author: Yoorhies, J.

text:
      V. W. Thompson v. New Orleans & Carrolton R. R. Company.
    A corporation is liable for damage occasioned by the employee of their stewards.
    PPEAL from the Fifth District Court of New Orleans.

      Boselius, for plaintiff.

      Benjamin, Bradford & Finney, for defendants.
   Yoorhies, J.

This is an action by the plaintiff to recover the sum of $850, the value of his carriage, alleged to have been destroyed by the negligence, imprudence or want of skill of the diiver of an omnibus, belonging to the defendants, in running- against said carriage as it was standing in Chartres street.

The case has been pending since July, 1838, and now comes up on appeal before this Court for the third time.

On the first appeal, the Court in remanding the case, observed : “The evidence satisfies us that it was an act of gross negligence; the jury gave ! damages; and we should not hesitate to affirm the judgment rendered on the verdict, if the evidence had made it probable that the omnibus was the property of the defendants.” It was also decided by the Court, that the defendants would be bound if the damages were caused by the negligence or want of skill in the driver, or the vicious temper of the horses, if the horses belonged to them, or the driver was in their service; and that under Article 2299 of the Civil Code, the responsibility of a master or employee was not limited to cases where he might have prevented the act which caused the damage, &c. See 1 R. R. 178.

The second appeal came up on a bill of exceptions, to the opinion of the District Judge in excluding evidence offered by the defendants to show, that the railroad establishment, with its movables and dependencies, including its omnibuses, was leased to two individuals for a term of years. The evidence was hold to be admissible under the pleadings, and the case ordered to be remanded, with directions to the District Judge to admit the same. See 4 Ann. 2G2.

The plaintiff is appellant from a judgment rendered against him on the last trial.

The only question left in this case for our consideration, is one exclusively of fact.

The District Judge was satisfied from the evidence that the driver of the omnibus, by which the plaintiff’s carriage was destroyed, was not at the time an employee of the defendants, but of Harper & Merrick, as lessees of said defendants. It is shown by the testimony of one of the witnesses for the defendants, that “the driver cf the omnibus said to have broken the carriage of plaintiff, was employed and paid by Harper & Merrick, and the omnibus was entirely under their control. From a careful examination of the contract of lease between the defendants and Harper <& Merrick, and the testimony on the record, we are satisfied that the Judge d quo did not err in his conclusion.

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


source: Caselaw Access Project

author: Spofford J.

license: Public Domain

text:
    Same Case on a Re-Hearing.
   Spofford J.

Upon a re-examination of this case, we are convinced that the Railroad Company, by its settlement with Harper & Merrielc, as stewards of the Company, precluded itself from denying their agency. The Company is, therefore, liable.

By a clause in the authentic act, which is styled a lease, Harper & Merrick made themselves responsible for all loss and damages which might result from the incompetency, neglect, bad management or mal-administration of the per ■ sons employed by them, whether such loss or damage should arise from accidents on the road or otherwise, or from any matter connected with the establishments.

Perhaps, under this stipulation, the plaintiff might have sued Harper & Merrick; certainly the Company could have called them in warranty.

But this fact does not destroy the right of the plaintiff to call upon the Company to repair the damage occasioned by an employee of persons with whom they have settled, and to whom they have paid a stipulated salary, as their stewards.

It is, therefore, ordered that the judgment heretofore rendered in this cause, be set aside; it is further ordered and decreed that the judgment of the District Court bo reversed, and that the plaintiff recover from the defendants the sum of eight hundred dollars, with legal interest thereon, from the day of judicial demand until paid, and costs in both Courts.

Mr. 0. J. Slidell, having been of counsel for defendants, declined sitting in this cause.


author: Ogden, J. Spoeford, J.

text:
    A. Beatty, Syndic v. J. A. Scudday.
    On the 29th of May, 1851, S. deposited $8S8 with M., a private banker, who, at the time, held the note of S» for $735. M. absconded, leaving a letter in which he transferred to S. his note to cover his deposit. The syndic of M. sued S. on the note; S. plead the deposit in compensation, and the question was whether the syndic had a right to recover from defendant the whole amount of his note, leaving defendant to come in and receive his dividend, with the other creditors, or whether the defendant’s note should be declared to be compensated and extinguished by the amount of the deposit. Held, that the plea of compensation should be sustained.
    PPEAL from the District Court of Lafourche, Sterling, J.

      lx J. C. & A. Beatty, for plaintiff.

