text:
    West v. His Creditors.
    Prescription is interrupted by a cessio bonorum made by the debtor.
    Where a creditor of an insolvent claims, adversely to the other creditors, that a payment made by a third person in discharge of a judgment on a bond in which the creditor was surety for the insolvent, was made by such third person as his agent, he must prove the fact; it will not be presumed.
    The syndic of an insolvent is entitled to commissions on an amount paid to an agent, employed to procure payment of a claim due to the estate.
    One who had made a cessio bonorum under the State law, and was afterwards discharged as bankrupt under the act of Congress of 19th August, 1841, is a competent witness to prove the correctness of the debts acknowledged by him in his hilan filed at the time of his cession, unless disqualified on account of his personal relationship to the creditor, or where the debt is due to his wife.
    Laws on the subject of the competency of witnesses, being purely remedial, take effect iii all cases from their enactment.
    A debt is not extinguished by the death or insolvency of the creditor.
    The omission to record the claim of a wife for dotal property as required by the stat. of 26th March, 1813, does not render it null and void. It will still subsist, as an ordinary debt between the husband and wife; and, in case of the insolvency of the husband, she will be entitled to payment with the rest of his creditors.
    APPEAL from the District Court of the First District, Buchanan, J.
   The judgment of the court was pronounced by

Rost, J.

In 1819, John K. West made application for a respite,' which appears to haye been granted by his creditors. Pie failed to comply with the terms thereof, and, in 1821, some of the creditors proceeded against him for a forced surrender. When notified of these proceedings, he made into court a surrender of all his property, which was accepted, and the creditors appointed a syndic who took charge of it. The assets surrendered at that time being entirely unavailable, most of the creditors neglected to prove their claims. Among these assets was a large claim against the Mexican republic, which has since been liquidated by the board of commissioners under the convention of the 11th of April, 1839, between the United States and the republic of Mexico, and upon which the sum of $43,650 04 has been allowed. The interest due on this sum, and the first three instalments of the capital, have been paid, and the syndic has filed a tableau of distribution of the amount received among the creditors.

This cause comes before us on the appeal of the opposing creditors, from the decision of the court below upon their various oppositions. We will notice those oppositions, in the order in which they are found in the judgment appealed from.

1st and 2d. The claims of the heirs of Hull, and of the syndic of Greenbwry Dorsey: West, before his failure, had sold to Hull and Greehbury Dorsey, without authority, property belonging to Van Pradelles, and had not accounted for the proceeds. After his failure, the heirs of Van Pradelles recovered the property from Hull and Dorsey. The legal representatives of these parties are, in consequence of the eviction, subrogated to the rights of Van Pradelles against the insolvent, and as the cause of the eviction was anterior to the failure, their claim, cannot be barred by prescription.

3d. There is no error in the judgment upon the claim of Francois Duplessis, Sr. It was a mortgage claim. This creditor caused the property mortgaged to be sold, and the court has allowed the balance due, after deducting that part of the proceeds of the sale which went to the extinguishment of the mortgage.

4th. Francois Dwplessis, Jr., alleges that there is error in the judgment rendered upon his opposition, in this : 1st. That the court should have allowed him the sum of $2368 41, paid by him to the United States, under a judgment upon a custom-house bond, on which he was one of the sureties. 2d. That the court should further have allowed interest upon his whole claim. We think the coürt erred in refusing to allow interest on the amounts of the judgments in favdr of the United States, satisfied by this creditor. He is subrogated to the rights of the United States, and all claims thus due them bear interest bylaw. In relation to the claim of $2368 41, we are of opinion there is no error. Admitting that the marshal’s return, stating how and by whom the writ had been satisfied, may be explained, or even contradicted, by the evidence of that officer, that evidence does not make it certain that any portion of the amount of the judgment was paid by Francois Duplessis, Jr. The witness states that he was referred to F. Duplessis, Sr. for the payment of one-half of the judgment, and that he called upon the said Duplessis, who paid it. Du-plessis, Sr., was not a party to the bond or to the suit, and the witness believed at the time that he made the payment on account of his son-in-law, John K. West, and on account of his son, F. Duplessis, Jr. The receipt given by the witness was to Francois Duplessis, Sr., in his own right, and not as agent of his son.

It is contended that, as F. Fuplessis, Sr. was not personally bound for the debt, we must presume that he paid it for his son, whose agent he was at the time. The peculiar relation in which he stood towards West and his wife, and the testimony of the marshal, both tend to weaken that presumption; and we hold it to be insufficient in any case, to establish a claim against an insolvent, adversely to his other creditors. The authority cited from Paley is not applicable to a litigation in concurso. If the judgment was paid by the agent out of the funds of the principal, it was incumbent upon the principal to prove that fact, and as he failed to do so, the claim was properly rejected. Paley on Agency, p. 264.

The court correctly recognized the right of this creditor, to be paid by priority the amounts of the judgments rendered in favor of the United States, and satisfied by him. The failure of West to comply with the terms of tho respite, was an act of bankruptcy; and he made besides afterwards a surrender of all his property for the benefit of all his creditors. 3 Cranch, p. 91.

, The court properly disregarded the evidence adduced to show that the whole amount claimed by him had been settled and paid. The settlement of accounts made in 1842 between him and West, has reference to transactions subsequent to the failure of the latter, and cannot affect his rights upon the fund held by the syndic.

This creditor further opposes several of the privileged, and all the ordinary claims placed on the tableau. He first opposes the item of syndic’s commission, which is charged on the whole sum allowed by the commissioners. The court below reduced that item to the commissions on the three instalments actually received by the syndic. In this, we think, there is error. The syndic made an agreement with a person in Washington who undertook to attend to and prosecute the claim, and stipulated to give that person ten per cent upon the amount recovered. That compensation, amounting to $4365 20, has been paid, and the syndic is entitled to receive his commissions upon it.

The next privileged claims opposed are the fees of the counsel of the syndic. It is in evidence that they were employed from the beginning of the failure ; that they rendered many important services; and after a delay of six and twenty years received each $1,000. This disbursement is every way reasonable, and we will not disturb it.

The ordinary claims allowed by the tableau are fifty-one in number. They are all opposed by F. Fuplessis, Jr., and by Mrs. West. By consent of parties the claim of A. L. Funcan’s estate was reduced from $5432 22 to $1025 51. In support of the other claims much evidence was adduced, apart from that which is contained in the books of the insolvent. The insolvent himself, who has lately obtained a discharge under the bankrupt act. has testified that the statements of these claims on his books and in his schedule were correctly made, and the debts therein mentioned really due by him. His evidence was objected to, and the bill of exceptions comes up with the record.

We think the court did not err in receiving it for what it was worth, so far as it went to charge the estate, except in proving the claims of his wife. Under the Spanish law of evidence, in force at the time of the failure, the insolvent could not have been a witness ; but that law has been snperseded by another, which does not contain that disqualification ; and the laws on the competency of witnesses, being purely remedial, take effect in all cases occurring after their passage.

The claims proved by this witness appear to have been from the beginning admitted by the syndic, on the evidence of the insolvent’s books. It is proved that they are written on those books, in the handwriting of a clerk of the insolvent, who is now dead; and the insolvent himself has made oath that they are justly due. At this distance of time, this is the best evidence the nature of the case admits of. If in truth they are not due, it was incumbent upon the opposing creditors to have shown it.

The court properly rejected the claim of Joseph P. Homer, on the ground that it had been paid, and that of Rebecca K. West, because it had been extinguished by confusion ; but the court further rejected fourteen other claims, on the ground that they had abated by the death, or insolvency, of the creditors. Among them is that of Lloyd and Harrison, the very parties who forced the insolvent into court. This is clearly wrong. The various modes in which debts can be extinguished are enumerated in the Civil Code, and neither death nor insolvency are of the number. These parties all have, or can have, legal representatives, and it is our duty to preserve the dividends coming to them.

The last opposition is that of Mrs. Adelaide West, the wife of the insolvent.' She claims to be placed on the tableau for $6,000, being so much brought in the marriage as a dot, and received by her husband. The court sustained the opposition for $5400 as an ordinary claim, and we are satisfied that there is no error in the decision. It is in evidence that, in 1842, John K. West went into the bankrupt court; that this claim was referred to a commissioner of that court, who reported that Mrs. West was entitled to be paid by privilege the full sum of $6,000 ; that upon this report, the judgment of the court intervened, declaring the rights of Mrs. West to be as therein stated. That judgment has been pressed upon us in argument, as res judicata. We are clear it cannot be viewed in that light; the parties were not the same, nor was the subject matter the same in both courts. The object of these proceedings is the distribution of a specific fund, over which the Supreme Court of the United States has decided that, the State court seized with the first failure of West had exclusive jurisdiction; the rights of Mrs. West in that fund cannot, therefore, be affected by the decisions of the United States Court. Under the laws in force at the time of the failure, the wife had no privilege for the payment of her dotal rights, even when her claims had been properly recorded under the act of 1813; but the claim of Mrs. West was not thus recorded, and the opposing creditors contend that, under the provisions of that act, it is absolutely null and void. We cannot recognize as true, a construction that would lead to such a result. That she has lost her right of mortgage, there can be no doubt; but. Between her and her husband, the claim still subsists as an ordinary debt. If she had died, leaving her husband solvent, he would have been obliged to pay the amount to her heirs. She must therefore be entitled to her share of the common pledge, as a creditor. The deduction made by the district judge for the value of a piano received by Mrs. West in part payment of her dot, and given by her to her sister, was legal and proper.

