivery, etc.............................. 9 75

Keeping from December 13, 1865, to April 10,1866,119 days, at $6 per day, 3 keepers................................... 714 00

Keeping, April 10, 1866, to April 17, 1866, at $4 per day...... 28 00

Dray age..........................................."........ 25 00

Removing furniture.........................................50 00

Labor....................................... 33 00

Taking down gas fixtures................................... 15 00

Clerk’s fees, No..15,728, Fourth District Court............... 12 50

Clerk’s fees, No. 9,961, Sixth District Court.................. 71 95

Amounting to.......................................... $ 989 2Ó

It is shown that the movables in the charge of the keepers were at three different places, the residences of the three defendants; that three keepers were paid the sum of $546, and that the property was then removed to the sheriff’s warehouse, by which the other charges were incurred. Why the property — household movables — should have been so long in the charge of keepers, and’ then put in. a warehouse, is not explained.

The Code of Practice, Art. 659, makes, it the duty of the sheriff to put movables in a place of safety, under the penalty of being responsible for loss or injury, resulting from his fault or neglect; and the fee-bill (acts 1855, p. 162, ji 12) allows a compensation for keeping personal property at the discretion of the Court.

Safety of the property from loss or injury, and a fair compensation only for effecting this are contemplated, and reasonable expenses necessary for this purpose only should be allowed. Counsel for plaintiff, in argument, admitted that the' items of storage $30, and drayage .$25, might be properly allowed; but in the evidence before us, we see no justification for the items, expenses at sale, ‘removing furniture,’ ‘labor,’ and ‘ taking down gas fixtures.’ We find in the note of evidence, that the fees of the clerk of -this court (the Fourth) are not objected to; hence the item, clerk’s fees, $12 50, must be admitted. Wo have no means of testing the correctness of the clerk’s fees in the Sixth District Court, even if they could be allowed out of this fund. One witness states that $2 per day is the vsual charge for keeping; and there is proof that the sheriff paid $546 for the keeping in this case — nearly $200 less than he has charged. We think the sum paid may be reimbursed; there is no evidence to warrant a reduction; which makes the sum of $375 70 to be paid to plaintiff.

It is therefore ordered that the judgment appealed from be reversed, and it is now ordered that the rule herein taken on 19th June, 1866, be made absolute so far as to order the late sheriff, C. Bienvenu, to pay over to the plaintiff the sum of $375 70 retained by him as costs, and that he pay the costs of this proceeding in both courts.


author: Labauve, J.

text:
    No. 1124.
    Virginia Draper and W. P. Draper v. Augustus Richards.
    Evidence received without objection, and admissions made in the record, must have their weight, although unauthorized by the pleadings.
    Aparty in possession of household furniture belonging to another, may relieve himself from paying their estimated value by delivering the articles to the owner.
    Appeal from the Sixth District Court of New Orleans, Buplantier, J.

      Carleton Hunt, for plaintiffs and appellants.

      J. H. New, for defendant and appellee.
   Labauve, J.

The plaintiffs claim of the defendant the possession of household furniture, or the value thereof, $1,000. On bringing the suit, the furniture was sequestered. .

The defendant answered by pleading a general denial.

Judgment was rendered below in favor of the defendant, and the plaintiffs took this appeal.

On the trial of the case below, defendant offered a witness to prove that a portion, of the property in dispute belonged to him; the plaintiffs objected, on the ground that, under the general issue, such proof could not be received; the Court sustained the objection, and a bill was reserved. The Court did not err. The rule is well settled that a party cannot prove what he has not alleged. The case of Well v. St. Dizier, 9 A. 120, is exactly in point.

The defendant then moved to amend his answer so as to claim the ownership of a portion of the property; the motion was refused, and the ruling of the Court excepted to. The Court, did not err. The case was on trial, and the bill of exceptions shows that testimony had already been received, and- plaintiffs were presumed not to be prepared to meet this new defence; the motion was too late.

The testimony, which is very voluminous, shows that the furniture was in possession of plantiff, Virginia H. Draper, as owner, for many years, and that such furniture was worth $1,000.

The defendant offered in evidence the mortuary proceedings in the succession of Charles Myers, opened in 1853. The plaintiff objected to the evidence, on the ground that it was irrelevant, and unauthorized by the pleadings. It was admitted, and a bill of exceptions taken; which we consider abandoned in this Court, our attention not having been called to it. That evidence is then before us, together with the following admissions: That the plaintiff Virginia Draper was duly qualified administratrix of her deceased husband’s succession, and that she was the widow in community of said Charles Myers. Many articles of furniture found in the inventory of said succession answer the description of some of those claimed in the petition. ,

It was contended in argument, that all the objects claimed by the plaintiff, belong to said succession, and cannot be recovered in this suit, as plaintiff claims as owner. The evidence being received, and the admissions being made, although not authorized by the, pleadings, must have their effect. 11 M. 26; 12 M. 2I2;,6.N. S. 86; 1 L, 301;;18'L- 321; 9 A. 251. It is then clear that the plaintiff, Virginia Draper, is owner of one undivided half of said'furniture as belonging to the community which existed between her and her said deceased husband, and that as such, she has the right to recover against the defendant, who has no title, and is an usurper; she has also the same right as administratrix. A great majority of the witnesses proved the furniture to be worth $1,000; some proved it to be worth, a good deal under, but the defendant can relieve himself from the payment of the value, by delivering the articles.