      F. S. Goode, for defendant and appellant:
    The proceedings against Marcháis were based on Sec. 48, B. & C., Dig. page 490, which gives to creditors, in case their debtor absconds, the right of sequestrating his effects and putting themselves into possession. This is the sole object of the law, it merely affords to creditors a relief, and points out the way by which they can bo paid. Not one word is said of the debtor having committed an act of bankruptcy, in which respect it is entirely different from the English and French laws on the same subject. See Code of Commerce, 441, 442, 6 G-., 4 c., 16 S. 3. There is no decision by our Supreme Court to the point, but I would refer to the following authorities as favoring our position; that it is only by the cession that the situation of parties is fixed. 9 M. 625 , 10 M. 448; 5 M. 618; 7 Rob. 162; 2 N. S. 26; 5 A. 274; 1 M. 198, 194, 207; 2L. 354; 3 A. 449 ; B. & 0. Dig. Insolvent Law, sec. 16 and 19, page 4S8, see. 9, 22, 24, 37, 43, 44; 2 L. 413 ; 0. 0. 3323, 3326,1979, and seq.; 3 M. 94, 386; 7 M. 30 ; 7 L., 62 ; Hen. Dig’, page 727, seq.; S L. 585, 6 N. S. 66.
    The doctrine for which the syndic contends would force upon us the English law in regard to relation in matters of bankruptcy, which is the creature of positive law and which meets with no encouragement from the English Courts. See Bacon’s Abridgement, vol. 1, page 747. This Court has said in 4 A. 356, that there is no such thing in our law as relation in matters of bankruptcy, and that case goes so far as to say, that the debtor is still at liberty to contract even after the commencement of proceedings. Even under the English law compensation would be allowed in this case. See Comyn’s Digest, vol. 2, page 130, and note. Seo 1 Atk. 231. Where the demand arises upon a bond payable unconditionally on a day certain, but not due until after bankruptcy, it may be set off against a debt due to the bankrupt at the time of bankruptcy. See Bacon’s Abridgement, vol. 1, page 761, 762 and 763.
   Ogden, J.

(Slidell, 0. J. absent.)

The plaintiff, representing the creditors of Prosper Marcháis is the holder of the defendant’s note for $735, dated Jan. 1st, 1851. The defendant had a claim of $883 70 against Marcháis, for that amount deposited by the defendant with Marcháis, on the 29th of May, 1851. Marcháis was, at the time of the deposit, a private banker in the town of Thib-odauxville, and was the holder of defendant’s note, made paj'able to his, Mar-chais' order, one your after the date. Marcháis absconded in June, 1851, before the maturity of defendant’s note, leaving a letter, which was discovered a long time afterwards, in which he makes a transfer to the defendants of his note, now sued on, to cover the deposit. The note was not delivered up, and the defendant being now sued on it, pleads the amount of this deposit in compensation. It is not denied that Marcháis used the money deposited with him, and that he left the country totally insolvent. The question now is whether the syndic has a right to recover from defendant the whole amount of his note, and leaving the defendant to come in and receive his dividend with the other creditors for the deposits, or whether the defendant’s plea should be sustained and his note declared to be compensated and extinguished by the amount of the deposits. It will be admitted by every one, that under the circumstances, it would be extremely inequitable to compel the defendant to pay his note, and receive only such portion of his deposit as might b.e allotted to him, on a pro rata distribution of the insolvent’s effects. This effect, however, it is contended, must be produced by the law applicable to the case. Let us see what that law is. It is not under the general rule of law on this subject, that such a right can be claimed. The rule is, that when two parties are indebted to each other, there takes place a compensation between them, that extinguishes both debts. This rule is subject to the modification, that to produce this effect by the mere operation of law, the two debts must be equally liquidated and equally demandable. Arts. 0. 0. 2203, 2204, 2205. Exceptions to the rule are then laid down, and Art. 2207 excepts from the operation of it a demand of restitution of a deposit and of a loan for use. The argument then, to support the pretensions of the plaintiff, is this, — that the debt due by Marcháis to the defendant being of a more sacred character, and the law, from a peculiar regard to it, and with the view of protecting it, having declared that it should be exempted from the operation of a rule which would enable the depositor to withhold the thing deposited with him on pretence of a debt due to him by the depositor, the consequences therefore must rigorously ensue, of depriving the depositor himself of all benefit to be derived from the general rule under which, in the present case, if his debt had been cf a character of inferior dignity in the eye of the law, he might have escaped a loss. A construction of the law which leads to such a result, cannot bo a sound one. The maxims “cessante rations, cessat et ipse lex” is equally applicable to the exception as to the rule of law itself. When the depositary has used the money deposited with him and has become a bankrupt what reason can exist for giving effect to an exception to a general rule of law, when, by doing so, the creditor in whose favor the exception was established, will be placed in a more unfavorable position than he would have been without the exception in his favor.