For the reasons assigned, it is ordered that the judgment be reversed; and proceeding to give such a judgment as should have been rendered by the court below, it is further ordered that, the tableau annexed to this decree, and made in conformity with the principles of this decision, stand as the final tableau of distribution of the fund in the hands of the syndic, with directions to the court below to cause to be paid into court, and deposited in one of the banks of this city, the dividends of the creditors not properly represented, there to remain subject to be claimed by the legal representatives of those creditors during the space of twelve months, after which time the court shall cause the amount of the dividends not claimed to be distributed among the creditors. It is further adjudged that the costs of both courts be paid by the syndic, out of the funds in his hands.

L..C. Duncan and A. Hennen, for the syndic. Hornor, II. D. Ogden, Hoff.man, Q. B. Duncan and H. H. Strawbridge, for different creditors.

       Eustis, C. 1., having been of counsel in this case, did not sit on its trial.

       The syndic also appealed.


source: Caselaw Access Project

author: 1 SiiDEim, J.

license: Public Domain

text:
    Carmena v. The Bank of Louisiana.
    One who endorses a note merely as an agent for collection is entitled to the same time as an ordinary endorser, to notify antecedent parties of its non-payment; snoli notice if put into the post-office early enough for the mail of the day succeeding that on which he received it, is in time.
    The stat. of 13 March, 1827, has not changed the general commercial law as to the diligence to he used in serving notices of protest. It merely provides a new mode of proof of demand and notice.
    Where the endorser of a bill had directed all letters addressed to him to be sent to a particular post-office, a notice of protest put into that office, and addressed to him there, will be sufficient, though that office be not the nearest to his residence.
    APPEAL from tlie Commercial Court of New Orleans, Walts, J.

      G. S. Lacey, for the plaintiff.
    The endorsers of the bill, who were the only solvent parties thereto, were discharged by the fault of defendants, who are consequently liable for the injury resulting from this neglect. See 7 Rob. 57. The endorsers were discharged by illegal delay in sending notice, and by the illegal manner of sending it. As to the delay, see the judgment in the case in'7 Rob. 57. The manner of the notiee was illegal, in not having been sent to the office nearest to the residence of the endorsers; and in being put in the post-office not for the purpose of transmission by mail. Where parties receive their letters through the post-office of the place in which a bill is protested, 'notice of protest must be served personally. See Story on Promissory Notes, p. 374. 10 La. 490. Chitty on Bills, 9 Am. edit. p. 475, b. and cases cited. 5-Mart. N. S. 359. The law on this subject is not changed by the stat. of 13 March, 1827. 8 La. 171. 15 La. 54. 6 Rob. 500. 11 Ibid. 467. As to the liability of defendants, see 7 Mart. 464. 1 Ibid. N. S. 216, 365. 2 La. 416.

      Ratliff and Cowgill, on the same side.

      L. Peirce, for the appellants.
    Plaintiff does not allege that he did not receive notice of the dishonor of the bill, but that notiee was not given to the endorsers. It was his business to notify the endorsers, or others whom he wished to charge. Byles on Bills, p. 100.- 16 La. 568. The notices to the endorsers were in time. Bayley on Billls, p. 172. Story on Notes, § 326. Smith v. Mallet, 2 Camp. 208. 2 Hy. Blackstone, 565. The notices to the 'endorsers were properly directed, under their instructions to Hall. 6 Rob. 74. 'Mead v. Carnal, 6 Ibid, 268. Story’ on Notes, p. 419, § 344 and note. 8 M. :&W. 252. 7 Hals. 268.
   The judgment of the court was pronounced by

1 SiiDEim, J.

Carmena, being the holder of a bill of exchange drawn by jP. Doherty cm, and accepted by, Caldwell & Hickey of New Orleans, and ent^or3e^ by S. L. Doherty and A. Doherty, brought suit against the endorsers, and was nonsuited, upon grounds set forth in the decision of the former Supreme Court. See 7 Rob. p. 57. Carmena then instituted this suit in which he seeks to make the bank liable for the amount of the note, as having negligently performed the duty of collection. It appears that Carmena entrusted the note to the cashier of the branch of the bank at St. Francisville, who sent it to the mother bank at New Orleans, who placed it at maturity in the hands of á notary usually employed by the bank. The notary made presentment to the acceptors and protest, and sent a notice of protest to the cashier at St. Francisville by the first mail, together with the notices for the various other parties under cover to the cashier. He received them in due course of mail, and, on the morning of the succeeding day, deposited the notices for the various antecedent parties in the post-office at St. Francisville, addressed to them at St. Francisville. It appears that, the endorsers live in the parish of West Feliciana and in the country; that S. L- Doherty resides about twenty miles from St. Francisville, and A. Doherty about eighteen miles from said town; that the post-office at Laurel Hill in that parish, was much nearer to the residence of A. Doherty than the one in St. Francisville, and that the post-office at Pinckneyville, in the State of Mississippi, is much nearer the residence of S. L. Doherty, than the one in which the notice was deposited. It is also proved that St. Francisville was the post-office at which the drawer and indorsers usually received their letters, and that they had ordered the cashier to put their letters in that office, informing him that they seldom went to other offices.

Before considering the legal consequences of putting the letters into the post-office at St. Francisville thus addressed, it is necessary to consider the circumstances and acts anterior to that event, and whether their legal consequences are such as to have impaired the liability of the indorsers. Hall was, it is true, a mere agent for collection; but he was also last indorser upon the draft. He being an indorser, though merely an agent, the law accorded him the same interval to notify adtecedent parties as though he had been an .ordinary indorser. Now notice was sent to him by the first mail after protest. On the morning of the day after he received notice in due course of mail, he mailed notices to the indorsers. So far as the question of time, which we are now considering, is involved, this was in time. Judge Story, in his treatise on promissoiy notes, after noticing the familiar rule that a party who has received notice is entitled to the whole of the day on which he receives it to prepare his notice, and that it is sufficient that the notice be put into the post-office early enough for the post of the succeeding day, (§ 234, and see also the authorities there cited,) then proceeds to consider the case of an agent: “ The benefit of this rule is not confined to a mere holder for value, but it applies also to a holder who acts as a mere agent for another person. Thus, if a note has been transmitted by the holder to an agent, or banker, for the purpose of procuring payment thereof at its maturity, such agent or banker will be entitled to the same time to give notice of the dishonor to his principal or customer, as if he were himself the real holder for value; and the principal or customer will be entitled, after he receives such notice from his agent or banker, to the like time to communicate notice to the antecedent parties whom he means to charge, as if he were an indorser, and had received the notice from the real holder for value, and not from his own agent or banker.” The principles here so distinctly and positively announced by this learned author are fully sustained by numerous authorities; nor are they of recent origin. See Bailey on Bills, chap. 7, sec. 2, p. 173, edit. of 1826. Chitty on Bills, ch. 10, p. 521 — 2. Smith’s Mercantile Law, [208]. Byles on Bills [162], and the cases cited by these authors.

‘ The act of 1827, has not, in our opinion, disturbed this well settled rule of the commercial law; and so, as to the general effect of that statute, it has been field by the former Supreme Court. Its object was to provide a new and convenient mode of proof. 3 Rob. 164. 7 La. il.

So far as the decision in the case of Carmena v. Doherty, 7 Rob. 57, tends to ■overthrow the well established rule of the commercial law above discussed, and so abundantly recognized and sanctioned, we cannot give it our assent; It is of great importance" that there should be uniformity in the jurisprudence of our country, upon a subject so vitally connected with the every day interests of commerce as that of bills of exchange and promissory notes.

"We conclude that it .was in time to mail notice to the drawers and indorsers, on the morning of the,day after the cashier and last indorser received them; and the question then presents itself, were these notices properly mailed, being, as we have seen, deposited in the post-o'fficé at St. Francisville, addressed to the Dohertys respectively at that place V

"Whether the deposit of the notices in the post-office at St. Francisville thus addressed, it being proved that it was the office at which the parties usually received .their letters, was sufficient to bind them, is a point which it is not necessary for us to decide. In this case a very important fact is proved, which 'was not proved in the case of Carman v. Doherty. The Dohertys had informed Hall, the cashier, that they seldom went to other offices, and had ordered him to put their letters in that office’.' This justified the course pursued by Hall. “ In many cases,” says Story in the same treatise, already cited, § 344, “ where an indorser of the note points out a particular place to which the notice shall be sent to him, it will be sufficient, although it may not be his domi-cil or place of business; and the antecedent parties will also be bound by notice from him after the receipt of such notice, if given in due time, in the same manner and under the same circumstances, as if the notice had been regularly sent "to his domicil, of place of businéss ; at least if there be no fraud.” See also Shelton v. Braithwaite, 8 Mees. & Wellsby, 252. Mead v. Carnal, 6 Rob. 74.

If the fact thus established had been proved in the case of Carmena v. Do-Jierty, it would have concluded the drawer and indorsers on that point of the cause. The present defendants cannot be held responsible for the failure of the plaintiff; on that occasion, to produce evidence which would so materially have changed the legal aspect of the cáse. The liability in the case now before us rests upon the question of the due performance of the agency, and that question must be.tested.by the evidence in this cause. It proves that the notices were given in due season, and in the manner directed by the parties to the bill, and consequently fixed their liability.