We are therefore of opinion, that plaintiff, Virginia Draper, has made out her case, and that the judgment appealed from is erroneous.

It is therefore ordered and decreed that the judgment of the District Court, be annulled and reversed. It is further ordered and decreed that the articles of furniture described and claimed by said plaintiff, be restored and delivered by said defendant to said plaintiff, and that in default thereof, the said Angustus Richards pay to said plaintiff, 'be sum of one thousand dollars, with legal interest from his failure to do so, and costs in both courts.


author: InsiiEY, J.

text:
    No. 587.
    Mrs. Olympe Boisse, wife, v. George Hederick.
    Ajudmentof the lower court can only be amended in the appellate court in favor of appellants or appellees; it cannot be amended between appellees.
    Appeal from the Sixth District Court of New Orleans, Leaumont, J.

      J. O. Wallace, for plaintiff.

      McOay & Luzenberg, for Campbell.
   InsiiEY, J.

The facts of this petitory action, which the record discloses, are these:

The plaintiff purchased, on the 17th January, 1855, from Robert M. McAlpin, the lot of ground described in her petition, and designated on the plan of E. Surgi as the lot number one, of the square, comprised within Laurent, Josephine, White and St. Andrew streets, being the same property which McAlpin, on the 30th August, 1810, purchased from George Pritchard.

The defendant was in possession of the lot at the inception of this suit.

He sets up title to it under a sale made to him on the 21st August, 1857, by Henry Doll, whom he calls in warranty, and his vendor calls in warranty his author, D. W. C. Campbell, who in turn cites his warantors,- the plaintiff and defendant in the suit of Fanning v. Purcell, Campbell having acquired it at a constable’s sale made therein.

The property described in the several conveyances is not tho lot one claimed by the plaintiff, but the lot number seven in the square No. 261, in the Fourth District of the city, as per plan of J, A. Puejo.

The plans of Surgí and Puejo represent separate halves of the same square, so that lot number one of Surgi’s plan, cannot figure in Puejo’s plan.

The title and ownership of the lot one, to and in the plantiff, is clearly established.

There was judgment in the lower court for the plaintiff for lot number one claimed by her, with .the improvements, but she was condemned, at the same time, to pay the defendant, Hederick, the sum of three hundred and ten dollars, and Henry Doll, two hundred dollars, for improvements, placed by them on her property. It was also decreed that the sales from Doll to Hederick and from Campbell to Doll, not of lot number one, but of lot number seven, which was not in controversy, be declared void, and that the prices respectively paid by each of the vendees be returned to him by his vendor, and from this judgment D. W. C. Campbell alone appealed.

As Campbell warranted the title to lot number seven sold by him, and not to lot number one, no action of warranty in this case lay against him; and he is therefore entitled to relief; but we can only amend the judgment as to him, as the other parties are all appellees and not appellants. 15 An. 433, 448; 16 An. 193; 17 An. 263.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be so amended as to strike from it so much thereof as annuls the sale of lot number seven from D. W. C. Campbell to Henry Doll; also, that part of it which condemns Campell to refund Henry Doll the sum of four hundred . dollars, the price of the lot paid to Campbell, with legal interest from judicial demand; and also, that part of it which condemned him to pay one half of the costs of suit; and it is further ordered that the costs of appeal be paid by Henry Doll, who called D. W. C. Campbell in warranty.


author: Insi/EX, J,

text:
    No. 1600.
    Widow R. Lecoul v. The Police Jury of the Parish of St. James.
    Private properly oan only be expropriated when it is necessary for the public use. The Question whether the property sougtib to be expropriated is necessary for the puolic use or convenience, must he Judicially determined.
    Appeal from the District Court, Parish of St. James, Beauvais, J.

      A. Roman and Johnson & Dennis, for plaintiff and appellant.

      P. P. Poché, for defendants and appellees.--;
   Insi/EX, J,

This is an action instituted under the provisions of the 3d section of the act of the Legislature of the 12th March, 1818.

The police jury of the parish of St. James, having decreed the opening of a public road through the plantation of the plaintiff, she applied to the District Court of that parish for an injunction to restrain the execution of the decree, on the ground that she is aggrieved by it, both with respect to the course of the road across her lands, and the assessment of the damages.