In the case of Breed v. Purvis, Wood & Co., 7 An. 53, when an attempt was made to plead compensation against an irregular deposit, on the ground that Art. 2927, which prohibits the retention of things deposited on the plea of compensation, applied exclusively to the case of a real deposit Justice Rost used the following language: “This view is inconsistent with the theory of compensation under the civil law; compensation was then considered as an equitable remedy, and never took place when it would have been against good conscience.” It would be equally inconsistent with the theory to refuse to allow compensation to be pleaded by the depositor in a case like this, for it would be against good conscience, that the creditors of Marehms should be paid a dividend out of money which Marcháis himself would have had no right to exact from the defendant. There can be no doubt that the defendant would have had the right if sued by Marcháis to have pleaded compensation by way of exception. Toullier recognizes this right. He says, “ Comino ce privilege n’est établi qu’on favour de ce dernier, il peut opposer la compensation, s’il lo jugo ü propos, parce qu’on pout toujours renoncer au droit inlroduit en sa favour, et ello s’opére du moment oú. il la propose. Vous avez depose chez moi une somme de 3,000 fr., j’hérilo de mon pére, a qui vous devez une somme de 3,000 fr., produisant des intéréts; la compensation de ces deux sommes liquides no se fait pas ipso jure, du jour de la mort de mon páre; époque á Ja-quello js suis devenu voire créaneior ; mais si jo vous demande la somme quo vous dovicz ñ, mon pére, avec les intéréts, et quo vous m’opposiez on compensation la somme que vous avez déposée chez moi, la compensation s’opérera, exceptionis ope, du jour oú vous me l’aurez opposée, et les intéréts cesseront de laméme époque, et non auparavant, parco que ce n’est qu’á cette époque que j’ai ou la liberté do disposer de vos fonds.” Toullier, do contrats et obligations, vol. 4th, compensation et reconvention, Tit. 3, see. 4, and p. 346. As the privilege is established only in favor of the depositor, he may plead the compensation, if he pleases, because a person may always renounce a right introduced in his favor. He states the following case as illustrating the principle: “You deposited with me the sum of 3000 fr., I inherit from my father, to whom you owed the sum of 3000 fr., bearing interest; the compensation of these two liquidated sums is not made ipso jure from the day of the death of my father, the period at which I became your creditor; but if I demand of you the sum which you owed to my father, with the interest, and you plead against me in compensation the sum which you deposited with me, the compensation will take effect exceptionis ope from the day you pleaded it, and the interest will cease from the same period, and not before, because it is only at this period that I had the liberty to dispose of your funds.” He applies the rule here to the case of a real deposit. It is not evident that in case of an irregular deposit the same rule would apply, and that the plea would take effect from the time that the depositary was in default hy refusing to return the deposit and that the interest would cease to run from that date on the debt duo to the depositary. Marcháis must be considered as in default from the time he absconded, because it was not afterwards in the power of the defendant to demand the restitution of his deposit; the creditors can exercise no greater right under the final surrender than Marcháis himself could have exorcised, and the plea of compensation is an effectual bar to any recovery, because, from the period of Marcháis' default he was without any right whatever to maintain an action cn the note which the defendant had executed in his favor.

ToiMier loco citato p. 381, in treating of the principles regulating compensation in cases of bankruptcy, observes:

“ La compensation opérée, méme a son insu, en favour de celui qui est en méme temps créancier et débiteur du failli, conserve tout son effet aprés la fail-líte ; nul doute sur ce point.

Mais la compensation n’est point admise en favour do celui qui, étant créancier ou dcbitcur du failli avantl’ouvcrture de la faillite, est dovenu depuis son débi-teur ou son créancier, de quelque maniere que ce soit. Car cctto compensation porterait prejudice aux droits acquis par les autres créanciors, ce que ne per-mettont ni l’equité ni la loi.”