It is therefore decreed that, the judgment of the Commercial Court be reversed; and it is,further decreed that, there be judgment for the defendant, and that.the plaintiff pay the costs in both’courts.'


author: Rost, J.

text:
    Oakey v. Murphy.
    Where one who ha» sued on a note alleges, in a supplemental petition, that, previously to the institution of suit, a judgment had been rendered on it in another State, the suit must be dismissed. The note having merged in the judgment, plaintiff should have sued on the latter. He could not amend his petition by alleging a fact which destroyed it. C. P. 419.
    APPEAL from the District Court of the First District, Buchanan, J.

      Fraser, for the plaintiff. Schmidt, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

In this case, which is an action by the holder of a promissory note againstthe maker, the plaintiff filed a supplemental petition, in which he 'alleged that a judgment had been rendered in his favor, at the time of the institution of his suit, on the note sued on, in the Circuit Court of the United States for the southern district of Mississippi. On a judgment by default being taken, it was confirmed on the evidence of this judgment rendered in Mississippi. So far from the judgment proving the right of the party to recover on the note, it establishes the reverse, inasmuch as it is a merger of the note. Abat v. Buisson, 9 La. 419. Mackie et al. v. Cairnes, 2 Martin N. S. 599. 3 Blaekstone’s Com. 398. The plaintiff has lost his right of action on the note, and he has no right to amend his petition by an allegation which extinguishes it. Code of Practice, art. 419. Pie ought to have brought his suit on his judgment.

It is therefore ordered that the judgment of the District Court be reversed, and that the plaintiffs petition be dismissed, with costs in both courts.


author: Siibeii, J.

text:
    Myers v. Perry et al.
    The execution of a bond by a defendant for the release of property attached, will notpreclude him from moving to set aside the attachment on. the ground of the insufficiency of the attachment bond and oath; but, after the plea of the general issue, no such motion can bo made. C. P. 344.
    Where in a collision between steamers there was fault, or want of oare, on both sides, or no fault on either side, neither can recover damages of the other.
    In determining whether a collision on the Mississippi occurred in one or the other of two contiguous States of which it forms a boundary, the middle of the river must be taken as the boundary line.
    In the absence of any law, an established usage among those engaged navigating the Mississippi with steamers, must be considered, in determining question of fault or negligence in the management of the boats on that river.
    In an action for damages to plaintiff’s steamer occasioned by a collision with a boat of the defendants, evidence that the latter boat was racing at the time of the accident is not ir- ■ relevant.
    Where the purchasers of a steamer assume any liability for damages that may have resulted from a collision with another boat, the owners of the latter may avail themselves of the assumption, and recover from the purchasers damages for the injury sustained. C. C. 1884 1896. C. N 35.
    In case of the collision of two steamers, the actual injury sustained at the time and place of the injury, is the measure of damages. The damages must be confined to the immediate and direct consequences of the occurrences.

      APPEAL from the District Court of the First District, Buchanan, J.

      Perm and JRoselius, for the appellant. <7. M. Randall, for the appellees.
   The judgment of the court was pronounced by

Siibeii, J.

Before entering upon the more important questions involved in this cause, it is proper to notice an incidental matter growing out of the attachment which was levied by the plaintiff. Under this writ the steamer belonging to the defendants was seized, and was bonded by them. They then pleaded the general issue, and subsequently took a rule on the plaintiff to show cause why the order of attachment should not be set aside and the bond cancelled, by reason of certain alleged defects in the bond and oath, and the alleged pecuniary insufficiency of the sureties. The motion was resisted, on the ground that the application came too late : 1st, because the property had been bonded ; and 2d, because issue had been joined in the cause. The first ground of objection to the rule seems to us insufficient. See the case of Pailhes v. Rowe, 14 La. 82. Baker v. Hunt, 1 Mart. 194. Quine v. Mayes, 2 Rob. 512. But as regards the joinder of issue in the main action, we do consider it as curing the objections to the attachment made by the defendant, and therefore the motion was properly dismissed. Code of Pract. art. 344.

The action is brought by the owner of the steamer Diamond against the defendants, owners of the steamer Harry of the "West, to recover ¡¡¡>4,000 damages, alleged to have been sustained by a collision between these steamers, said to have been occasioned by the negligence and mismanagement of the officers and crew of the defendants’ vessel, and which occurred upon the Mississippi river at a point between the States of Louisiana and Mississippi. The collision took place near Grand Gulf, where it is alleged'that the navigation is usually difficult.

A great mass of testimony, as is common in such cases, was produced by the parties. The court below was of opinion, from the evidence, that, the point of the river at which the collision took place was within the limits of the State of Louisiana; that the Diamond was a descending boat, and that as the officers had •violated the 10th section of the act of March, 1834, by not “ shutting off steam, ringing the bell, and floating upon the current, until the ascending boatpassed,” the plaintiff could not recover.

The section referred to is in these words : “Re it further enacted, &c., That it shall be the duty of the master and pilot of a steamboat, when descending any river or stream in the limits of this State, when within one mile of an ascendi.ng steamboat, to shut off the steam and ring the bell, and permit the boat to float upon the current of the river until the ascending boat shall have passed, and the master and owner of the ascending boat shall then assume the responsibility of steering clear of the descending boat, and be liable in damages to the extent of the injury which may be sustained.”

If, under the evidence in this cause, we could have come clearly to the conclusion that the collision was attributable in whole or in part to the fault of those in charge of the plaintiff’s steamer, we should have confirmed the judgment of the District Court. But on this point our minds are not satisfied ; and, on a careful consideration of the whole case, we think the ends of justice will be best attained by remanding the cause. The district judge seems to have formed his conclusion upon the ground that, the Diamond was descending the river; that the ■statute above referred to was not observed .by the plaintiff; and that the statute ’■was applicable over the entire width of the river'Missis'sippi, without reference to the greater proximity of the place of- collision to the one or other of the neighboring States. Wedo not wishtobeconsideredasexpressinganyopinion, whether there was fault on the part of either of the vessels. It is our wish, on the contrary, that the case should go back to the jury as a new matter, for their free consideration. We consider this a case which should be tried by a jury. As occurs in every case of collision, the testimony is not only very profuse, but extremely contradictory; and the parties as usual canvass the accuracy and candor, and assail the credibility of each others witnesses. On such subjects, twelve men, taken from the business-walks of life, would be better able than ourselves to come to a sound conclusion, Their verdict would be of great assistance in settling doub,tful questions of fact, and would receive great weight at our hands, should we be again called upon to consider this case.

To facilitate the future trial of the cause, we will proceed to express our opinion on some points of law which have been presented here, and will necessarily be discussed at the future trial.

If there was fault or want of care on both sides, or no .fault on either side, the plaintiff cannot recover. The authorities cjted by .the plaintiff to the effect that, though the crew of his boat were in fault, yet on proof of fault on the part of the crew of the other boat, the loss must be apportioned, may correctly state the rule recognized in courts of admiralty; but the English and American rule in the courts of common- law is, as we have above stated ; and a party cannot be heard there as plaintiff, if he has contributed to the collision by his own negligence or improper management. See Kent’s Com. vol. 3, p. 231. Abbott on Shipping p. 303, note 1, edition 1846. Vanderplank v. Miller, 1 Moody & Mal. 169. Sampson v. Hand, 6 Wharton 311. 3 East 18. Lock v. Seward, 4 Carr. & Payne, 106. Luxford v. Large, 5 Carr. & Payne, 421. Lane v. Crombie, 12 Pick. 177. These decisions rest on principles recognized in our jurisprudence, and repeatedly .sanctioned by our.predecessors. Lesscps v. Ponchartrain Railroad Company, 17 La. 364. Fleytas v. Ponchartrain Railroad Company, 18 La. 340. Ipsum dese queri debere.

Before applying the act .of 1834, ,sec. 10, to this case, it is obvious that a question of fact must first be determined by .the jury, that is, the place of the collision, whether it was within or without the jurisdiction of Louisiana. In determining this point,.the.middle of the -Mississippi will be taken as the dividing line of the jurisdiction of the two States. If it should be found that the collision did not occur in Louisiana,, and yet a usage of the river should be distinctly proved, establishing the same, or. a similar rule, as to ascending and descending boats, such usage should he considered in determing the quession of fault or negligence. If. the act ofl834.shouId.be found applicable with reference to the place of ..collision,, or if not,.and .there should be sufficient evidence of an equivalent usage of the river, it will then be considered whether, under the facts, and the fair, intendment.of the law or usage as applied to them, these steamers, at.the time .of the collision, occupied, towards each other the relative position of ascending and descending boats.

Testimony to show that the defendants’ steamer was on a racing trip at the time, is not objectionable on the ground of irrelevancy to the issue.

The defendants purchased their steamer after the collision. Evidence was ■properly received to show the agreements,of sale. Under this evidence we consider it established.that, the defendants assumed whatever liability, if any,.had arisen as against the boat or her-former owners, by .reason of this collision; and of this assumption the plaintiff is entitled to avail himself. Civil Code, articles 1884, 1896. Code of Practice, art. 35.

In case of loss by collision, it is the actual damage sustained by the party at the time and place of the injury, that is the measure of damages. Smith v. Condry, 1 Howard, U. S. Rep. 35. They should be confined to such as are the immediate and direct consequences of the occurrence.

