author: HvmaN, C. J.

text:
    Barthelemy Seris v. Bellocq, Noblom & Co.
    'When goods, produce, or other objects are not sold in a lump, but by weight, by tale, or by measure > the sale is not perfect, inasmuch as the things sold are at the risk of the seller, until they be weighed, counted or measured; but the buyer may require either the delivery, or damages, in case of the non-execution of the contract.
    If the object to be given is uncertain, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered.
    Damages are properly assessed by the judge a quo at the time the defendants were put in default.

      . fi-om the Sixth District Court of New Orleans, Howell, J.

      A. Lavisson for plaintiff.

    This cause was first decided adversely to plaintiff in the lower court, and came up again, for a new trial on the 28th of May, 1863, upon the grounds contained at page 18 of transcript, which resulted in a judgment for plaintiff, condemning the defendants in solido to deliver to him, within ten days from the signing of the judgment, 18 bales of cotton of the middling quality, and weighing in the aggregate 8,050 pounds; and in default thereof, to pay to plaintiff the sum of $1,690 50, being at the rate of 21 cents per pound, and costs of suit, etc.; from which judgment the present appeal was taken by the defendants.
    The plaintiff, in answering to this appeal, admits, as to the facts and law of the case, that the judgment of the lower court is correct, but complains, that from the evidence adduced a greater rate as the price of said cotton, in the event of its non-delivery, ought to have been allowed, to wit: sixty instead of twenty-one cents. That in this only the court erred, and prays that the same be amended accordingly.
    The only question of importance involved in this case is that of delivery. The facts, supported by the evidence, are these: The appellee contracted -with the appellants on the 11th March, 1862, in New Orleans, for 18 bales of cotton, at the rate of 10 cents per pound, and in order to assure him of the delivery and possession of the same paid $800 in advance, supposing it to be the proximate value at which the 18 bales would come to, for which the appellants gave him a receipt, stating the number of bales, the rate, and deliverable at the Mississippi Cotton Press, In a few days after, to wit, on the 17th of March, 18 bales of cotton, of two different marks, are supposed to have been weighed by A. Hoffman, the superintendent of that press, and each bale and their respective weights noted in pencil in the weighing book, and by him returned to the office of appellants. Two or three days after, Hoffman made an entry, which he calls “an entry of transfer,” in the black book of the press. Underneath, or at the foot of this entry, are the words, “to be sold by B. N. & Co., for account of buyer.” It will be observed that these words are noted in lead pencil.' In the same manner are noted all the entries in the weighing book in reference to this matter.
    It must be borne in mind, that in this transaction there was no broker employed on either side. Thus remained the condition of things for nearly six weeks, when, on the eve of the arrival of the national forces in New Orleans, on the 24th. or 25th of April, 1862, the then Confederate authorities ordered all the cotton at that press, numbering about 1,000 bales, to be turned out and burnt.
    It is now contended by the appellants that the 18 bales of cotton thus weighed on the l'7th March, 1862, and entered in the black book of the press three days after the weighing, and in the manner and form before stated, were intended for and constituted, without further notice, a valid delivery to appellee, and that the cotton perished at his risk.
    Under the facts and circumstances of this case, we cannot admit the logic of such reasoning. It is repulsive to every sense of right and justice; and, in a commercial point of view, in direct opposition to every principle of good faith and fairness, which ought to prevail in all mercantile transactions of this kind. The law does not consider that as done which has'not been legally done. If custom in certain cases be invoked, as in this case, it must be fully established by evidence. Senao v. Priioh-qrd, 4 L. 160; Syson v. Laidlow, 18 L. 382.
    We deny: 1. That there ever was any cotton weighed for us from the 11th of March to the 25th of April, 1862, or at any time subsequent. 2. That the weighing of the 18 bales, on the 17th March, 1862, were not designed or intended for us. 3. That the manner and form of the so-called “entry of transfer” in the black book of the press, is not in conformity to established customs and usages, and therefore too indefinite and uncertain to operate a delivery to any one. That under it the appellants intentionally retained in them the ownership and control of said cotton. 4. That supposing the “entry of transfer” be held good, and that the 18 bales of cotton thus weighed were intended for appellee, still we contend that, under the facts and circumstances of the case, it was insrifficient in itself to operate a tradition or delivery to appellee without the notice of the weighing of the cotton.
    It is satisfactorily proven that the appellants had, at any time prior to the destruction of the cotton, a sufficient number of bales at the press, with which they could have easily, and in a very short time, complied with their obligation. ■ A day or two after the fire, a person connected with the house of Bellocq, Noblom & Co., the appellants, accompanied by 3?. Nogues, a friend of appellee, called at the press to know the condition of the cotton in general; he exhibited to the yard clerk, Michael Henebery, the receipt for the 18 bales of cotton. Of the marks noted at the foot of said receipt proved to be in the handwriting of P. Boy Noblom, one of the appehants. Henebery then reported nine bales belonging to appellants, which had been restored to the press, four of which corresponded with those marks noted and signed by Henebery. It was then that the appellee, in June following, made a formal demand for his cotton. On that occasion, Mr. Noblom admitted the burning of the cotton, and the restoration of four bales to the press, which he offered to appellee, but declined their responsibility as to the balance.
    We contend that there was no delivery made to us, in a manner either sanctioned by law or by usage, of the cotton we contracted and paid for in advance and in good faith, on the 11th of March, 1862 (Arts. 2433 and 2452 C. C.); hence this action is brought to recover the property in kind, or its value at the price proven to be worth at the date of trial of the case, 20th February, 1863.
    • The law favors the real rather than the symbolical delivery, particularly in the transfer of movable property, because on general principles the mere possession creates the presumption of ownership in the possessor. In the latter case, in order to do away with this fiction of the law, all the formalities incident to that mode of tradition tolerated by the usages and customs of trade, of the nature spoken of by the witnesses, must be strictly complied with in order to divest the vendor of the possession of the thing, thereby precluding suspicion of ownership and attaching the responsibility of results on the vendee.
    These fictitious transactions or modes of delivering cotton, spoken of in the testimony of Mr. E. Puech, p. 30, are also satisfactorily 1‘aid down in the case of Campbell v. Penn, 7 An. 372 and 373. In this case, Bradley, Wilson & Oo., the vendors, sold to Simpson through their broker, Keene, 734 bales of cotton, and gave an order on Penn, the keeper of the press, to deliver the cotton to their broker, who entered the same, with its marks, in the black book of the press, without heading, that is to say, without inserting the names of vendors and vendee, purposely to avoid a delivery of the cotton to Simpson, and preventing him from receiving-advances thereon until he paid for the cotton. Simpson, however, did receive advances from the firm of Campbell, Bickarby & Co., to the amount of $24,000, and while these advances were being made, Keene, the broker, by order of Simpson, transferred the cotton, by heading the entry in the black book thus: “From Bradley, Wilson & Co., to Campbell, Bickarby & Co.” and signed it. Under these facts the plaintiffs succeeded in the suit, not upon the question of the validity of the first entry, for that was without heading and incomplete to pass delivery, but upon the completion and validity of the second entry, which was in due form, definite and certain as to names of vendor and vendee, all of which was done by the instrumentality of Keene, the broker of Bradley, Wilson & Co., who already had the indicia of ownership vested in him by virtue of the order of delivery to him from the latter.
    Hoffman, the appellants’ witness, testifies that he was the superintendent of the Mississippi Cotton Press, and that in the present case he was directed by the appellant “to weigh to order” 18 bales of cotton. This direction or order, if in writing, has not been produced; he also states that he knew not at the time of weighing who the purchaser was. We say that Hoffman, under this direction from his principals, had no power to deliver the cotton to any particular person, but to remain subject to their order. This, too, is to be inferred from the manner in which the so-called “ entry of transfer ” is executed in the black book. First, it is not signed by Hoffman, who made the entry. Underneath this entry is noted in lead pencil the words “ to be sold by B. N. & Co., for account of buyer.” This portion was unauthorized and illegal, and stands as unwritten, and forms no .part of said entry.
    The names ef the vendors and vendee not appearing properly written at the top or heading of this entry, in the manner usually done in transactions of this kind, as proven by the two witnesses, Messrs. FLenébery and Puech, and as laid down in the adjudicated case of Campbell v. Perm, is fatal to create or operate any delivery at all, nor even a constructive of symbolical delivery according to usages, much less in law, to the latter of the cotton in question. For the only legal interpretation to be given to the words “to order,” and “on account of buyer,” is, that the appellants had it so done purposely to suspend the delivery, and in the meantime to retain in them the control of the cotton, subject to their ordej’. Under the condition of such an entry, had the appellants been offered a higher price for the cotton, at any time before the burning, they would have been at perfect liberty to accept it, and insert the name of any other person as vendee in the black book in place of appellee; and in that case the latter would have been without recourse as to these identical 18 bales, even admitting that they were intended for him, because there was no delivery in him.
    • Therefore if such an entry is thus susceptible to two constructions, to operate constructively a delivery in both instances, and this at the discretion and pleasure of the appellants, who thus assumed control of the cotton, it is just, then, that they should be made responsible for all the results of their negligence in causing the suspension of its delivery, whose duty it was to have made clear and definite their intention on this important subject, the very essence of the contract.
    Nor is there any proof showing that the appellee had been notified, according to usage, by way of an invoice, or note of weights, etc., nor that he knew of the weighing of any cotton at the press for him. Even admitting that all the entries in the books are regular and proper, still, under the unusual circumstances of this case: 1. The payment in advance; 2. No broker employed to perfect this negotiation; 3. The appellants having in the contract designated the place of delivery; all of which rendered it more incumbent upon them, if desirous to act their part in good faith, to have notified the appellee of the classing and weighing of the cotton, if intended for him. Had they done that, the transaction would have been regular and binding on the latter, but not otherwise. See Art. 1904 C. C. and notes.
    It is clear, from the fact that the appellants having receive the full consideration price for 18 bales of cotton, in advance; that they no longer felt an interest in that much of the staple on hand, and naturally grew dull and indifferent as to the delivery. But having undertaken upon themselves to retain the same at the press, in a suspensive condition for nearly six weeks, was the work of their choice and risk.
    In conclusion, the appellee respectfully prays this honorable court, in considering his answer to this appeal, that the judgment of the court of first instance be so amended as to allow him sixty instead of twenty-one cents, as the equivalent value per pound for said cotton, as prayed for in his petition, and proven on the day of trial of the cause to be worth more than that rate; and that the judgment so amended be affirmed, in all other respects, with costs of both courts.