“The compensation effected in.favor of a person who was at the same time creditor and debtor of the bankrupt, even without the knowledge of the former, keeps all its effect after the failure; there is no doubt on this point, but compensation is not admitted in favor of him, who being a creditor or debtor of the bankrupt before the opening of the bankruptcy, becomes afterwards, his debtor or creditor, in any manner whatever, for this compensation would prejudice the right acquired by the other creditors, which neither justice nor the law permits.” The equity of the rule .on this subject requires that the rights and obligations of all those who have had dealings with the bankrupt, should he so far unaffected by the bankruptcy, that no claims should be enforced either for or against the creditors of the bankrupt which might not equally have been enforced for or against the bankrupt himself.

Marcháis himself could not have recovered on the note sued on in opposition to the plea of compensation set up, and the syndics of his creditors is equally without right to maintain this action.

It is therefore ordered and adjudged that the judgment of the Court below be reversed, and that there be judgment in favor of defendant with costs in both Courts.

Mr. Justice Voorhies and Mr. Justice Buchanan, concurring.

Spoeford, J.

I think it manifest that compensation never took place by the mero operation of law, which is the only species of compensation treated of in the Civil Code.

It seems to be conceded hy the parties that both debts are liquidated. But the fact that one of them was an irregular deposit, whilst the other was an ordinary debt, was an obstacle to their mutual extinguishment by the effect of the law. C. C. 2807, 2927; Bloodworth v. Jacobs, 2 Ann. 27; Breed v. Purvis, Wood & Co., 7 An. 35 ; C. N. 1293; 4 Marcadé, No. 830.

But for the purpose of avoiding a circuity of actions and speeding the administration of justice, the courts allow another species of compensation styled compensation facultative by the French civilians, and compensation by wa/y of exception with us. Marcadé illustrates the distinction between these two kinds of compensation by the following example : “Si vous me devcz tel cheval de-terminé et que je vous doive un cheval en général, la compensation légale n’cst pas possible, puisque les objets des deux dettes ne sont pas exactement fongi-liles, et que je ne puis pas étre contraint á gardcr le cheval quelconque que je vous dois, on place du cheval déterminé que vous me devez; mais si, sur la pour-suite que vous dirigez contre moi je declare que c’est précisément le cheval que vous me devez que j’entends vous livrer, les deux dettes se trouveront immé-diatement compensées; ce sera comme si j’avais regu réellement le cheval par vous <34 et queje vous l’eusse livré ensuite.” Explication du Code Civil, Tome IV., No. 851.

In like manner, one who makes an irregular deposit of money, when sued by his depositary for an ordinary debt, may waive the exception introduced in his favor by the law, and say to the plaintiff, “ take the money I have deposited with you and pay yourself.”

The defence would undoubtedly bo good here, if Marcháis himself were the plaintiff.

But can the defendant exercise this option after the failure of Marcháis, whereby his assets, including the note sued on, vested in the mass of the creditors for the purpose of distribution? Let it be observed that the defence is not intrinsic to the debt. There is no connection whatever between the two demands, and they are not compensable ipso jure; moreover, compensation by way of exception is net retroactive, but takes effect only from the filing of the plea.

On the one side, we meet the general rule of our law, that the rights of the creditors are fixed by the failure, and, therefore, no one in the concurso should be allowed to profit at the expense of the others bjr his own voluntary act after the insolvency is judicially declared.

On the other hand, it seems inequitable that a creditor who is at the same time a debtor of the insolvent, should be deprived, by the failure, of the benefit of any pleas which he might, at his option, have urged against the insolvent himself before the commencement of the insolvent proceedings.

The doctrine of set-off by way of exception, seems to have been liberally interpreted by the courts in all countries where it prevails.

For these considerations, I concur in the judgment pronounced in the present case.


author: Buciianan, J. Slidell, C. J.