It is therefore decreed, that the judgment of the District Court be reversed; and it is further decreed that this cause be remanded for a new trial by jury, and for further proceedings according to law; the defendants paying the costs of this appeal.


author: King, J.

text:
    Bach v. Slidell.
    Objections to each others claims, waived by a compromise made between the contending parties, cannot be revived in an action to enforce a compliance with the compromise itself. Where the acts of the parties show that the resolutive condition of a contract has been waived by them, the contract must he enforced as if no such condition formed a part of it.
    APPEAL from the District Court of the First District, Buchanan, J.

      R. N., and A. N. Ogden, for the appellant. T. A. Clarke, for the defendant.
   The judgment of the court was pronounced by

King, J.

The plaintiff instituted this action, to compel the defendant to fulfil his engagements contained in the following agreement entered into between the parties:

“ New Orleans, 26th December, 1842.

John M. Bach, acting for himself, P. A. Delachaise and others, having agreed to waive all claims to a tract of land designated as section eight, township thirteen, range eleven east, entered under the preemption laws, under what is commonly styled a float, said entry being numbered 1264 in the entries of the eastern district of Louistana, and to authorize a patent therefor to be issued in my favor, I do hereby agree that, provided such claim be effectually waived on his part, and that of the other persons concerned, so that a patent may issue thereon in my favor, I will execute to the said Bach a conveyance of one-third of the quantity of land which, upon survey, may prove to be contained within the limits of the claim of himself and others, said one-third to be taken from the upper portion of the land patented to me ; said Bach undertaking the settlement with the various parties concerned of their respective interests therein. This agreement to be void, if the patent do not issue within six months. (Signed) John Slidell.”

The plaintiff avers that he made the stipulated waiver, which was effectual; that a patent has issued in favor of the defendant, or of a person substituted by him; and that if it was not obtained within six months after the date of the act, the delay was not caused by himself or his co-proprietors. The defence set up by the defendant is, that the claim asserted in the agreement of the 26th December, 1842, by Bach, for himself and others, to the land in controversy, was without foundation, and was prepared and prosecuted before the land officers with the view of defrauding the government of the United States and the defendant, by reason of which the agreement is void. It is further contended in argument that, as the patent was not issued until near eighteen months after the term fixed in the agreement, the condition upon which the defendant’s obli-Iigation to convey depended has been broken, and that the stipulated nullity must have its effect. Civil Code, art. 2033. In the court below there was a judgment against the plaintiff, from which he has appealed.

It will be necessary to notice briefly the leading facts connected with the controversy out of which this contract grew, in order to ascertain distinctly the issues existing at its date between the parties, and which it was the object of the agreement to terminate.

In 1839, the plaintiff and his co-proprietors presented to the register and receiver of the land office at New Orleans, acting under the law of Congress of 1835, a claim for a tract of land, having four argents front on the Mississippi river, and extending in depth until the two side lines, which converged, came to a point, containing two hundred and sixty-nine superficial ar-gents, being a part of a larger tract granted by the company of the Indies, previous to 1728, to Daniel de Kolly, under whom they claimed to hold under mesne conveyances. The claim was reported on favorably under the number 38. The survey shows that the side lines of the tract, when extended, meet about seventy-four argents from the river. In June, 1836, the defendant, W. C. Mylne, and others, entered a part, of the land embraced in the reported claim, by virtue of a preemption right, commonly termed a float, of Ií. and R. Usé, of whom they were the assignees. Their certificate of purchase was numbered 1264¿. On the 5th of October, 1838, the plaintiff represented to the commissioner of the general land office, that the entry had been made in violation of the rights of himself and his co-proprietors, and protested against the issuing of a patent in favor of the predmptors. In consequence of this representation, the certificate no. 1264¿ was suspended ; the register and receiver were advised of the alleged conflict, and instructed to examine the subject, and make a report thereon, which should include the testimony adduced, and their opinion.

Bach and his co-proprietors protested against the re-opening of their claim for further proof and report, on various grounds, and notified the defendant that, in the event of the investigation proceeding, notwithstanding their protest, they Would require full proof of the title under which they claimed, averring that it was invalid, and the sale to him illegal. The register and receiver disregarded the protest, proceeded to the investigation, and, on the 18th of February, 1840, made their report, in which they expressed the opinion that the claim no. 38 was entitled to a depth of only forty argents, and should be restricted to that quanty. Thus located there would have been no conflict between the plaintiff and defendant. After the evidence in relation to the claim no. 38 had been closed, the defendant was called on to produce his titles, that their validity might be tested, which he declined doing for reasons fully stated at the time, and which appeared to have been satisfactory to the land officers. The plaintiff then announced his intention, at a future day, to show the illegality of the defendant's entry.

Bach objected to the report, and requested the commissioner to remand the ■matter for further examination, with instructions to institute inquiry into the validity of the defendant’s claim. On the 11th of June, 1840, the defendant made a communication to the commissioner of the general land office, in which he entered into a full and elaborate examination of the plaintiff’s chain of title, and exposed the error into which the register and receiver had fallen in their report of 1837, in recommending the claim no. 38 for confirmation. It was rendered manifest that, the original grant under which the plaintiff claimed to hold was for a tract of land nine miles above the city of New Orleans, whereas the land in controversy was three miles above the city. In this communication the plaintiff is charged with fraud, from which imputation his co-proprietors were exonerated.

The plaintiff’s claim was confirmed and reported, by an act of Congress approved the 6th July, 1842, and, on the 15th of August following, the commissioner gave the following instructions to the surveyor general of this State: “ In surveying claim No. 38 in the name of Delachaise and others, reference, in ascertaining the proper depth of it, should be had to the original title, (of which this claim forms a part,) and I request that a careful and thorough examination be made by you, after notice to all concerned, in order to settle its proper limits with certainty.”

At this point of their controversy the parties entered into the agreement upon which this suit is founded. From this statement it is evident that they were thoroughly informed of the character of their respective claims, and of the nature of the impediments which existed to the perfection of the title of each, at the date of their agreement. The plaintiff relied on the confirmation of his claim by act of Congress, and still insisted on his right to show the illegality of the sale to the defendant. The defendant, on the other hand, persisted in alleging the claim of the plaintiff to be unfounded and fraudulent, and in his efforts to restrict it in its location to a depth of forty arpents. The agreement entered into for the purpose of adjusting these differences, can only be regarded as a compromise, in which each waived the objections which he had previously urged to the claim of the other. These objections cannot be raised in a suit to enforce a compliance with the terms of the compromise itself, which was made for the purpose of terminating those differences.

It is proper to remark that, the testimony of I. T. Preston, Esq., the attorney who presented the plaintiff’s claim for confirmation, and prepared the evidence in support of it, exonerates Bach from the alleged fraud. That witness states that, he relied on his own exertions in tracing the chain of title; that the error which was committed was his own, for which the plaintiff is not answerable ; that he honestly believed the claim to be good when he presented it, but after the confirmation he became convinced that he had fallen into an error.

Immediately after the compromise, Bach forwarded to the land department at Washington, the stipulated waiver of so much of his confirmed claim as conflicted with the entry of the defendant, and withdrew his opposition to the issuing of a patent in the defendant’s favor. Delays however occurred, but from no fault of the plaintiff, and the patent was not issued until the 2d of January, 1844, long after the expiration of the term fixed in the compromise. This term having expired, it is contended that, the condition on which the execution of the defendant’s stipulations was made to depend has been broken, and that the contract is void. Such would have been its effect, if the stipulated nullity had not been waived.

After the patent had issued, the defendant addressed the following letter to Bach :

Washington, 7th April, 1844.

Dear Sir: I have your letter of the 26th ult. On the 7th inst. (by the same mail that I answered your first letter,) I sent to Mr. Mylne the patent for the land in the rear of Livaudais, with some instructions. I find that I have not with me the memorandum of my agreement with you, 'having left it with my papers at New Orleans. I will therefore thank you to present your copy to Mr. Mylne, that he may make a copy of it, and send it to me here, when I will inform him of my views. I regret the delay that has occurred in this matter, but have been in daily expectation that my letter covering the patent had reached Mr. Mylne. Your obedient servant, JOHN Slideli..

To John M. Bach, New Orleans.

This letter is evidently in answer to another relating to a performance of the agreement, and indicates no intention to assert a breach of the condition on which its execution depended. On the contrary, it recognizes the obligation, and evinces a desire to fulfil the engagement. Other circumstances, both prior and subsequent to the alleged breach of the condition, show that the relations established between the parties by the contract remained unchanged by the lapse of the six months, and that their reciprocal obligation to execute the contract was recognized by both, notwithstanding the expiration of the term.

The plaintiff and defendant both appeared before the surveyor general, in the month of May, or June, 1843, when the term was on the eve of expiring, for the purpose of entering into the investigation necessary to the report required by the commissioner. That officer, whose testimony is not impeached, states that the impression left on his mind from the examination was, that the parties had compromised their difficulties. No opposition was made by Bach to the defendant’s title, and no evidence offered in support of his own claim. In July, 1843, a few days after the expiration of the term, a report was made adverse to the plaintiff, in which he acquiesced. It is stated in the report that Bach acknowledged the correctness of the decision, and that no further efforts would be made to loc.’te his claim. The surveyor general says that the patent could not have issued within six months from the date of the agreement, and that it would not have issued until he had made the investigation and report required by the commissioner.