      Fellows & Mills for appellant.
    ---The case in brief is this : On the 11th March, 1862, plaintiff purchased from Bellocq, Noblom & Co., eighteen bales of cotton, of middling quality, then lying in the Mississippi Cotton Press, in store, for which he paid an advance of $800. This cotton was weighed by the weigher, Mr. A. Hoffman, at the order of defendants, and an entry made of the weights, and a transfer entered in the ‘ ‘ black book:” a book kept by the press for the purpose of entering therein all transfers of cotton from vendor to vendee. On the 25th of April, 1862, one day previous to the arrival of the United States ships of war in front of the city, this qptton was taken out of the press to be burned, by order of the Confederate authorities, together with the greater part of the cotton in the press. Four bales of this lot were saved by the exertion of some one, and returned to the press. Some time after this, about the 11th June, plaintiff made a demand upon Mr. Noblom, one of the defendants, for the eighteen bales of cotton he had purchased some four months previous. To this demand defendant responded, “that he had received from Seris eight hundred dollars on account of the cotton, that it had been weighed, and that there was an overbalance due on the cotton to his firm, but that he could take the four bales.”
    These are the main facts in the case, and the question at issue is, whether the weighing of cotton and its transfer upon the black book is a delivery? It is submitted that, in the case of Campbell v. Penn (7 An. 371), this honorable court ruled that the transfer in the black book alone constituted a delivery. The learned judge, in his opinion, says : “Bradley, Wilson & Co. had, or by their agent, placed the whole of the cotton in possession of their vendee, though only symbolicahy on the black book of the press. It seems so well established by the usages of trade, that we could not resist, however much disposed to favor real rather than fictitious transactions.”
    How similar is the caso at bar ? Belloeq, Noblom & Co. sold to Seris this cotton; it was weighed at their order, transferred on the pages of the black book, and yet Seris pleads it is no delivery. The testimony of the weigher, Mr. Hoffman, who has been engaged for many years in this business, and who is thoroughly conversant with the usages of the trade in these transactions, shows plainly that the passage of the cotton through the scales is considered a delivery, as is also the transfer in the black book. He says : “At the time, weighers seldom know the purchaser; so soon as the cotton is passed through the scales it is considered delivered, and is at the risk of the buyer, and never before. I never knew of any variation from that rule. I have been in my present business about sixteen years in this city.”
    Here we see plainly perceptible a tacit understanding that, after the weighing, the cotton is at the risk of the buyer; and it is not until three months after this that the plaintiff claims the cotton, as though he was ignorant of his ownership, or its almost total destruction. Is it natural or reasonable to suppose that Seris, after paying eight hundred dollars for this cotton, would wait three months for its delivery, he being a poor man ?
    It is submitted that, in the case of Larue v. Hugely, Blair & Co. (10 An. p. 242), the decision of the learned judge plainly shows that even the turning out of cotton to be weighed is a lawful delivery. He says: “ Defefi-&nts sold to plaintiff a lot of cotton, and gave plaintiff’s broker an order on tlie press for its delivery. A few days afterwards plaintiff paid $3,000 on account of the purchase, and the cotton was destroyed by fire, but before the pressmen had turned out the cotton to be weighed : Held, That there was no delivery suchas to put the cotton at the risk of the purchaser.”
    • Is there but one thing deducible from this? and is not that, that if the pressman had turned out the cotton to be weighed, it would have been a delivery? In the case at bar the cotton was turned out, was weighed, and'was entered in the black book, thus making three separate deliveries, each of which would be considered as complete, according to the usages of the trade.
    The attention of the court is also drawn to the “reasonSffor judgment,” given by the honorable judge of the lower court, on the first trial: He says: “I am of the opinion, from the evidence, that there was a delivery á and that it was so considered by the plaintiff himself up to a period of time subsequent to the burning of said cotton. * * * The receipt given for the sum paid, and specifying the place of delivery, also contains the description of the particular bales of cotton sold, being the same that were weighed. It is shown that, after the burning, the small amount due on the purchase price was paid. This, and the facts that he spoke of the burning as his loss, and of the long delay after the purchase, show the light in which the plaintiff viewed the transaction. ” * * * *
    Can any one fail to discern the manner in which plaintiff carried on this transaction ? Is it not plain that he considered the cotton as his property, and that his delay in removing it was for the reason that he could not find sale for it, and was but awaiting a rise in the market? Learning, some time after the purchase, that his cotton was burned, he (thinking the non-removal would aid him in claiming “no delivery”) waited upon and demanded of defendant the eighteen bales of cotton, and meeting with a refusal, brought this suit.
    There are, among men of business, certain natural rules, which all more or less obey in their daily intercourse with their fellow man. It is not natural to suppose that Seris, a poor man, investing almost his all in this speculation, would allow three months to pass away without discovering whether the property of the cotton was in him or not. It speaks for itself. He demanded it as his cotton, and he mourned the loss of it as his property.
    It may be argued that, according to Art. 2433, C. C., plaintiff had a right to claim a delivery any time subsequent to the sale; but it is evident that the law does not extend this right but to cases in which there has been a non-execution of the contract.
    There has been no evasion or withdrawal from the contract by defendants. A lawful delivery was made, and they deemed that sufficient. Attention is respectfully drawn to the testimony of the weigier, yard clerk and others, which is subjoined.
   HvmaN, C. J.

Defendants are sued to deliver to plaintiff 18 bales of cotton, sold by weight, or to pay damages.

■Judgment was rendered in the lower court condemning defendants to deliver to plaintiff 18 bales of cotton, or in default thereof, to'pay hint' $1,690 50, as damages and cost of suit.

Defendants appealed.

On the 11th March, 1862, plaintiff paid defendants $800 for 18 bales of cotton sold to him, at 10 cents per pound, to be delivered in the Mississippi Cotton Press, in New Orleans. On 24th April, 1862, all cotton in the press was taken out by force and nearly all burned.

Defendants proved that, on the 17th March, ■ 1862, they ordered and caused to be weighed, in the press, 18 bales of cotton, but for whom witness did not know, and that this cotton was in the press on 24th April, 1862, and that most of it was burned.

Article 2433 of the Civil Code provides, that when goods, produce or other objects are not sold in a lump, but by weight, by tale, or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller, until they be weighed, counted, or measured; but the buyer may require, either the delivery, or damages in case of non-execution of the contract.

The weighing of 18 bales' of cotton for an unknown person does not prove that they were weighed for plaintiff, and consequently they did not place them at his risk, Even did it so prove, we would not deem it sufficient to release defendants from the risk and loss, it being an ex parte proceeding.

Article 1909 of Civil Code provides that, if the object to be given is uncertain, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered.

There was no time agreed upon for the weighing of the cotton; and we think that it was necessary to give notice and to put plaintiff in default, as required by this article, before the cotton would be at his risk.

Defendants have invoked the custom of merchants, but they have not proved delivery, as required by custom.

Plaintiff, on appeal, has asked that the damages be increased.

Damages were assessed by the judge of the lower court, at the time that defendants were put in default.

In this he was correct. See 13 La. Rep. 229.

Judgment affirmed, with costs.

Howeuxi, J,, recused.


source: Caselaw Access Project

author: Ilslex, J.

license: Public Domain

text:
    Francisco Sientes v. Charles Odier & Co.
    Where the judge of the court below gives judgment for the plaintiff, but makes no allusion to the plea in reconvention, set up by the defendant, it is an irregularity, and the case will be remanded.
    Where threats and representations, resorted to by a party so that the other was induced to sign a lease and give his notes, which he paid for fear of suit; Held: That such threats as these are insufficient to rescind the contract. It is perfectly immaterial to the lessee what was the lessor’s right or title to the thing leased. He got under his contract all that he could have acquired from the true owner, quiet and peaceable possession. Ownership is not essential to make alease valid. Hewhó lets out the property of another warrants the enjoyment of it against the claim of the owner-
    A lessee sued for rent, and in undisturbed possession of the premises under tbo lease, cannot oontest the lessor's title.
    In order to entitle the payer to recover back money paid by mistake, it must have been paid to a person to whom he did not owe it. Repetitio nulla est (ib co qui mum, rccepni.

    Where the object of the lease was a special one, parol testimony cannot be received to prove that the lossee had the privilege of using it for other purposes.
    from the Fifth District Court of New Orleans, Eggleston, J.

      H. B. Qrandmont for plaintiff. 0. Beclmond for defendants and appellants.
   Ilslex, J.

The plaintiff sues the defendants, Charles Odier and Louis Surgi, in the name and style of Charles Odier & Co., for the repetition of one year’s rent by him paid to them, under a contract of lease, which contract, he avers, was null and void, for want of cause of legal consider' ation, and that he was under no legal obligation to pay the notes representing the price of the lease.