text:
    Peters & Millard v. Mrs. C. Toby.
    A friend of Mrs. Toby, whose husband was in embarrassed circumstances, advanced money to invest for her benefit. Some portion of the money thus advanced was appropriated to the purchase of the property which has given rise to this suit, some of it was appropriated to its improvement. The title to the property was taken in the name of Lockett, but for many years Mrs. Toby and her family resided on it, and she, to all appearances, was the owner. Lockett, set up a claim against Mrs. Toby for rent, she disputed the claim and he denied her title, which was, at once made the subject of litigation between them. '1 he Court sustained Mrs. Toby. The present plaintiffs, having recovered a judgment against Lockett, and having recorded it, before the decree in favor of Mrs. Toby in the suit for the property was rendered, brought the present action against Mrs. Toby, alleging that they had, by virtue of their recorded judgment, while the title stood in Lockettname, a mortgage to secure the payment of their debt. But it appearing that plaintiffs were always aware of the true situation of the parties in relation to the ownership of the property, and as it did not appear that plaintiffs credited Lockett upon the strength of his apparent ownership \ it was held that Mrs. Toby's title was not affected by the mortgage of the plaintiffs against Lockett,

    from the District Court of Jefferson, Olarke, J.

      0. Eoselius, for plaintiff and appellant.

      E. JST. Ogden, for defendant.
   Buciianan, J.

This proceeding has the form of an hypothecary action, instituted in the via ordinaria after ten days previous demand of defendant to pay ajudicial mortgage hold by the plaintiffs against one Henry Lockett, and which they pretend bears upon property in the possession of the defendant.

The petition, after stating that plaintiffs had obtained judgment against Lockett in the First District Court of New Orleans, allege that their judgment was recorded in the parish of Jefferson on the 18th May, 1818, at which time Lockett held a written title to certain real estate situated in said parish and particularly described ; which real estate, says the petition, has, since the recording of said judgment, been decreed by the judgment of the District Court, affirmed by the Supreme Court, to belong to defendant, who occupies the same.

The defendant pleaded besides the general issue, that the property described in the petition was and always had been occupied by himself, and had never been liable to the judgment of plaintiffs against Lockett; that although Lockett had held a written title to said property, yet the plaintiffs had always been aware that Lockett never had either the possession or ownership of the same, but that it really and truly belonged to defendant; and that the judgment in the suit of Toby v. Lockett, referred to in plaintiffs’ petition, had not conferred any new title upon defendant, but only recognized and decreed that she had always been the real owner of said propert}'.

From these pleadings it appears that plaintiffs have no claim against defendant directly, but only in virtue of a recorded judgment against Lockett. They are seeking to render property which they acknowledge to be in the occupancy of defendant, and to belong to defendant, liable in satisfaction of their judgment against Lockett.

The plaintiffs do not pretend that the property now belongs in reality to Lockett. Thej' do not allege any error, fraud, collusion, or other nullity in the judgment by which, (to quote the language of their petition) “said square, buildings and improvements, have been decreed to belong to Madame Olemence Toby of said parish of Jefferson, who occupies the same.”

They appear to rely entirely upon the fact that the judgment in question was rendered since the recording, in the parish of Jefferson, of their own judgment against Lockett.

To this the defendant replies, “ true it is, my judgment against Lockett was rendered after the 18th May, 1848. But that judgment conferred no now title on me.. It merely recognized a preexisting title in mo, not derived from Lockett, but adverse to his pretended title ; which by the same judgment was pronounced to have no effect or validity.”

The record of the suit of Henry Lockett v. C. Toby, was offered by defendant and received in evidence without objection. From this record it appears that Lockett having instituted a suit against Mrs. Toby before a Justice of the Peace, in the parish of Jefferson, claiming rent for the premises in question, Mrs. Toby sued out an injunction in the District Court, for the parish of Jefferson, on the 5th January, 1850, denying Jiockctts title to the property, andal-leging that the Justice of the Peace was without jurisdiction to try the title to real estate ; professing at the same time her willingness to try the question of title to said property in a regular petitory action, before a Court of competent jurisdiction.

In answer to this petition Henry Loakett, assuming the character of plaintiff in a petitory action, claimed the property in question as belonging to himself in virtue of a purchase by authentic act from William He Gawley on the 2d November, 1838 ; and prayed for citation and for a julgment against Mrs. Tobyi decreeing him (Lockett) to be the owner of the property, to be put in po sses-sión of the same, and to recover of defendant one thousand dollars damages for her alleged detention of the same. To this demand Mrs. Toby joined issue, and answered, alleging that the purchase made by Lockett on the 2d Nov. 1838, from William McOawley, although made in his own name, was in reality made for Mrs. Toby, and paid for with her money ; that Lockett was the trustee of her, Mrs. Toby, and never the real owner of the property; that she had made large and valuable improvements on the property ; that herself and family had resided thereon for ten years and upwards; that she had always been esteemed the owner, and recognized as such by Henry Loelcett himself, until he brought the suit against her before the Justice of the Peace.