It is impossible that persons fully aware of the tardy proceedings of the land department, as these parties were, should not have forseen that, at the late hour when they appeared before the surveyor general, a report could not be made, and a patent issue before the expiration of the six months. Yet they acted in concert in procuring the report, upon which they understood the issuing of the patent to depend. It is not reasonable to suppose that Bach, in the absence of an understanding, tacit or expressed, with the defendant, would, at that time, have assisted in procuring a report, the result of which would have been to defeat his claim. It is equally unreasonable to suppose that, after the expiration of the time, when he would have been at liberty to withdraw his waiver, and renew his attacks upon the defendant’s title, he would have cooperated in procuring a patent to issue against himself, if the condition had not been considered to have been waived. The defendant, after the lapse of six months, continued to avail himself of the waiver, and report thus procured, to obtain the patent.

We can arrive at no other conclusion from the evidence, than that the resolu-tory condition of the agreement was waived by the acts of the parties, and that the contract is still iu full force between them, and must be executed.

It is therefore ordered that the judgment of the District Court he avoided and reversed. It is further decreed that the defendant is the owner of the tract of land designated as section no. 8, in township 13, of range 11 east, situated in the eastern land district of Louisiana. It is further decreed, that the defendant, John Slidell, make a good and valid title to John M. Bach, the plaintiff, for one-third of said land, which upon survey may be found to be contained within the limits of the claim numbered 38, as reported by the register and receiver of the south-eastern district of Louisiana for confirmation, and confirmed to P. A. Delachaise, George Legendre, Simon, and James H. Field, John M. Bach, John Louis Lrouet, the heirs of John Mishon and Jerome Toledano, by act of Congress, approved July 6,1842, entitled “ an act confirming certain land claims in Louisiana,” said one-third to be taken from the upper portion of said land decreed to belong to said defendant; the defendant to pay the costs of both courts.

       Slidell, J., did not sit on the trial of this dase, 2>n account of relationship' to the defendant.


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    Reeves et al. v. Smith et al.
    One who lends to an agent money for his private use, and receives from him, as security for its repayment, a pledge of a claim against a third person, known by the lender to belong to ' his principal, the amount of which he afterwards receives, will be bound to account to the principal for its amount. C. C. 2273, 2279.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Ltawle, for the plaintiffs, C. M. Jones, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

J. O. Pierson being the collecting agent of the plaintiffs, who reside in the city of Philadelphia, borrowed a sum of money from the defendants for his private use, and gave them as collateral security a pledge, by notarial act, on a dividend due to his principals by the bankrupt estate of Kirkman Sf Co., then in the course of administration in the United States court. The clerk of the court having refused to pay the dividend to the defendants, under the pledge from Pierson to them, the act of pledge was cancelled, pro forma. Pierson receipted for the dividend as agent of the plaintiffs, and immediately after paid over to the defendants, out of it, the sum he had bor’rowed. Pierson having failed to account to the plaintiffs for the dividend, they instituted this action to recover the amount thus received by the defendants. The court of the first instance gave judgment in their favor, and the defendants appealed. There is no error in the judgment. At the time Pierson applied for the loan, he stated to the defendants that he stood in need of that amount to redeem the steamboat Augusta; that he intended to ran that steamer for the benefit of the plaintiffs, and would sell her, if he could get her real value, and apply the proceeds to the payment of his debt to them. The plaintiffs were not apprised of this transaction at the time it took place, nor is it satisfactorily shown that it was brought to their knowledge afterwards, at such a time and in such a manner as would justify the belief that they gave their assent to it. They received no part of the profits made by the steamer, and it was subsequently sold as the property of Pierson, to pay its own debts.

The act of a party in taking as security for a loan of money made to an agent for his private use, a pledge of a claim against a third person, known by the lender to belong to the principal of that agent, forms a quasi-contract, and the party so lending is bound to account to the principal for the claim or its proceeds, as the agent himself would have been, if the pledge had not been given. Civil Code, arts, 2273, 2279, Judgment affirmed.


text:
    Tourne v. Riviere et al.
    A report of auditors is not conclusive upon the court. Evidence may he received to show its incorrectness, though there be no charge of fraud against the auditors. C. P. 458.
    APPEAL from the District Court of the First District, Buchanan, J.

      Schmidt, for the plaintiff. Roselius, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

This was an action for the settlement of partnership accounts. It was referred to auditors appointed by the parties; the auditors disagreed, and the court appointed an umpire, who made a report showing a balance of $416 10, in favor of the plaintiff. The plaintiff’s counsel took a rule upon the defendants, to show cause why the report should not be homologated and become the judgment of the court. The defendants opposed the homologation on various grounds, and, after argument, their opposition was sustained, and the cause referred back to the auditors and umpire, with directions to proceed according to law. The umpire made a second report, showing a balance of $1432 44, in favor of the plaintiff. The difference in the balance shown by the two reports, is explained by him in these words: “ I further report that, upon an examination of the books of the liquidating partners, and from evidence produced, I am of opinion that, J. E. Tourné should not be held liable for any loss sustained on the debt due by Madere, as, at the time of the dissolution of partnership, and for a long period after, Madere was considered solvent, and had due diligence been used the debt would have been paid. Joseph E. Tourné had no control over the collection of said claim, and consequently could take no steps for securing its payment.” The auditors concurred in this report and opinion. The counsel of the plaintiff took a rule upon the defendants, to show cause why the report should not be approved and homologated, and judgment rendered for the plaintiff in conformity thereto. The defendants opposed the homologotion in these words :

1st. The report is incorrect and unjust, in not making the plaintiff liable for his share of the loss on the Madere debt. These defendants and opponents deny that they, or either of them, were liquidating partners, and aver that the plaintiff had just as much control over this debt as these opponents. They further deny that said debt could have been recovered by any degree of diligence.

2d. The auditors and umpire have transcended the power delegated to them, by rendering an award in the same manner as if they had acted as arbitrators, or amicable compounders. The auditors and umpire were only empowered to state the amount of the pai-tnership, leaving to the court all questions of law relative to the respective liability of the partners.

On the trial of the rule the defendants offered in evidence the record of the suit of P. & J. Riviére & Co. v. A. Madere, for the purpose of proving that they used every diligence "and effort in their power to secure and recover the payment of that debt. They also offered several witnesses to prove the allegations set forth in their opposition. The plaintiff, by his counsel, objected to the introduction of the record and testimony, on the ground that the court had no authority or power to inquire into the correctness of the report, unless the opposition contained an allegation or charge of fraud; also because it was not averred that they were offered before the arbitrators and umpire, and not admitted by them; and finally, because the opposition did not charge either of the arbitrators, or the umpire, with any misconduct in the discharge of their duties. The court having sustained the objection, and excluded the evidence, the defendants took a bill of exceptions, which presents for our consideration the only question involved in this controversy.

Under the positive enactments of the Code of Practice, and after the numerous adjudications which have taken place upon them, it is difficult to conceive how the court below could have fallen into the error of which the appellant justly complains. The appointment of experts, referees, or auditors, is derived from the Spanish laws. Those laws clearly define their powers; and the dispositions of our codes on the former subject are taken from them. “ Quándo los jueces mandaren nombrar contadores ú otras personas, no se han de nom-brar para ningún articulo, que consista en derecho, ni para otra cosa que ellos puedan determinar por el proceso, sino que solamente se nombre para en caso que consista en cuenta, 6 tasación 6 pericia de persona, 6 arte. Cur. Fil. p. 92, N. 26. Nov. Rec. L. 1, t. 21, lib. 10.

As far back as 1811 the Superior Court said, in applying the Spanish law to a case of this kind : “An award must be final, because the arbitrators are the judges whom the parties have chosen for themselves. Not so the report of referees, who are only appointed to ease the court of the labour of scrutinizing long and intricate accounts.” 1 Mart. p. 267. In the case of Merieult v. Austin, 3 Mart. 310, the Supreme Court recognized the same doctrine, and further held that the report of referees was not conclusive, even when the parties had agreed that it should be made the judgment of the court. In the case of Millaudon v. Percy and others, 5 Mart. N. S. p. 555, the identical question presented in this case came before the court. The defendants in that case offered evidence to prove, that the opinion expressed by the experts in their report was erroneous. That evidence was objected to by the plaintiff, on the grounds alleged in this case. The judge refused to receive it, and the defendants excepted. On appeal the court reversed the judgment, under arts. 452 and 458 of the Code of Practice, and the cause was remanded to enable the defendants to'introduee the evidence offered by them. In the late case of McMicken v. Ficklin’s Curator, 11 La., 310, the same principles were fully stated and recognized.

This case is a striking instance of the hardship and injustice which would at times result from the operation of the rule adopted by the court below. The first report allowed the plaintiff the sum of $416 10. He was satisfied with it, and asked judgment for that sum. The defendants, thinking that they had been aggrieved, opposed the homologation. Their opposition was sustained, the report set aside, and the case referred back to the auditors and umpire. Upon the second reference, the umpire and auditors reported in favor of the plaintiff a balance more than three times as large as that which he had deemed satisfactory, and, under the rule adopted, the court would be incompetent to revise their proceedings. The auditors had nothing to do with the law of the case, nor was their finding on the facts conclusive. Code of Pract. art. 458. The court alone had power to decide on the merits of the opposition; and the judge erred in refusing to receive evidence offered to establish the facts upon which the decision is to be based.