The defendants, Odier & Co. (Surgi excepting to any right of action against him) pleaded the general issue; and claimed from the plaintiff in reconvention, for rent of the same premises, from 1st October, 1856, to 1st October, 1858, an additional sum of $533 33, with interest. The court below rendered judgment in favor of the plaintiff for the whole amount claimed, but made no allusion in his decree to the reconven-tional demand, which irregularity would justify the remanding of the case, did we not deem this demand rather an original than a reconven-tional one. See 17 La. Bep. 176; 12 La. 510.

The lease is as follows: “Be it known that we, Charles Odier & Co., farmers of the revenue of the fifth section of the port of New Orleans, do hereby lease, for the term of one year, beginning on the 1st October, Í855, to Mr. Francis Sientes, a place on the margin of the river, between the meat market and the red stores, for the purpose of keeping an oyster stand; said stand already erected and in the possession of the lessee.”

The present lease is made for and in consideration of a sum of four hundred dollars per annum, payable monthly; and, to secure the payment, Mr. Sientes has furnished to Messrs. Charles Odier & Co., who acknowledge receipt, twelves notes drawn by himself to the order of. and endorsed by José Bosee, and payable every month.

It is understood between the parties that, in case of non-payment of any of the said notes, the lease will become null and void, and the stand returns to Charles Odier & Co.’*

The lessee retained peaceable and undisturbed possession of the leased premises during the whole term of the lease, and no objection is made on that score. He has paid all his notes, and more than a year after the maturity of the last note, discovers that he was not legally hound to pay them; because, as he avers, the contract of lease was null and void for want of cause and legal consideration, and that it was only by the threats, representations and pretence of right, resorted to by Odier & Surgí, that he was induced to sign the lease and execute his notes, which he paid in consequence of the threats and representations resorted to by the same parties and from the fear of being sued.

The nature of the defendants’ claim on the leased premises is stated in the lease, and under their right the plaintiff consented to occupy and did occupy them for the stipulated term. Upon the authority of Bradford’s Heirs v. Brown, 10 M.; O. S. 217, such threats as those complained of are insufficient to rescind the contract.

It is perfectly immaterial to the lessee what was the lessor’s right or title to the thing leased. The lessee got, under his contract, all that he could have acquired from the true owner, quiet and peaceable possession, which was fully guaranteed to him by his lessor. 2652 and 2666 C. C.

Ownership is not essential to make a lease valid. “ He who lets out the property of another,” says Article 2652, “warrants the enjoyment of it against the claim of the owner. ” Had the city, the only competent authority, disturbed the plaintiff in his possession, he might then have complained and resorted to any legal remedy for redress; but he comes, we think, with bad grace, after he has enjoyed the' quiet use of the property, and voluntarily paid his notes given in consideration of the lease, to claim the repetition of the amount so paid by him; because, as he avers, the lessor was without right to the property.

On that score the door is closed to him, on the authority of Tippett v. Tete, 10 La. 362, in which it is held: “ That a lessee, sued for rent, and in undisturbed possession of the premises, under- the lease, cannot contest the lessor’s titlewhich doctrine is reaffirmed in Dennistown v. Walton, 8 Rob. 213, and Nicholson v. Byrne, 11 La. 173. See also Pothier’s Contract de Louage, No. 20, Oblig. 133. This is not a suit to recover the rent, but one for the repetition of rent already paid. We subscribe to the maxim of the civil as well as of the common law: Bepetítio nulla est ah eo qui swum recepit.

Article 2129 Civil Code, on which the judgment of the lower court is based, as well as Article 18 C. P., have no application to a case like this,, in which a contracting party has got the full benefit of his contract. It is true that eventually he was evicted by the city, but it was long after the expiration of the lease for which he made payment and of which he is now seeking the repetition.

On the trial of the case, the plaintiff sought to prove by witnesses, that long prior to the written lease from the defendants to the plaintiff, the latter was already in the possession of the oyster stand mentioned in said lease; to the admissibility of which evidence, the defendants’ counsel objected, on the ground that such testimony went to contradict the allegations of the plaintiff’s petition, and the terms of the lease, and tho objection was sustained, and a bill of exceptions tendered to and signed by the court.

It is stated in the lease that “said-stand is already erected-arid in possession oí the lesseeand so far as the evidence offered went to corroborate that statement, it was admissible, although unnecessary, as the contract of the parties must govern. What was the' previous nature and duration of the possession held by the plaintiff might well be construed by the last danse of the contract, which says that in a certain contingency the lease will become null and void and the stand returns to Messrs. Charles Odier & Co. We give full effect, however, to such of this testimony as was legally admissible under the pleadings and not in conflict with the contract.

And again: the plaintiff offered to prove by the sanie witnesses that, among other representations made to the plaintiff, to induce him to take the aforesaid lease, the defendants, through Surgí, told said plaintiff that he should be permitted to use the aforesaid stand for the sale of fruits, during the summer time; and this evidence being objected to, on the ground that, under the general allegations in the petition, it was inadmissible, the objection was sustained, and to the opinion of the judge thereon a bill of exceptions was tendered, and signed by him. The evidence offered for this purpose was clearly inadmissible, as the plaintiff, in his petition, states that the object of the lease was a special one : the keeping of an oyster stand.

This suit was instituted also against Louis Surgí, as one of the partners of the firm of Charles Odier & Co.; but proceedings against him seem to have been dropped, as his exception to plaintiff’s cause of action was not disposed of, nor was there any default taken against, or answer filed by him. In -what capacity, if in any, he assumed to act for the defendants, the record does not inform us; but, if he was their agent, as it is contended he was, his observations and conduct, previous tp the signing of the lease, can have no effect in this case. As to the alleged threats, it has been already shown that they would be no ground for rescinding the contract; and, as to his promise that, in case it would turn out that the plaintiffs had no right to exact that amount from him, it would be refunded to him, the result of this case exonerates the defendants from that conditional promise, of which they would, in any contingency, have been absolved by maintaining the plaintiff in thé quiet and peaceable possession of the leased property for the whole period of the lease.

Viewing this case in all its aspects, we think the plaintiff has failed to sustain the correctness of the judgment of the court below, which must be reversed. «

It is therefore ordered, adjudged and decreed, that the judgment of the court below be annulled, avoided and reversed, and that judgmentbe, and it-is hereby rendered in favor of the defendants, and against the plaintiff, with costs in both courts; - and it is further ordered, that the right of the defendants, on their claim - set up in reconvention, be reserved to them.

(An application for a rehearing was made, but seven judicial days having elapsed it could not he granted.)


author: Ilslbv, J.

text:
    State, on the relation of Charles Bienvenu, v. S. Wrotnowski, Secretary of State.— Alfred Shaw, Sheriff, Intervenor.
    An exception that there was a misjoinder of parties and relators ; that the potition shows no interest in, or canse of action on the part of either relator; and that the petition does not set forth and state such a case as would authorize the court to issue a mandamus, was properly overruled by the court » quo.

      By the Cowl. — Mandamus is necessarily a summary proceeding, and it is very questionable whether, in such a case, the intervention of third persons can be legally maintained.
    "Where the issuing of this writ would not be consonant with right and justice, or would serve no just or useful purpose, it should not bo granted.
    The words of a law are generally to be understood in their most known and usual signification, without attending to the striotness of grammatical construction so much as to their general popular use.
    The Secretary of State cannot go behind commissions officially presented to him for authentication. Neither will this court go behind a commission to inquire into the evidence on which it was issued.
    It is the duty of the Governor to fill vacancies. In elective o«ñces he cannot remove an incumbent; but the appointment to fill a vacancy does not operate a removal of the previous inoumbent, because no removal can so be made; the office is vacant, or it is not vacant; if it is vacant, it is properly filled by the last appointment; if it is not vacant, the first incumbent cannot be disturbed.
    from the Sixth District Court of New Orleans, Duplaniier, J.

      Geo. S. Laeey and A. P. Field for relator. B. L. Lynch, Attorney General, for the State. L. Madison Doy for intervenor. 22 Hzestand for Wrotnowski.

      L. Madison Bay for Shaw, intervenor.

    Any one having an interest may intervene. C. P. 390.
    The court cannot refuse the intervention. C. P. 394.
    In Tapping on Mandamus, (3 Law Library, 6th series, 350,) [302,] it is said: “ The court will, in general, allow all those against whom the rule nisi has been granted, or upon whom it has been served, or have had notice, or who are legally interested in the question, to show canse. ”
    Mr. Shaw’s right of intervention is, therefore, undoubted.
    2. Writ of mandamus is addressed to a party directing him to perform some certain act belonging to the place, duty or quality with which he is clothed. O. P. 829.
    Writ never issues to officer charged With a public duty, to do any act where law vests him with a discretion. 2 L. B. 395-6; Tapping on Mandamus, 12, 13.
    Secretary of state is only required to authenticate official, that is, legal acts.
    There is a discretion in the court to grant or refuse the mandamus, according to the justice of the case, -as it shall be made to appear by the facts in the return, to the alternative writ, even in the case of a mere ministerial act. Waldron et al. v. Lee, 5 Piet, 329.
    And if upon the return it appears that the act which party required to be performed is illegal, or not required by law, the court will refuse the mandamus. Ib.

    “A mandamus may sometimes lie against a ministerial officer to do some ministerial act connected with the liabilities of the government, yet it must be where the government itself is liable, and the officer himself Jias improperly refused to act.’-’ 11 How. 289, 272.