The petition avers that for the last sixteen years there has existed a public road, laid out under the authority of the State, to serve precisely the same purposes, and connect the same points as the road now projected and here complained of; that that road and the soil on which it runs belong to the parish; that it is shorter and more direct than the’one proposed, and that if it is in bad condition, it is because 'hothihg’Fait'* ever been done by the parish authorities to keep it in repair; that with proper repairs it may be made sufficient for all the wants of the public. She, therefore, concludes, that in the premises there is no such ground o| necessity for the public good as to justify the 1 forced expropriation of her property in the way proposed, and that the proceedings of the police jury are uncalled for, and as to her oppressive.

The answer claims for the police jury the right to open as many roads as their wisdom may dictate, ahd the public wants reqüiré. It then goes on to join issue with the plaintiff upon the very question of the sufííjiency of the State road for the wants of the public, and of the existence of such a necessity for the public good, as to call for a new forced exprópriation for another road.

By our law, property is an absolute right, and the action of the owner of particular property over it is such as is nobly expressive by the 'terpijs of the Roman law: 8ui quisque rei moderator et arbiter. Hó can usé and even abuse it: utendi el abutendi. The only restriction to that right, growing out of the first law of society, being that the owner of particular property may be divested of it, when it becomes necessary for purposes of public utility; but when such expropriation is made improperly and., illegally, to the injury of the owner, he has his legal redress, and this remedy, under the Constitution and the laws, the plaintiff now invokes.’

The only question involved'in this controversy,1 add'‘there can be ho other, except the one of indemnification, which it is unnecessary to pass' upon, is whether the expropriation of the plaintiff’s property is necessary for the general utility.

In order to elucidate this Question, a mass ’of testimony was adduced on both sides, and heard without objection; and the Court below, upon the issues raised and the proof, rendered a decision adverse to the plaintiff, which, after a careful consideration, of the facts and.the law, we;are unable to affirm.

We have already stated upon what principle the compulsory transfer of private property is justifiable for purposes of püblic. utility:, it ig only when it becomes necessary, and when it is resisted, it is so judicially determined. See Constitution of 1864, Arts. 109 and 110; Tit. 7, Arts. 489-2604, C. C.; Toullier, vol. 3, p. 173, l 264.

The contingency to warrant such expropriation must be evident and imperious, as the law decrees property too sacred and inviolable to'sanction the expropriation of it, except it be necessary for public purposes. , ,

As to such necessity, Toullier, vol. 3, p. 170, $ 258, comnienting on Art. 545 of the Napoleon Code, taken in connection with the law‘of March, 1810, while reflecting upon the special provisions of that law, lays down generally a sensible doctrine, which, in our mode of proceeding in oases like this, our courts should sanction as conclusive to the maintenance of private rights, so far as they can be upheld with’a due regard to the public wants. That author observes:

“Mais iei commence, pour les propriétaires, l’exercice des droits pro-pres a les garantir, soit du despotisme des gens de l’art, soit des décisions irréfléchies ou injustes de l’autorité mSme.

*********** lis peuvent soutenir que l’exécution de cette ordonnanee ne rend pas nécessaire la cession de leurs fonds; qu’il serait plus expédient et moins cohteux de passer ailleurs que sur leurs héritages; que sur la direction projetée par ménagement ou complaisance pour les Uns, dégénérerait en vexations pour les autres.

“Ufautdonc que les particuliers soient mis en état de faire de ces moyens, et des' autres qui peuvent se présenter, l’objet d’une discussion légitime, afin d’éclairer l’administration, avant d’appliquerl’expropriation a leurs propriétés.

“Cette application ne peut étre faite qu’aprés que les parties intéressées ont été mises en état d’y former leurs contredits.”

As a question of fact, we do not find from the testimony which we have duly weighed, any necessity for the expropriation of the plaintifi’s land for public use.

The parish is already the owner of a road, running directly and in a straight line from the Vacherie settlement to the river Mississippi — the point to be attained, which is proved to have originally answered all the purposes of the public, and to have been a good and sufficient road, but it has for years been allowed by the defendants, in violation of a plain duty, to go without repairs.

Indeed, it does not appear that anything has been done since the State road was originally opened to maintain it in its primitive condition.

In the low alluvial lands that border on the Mississippi river, no road can remain good, except by constant attention and at considerable cost. In the case under consideration, the neglect seems to have been absolute and persistent, yet the testimony of competent engineers, contained in the record, shows that this road can be made a good one, and it indicates the means and cost of making it so.

No one questions the right of police juries to open as many roads as may be necessary for the public use; but the action of these bodies is still controlled by the law, and to justify it, so as to affect individual rights, the essential concomitant of necessity for public purposes, must, form the basis of such action, with which the courts will not interfere, except where it trenches illegally upon the vested rights of citizens.