The judgment is therefore reversed, and the case remanded to be proceeded in according to law, with directions to the judge to admit all legal and competent evidence offered by the defendants in support of their opposition. It is further ordered that the plaintiff and appellee pay the costs of this appeal.


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    Preston v. Slocomb et al.
    Where a judgment in favor of plaintiff for damages for an illegal attachment allows interest from judicial demand, it must be reversed. The demand being unliquidated, interest could not be recovered.
    APPEAL from the District Court of the First District, Buchanan, J.
    Va-son, for the plaintiff. Eggleston, for the appellants.
   The judgment of the coui't was pronounced by

King, J.

The defendants have appealed from a judgment rendered against them for $400, with legal interest from judicial demand. The plaintiff’s claim is for damages, resulting from the illegal seizure of his property under an attachment issued by the defendants, which subjected him to the payment of large fees to counsel, and deprived him of the use of about $2,700 for eleven months.

The testimony shows the amount of damages assessed by the district judge to be reasonable and just. Interest, however, has been improperly allowed, the demand being unliquidated. In this respect the judgment must be corrected.

It is therefore adjudged, that so much of the judgment of the District Court as condemns the defendants to pay to the plaintiff legal interest from the 10th day of May, 1842, until paid, on $400, be annulled and reversed, and that said judgment be in other respects affirmed ; the appellee paying the costs of this appeal.


author: Kino, J.

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    Broadnax et al. v. Thomason.
    Defendant moved to set aside a writ of arrest, oil the ground that plaintiffs are non-residents. It was proved that they are commercial partners, doing business in this State under one name, and in an adjoining State under another ; that three of the partners reside in the latter State, and one in this; and that the note sued on was payable to plaintiffs under the name used by their firm, in such adjoining State: Held, that the fact of some of the partners being non-residents cannot deprive the resident partner, who has a community of interest in the entire debt, and is considered as the representative of the firm, of the right of resorting to a remedy by which he might enforce his individual rights. He is not within the prohibition of sect. 9 of the stat. of 28 March, 1840.

      Under tlie system of jurisprudence established in those States in which the common law prevails, a sheriff may seize, under an execution against a partner individually, all his interest in the partnership property, subject to the prior rights and liens of the other partners and of the creditors of the partnership. The creditor may, after the seizure and before the sale, institute proceedings against the other partners to ascertain the amount of the interest seized ; or he may cause a sale to be made, and leave it to the purchaser to ascertain it.
    Where in an action by apartnership to recover a debt due to the firm, defendant shows that ho had been previously made a gamisheein a suitinstituted in another State by a creditor of two of the partners, any judgment rendered against him must be subject to the condition that, no execution be taken out until the extent of his liability under the proceedings in such other State be ascertained.
    APPEAL from the District of the First District, Buchanan, J.

      Elmore, and TV. W. King, for the plaintiffs. Loclcett, for the appellant.
   The judg'ment of the court was pronounced by

Kino, J.

This suit was instituted to recover the amount of a promissory note, and was commenced by an arrest of the defendant. There was a judgment against the defendant in the court below, from which he has appealed. The defendant admits his indebtedness, but contends : 1st, That all the parties to the suit are non-residents of the State, and that the arrest was therefore illegal. 2d. That by a process of garnishment, issued in the State of Alabama, where he resides, this claim was seized, prior to the institution of this suit, by judgment creditors of the plaintiffs, and that, in the event of a judgment being rendered against him in this State, he will be exposed to the payment of the same debt twice.

I. It appears from the evidence that the plaintiffs, who are four in number, three of whom reside in Alabama and one in this State, are associated together as commercial partners, and have two firms, one of which is established in Mobile and the other in New Orleans, differing only in the name by which they are known and do business in those cities. The note in suit is made payable to the plaintiffs, by the name under which they are known in Mobile. The partner, w'ho resides in this State, instituted the proceedings in the name of the partnership, and took the required oath for the arrest. He has a community of interest in the entire debt claimed, and is considered in law the accredited representative of the firm, possessing dominion, not over his own share only, but over the whole demand. He may consequently avail himself in the collection of such demands, of the same remedies by which he could assert his own individual rights. The fact that some of his co-partners reside abroad, whose names he is required to associate with his own in order to maintain his action, does not deprive him of this right, or bring him within the prohibition of the act of 1840.

II. A judgment Was obtained in Alabama against Broadnax & Newton, two of the plaintiffs, by Harrison & Blair, who, by process of garnishment, have made the defendant a party to their proceeding, and required him to declare, under oath, what effects of Broadnax Sf Newton he holds in his hands, and the amount of his indebtedness to them. This proceeding, which, it is admitted, is the same in Alabama as in this State, is equivalent to a levy on the interest of the two plaintiffs in the note in suit, to take effect from the date of the service of the interrogatories on the garnishee. Act of 1839. When the defendant’s answers disclose his indebtedness to the plaintiffs, the interest of Broadnax & Newton therein will, if it be subject to seizure, be considered as levied upon, and a judgment will be rendered against him in Alabama for the amount of that interest. It is against a liability to pay this sum twice, that the defendant claims protection.

The question which arises is not one of compensation, as has been contended by the plaintiif, but involves the right to seize partnership property in satisfaction of a seperate debt of two of the partners. It does not become necessary to determine what would be the rights of the creditor of a separate partner, in this respect, under our own system of jurisprudence. It is known to us, as part of the political and legislative history of the country, that the common law, as modified by statute, prevails in the State of Alabama, where the seizure was made, and where the liability of the defendant is to be determined. To that system we must have recourse for the rules which govern the rights of the parties in this controversy. Judge Story lays down the principal as being now well settled, that “ the partnership property may be taken in execution, upon a separate judgment and execution against one partner; but the sheriff can only seize and sell the interest and right of the judgment partner therein, subject to the prior rights and liens of the other partners, and the joint creditors therein.” The judgment creditor may, after the seizure and before the sale, institute proceedings against the other partners, for the ascertainment of the quantity of the interest seized ; or if he cause, as he may, the sale to be made without having previously ascertained the interest, the purchaser of the property enjoys the same right of proceeding against the remaining partners, to ascertain what he has acquired. Story on Partnership, §§ 261, 262, 263, and notes. 8 Mart. N. S. 606.

It is consequently clear that the defendant will be held, in Alabama, to pay to the judgment creditors of Newton dy Broadnax, the interest of those partners in the note now in suit, whenever that interest shall have been ascertained. He therefore presents an equitable claim, repeatedly recognised in such cases, to be protected against the consequences of two judgments against him, for the same sum. 7 Mart. N. S. 33. 10 Mart. 628. The court below erred in rendering an unconditional judgment against the defendant. Provision should have been made in the decree against the issuing of a fieri facias, until the extent of the defendant’s liability under the proceedings in Alabama was ascertained, and in that respect it must be amended.

It is therefore ordered that the judgment of the District Court, condemning the defendant to pay the plaintiffs the sum of $675 88, with interest at the rate of eight per cent per annum from the 6th May, 1845, until paid, be affirmed. It is further decreed that, the plaintiffs shall not take out execution, until they file in the office of the District Court, authentic evidence that the process has been discharged, or of the amount which the defendant may be decreed to pay, as garnishee in the suit of Harrison & Blair v. Broadnax & Newton, in the State of Alabama; and, upon filing such evidence, execution may issue for the amount of this judgment, after deducting therefrom the sum, if any, that said defendant may be decreed to pay in said suit in Alabama. It is further ordered that the plaintiffs pay the costs of this appeal, and the defendant those of the court below.


author: Eustis, C. J.

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    The Third Municipality of New Orleans v. Blanc.
    The provision of the second article of the ordinance of the Council of the Third Municipality of New Orleans, of 19 May, 1846, imposing a fine on the owner of any animal found astray, is a legal exercise of the power vested in the Council.
    Art. 63 of the constitution gives the Supreme Court appellate jurisdiction in all cases where the constitutionality or legality of any fine, forfeiture, or penalty imposed by any municipal corporation is involved; but where the question is presented on an appeal from a judgment rendered by a justice of the peace, the facts of the case cannot be examined. The jurisdiction of the Supreme Court is the same, in cases involving the constitutionality or legality of any tax, toll, or impost.
    from a of a Justice of the Peace in New Orleans.

      Bauregard, for the plaintiffs. Collens, for the apppllant.
   The judgment of the court was pronounced by

Eustis, C. J.

This was an appeal from one of the justices of the peace of New Orleans. The court is called upon to determine on the illegality of the second article of an ordinance of the Council of the Third Municipality concerning stray animals, passed on the 19th of May, 1846. The article is in these words:

“ The owner of any animal, or animals, found astray, shall be liable to a fine of two dollars per head, one half for the benefit of the municipality, and the other half for the benefit of the keeper.”

This enactment is within the police power vested in the government of the municipality, and the amount of the fine does not exceed the limit prescribed by law. This is the only part of the ordinance upon which, as the case is presented to us, we are authorized, under our view of the jurisdiction of this court, to pronounce an opinion. But it is contended by the counsel of the defendant that, this being an appeal from a fine imposed under a municipal ordinance, this court must examine and determine on the facts of the case, and not simply on the constitutionality and legality of the ordinance. The sixty-third article of the fourth title ofthe constitution provides thus:

“ The Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only, which jurisdiction shall extend to all cases when the matter in dispute shall exceed three hundred dollars, and to all cases in which the constitutionality or legality of any tax, toll, or impost of any kind or nature soever, shall be in contestation, whatever may be the amount thereof; and likewise to all fines, forfeiture, and penalties imposed by municipal corporations, and in criminal cases, on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed.”