      “It must even then be in a case of clear, and not doubtful right. ” Ken-dally. United States, 12 Pet. 525; lAfe and Fire Insurance Company y. Wilson’s Heirs, 8 Pet. 291, lb.

      “A. mandamus will not lie against a secretary, unless the laws require him to do what he is asked in the petition to be made to do.” 11 How. 289.
    Now, what law requires the secretary of state to authenticate the illegal and unconstitutional act of removing the sheriff, and the appointment of a new one ?
    “Again, a mandamus, as before intimated,” says the Supreme Court of the United States, is only to compel the performance of some ministerial, as well as legal duty. Kendall y. United States, 12 Pet. 524; Bex v. Water Works Company, 1 Nev. & Perry, 439, 11 How. 290.
    If, then, the authentication by the secretary of state were a mere ministerial act, where is the law or legal duty requiring him to authenticate an unconstitutional act, as we will show the appointment of the relator to be?
    The jurisdiction of the court to command the execution of the particular act or duty, the subject of the writ must be clear, otherwise it will not interfere.” Tapp, on Mandamus, 11.
    “ The application for this writ,” says Mr. Justice Clayton (3 Smedes & Mar. R. 712), “is addrersed to the sound legal discretion of the court, and it will not be awarded to enforce the performance of an act which is contrary io law. Co wen, 502; Waldron y. Lee, 5 Pick. 329.”
    The same rule is laid down in Tapping on Mandamus, 16.
    ‘ ‘ The applicant must not only show that he is legally and equitably entitled to some right properly the subject of the writ, but must show that it is legally demandable from the person to whom such writ must be directed, otherwise the court will refuse to interfere.” Tapping on Mandamus, 29.
    Tested by these principles and authorities, the mandamus must be refused in this ease; .and this especially, as Shaw has intervened.
    Por the appointment of the relator to the office of sheriff is unconstitutional, illegal and void.
    Under the constitution of 1864, Art. 84, the governor can only appoint a sheriff in ease of a vacancy “ subsequent to an election” for a sheriff.
    And by Art. 150, Mr. Shaw and all others in office at the time of the adoption of the constitution were continued in office until “the organization of the government under this constitution, and the entering into office of the new officers to be appointed under said government,” etc.
    Now, underArt. 84, a sheriff is to be elected.
    How, then, could Mr. Shaw be removed and Mr. B. be appointed, without a violation of the constitution?
    No power can be derived from Arts. 54 and 55 of the constitution.
    Neither of these articles give any power to appoint a sheriff.
    The power to make such an appointment is derived solely from Art.- 84, and which can only be done in the solitary cas'e ■ of a vacancy,' stibsSqu’ent ■ to an election. See 20 Barb. 307.
    There has been no election for sheriff, and, as Wé have said, Mr. Shaw, under Art. 150 of the constitution, was continued in office until his office was filled by an election.

      For it is not in the power of the governor to remove Mr. Shaw, and by his own act, create á vacancy. 9 An. 237. See 2 Seam. R. 74. 20 Barb. 307.
    The executive can only exercise such power as is clearly granted by the constitution. 2 Scam. R. 79.
    “Where a claim of power is advanced by the executive, the question is whether it has been granted to the executive, and if the grant cannot be shown he has no title to the exercise of the power.” Ibid 81-2.
    Has any grant of power been attempted to be shown in this case for the removal and appointment of ai sheriff ? None whatever. The application, then, for a mandamus must fail.
    For, as is well said in the case in 2 Scam. R. 82: “As the right of the governor to remove * * *'must be granted by the constitution, or it does not exist, it therefore devolves upon those who advocate the claim of the executive power, to show the grant upon which it is founded, to point out the clause and section of the constitution from which it is derived. ”
    This principle is conclusive against relator’s pretensions, as no grant of power or authority for his appointment has or can be shown.
    Such being the case, the secretary of state will not be ordered to contribute to an illegal act. 3 Smedes & Mar. 712.
    For the secretary’s duties are prescribed by law, and he is bound to conform to law and not to the will of the executive. 2 Scam. R. 93-4; Brees Rep. 68.
    The governor, then, having no power to appoint the relator, the petition must be dismissed.
    And, in conclusion, allow us to say that it has been expressly decided that the secretary of state will not be compelled by mandamus to authenticate an act of,the governor which is unconstitutional. Brees (HI.) R. 68.
   Ilslbv, J.

t>n the 14th May, 1865, the Sixth District Court of New Orleans granted its mandate, ordering Stanislas 'Wrotnowsld, secretary of state, to affix his official signature and the seal of his office to the commission signed and issued by James Madison Wells, Governor of the State of Louisiana, under date of 1st May, 1865; or, in default thereof, that the said Wrotnowsld show cause to the contrary, on Monday, the 11th May, 1865.

On the day last mentioned, Wrotnowsld excepted to the petition of the relators, on the following grounds :

1. That there was a misjoinder of parties, relators, in said case.

2. That the petition shows no interest in, or cause of action, on the part of either relator.

3. That the petition does not set forth and state such a case as would authorize the court to issue a mandamus.

This exception was properly overruled by the lower court.

On the 18th of the same month, Wrotnowsld filed his answer to the relator’s petition, and therein averred for reason why a peremptory mandamus should not be issued, against him, as prayed for by the relators, that the, commission referred .to in tlie said petition- was utterly null' and void, and of no force, effect or validity whatever,- because attempted to be issued, by the. governor without any warrant of law for so doing,-and irir direct violation.of the constitution.and laws of .the.State“that lie can not' be compelled to lend the sanction of bis'name as secretary of state, by countersigning sucb illegal commision and affixing the great seal of state thereto; that the office of sheriff of the parish of Orleans has been held since March 16, 1864, and is now held, under a commission issued in pursuance of the laws and constitution of the State of Louisiana, by Alfred Shaw, which commission does not expire until the next' regular election for sheriff, and that the governor is without any authority to supercede the said Shaw, as sheriff aforesaid, by the appointment of the relator, and he prayed that the application of the relators for a peremptory mandamus be refused.

This answer contains all the reasons why Wrotnowski refused to authenticate, with his official signature and seal, the commission issued in favor of the relator, C. Bienvenu.

Previous to the filing of 'this answer, Alfred Shaw, by permission of the court, intervened in the proceeding, setting forth substantially the same grounds as those subsequently urged by the secretary of state, and praying- for the same relief; and further averred, in order to vest this court with jurisdiction, that his interest in the controversy exceeded the sum of three hundred dollars; which fact, by a supplemental answer, was also averred by Wrotnowski.

The relators mo^ed to dismiss the petition of intervention, because Shaw showed not the least right to intervene in the case pending, and this motion was reserved and overruled in the final judgment rendered by the court below.

Mandamus is, necessarily, a summary proceeding; and it is very questionable whether, in such a case, the interventions of third persons can be legally entertained, obstructing, as they must, therein the avenues of justice; particularly, too, in a case involving, like this one, grave and important questions of great public interest.

The late court, in Ckam'diss v. Atohinson, 2 A. 490, in a summary proceeding, pronounced an intervention a derogation of common right, unauthorized by law. In Tapping on Mandamus, referred to by defendants (3 Law Lib. 6th series, 350, 302), it is said: “The court will, in general, allow all those against whom the rule nisi has been granted, or upon whom it has been served, or have had notice, or are legally, interested in the question, to show cause.” The term, in general, presumes exceptional cases excluded from the rule, and one like this would fall within the exception, if such a rule had any binding effect on the courts of this Sl;ate, which is controlled by its own rules of practice, by which 'interventions are permitted in ordinary suits, but not in summary proceedings.

It 'is not, however, necessary to pass now on that point, because it is immaterial who figure as parties herein, as there is but one issue on which the question must be decided.

Divested of all extraneous, superfluous and' irrelevant surroundings, what is the real question to be solved ? We apprehend' it to be this : Is the secretary of state, under the constitution and laws of the State of Louisiana, a mere ministerial officer, as regards the authorization by him of official acts; or is he, under the constitution and laws, vested with a discretionary and supervisory power, which enables him, before executing the functions by law imposed on him in this particular, to judge tor himself whether such official acts as need bis ministry are constitutional or unconstitutional, legal or illegal, and to affix or -withhold from such acts, at his option, according to his discretion, his official signature and the impress of the great seal of the State ?

If the first of these theories, which is the one contended for by the re-lators, be the correct one, then the remedy prayed for by them should be accorded. But, if the issuing of the writ would not be consonant with right and justice, or would serve no just or useful purpose, the mandate should not be granted. '

We have been greatly assisted in the investigation of the very important and interesting questions submitted for our decision by the elaborate researches and the able arguments of counsel representing the different parties litigant.

The first question, the one that lies at the foundation of this controversy, and which, in its order, should be first considered, is whether the secretary of state could legally go behind the commission issued by the governor, in due form', to Bienvenu, and examine into the facts upon which the executive action was predicated ?

To this end, we must examine our own laws, in preference to those of other States, to ascertain what are the duties that devolve by law on the secretary of state. He is a constitutional officei’, as are the treasurer, the auditor and sheriffs; and he belongs to the executive branch of the government. See Art. 62, tit. 1, Constitution of Louisiana.

His duties are defined by law. Art. 62; g 1 Const. See acts of 1855, Ho. 273 and No. 281, which latter statute enacts that there shall be a public seal, for authenticating the acts of the government, and that the secretary of state shall be the keeper, and shall affix this public seal to all official acts, the laws alone excepted. See sections 1 and 2.

The law is imperative in its command. The secretary of state s/Wlaffix the public seal to all official acts.