The projected road would sever the plaintiff’s plantation, which would necessarily prove very injurious to her, but this consideration would not be the weight of a feather in the scale, if the road through her land was really necessary for public purposes. This we do not consider it to be, whilst there is a State road that could be made passable at all times, at less cost than would be incurred in providing the new road.

We think the plaintiff, in injunction, is entitled to relief.

It is therefore ordered, adjudged and decreed, that the judgment appealed from be annulled, avoided and reversed; and, proceeding to give such judgment as in our opinion should have been rendered, it is ordered, adjudged and decreed that the injunction issued be made perpetual, and that the defendant and appellee pay the costs in both courts,


author: Idsley, J.

text:
    No. 1694.
    State of Louisiana, ex rel., Mrs. Sauve, v. The Judge of the Third District Court of New Orleans.
    Where a personal judgment has been rendered in one of the District Courts of New Orleans, with a recognition of the mortgage executed to secure the debt, and the debtor dies, and his succession is opened in the probate court, the District Court is not thereby divested of jurisdiction over the case: execution may issue on the judgment, and the mortgaged property be seized and sold to
    A writ of prohibition will not issue from the Supreme Court restraining the Judg? of the District Court from executing a judgment which he has rendered, unless it is shown that he is incompe* tent rcUione materice to proceed in the case.
    V RIT OF PROHIBITION.

      Gazabai & Philips, for plaintiff.
   Idsley, J.

This is an application for a mandate of prohibition, and the question presented is, whether the Third District Court of New ■Orleans, which rendered a final judgment on the mortgage claim of the Bank of Louisiana against Pierre Sauvé and wife, in the suit instituted against them by Joseph W, Dougherty (No. 23178) transferee of the bank’s claim, can proceed to execute the judgment in the same court, notwithstanding the death since the judgment was rendered, of Pierre Sauvé, the mortgagor, and the opening of his succession in- the Second District Court of New Orleans. If the Third District Court is incompetent ratione materice to proceed in the case, the mandate must be granted; (16 An. 186 but not otherwise. C. P. 849.

As was said by this Court, in Williams v. Bank of Louisiana et al., “According to the 31st, 34th and 35th sections of the charter of the Bank of Louisiana, (1 Moreau’s Digest, 55,) it cannot be doubted that the right of this corporation, of causing the property mortgaged in its favor, to be seized and sold, in whatever hands it may be, notwithstanding any sale, or change of title by descent or otherwise, can in no manner be affected by the death or insolvency of their debtors,” and the proceedings to enforce the mortgage, as was said in 11th Rob. 209, “to avoid delays and formalities from which it was the intention of the Legislature to relieve the bank, must necessarily be before the ordinary tribunals, as a court of probate can issue no seizure and sale nor fieri facias, and can only order'the sale of the property and payment of debts in due course of administration.” C. P. 986, 987, 990, 991 and 993.

A probate sale of property mortgaged to the bank, would not release its mortgage, (1 An. 120) unless made with the bank’s consent. 17 La. 373; 2 An. 607.

The Bank Of Louisiana had the unquestionable right to proceed in a Court of ordinary jurisdiction, either via executiva or via ordinaria, tó have the property mortgaged to it, seized and sold. 7 Rob. 508; 11 Rob. 212. And this, notwithstanding the mortgage-debtor’s succession was opened in another court.

The judgment in this case is a personal one against the debtors, with a special recognition of the mortgage; but as there is no order in the decreé, that the specific thing shall be seized and sold, the only writ that can issue on it, is one of fieri facias.

Such a writ was issued, and following the judgment, it set forth the bank’s mortgage, and under tnis writ oi fieri facias it became the duty of the sheriff to seize the mortgaged property. C. P. 616.

The execution of the judgment must, in such a case as this, be ordered by the Court that rendered it, for the probate court, as we have seen, can issue neither writs of seizure and sale nor of fieri facias.

If .the proceeds of the sale of the hypothecated property is insufficient to satisfy the whole claim, the bank or its transferee, must go into the probate court, to demand the balance. 11 Rob. 209.

We have so far considered the Bank of Louisiana as the party holding the mortgage claims, but this is unimportant, as th.a plaintiff in the suit No. 23178, being specially subrogated by the bank to all its rights, privileges, actions and remedies, he may lawfully exercise all these rights, in the. same manner as the bank itself could have done. 12 Au. page 82; 19 An., 177.

We. are satisfied that the Third, District Court of New Orleans is not ratione materid incompetent to proceed with the execution of the judgment rendered by it in suit No. 23178, and it is therfore ordered that the mandate of prohibition ordered be set aside, and rescinded, and that the Judge of the Third District Court of New Orleans proceed to the execution of the judgment rendered by him in the suit No. 23178 on the docket of his court.