We have come to the conclusion that, independant of its ordinary appellate jurisdiction in civil cases, the jurisdiction of this court is confined to the examination of the constitutionality and legality of fines, forfeitures and penalties imposed by municipal corporations, as well as to the constitutionality and legality of taxes, tolls and imposts, and that these subjects rest^on the same footing in relation to the appellate power of the court. It would be an unreasonable construction which would authorize a decision on the facts in one of the cases, of classes of cases, and not in the other. The purpose of the constitution was to enable the citizen, in all the cases provided, to test their constitutionality and ' legality in the court in the last resort, and thus enable this tribunal to interpose directly a check upon the abuses of municipal legislation, Questions arising in the application and execution of municipal ordinances are left with the ordinary tribunals, under the right of appeal for an examination of the facts as in other civil cases. The magistrates who administer the laws are all, in relation to their judicial functions, state officers, and there is no reason for any direct supervision over their proceedings as to matters of fact, in any particular class of cases within their jurisdiction. Any inconvenience in this respect is presumed to be fully provided for in the mode of their selection, and the short duration of their appointment.

It would be difficult to assign a reasonable cause, which should subject these two clauses of the constitution to an entirely different operation, and require from the appellate court, in case of a tax, toll, or impost, however extortionately or unjustly applied, to confine itself to the question of its constitutionality or legality, without giving the party aggrieved any other relief than the decision on these points would afford, and in case of a fine or penalty enable the same court to take cognizance of, and decide upon, the whole merits of the case.

The reason is the same in both cases for the exercise of the appellate power on questions of law, and its non-exercise on matters of fact. By these means, which we recognize the constitution as affording, supervision over municipal legislation is secured, and the cognizance of facts left with the tribunals of the first instance exclusively, in cases under the amount fixed for the appellate jurisdiction of this court in civil cases.

The concluding part of this article of the constitution limits the jurisdiction of this court in criminal cases to questions of law, and the conclusion that, in the case of a petty fine, a greater privilege should be held to be secured to the citizen than in a prosecution involving liberly or life, must rest on something more definite than a mere implication.

Another conclusive reason against adopting the interpretation of the clause of the article contended for by the counsel for the defendant is, that the determination of questions of fact in the numerous cases which occur of this kind would be impossible under the present organization of this court.

We have given our reasons at length, not because we considered the matter discussed as presenting any serious difficulty, but because it is desirable to settle all questions concerning the powers of this court, as they arise and are brought before us. Judgment affirmed.

       A similar judgment was pronounced at the same time on another appeal, between the same parties, from the same justice, the question being the same in both eases.


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    The Third Municipality of New Okleans v. Hazelbach.
    The jurisdiction of the Supreme Court over appeals from justices of the peace being limited to questions of law, such questions must be brought before the court in the usual mode of bringing questions of law before an appellate court, or the appeal will be dismissed.

      APPEAL from a judgment rendered by Canonge, a Justice of the Peace in the of New Orleans.

      Beauregard, for the plaintiffs. Dufour, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an appeal from one of the justices of the peace of New Orleans. The object of the appeal is to test the legality of an ordinance of the General Council of the city of New Orleans, laying a tax on wholesale and retail dealers and others. . Vide Digest of Ordinances, p. 86. The proceedings are so irregularly presented to us, that we do not feel ourselves at liberty to enter into the question of the legality of the ordinance.

The suit is brought against the defendant for a tax of $15, alleged to be due by him to the municipality as a tailor; but it appears, by a statement of the judge made on deciding a motion for a new trial and bearing his signature, that, on the trial, evidence was received, without objection on the part of the defendant, to show that he kept a tailor’s shop, where he manufactured articles of clothing and sold them, and thus brought the party within what the judge considered as a dealer.

The judge rendered his judgment according to the probata, and not the al-legata.

On these subjects our jurisdiction being limited to questions of law, we cannot decide this case.

The usual mode of bringing questions of law before an appellate court must be followed in all cases, and the decisions of the Supreme Court are so numerous and well settled on this point, that parties must observe them in appeals from all the courts without distinction. Appeal dismissed.


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    The Second Municipality of New Orleans v. Schmidt.
    The ordinance of the General Council of New Orleans of the 3d February, 1845, imposing U tax on retail dealers, is not illegal nor unconstitutional.
    The second section of the statute of 1st June, 1846, providing for the election of justices of the peace in the parish of Orleans by the qualified voters in each district into which it subdivides the parish, is not a violation of the 81st article of the constitution, which declares that justices of the peace " shall be elected by the qualified voters of each parish.” The object of that article was merely to declare that the mode of selection should be by the people, instead of by the Executive and Senate.
    APPEAL from a judgment rendered by Bright, a Justice of the Peace in New Orleans.

      Warfield, for the plaintiffs.
    The statute is not inconsistent with art. 81 of the state constitution. By sect. 2 of art. 1 of the Constitution of the United States it is provided that, “ the House of Representatives shall be composed of members chosen every second year by the people of the several States.” Was it ever supposed that this general provision rendered illegal the election of members of Congress by districts ?

      Reynolds, for the appellant.
    The ordinance is inapplicable to the defendant. The justice has no jurisdiction, the act of 1st June. 1846, being in violation of the 81st article of the constitution of the State.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit to recover from the defendant a tax of $15, alleS®d t0 due by him as a retailer, and the object of this appeal is to test the legality, or constitutionality, of an ordinance of the General Council of the city 0f pfew Orleans, imposing a tax on wholesale and retail dealers and others. Vide Ordinances, p. 86. We find nothing unconstitutional or illegal in this ordinance, so far as relates to the tax recovered from the defendant by the judgment appealed from, to which inquiry we have, of course, confined our examination.

Another question was raised in the court of the first instance, and has been argued at bar. It presents itself in the form of a plea to the jurisdiction of that court, which is based on the unconstitutionality of the appointment of the judge. Waiving all questions of form, we proceed at once to a consideration of this point, which, in its consequences, involves the organization of the subordinate judiciary system throughout the State. The 81st article of the constitution requires that justices of the peace shall be elected by the qualified voters of each parish, for the term of two years. Under the act of June 1st, 1846, ch. 106, justices of the peace in New Orleans were elected by districts. In the parish of Jefferson they were elected by wards — Vide acts of 1846, ch. 108; and in the other parishes of the State they were elected by the qualified voters in each police-jury ward. These wards, or districts, are subdivisions of the parishes.

A constitution must be construed in relation to the interests, wants, and institutions of the people, upon whom it is intended to operate. The subdivisions of parishes, and the local jurisdiction of justices of the peace over such portions of parishes, are nearly coeval with the organization of the State government. The natural impediments, during certain seasons of the year, to a convenient communication between different parts of the same parish, the extent of some parishes, and the separation of portions of others by water-courses, necessarily led to these subdivisions, and the establishment of local magistrates, whose jurisdiction was limited to certain neighborhoods or districts. Upon a State thus organized, and a people whose habits were thus fixed, this constitution is to operate ; and one of the first acts of organization passed by the legislature was that in question,'which authorizes these separate districts to elect their own magistrates.

We understand that the only change made by the constitution, by virtue of this provision under consideration, to be in the mode of appointment — by the people, instead of by the executive and senate, and that the legislature acted according to the true intendment and meaning of the constitution, in authorizing the election of justices of the peace as they .have done. The election by the qualified voters of the parishes, given in their wards and districts, under the acts quoted, according to all reasonable principles of construction, cannot be held to be contrary to the text of the constitution, and it is certainly in accordance with the sense of a large majority of those who framed it, as is manifested in other parts of that instrument. Judgment affirmed.


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    Richardson v. Johnson.
    Compensation for the injury sustained by a purchaser in consequence of defects in the thing sold, can only he recovered hy aredhibitory action, or hy the action quanti minoris.

    Where particular forms oí action are prescribed hy law, for the redress of injuries, they must he complied with.
    Plaintiff alleged that he purchased a slave from defendant, for a certain price, fully guarantied, but that the slave was affected, at the time of the sale, with a permanent defect of vision, rendering him absolutely useless; that he did not discover the detect until he had removed the slave to Texas; and that he would return him and pray for an entire recision of the contract, hut that he is prevented by the laws of the united States. He alleges that the slave has been of no value, but an expense to him. He prays that, as a means of doing him justice in part, defendant may be condemned to refund the price, with interest, &c., and for general relief. On an exception to the petition as insufficient in law: Held, that before plaintiff can recover the price, with interest, he must have made a tender of the slave, and have caused the sale tobe rescinded; that the action was not intended to he an action quanti minoris, and cannot he considered as such; and that the petition must be dismissed.
    A vendor does not warrant against an apparent defect which might have been discovered by simple inspection, unless it he shown that fraudulent means were used by him to conceal it at the time of the sale. C. C. 2497,1841.
    PPEAL from the District Court of the First District, Buchanan, J. The jti. plaintiff alleges that he is a citizen of the republic of Texas; that he purchased from the defendant, a resident of New Orleans, a slave, about fourteen years of age, for the price of $400, which he paid; that the defendant warranted the slave “ against the vices and maladies prescribed by law,” as will appear from the notarial act of sale; that the boy was, at the time of the sale, affected by a disease of the eyes, occasioning a permanent defect of vision, in consequence of which he was and is absolutely useless to him; that he would return the slave, and pray for an entire recision of the contract, but that he is prevented from so doing by the laws of Congress ; that he did not discover the defect in said slave, until after he had been carried into the republic of Texas. The petitioner further alleges that, he has received no value from the labour of the slave, but, on the contrary, that he has been, and continues to be at a large expense for his sustenance: Wherefore “ he prays, as a means of doing him justice, in part at least, that the defendant be decreed to pay him the said sum of $400, with interest thereon, and costs of suit, and for other and further relief.”
    The defendant excepted to the petition as insufficient to support the action against him. The petition was dismissed, and the plaintiff appealed.