It becomes, then, important that the word official should be clearly defined. Is it necessarily used in a sense synonymous with the word legal ? Is the ingredient of legality an essential concomitant in defining the word official?

It is laid down, in Article 14 of the Civil Code, that the words of a law are generally to be understood in their most known and usual signification; without attending so much to the niceties of grammar, as to the general popular use of words.

Beferenee, then, must be had to the lexicographers for the general and popular use of the word official.

The best, most approved and popular English dictionaries extant are those of Worcester and of Webster, and these both concur in the signification and meaning of the word, in its English sense, regardless of the definitions of the same word in other languages. “Official,” says these authors, means “derived from the proper officer, or from the proper authority, made or communicated by virtue of authority.”

News, though derived from official sources, may be untrue. If the authority is a competent one, all acts done by it are official acts. The issuing of a patent for land is an official act, and yet nothing may be conveyed by it, for want of title in the grantor.

The signing of a commission by the governor of the State is an official duty imposed on him by the constitution; it emanates from the executive authority, and is issued from the proper office. Art. 66 tit. 4 Const.

The governor is by the constitution vested with the exclusive power to make some, and, under certain eontingences, other official appointments, and such appointments are official acts. • Arts. 54 and 55, tit. 4 Const.

He must determine for himself from information communicated to him, when appointments become necessary; but he is under no legal obligation to communicate either to the secretary of state, or to any one else, upon what information he acts.

The secretary of state is not to suspend his action to enquire why and wherefore any appointment by the governor is made.

His duty is plain: he is not directed,, but ordered by law, to perform it. When commissions from the governor need authentication, he shall affix his official signature and the public seal of state, for these are official acts. Whatever improvidence or illegality there may be in the issuing of commissions, that concerns not him. His authenticating any official act can never compromit him; for he has no discretion to exercise regarding it.

It is the duty of the governor to fill vacancies. In elective offices he cannot remove an incumbent; but the appointment to fill a vacancy does not operate a removal of the previous incumbe'nt, because no removal can so be made; the office is vacant, or it is not vacant; if it is vacant, it is properly filled by the last appointment; if it is not vacant, the first incumbent cannot be disturbed. What injury, then, could by any possibility result to the first incumbent by the new appointment, if it were illegally made. It would be to him damnum absque injuria.

Were this right of supervision, which is almost equivalent to a veto power, in the secretary of state, as it is seriouslycontendeditis, it would, indeed, produce startling consequences. The secretary of state eouLd paralyze at will constitutional appointments made by the executive. He, and not the governor, would control appointments or nullify them; and this, indeed, according to the doctrine of the intervenor’s counsel, is what the'constitution contemplated ! By way of illustration, one of his counsel depicts the evil which would flow from reposing too much power in the executive, who, if he were despotically inclined, might, if he were unchecked by the secretary of state, appoint a new set of judges to contest the seats on this bench of the present constitutional incumbents. Such an event, it is true, would not be beyond the reach of possibility; but what injury could result from such illegal executive action ? But, reverse this case,- and suppose that the secretary of state, in the exercise of his pretended discretion, had refused to authenticate the commissions of the present incumbents, what legal means, without a supreme court, would exist of ascertaining, in the last resort, the legality of such a refusal ? and how could this very case now before us have been finally disposed of ?

Another example, by way of illustration, suggested by the relator’s counsel, to show the impolicy of any such controlling power in the hands of the secretary of state, is not altogether inappropriate:

A criminal, on the eve of execution, is reprieved by the executive'; but the official act of reprieve needs authentication, at the hands of the seere— tary of state, who, in the exercise of his discretion, withholds it.

This discretionary power, so fatally exercised, might be eventually ig- - nore<J by the courts ; but, in the interval, the culprit is hung.

If illustrations like these, although presented by counsel in argument, are out of place here, they may have and probablydid present themselves to the legislative mind, when the secretary of state was ordered to authenticate all official acts.

The counsel for the defendants placed great reliance on a decision rendered by the Supreme Court of Illinois, in the case of The People on the relation of Wm. L. D. Ewing v. Forquer, reported, in the 1st vol. of Breese’s Illinois Reports, p. 68.

An extract from that decision will suffice to show what was the point therein at issue. It was on a motion for a mandamus on the relation of Wm. D. Ewing, who took out a rule on the secretary of state, requiring him to show cause why a mandamus should not be awarded against him, requiring him to countersign and seal a commission appointing the relator paymaster-general of the state.

The judge who delivered the opinion said: ‘1 The office had been vacant since 1821, and yet, I am not aware that any complaint had ever been made. I therefore come to the conclusion that the lieutenant-governor, admitting him fully clothed with all the functions of governor, had not the constitutional power to fill the vacancy in the office of paymaster-general. This conclusion would seem to settle the question whether the mandamus ought to be awarded or not. But the relator’s counsel contended, in the argument, that whether the Heutenant-governor had the constitutional right or not to make the appointment, still, the secretary was compelled to countersign the commission and affix the seal.

Can this proposition be sustained ?

By the 4th section of the act, defining the duties of secretary of state, it is enacted: “That all commissions required by law to be issued by the governor, shall be countersigned by the secretary of state. ” Had the legislature intended to require the secretary to countersign every commission that the governor should present to him, whether authorized by the law or the constitution, its phraseology would have been that the secretary should countersign every commission presented to him by the governor. The secretary-is, however, only required to countersign those commissions required to be issued by law. Must he then look into the law to see if the commission is required by law ? Would he bo required to sign a commission for an office that does not exist ?

The secretary of state is a constitutional officer, as well as the governor, and his duties are pointed out by law. I think he may refuse to sanction an unconstitutional or illegal act. Should I, however, be wrong in this opinion, still the court might well doubt the propriety of granting' a mandamus. If the lieutenant-governor had not the power to make the appointment, what benefit would the relator derive from possessing the commission; although duly signed and sealed, would it confer the office on him ? I think not. But if any doubt rests on the subject, the court ought not to grant the mandamus.”

W '6 are at a lostí to perceive what analogy exists between this Illinois case and the one now before ns.

In the former ease, a legal discretion was vested in the secretary of state. - He was to authenticate all commissions required by law; not dll official ¡acts, and this is, in effect, what constituted the discretion vested in that (officer..

The . Lmguage and phraseology, says the court, would, to divest him of discreti on, have applied to every commission presented to him by the governo

The st atóte of this state requires the secretary to authenticate all official acts; am I commissions signed by the governor appointing sheriffs, are, to all int. sots and purposes, official acts ; and, being embraced in the com-prehensh 'se term.a/1, that word is equivalant to the word every, which was needed in tee Illinois statutes to divest the secretary of 'state there of his discretion.

This court does not entertain any doubt whatever as to the practical construction of our statute, nor of the nature of the duty of the secretary of state to give it effect. He cannot go behind commissions officially presented to him for authentication.

There is a case in 12 An. p. 719 : The State on the relation of Vienne v. S. M. Hyams, on an application for a mandamus, involving a contest between an old sheriff and a newly elected one, and the court expressed therein the unanimous opinion, that it could not go behind the commission to examine the proof upon which the governor acted in issuing the relator’s commission, and to reverse his decision.

When two commissions duly authenticated for the same office are extant, and it becomes necessary to determine which of the two appointees is legally entitled to the office, that issue, presented in a proper manner and at the proper time, can be entertained by the courts; but the courts will not inquisitively seek to know upon what evidence the executive acted in the performance of a constitutional duty, at all events in advance of the consummation of an official act.

This is not a proceeding in which the right to the office of sheriff, as between the conflicting claimants, is directly involved. We do not deem that question properly before us, and we decide now nothing in regard to it.

It will be time enough to do this whenever such a case is presented for judicial investigation.

A great many authorities have been referred to by the defendant»’ (counsel to show that no useful purpose could be attained by granting the mandamus to the relator; and this involves the second branch of the ■question which we propose to solve.

There is no legal means of ascertaining upon what information or evidence the governor acted in appointing Bienvenu to the office of sheriff.

Such an appointment might, in a certain contingency, have been legally made by the executive. If a vacancy occurred it was his duty to make the appointment.

Having made it, he is presumed, as a sworn officer, to have done his duty till the contrary is shown.

Bat, it is contended that the first incumbent occupies the office under a legal commission, and that, consequently, there is no vacancy.

But does this necessarily follow ?

Suppose, for instance, that, when Bienvenu was appointed, the governor had in his possession Shaw’s resignation, which, accepted by him officially, would certainly have created a vacancy; Shaw’s commission would still be held by him, because there is no law requiring him to part with it, and he could still be performing the duties of the office under the legal requirement (see Act No. 289, 1856, $2), until his successor was inducted into office.

Evidence like this, therefore, does not suffice to destroy the presumption of legality which flow's from the performance of an official act, done by the highest executive officer of the State. And, as held in 12 A. p. 79, the court would not go behind the commission to enquire into the evidence on which it was issued.

It is the unanimous opinion of this court that neither the secretary of state nor the intervenor has shown any valid and legal reasons why the former should not authenticate the commission issued by the governor in favor of Charles Bienvenu; and that a mandamus is the proper remedy to oblige him to perform his duty in this particular. See Code of Practice, 829 and 832. Hammerick v. Hunter, 14 A. 225. Parker v. Robertson, 14 A. 249. As a matter of public policy, a useful purpose may be subserved by the issuing of a mandamus in this case. It may happily be that the performance of the duty imposed on the secretary of state will not confer on the relator any legal right to the office of sheriff; but this is no reason why the secretary of state should attempt to exercise discretionary powers where the law' confers none on him, but, on the contrary, imperatively orders him to do the act required of him.

The judgment of the lower court must be reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court in this case be annulled, avoided and reversed, and proceeding to give such judgment, as should have been given by the court below, it is ordered, adjudged and 'decreed, that a writ of peremptory mandamus issue, in the name, of the State of Louisiana 'to Stanislas Wrotnowsld, Secretary of State of Louisiana, directing him to affix his official signature and the public seal of the State to the commission signed and issued by James Madison Wells, Governor of the State of Louisiana, on the first day of May, in the year one thousand eight hundred and sixty-five, nominating and appointing Charles Bienvenu, Esq., sheriff in and for the parish of Orleans; and it is further ordered, that the defendant, Stanislas Wrotnowsld, pay the costs in both courts.


author: Howelh, J.

text:
    Von Phul, Waters & Co. et al. v. Powell & Co.
    Until goods have been received and reshipped, or until the receiver had notified the eventual consignees that they would be forwarded according to instructions, they must be considered as under the control of the receiver, and, of course, liable to attachment by their creditors.
    A ±X PPEAL from the Fourth District Court of New Orleans, Price, J.

      J. Ad Bonier and Pur ant & Honor for plaintiffs. W. H. Hunt for defendants. G. Boselius and G. P. McPlieeters for Connoly & Oo., inter-venors and appellants.
   Howelh, J.

Plaintiffs brought suit by attachment for the price of a lot of flour, sold by them for cash to defendants in St. Louis, Missouri, where both resided, and which was seized by the sheriff of this parish upon its arrival here. Bowker & Edmonds, of Boston, Massachusetts, intervened and claimed possession and control of said flour as the real consignees, making advances thereon and holding a large balance against the defendants, their debtors and consignors.

Judgment was rendered in the lower court in favor of plaintiffs against defendants, with privilege on the property attached, and against the intervenors, dismissing their intervention, from which the latter have appealed.

The defendants, in St. Louis, were large dealers in Western produce, which jthey shipped, to be sold on their own account, to various parties in New Orleans (among them Jas. Connoly & Co.), and to the intervenors, in Boston, by the Lake route or by way of New Orleans, in which latter case they consigned to said Connoly & Go., in this city, with instructions to forward by sail to the intervenors. Upon making these shipments, the defendants drew their drafts upon the parties to whom the produce was consigned and advised them of the consignments. On 21st October, 1858, they purchased the lot of flour in controversy from plaintiffs, for cash. On the 25th, same month, they took from a river steamer the usual number of bills of lading of same, consigned to Jas. Connoly é Co. here, with instructions in the bill of lading addressed to the latter, to forward to the intervenors for their account. On the same day they forwarded a duplicate of said biU of lading to the intervenors, with a letter of advice enclosing the insurance certificate in their favor, and drew on them a draft for #2,750, at 60 days, which was negotiated by them in St. Louis for their own benefit. These documents reached their destination and the draft was accepted prior to the date of the attachment in this suit, which was levied before the consignees here received the goods or bill of lading.

The question is, had the defendants, the consignors, lost 'control of the property when it was attached? To produce this effect, the legal possession or control must have vested in the intervenors by the transmission and receipt of the duplicate bill of lading and letter of advice and the acceptance of the draft. The bill of lading, however, received by them, was in favor* of Connoly & Co., who were the agents of the defendants, and not of intervenors, and who state that similar shipments had been countermanded by the defendants and sold here, and that they would have obeyed any instructions changing the destination of this flour, The intervenors could not, with the bill of lading received by them, have demanded of the common carrier, or other party, the delivery of the property. They knew that Connoly & Co. would take possession. on its arrival in New Orleans, being the parties clothed, under the bill of lading, with the legal possession; and in accepting the draft they relied on the representation of defendants that the flour would be shipped to them from New Orleans by defendants’ agents, and not upon any constructive possession in themselves, for in law there was none. The letter of advice must be controlled by the terms of the bill of lading. Until the goods had been received and reshipped by Oonnoly & Co., or until the latter had notified the intervenors that they would forward according to instructions, the goods must be considered under the control of the defendants, and, of course, liable to attachment by their creditors. See 3 An. 66. The case would have been very different if the intervenors had been the consignees named in the bill of lading received by them.

Judgment affirmed, with costs.


author: Hxman, C. J.

text:
    F. Wichtrecht v. L. & S. Fasnacht.
    Masters and employers are answerable for the damages occasioned by their servants and overseers in the exercise of the funtions in which they are employed.
    The Article’522 O. P. is directory, and a substantial compliance -with its provisions will be sustained, if the verdict is not objected to at the trial by the defendants.
    Where no interest is given by the verdict the judgment should give none.
    from the Fifth District Court of New Orleans, Eggleston, J.
    6?. Schmidt for plaintiff. G. E. Schmidt for defendants and appellants.
   Hxman, C. J.

Plaintiff claimed judgment for damages caused to him and his minor child, Henry, by defendant’s driver.

There was a jury trial, and a verdict given of $600 for the father, and of $4,000 for the child.

The district judge rendered judgment for these amounts, and, besides, decreed that defendants pay legal interest thereon to plaintiff, from 16th May, 1860.

Defendants, failing to obtain a new trial, appealed.

In this court it is not contended by defendants that the damages allowed are excessive; but they contend that the driver was not their employee, and that they are not liable for his acts.

It appears from the evidence that defendants are brewers of beer in New Orleans; that they employed certain men, and furnished them with {¿heir horses and wagons, to haul their beer about the city and sell it for them.

These men hired (defendants not objecting) other drivers, whom they paid.

Albert Erath, one of the persons employed by defendants, and a driver named Charley, were together on a beer wagon of defendants; and one of them, while driving, through carelessness and gross negligence, drove over the child, broke both of his legs, and crippled him for life.

It matters not whether Erath or Charley drove over the child, or who hired or paid Charley.

Both, when the act of damage was done, were accepted employees of defendants, and were discharging the duties of their employment.

. Defendants are answerable for damages thus occasioned. See Civil Code 2299.

Defendants further contend, that the verdict of the jury is not in the form of words required by the 522d Article of the Code of Practice.

The words used by the juryjin rendering their verdict were: “We agree to give to.” To comply strictly with the article they should have said “Verdict for.” This article is directory, and a substantial compliance with its provisions will be ¿sustained, if not objected to at the trial, as defendants might have done. See 9 La. 410; Code of Practice, 528.

The only error in the judgment of the lower court is the allowing interest to plaintiff, none being given by the verdict. The judgment should be pursuant to the verdict of the jury. See Code of Practice, Art. 541; 4 An. p. 6.

It is therefore .ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed, and that there now be judgment in favor of plaintiff, condemning defendants, in solido, to pay plaintiff five hundred dollars, for himself, and four thousand dollars for his minor child, Henry, and the costs of suit, except the costs of appeal which must be paid by plaintiff.


author: Ilslbx, J.

text:
    Mrs. Louisa H. Wheeler v. J. C. Stewart.
    Where no evidence appears on the face of the record to show why a rule taken to set aside an injunction against an order of seizure and sale should not he made absolute, the judgment of the lower court to that effect will he affirmed.
    from the Second District Court of New Orleans, Morgan, J.

      J. A. Maybin for plaintiff.

    On motion to dismiss the appeal, the transcript not having been filed within the time prescribed by law.
    The appeal, if filed on the third judicial day, will be in time, otherwise it will be dismissed. 5 N. S. 192; 8 N. S. 184; 4 L. 68; 3L. 261; 6 L. 348; 7 L. 344; 10 L. 600, 603; 6 A. 31; 2 A. 769; 3 A. 226; 6 A. 42, 716, 744; 6 A. 274; 9 A. 66, 638 and 21; 16 Am. 712. All these cases sustain the principle rigidly, that within three judicial days after the return day, the transcript must be filed.
    Where appellant (the transcript havingbeen completed on the last judicial day) goes in the evening to file it, but finding the office of the clerk closed earlier than usual, and having searched for the latter in vain, does not file it until early the next day, the appeal, on motion of one of the ap-pellees, will be dismissed. Nothing showing that the office was not open as usual during business hours, at the time of day when the attempt to file the transcript was made, the presumption is that it was after business hours, and that appellant’s failure was his fault. Buckley v. Laeroux, 14 A. 29.
    The appeal in this ease was returnable on the fourth Monday of December, 1861. The first judicial day was January 13th, 1862, and the court sat on January 14th and 16th, 1862, thus making three judicial days after the return day, and the record was not filed till January 20th, 1862.
    The motion to dismiss the appeal, because the transcript was not filed in time, is not required to be made within three judicial days after filing the record. Dwight v. McMiUen, 4 A. 350. 10 A. 75, McDonogh v. De Qrwys, where the motion was made several months, after the three judicial
   Ilslbx, J.

This was a proceeding via execuliva, sued out of the Second District Court of New Orleans by the plaintiff against the defendant, to recover the amount of two mortgage notes.

The defendant filed an opposition to restrain proceedings under the order, because, time having been'granted to the debtor by the creditor, they were premature.

An injunction issued as prayed for.

Judgment was rendered on a rule taken by the plaintiff on the defendant to show cause why the injunction should not be dissolved, making the said rule absolute, dismissing the injunction, and ordering the seizure and sale against the hypothecated property to be proceeded with according to law.

No evidence whatever was adduced by the defendant and appellant to sustain his opposition, and we see no error whatever in the judgment of the court below.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be affirmed, and the appellant pay the costs of this appeal.


author: J ones, J.

text:
    Bertrand Saloy v. J. L. Gubernator et al.
    where the note sued on hears eight per cent, interest, and the judgment below is for the same rate of interest, no damages will be accorded as for a frivolous appeal.
    from the Fourth District Court of New Orleans, Price, J.