      T. A. Clarke,

    who appeared for the appellant in this court, contended that, the action is for a reduction of price, and that no tender was necessary. Civ. Code, arts. 2519, 2520. 1 Mart. N. S. 317. 2 Troplong, Vente, § 580. Pothier, Vente, § 233. Merlin, verbo Redhibition.

      Moise, for the defendant.
    This is a redhibitory action. The plaintiff adopts the language of art. 2496 of the Civ. Code, alleging the slave to be “ absolutely useless,” and demands the whole price. A tender of the slave is necessary in such an action. It would be equally necessary in an action quanti minoris. Civ.Code, art. 2522. Plaintiff’s omission to allege that defendant knew that the defects existed at the time of the sale, precludes him from contending that the claim for $400 is for damages. Civ. Code, art. 2523.
   The judgment of the court was pronounced by

Rost, J.

The plaintiif, who was a citizen of the republic of Texas before its annexation to the United States, alleges that he purchased from the defendant, for the sum of $400, a slave which he took with him to Texas ; and that the slave was, at the time of the sale, affected by a disease of the eyes, occasioning a permanent defect of vision, by reason whereof the said slave is absolutely useless to him. He further avers that he would return the slave and pray for a reeision of the contract, but that he is prevented from doing so by the laws of Congress. He therefore prays that the defendant may be adjudged to pay him the sum of $400, with interest thereon, and the costs of spit. He also prays for general relief.

The defendant excepted to the plaintiff’s petition, and the allegations therein contained, as insufficient in law to support the action against him. The District Court sustained the exception, and the plaintiif has appealed from the judgment dismissing his petition.

The plaintiff contends that the petition substantially alleges an act of the defendant, which has caused damage to him, and that, under art. 2294 of the Civ. Code, the defendant is bound to repair that damage. If our Codes contained no special disposition for cases like the present, the action of the plaintiff might probably be maintained, under the general principle he invokes; but our laws on the contract of sale, in defining the various remedies given to the purchaser by the action ex enipto,have provided that such wrongs as the plaintiif complains of, can only be redressed by the action of redhibition, or the action quanti minoris. It was therefore incumbent upon him to have resorted to one of those actions. We are of opinion that he has failed to do so. He alleges that he is prevented by the laws of Congress from returning the slave; and while he retains the slave on that ground, he asks for judgment for the price and interest, and prays for general relief. This he cannot legally do. Before he can recover the price and interest, he must make a tender of the slave to the defendant, and cause the sale to be rescinded. The plaintiff’s counsel alleges that this may be considered as an informal action for the reduction of the price. It was not so intended, and we do not consider ourselves at liberty to view it in that light. When particular forms of action are prescribed by law, it is necessary to an intelligent administration of justice that those forms should be complied with.

To prevent unprofitable litigation, it is proper to state that, under the general plea of the defendant, the allegations of the plaintiff are insufficient in law to maintain his action on other grounds. He avers that the slave was affected, at the time of the sale, by a disease of the eyes, occasioning a permanent defect of vision; but he does not charge the defendant with fraud. A disease of the eyes is an apparent defect which he might have discovered by simple inspection, and against which the defendant does not warrant, unless he used fraudulent means to conceal it at the time of the sale. Civil Code, arts. 2497, 1841.

Judgment affirmed.

       Etjstis, C. J., did not sit on the trial of this case, having been of counsel for the defendant.


author: Kihg, J.

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    Conway v. Erwin.
    Where a clerk certifies that a record of a former suit between the same parties, for the same cause of action, offered in evidence in a second suit, contains a true copy “of all the documents filed, proceedings had, and testimony adduced on the trial, with the exception of a note marked B., filed as a part of the evidence, which had been withdrawn,” and it appears from an examination of the record that the note referred to is that upon which the second suit was instituted, the transcript will be admissible.
    Where in transcribing into the record of appeal the certificate of a clerk, purporting to have been given under his official seal, appended to a record offered in evidence below, the clerk of the court from which the appeal is taken omits to make the mark generally used to represent aseal, or to state that one was affixed to the certificate, the original may be inspected to show that there was a seal affixed to it.
    The testimony of a witness taken in a previous'suit between the same parties, for the same causes of action, where there has been an opportunity for cross-examination, may be used by either party, in case of the death of the witness, or of his absence beyond the jurisdiction of the court.
    The institution of a suit, afterwards dismissed by order of the court, is a demand in writing putting the defendant in default, and entitling the plaintiff to recover, in a subsequent action, interestfrom the first judicial demand. C. C. 1905, 1906, 1932.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      M. M, Robinson and Lowndes, for the plaintiff. Mott, for the appellant.
   The judgment of the court was pronounced by

Kihg, J.

The defendant has appealed from a judgment condemning him to pay the amount of a promissory note, executed by one LI. C. McNeil, with interest from judicial demand. It is alleged that the consideration for which the note was given, was a quantity of lumber, purchased by McNeil, who subsequently sold it to the defendant, through the agent of the latter, and that the agent assumed for his principal the payment of the note which had been given for the price. The defendant pleaded the general issue, and further denied specially the alleged agency. Before proceeding to the merits, it will be necessary to consider objections that have been urged to the admissibility in evidence of the record of a former suit between the same parties, which contains most of the testimony relied on by the plaintiff in support of his demand. To this record it is objected: 1st. That it is introduced to prove by parol evidence, an agency for the purchase of immovables. 2d. That it does not contain a copy of the entire record. 3d. That the former suit differed in its character from that now pending, and that the effect of admitting the record in evidence would be, to deprive the defendant of an opportunity of cross examination. 4th. That the transcript is not clothed with the formalities required by law. 5th. That apart of the witnesses, whose testimony is thus sought to be introduced, reside out of the State.

I. It is true it is alleged in the petition that, the agent, Henry, was autho-rised to purchase a plantation, and that a part of the testimony contained in the record tends to prove, by parol, such an agency. The fact, however, is immaterial to the issues between the parties. The material averment is that, the agent was authorized to purchase the lumber, and assume the payment of a note given for the price. Such an agency may be verbally constituted, and proved by parol.

II. The clerk certifies the record to be a true and faithful transcript of all the documents filed, proceedings had, and testimony adduced on the trial, with the exception of jhe note marked B., filed as a part of the evidence, which had been withdrawn previous to making the transcript. No doubt is left from an examination of the record that the note B, referred to in the certificate, is the same upon which the present action is founded. Being before us, the supposed deficiency of the record is supplied, and the defendant can no longer complain that any part of the evidence adduced on the former trial, which would have been favorable to him, is wanting.

III. The evidence shows conclusively that, the cause of action in the former and present suit are the same. Both had for their object the recovery of the price of a quantity of lumber. In the first it was claimed in virtue of a sale, alleged to have been made directly by the plaintiff to the defendant, acting through his'agent. On the trial, however, it appeared that a note had been given for the price, by McNeil, the vendor of defendant, the payment of which the agent of the latter subsequently assumed. Upon this technical ground, the suit appears to have been dismissed.

IV. The certificate of the clerk purports to have been given under his seal of office. This certificate has been correctly copied into the transcript of the present suit, but the clerk has omitted to make the scroll which is usually made to represent a seal. Upon an inspection of the original, we find that the seal of the court is affixed to it.

V. It is shown that, at the time of the second trial, one of the witnesses who testified in the first suithad died, and that all the others were beyond the jurisdiction of the court, some within and others without the State. It is well settled that, in a subsequent suit between the same parties, for the same cause of action, the evidence adduced on the former trial, where there has been an opportunity of cross-examination, may be used by either party, when the witnesses are either dead or absent. 7 Mart. N. S. S66, 282. 4 Mart. N. S. 452. 5 La. 365. The court did not, in our opinion, err, in permitting the record to be read in evidence.-

As regards the merits, it is shown by the evidence that Henry was the overseer of the defendant, and his general agent for the management of his plantation, and for the purchase of the supplies and other articles necessary in conducting it. It was his habit to refer to this agent those who had business with him relating to the plantation. To one of the witnesses he stated that Henry was his agent for settling ail his matters with McNeil, the person from whom the lumber was purchased, and the maker of the note in suit. The testimony leaves no doubt that Henry was the agent of the defendant, and acting within the scope of his authority, in making the purchase of the lumber, and in assuming the payment of the note given for the price. It is equally well established that the lumber was converted to the defendant’s use.

Interest was allowed to the plaintiff on the amount of his judgment, from the date of the citation in the first suit, of which the defendant complains. The judge did not, in our opinion, err. Although the suit was dismissed by the order of the court, it was a demand in writing, which put the defendant in default, and entitled the plaintiff to interest. Civil Code, arts. 1905, 1906, 1952. 6 Mart. N. S. 545. 3 La. 385. Judgment affirmed.