      P. Oambray for plaintiff.
   J ones, J.

This appeal is evidently taken for delay; but, as the note upon which the judgment is based, as well as the judgment itself, allows eight per cent, interest, we do not feel authorized to allow damages as for a frivolous appeal. t

Judgment affirmed, with costs.


author: Howebb, J.

text:
    Osborne & Tolle v. Powell & Co.
    A party cannot recover judgment on notes not yet due at the time of filing the petition, unless the affidavit is made in conformity to law.
    from the Fourth District Court of New Orleans, Price, J.

      Durant & Hornor for plaintiffs. W. H. Hunt for defendants.
   Howebb, J.

This is an attachment suit which was consolidated and tried with that of Von Phul, Waters & Co., against same defendants, just decided.'

Plaintiffs sue for §3,426; and in a supplemental petition set forth that, at the date of instituting their suit, only the sum of §1,925 was due, the balance of the original claim consisting of two notes, endorsed by them, not then due. For this sum of §1,926 they obtained judgment against the defendants) with privilege, and against the garnishees, James Con-noly & Co., who intervened and claimed a preference for a general balance against the defendants.

Connoly & Co. appealed, and plaintiffs join in the appeal, and ask that the judgment be awarded so as to allow the whole amount of their claim. Powell & Co. are made parties to the appeal. *

On 30th October, 1868, when this suit was instituted, intervenors’ account current with the defendants showed §84,872 28 to the credit, and §86,258 81 to the debit of the intervenors, making a balance, in their hands, in favor of defendants, Powell & Co., of §1,386 53. Besides this, they have the sum of §665 20 net. proceeds of 123 barrels of flour, per steamer S. Decatur, which they say is claimed by Bowker & Edmonds, of Boston, making §2,051 73 the actual sum in their hands. But a lot of 160 barrels of Hour, per steamer Michigan, consigned to them, was sold by the sheriff, in this suit, the proceeds of which are $585 60, as stated in said account of intervenors. The total amount, therefore, of the proceeds of the consignments by the defendants, Powell & Co., to the inter-vernors, Connoly & Co., is $2,637 33, as found by the lower court, and is subject to the attachment of the plaintiffs; and, consequently, the inter-venors are not entitled to a judgment in their favor for any sum. The three items in their account, not allowed by the lower court, were properly rejected. They had in their hands a larger amount of money than the defendants owed them, and cannot claim interest on the debit and not allow it on the credit side of their account; and it is not shown how the other two items, for general average, originated.

The plaintiffs made a witness of one of the defendants, who testifies that, on 28th October, 1858, the defendants paid iDlaintiffs, in St. Louis, the sum of $146 68 on account, which is not credited in the bill sued on; and which must be deducted from the amount for which judgment was rendered in their favor. They cannot recover judgment in this suit on the two notes, not due at the filing of their petition, as the affidavit made by them is not in the form required in such case.

As the sheriff has in his hands $585 60, proceeds of property attached and sold at the suit of plaintiffs, this amount should be paid to them by said officer and not by the garnishees, and require the latter to resort to the sheriff for it.

It is therefore ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that plaintiffs, Osborne & Tolle, recover of defendants, Powell & Co., in sólido, the sum of $1,778 32, with legal interest from judical demand, costs of suit in lower court, and privilege on the property attached, and without prejudice to their right of action on the two notes set forth in their amended answer. It is further ordered, that, in part satisfaction of this judgment, they be paid by the sheriff the sum of $585 60, proceeds of 160 barrels flour, sold in this suit on 15th November, 1858, by said sheriff. It is further ordered that the demand of intervenors be dismissed, with costs, and that plaintiffs have judgment against James Connoly & Co., garnishees, in solido, for the balance of the aforesaid sum of $1,778 32, to wit: $1,192 72, with legal interest from maturity of this judgment; and it is further ordered that the plaintiffs and appellees pay the costs in this court.


author: Howelb, J.

text:
    Elizabeth Mendez et al. v. Baptiste Dugart.
    Where a. road, once dedicated to publio use, ha3 since ceased to be used for public purposes, and. is not required by front proprietors thereon, its soil reverts to the owners.
    from the Fourth District Court of New Orleans, Price, J.

      C. Puf our for defendant and appellant.

      B. Augustin for plaintiffs.

    The heirs, Dumas and Elizabeth Mendez, •claim the soil of Highland road as their property, on the ground that the defendant and appellant has, by his. own act, rendered useless and impracticable the servitude of passage through the said land by fencing it up and inclosing the same. C. C. Art. 780.
    Servitudes are extinguished when they can no longer be used.
    The soil of the road is returned to the owner as it ceases to be applied to some public purpose. C. C. Art. 474, 449.
    Grantor reserved the fee in the soil. United States Digest, 1858, p. 180, g 152.
    The public have the right to perfect and maintain their right of free passage, but beyond this, the rights of the owner of the soil remain unimpaired. United States Digest of Decisions, vol. 10, p. 639, g 9.
    Where a private way over land of the plaintiff has been used for a long period by defendant, but has become unnecessary to him as a way, and he has obstructed it, the easement is relinquished. U. S. Digest, vol. 8, p. 589, g 77.
    Places left vacant on the'plan of a town are not considered as dedicated in consequence of that fact alone. Hennen’s Digest, p. 1587, § 12; 7 Annual, 499, Xiques v. Bujac.

    Those only can accept a dedication who are clothed with the authority of the sovereign. 7 An. 270.
    To be perpetual, servitudes must be so expressed in the title. O. O. Art. 715.
    Donation must be made by authentic act. O. O. 1523.
    It is binding only when accepted and notified. C. 0. 1527.
    The soil of the road belongs to the original owner, and reverts to him when it ceases to be applied to a public purpose. C. 0. 474, $2; 0. 0. 654, 780, 723.
    “ The roads old and new, in this State, are generally what are denominated in the Code, public roads; hence, it by no means follows, because a road is a public road, that the public has any right to the soil after it has been abandoned.” Hatch v. Arnault, 3 An. 482.
    This Highland road never figured upon any city plan adopted by the city council.
    The plan of the city must show the destination and appropriation of lots to public uses and as public places, in order to imply a promise on the part of the original owner of the soil and founder of the city, that the lots shall always remain open for the use of the public. Be Armas v, 'The City of Hew 'Orleans, 5 Ij, p. 132.

      Servitudes are extinguished when they can no longer be used. C. C. Art. 780.
    In the case of Bernard Marigny v. Pontchartrain Railroad Company, 15 An. p. 427, the Supreme Court has pointedly settled the doctrine as applicable to the present ease: “ That when a party entitled to a servitude has, by his own act, rendered that servitude impracticable, his right becomes extinguished and the transferrer is entitled to receive back the land free from the servitude created thereon.”
    The surveyor, D’Hémécourt, in his testimony says, “ that since the opening of the streets in that vicinity, between Esplanade, Hospital, Barracks and Johnson streets, the streets so opened have cut up this Highland road in many places; and since the opening of these streets, this Highland road is of no possible use to persons living either on Bayou road or Esplanade street, or to the public at large.
    It used to be a front passage, and by cutting it up and opening the streets, it became a rear passage.”
    It becomes self-evident that the appellant, by his own act of closing up this passage, on the whole extent of his lots, 183 feet and seven lines by 45 in breadth, has clearly demonstrated the inutility of the servitude of way established by Elizabeth Mendez and Thomas Humas, which is further demonstrated by a similar course pursued by all the purchasers of •lots on Highland road. Dorville says: “ Where this Highland road stood is all built up and closed. ” This illegal conversion by the appellant, and his persistence therein, in 'spite of the letter delivered to him by the counsel for the appellees, in June, 1860, requiring him to remove the obstructions by him placed in that passage, constitutes a trespass for which the court below has mulcted the appellant in the very moderate amount of six dollars per month. A very poor retribution for such a flagrant violation of appellees’ rights.
    The title to the soil of the road was never relinquished by the appel-lees.
    Abandonment of the title to land must be made in writing. 4 A. 172.
    Where streets are laid out and dedicated to public use, they do not become public highways without being accepted as such by thp proper authority. Butnam’s U. S. Digest of Decisions, vol. 8, p. 589, g74.
   Howelb, J.

This is a,petitory action, in which the plaintiffs, Elizabeth Mendez and the heirs of the late Thomas Dumas, claim the ownership of two tracts of land, forming a part of a piece of ground in the Second District of this city, styled the Highland road, running from Bayou road to Canal Carondelet, between Johnson and Galvez streets, of which two tracts, they allege, defendant has taken illegal possession; they allege, also, that said strip of ground was a part of a larger tract ofdand owned by their author and themselves, and was reserved as a road of ingress and egress to the said Canal Carondelet, and that they have never been divested of the legal ownership ; that the lots sold to the author of defendant were sold to front on said Highland road; that, since the streets have been laid off in that vicinity by the city of Hew Orleans, said lots of defendant now front on Galvez street, making said Highland road no longer necessary as a passage, and that, consequently, the soil thereof is returned by law to them as owners.

The other plaintiffs, as heirs of the late Joseph Castañedo, claim aservi-tude of passage, granted in 1806 by the then owner.

The defendant pleads the general issue, denying that plaintiffs have any cause of action, and makes the following assignment of errors :

1. Those of the plaintiffs who claim by right of servitude are barred by prescription.

2. Those of said plaintiffs who claim ownership are shown by the evidence to have divested themselves of all such rights by making the road a locus publicus.

3. The plaintiffs have no interest to stand in judgment in the matters herein involved, and therefore cannot be heard.

We are of opinion that the heirs of Castañedo have not shown a right to stand in judgment as against defendant.

The other plaintiffs, Elizabeth Mendez and the heirs of Dumas, have introduced the original title to the tract of land, comprising within it this Highland road, and under the provisions of our law, and as the road has long since ceased to be used for public purposes, and is not required by the defendant and other purchasers fronting thereon, its soil reverts to them as owners. C. C. 474, 654. 3 A. 482.

The alleged dedication by the plaintiffs of this road, in selling lots fronting thereon, was not such as to divest them of the property in the soil so reserved.

The defendant evidently has no right to the ground in question, his title showing that he bought lots fronting on said road ; and, as to him, the plaintiffs have shown a good and sufficient title to the property.

We think, however, the district judge erred in decreeing a title to the defendant ttpon paying a certain sum. The ends of justice will be met in decreeing the plaintiffs to be the owners and entitled to the possession of said land, reserving all other rights for further adjustment.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be avoided and reversed, and that plaintiffs, Elizabeth Mendez and the heirs of Thomas Dumas, be decreed to be the owners of the property described in their petition and known as the Highland road; and that they be put in possession thereof. It is is further ordered, that the defendant, Baptiste Dougart, remove the fences and improvements thereon within thirty days from the maturity of this judgment, - or, in default thereof, that plaintiffs have them removed at his cost. It isfurther ordered that the rights of servitude, of rent and of damages, be reserved to the parties annually; and it is finally ordered, that the costs of the lower court be paid by the defendant, and the costs of appeal be paid by the plaintiffs and appellees.


author: Howell, J.

text:
    P. H. Brinton, Syndic, v. Madame Jean Datas.
    A judicial sale of a lease imposes upon the purchaser the obligation of paying the price to the vendor, and that of paying the rent, accruing after the sale, to the lessor, according to the terms of the lease; and this whether it is so announced in the advertisement or not.
    from the TMrd District Court of New Orleans, Bumgneaud, J.

      B. & H. Marr for plaintiff. F. Filleul for defendant and appellant.
   Howell, J.

Plaintiff, as syndic, claims from defendant the rent due under the stipulations of a lease, the unexpired term of which was purchased by the latter, at the sale of the insolvent’s effects. The defence is that the price paid was for the occupancy of the premises during the term of the lease yet to run, and not as a provision for the lease. This defence is inconsistent with the doctrine maintained in the cases of Bartels et al. v. Their Creditors, 11 A. 432, and D'Aquin et al. v. Armant, 14 A. 217; in which it was held that the “ bid for the lease, in such a case, is a premium which the bidder is willing to give for the transfer of the lease to himself, vwith all the obligations, as well as all the rights thereto attached, from the moment of the adjudication;” and this, whether it beso announced in the advertisement or not. It is ike legal effect of the adjudication.

It is not contended that defendant’s liability to the syndic, who has paid the rent out of the funds of the insolvent estate, is different from that to the lessor.

Judgment is affirmed, -with costs.


author: Labauve, J.

text:
    Succession of Bernard Chappel : Ida Hannah, f. w. c., v. H. B. Eggleston.
    The slave who has acquired the right of being free at a future time, is, from that time, capable of receiving by testament or donation. Prop erby given or devised to him must be preserved for him, in order to be delivered to him in kind, when his emancipation shall take place. In the meantime it must be administered by a curator.
    from the Second District Court of New Orleans, Morgan, J.

      M. SouU for plaintiff and appellant. A. Qrima, curator ad hoc, for minor. F. Bermudez, for defendant.
   Labauve, J.

The deceased Bernard Ohappel made his will by public act, or the 1st January 1853, by which he emancipated the said Ida Han-Hall and Clementine her daughter (both being'at the time his slaves), and appointed them his heirs and universal legatees. The said testator having departed this life, his will was duly probated on the 23d January, 1854. It is admitted that Ida Hannah was duly and fully emancipated by the said Bernard Chappel before his death, but Clementine remained a statu liber under the will.

On the 11th December, 1861, the plaintiff, Ida Hannah, filed her petition, stating that the testator had appointed her and her said daughter his sole heirs and universal legatees ; that the testamentary dispositions concerning said Clementine (a minor and a slave! falls, she, the said Clementine, being incapable of receiving it, the actual laws of the State of Louisiana prohibiting the emancipation of slaves. The said Clementine being a minor, without tutor, the court appointed Alfred Grima as her curator ad hoe, to defend this suit.-

The said curator appeared and, in substance, denied plaintiff’s right to the whole estate, and prayed that plaintiff’s demand be rejected. He further prayed that the said Clementine be recognized as universal legatee with her said mother, of the said estate, and that the said Ida Hannah, her mother, be put in possession of defendant’s share, in her capacity of natural tutrix, etc.

On the 14th February, 1860, the court below gave a judgment of non-suit against said plaintiff, and she appealed.

At the time of the making and probating of the will the said Clementine could have been absolutely emancipated under certain conditions ; but there can be no doubt that she became a statu liber under the will, and entitled to receive donations. C. C. Arts. 193, 1462.

In the actual state of things, the said Clementine has been put in the full enjoyment of absolute freedom as a free person of color.

It is therefore adjudged and decreed that the judgment of the lower court be reversed, and that plaintiff’s demand be dismissed. It is further decreed that the said Clementine be recognized as universal legatee with her said mother, each for one undivided half of the estate of said Bernard Chappel, and that the said plaintiff and appellant pay costs in both courts.


text:
    City of Jefferson v. Joseph Kaiser, et al.
    Where the defendant is cited personally, and as president of a company, and answers for himself alone, there is no issue joined, and the case will he remanded.

      H. PPEAL from the District Court of the Parish of Jefferson, Gazábal, J.

      George S. Laaey and B. L. Lynch for plaintiffs. Bosélius S Philips for defendants and appellants.
   Labauve, J.

The mayor, aldermen and inhabitants of the city of Jefferson, after having alleged the facts and grounds in support of their demand, pray, in substance, that a writ of injunction may issue; that said Joseph Kaiser and the City Railroad Company may be enjoined and restrained from placing their cars on or running the same over the railroad track on Magazine street, in the city of Jefferson, between Toledano and Joseph streets; that the said Kaiser and the Jefferson City Railroad Company aforesaid may be cited to appear and answer this petition; that, upon trial, judgment may be rendered perpetuating the injunction, etc.

The record shows that a citation issued, addressed as follows:

“Mr. Joseph Kaiser, of the city of New Orleans, and Joseph Kaiser, president of the Jefferson City Railroad Company.”

We find that Joseph Kaiser appeared and filed an answer for himself alone, not pretending to be or act as agent of the said Jefferson City Railroad Company. We have in vain looked in the voluminous record for an issue joined between the' plaintiff and the said company, either by an answer or by a judgment by default.

The judgment appealed from must be reversed and the case sent back.

It is therefore adjudged and decreed, that the judgment of the District court be annulled and set aside, and that the case be remanded to be proceeded in according to law, the plaintiff and appellee to pay the costs of appeal.


author: Sowell, J.

text:
    Clark, Bros. & Co. v. Powell & Co.
    Garnishees being stakeholders are liable only for the sum which they owe the defendants, and should not be made to pay interest until they are in default, as the garnishment process prohibits them from paying until ordered by the court. They are required to pay the attaching creditors only such sum as they may owe the defendants on a full and final settlement of their accounts.
    a £L PPEAL from the Fourth District Court of New Orleans, Price, J.

      J. A. Rozier and Durant & Hornor for plaintiffs. W. H. Hunt et at for defendants. Bonford, Singleton & Glade, G. Roselius and Gaither & McPheeiers for intervenors and appellants.
   Sowell, J.

This is another of the series of attachment suits against those defendants which were consolidated and tried together in the court below and brought up in one transcript, two of which are just decided.

Plaintiffs obtained judgment against the defendants and the garnishees, James Connoly & Co., for the sum of $712 33, with interest and costs, said sum being the balance declared to he due defendants by the garnishees, from which judgment the latter appealed and the plaintiffs have joined in the appeal, asking judgment for the whole amount of their claim, $3,300. The defendants are made parties to the appeal. The garnishees being stakeholders are liable only for the sum which they owe the defendants and should not be made to pay interest until they are in default, as the garnishment process prohibited them from paying until ordered by the court.

By the change made in the sum awarded to Osborne & Tolle by the decision first rendered, the balance in the hands of the garnishpes is increased to $858 68, to which plaintiffs in this suit are entitled, as second attaching creditors.

We do not understand the necessity of rendering judgment in favor of the garnishees against the defendants for the amount which their account current shows to be in their favor, when it also shows a larger sum dne the defendants. As garnishees, they are required to pay the attaching creditors only such sum as they may owe the defendants on a full and final settlement of their accounts, which, in this case, is the said sum of $858 68.

The judgment must be amended so as to give plaintiffs the said amount in the hands of the garnishees.

It is therefore ordered that the judgment of the District court be amended, and that plaintiffs recover of defendants, in solido, the sifm of $3,300, with legal interest from judicial demand, and costs of the lower court, and with privilege on'the property attached. It is further ordered that the demand of intervenors be dismissed, with costs, and that plaintiffs recover of Jas. Connoly & Co., garnishees, in solido, the sum of $858 68 (being the balance in their hands due defendants), with legal interest from the maturity of this judgment; and that said Connoly & Co., appellants, pay costs of appeal.