Mrs. Toby's answer concludes by praying to be decreed the true and lawful owner of the property.

Upon this issue the defendant had judgment, which, upon appeal, was affirmed by the Supreme Court, as stated in plaintiffs’ petition.

It is manifest from this examination of the record in question, that the defendant does not hold by a title derived from the judgment debtor of the plaintiffs, but by a title adverse to his. The judgment in the case of Lockett v. Mrs. Toby, has established the fact that Mrs. Toby was the owner of the property in question, since November 2d, 1838; and we do not see how the creditors of Lockett can have greater rights upon the property than Loakett himself. The mortgage lien of plaintiffs in virtue of the registry of their judgment, necessarily depends upon the ownership of Lockett. This failing, the lien fails with it. If, indeed, it had been alleged and proved, that the suit and judgment between Lockett and Mrs. Toby was collusive, the case would be different. If it even appeared that Peters & Hillard had given Lockett credit on the strength of his apparent ownership of the land in question, an equity would have existed in favor of the plaintiffs, which the case is now far from presenting; for it is alleged by defendant, and has been proved' to our satisfaction, that the plaintiffs were always aware of the true situation of thirigs in relation to the ownership of this property.

There cannot bo a doubt that the circumstance of a person allowing another to hold the paper title of property of which he is the real owner and possessor is highly suspicious, and that the uniform current of decisions in this State has been to discourage simulation, and to prevent the public registers from becoming a vehicle of falsehood and deception. For that purpose, the greatest latitude has been allowed to creditors and others interested, to show the real nature of conveyances made to their prejudice. But wo look in this record in vain for any evidence of injury done to these plaintiffs by the imprudent and misplaced confidence of the defendant in Mr. Loakett, as manifested by her suffering her property to remain in the name of the latter for so many years. The account that defendant gives of her acquisition of this property is, that it was purchased for her as a home, by means of a donation of funds made to her for that purpose by a friend, and that soon after its purchase, it being entirely unimproved, defendant’s husband commenced to build for her a dwelling house, and to make all necessary improvements upon it, paying for the same out of the said donation; and one of the witnesses of defendant, Alexander Baggett, the builder of the house of defendant, on this property, confirms by his evidence this allegation of the petition. He says that it was well understood by Mr. Peters, one of the plaintiffs, at the time the witness was building the house, that Mr. McKinney had furnished the funds for the purchase of the property and for the building, and that it was intended as a home for Mrs. Toby. Witness understood that this fund was a gift from McKinney to Mrs. Toly. In these conversations (between the witness, Toly, Lockett and Peters) it was understood that, as Mr. Toly had failed sometime before, the property was bought in the name of Lockett as a friend of the family, to protect it for Mrs. Toly from the creditors of her husband. Now in all this, it does not appear that any parties had an interest adverse to the title of defendant, except the creditors of Toly. But no creditor of Toly has presented himself. There is neither allegation nor proof that Peters & Millard are creditors of Toby; and if they were, the presumption of fraud is most strongly repelled, by the circumstance that they were informed at the time that the purchase, though made in Lockett’s name, was made for Mrs. Toly's account. Nor does this witness, Baggett, stand alone. Francis Gasten, the confidential clerk and book-keeper of plaintiffs, a witness introduced by plaintiffs, and intimately acquainted with all the parties mentioned, proves that the property was always called and looked upon by the public, as Mrs. Toly's; and that he, himself, never heard that Lockett had any claim to it until the institution of the petito-ry action. Peters, Lockett and Toly, says this witness, were intimate friends.

Upon this state of facts, we do not think that plaintiffs are entitled to maintain this action,

It is therefore adjudged and decreed, that there be judgment for defendant, ■with costs in both Courts.

Slidell, C. J.

It is not alleged nor proved that at the date when plaintiffs became the creditors of Lockett and recorded their judgment, or since, the legal title in Lockett was recorded ; which it is fairly deduciblo from evidence, admitted without objectioi), and while the District Judge believed, that at those dates, the equitable title then existing in Mrs. Toly and accompanied by long, open and notorious possession, was known to Peters. In consideration of above circumstances, I concur in the affirmance of the judgment.


author: Spoítojrd, J.

text:
    J. M. Dupre v. The Executor of Boulard, f. w. c., et al.
    The Courts of Louisiana will not give effect to a marriage or to a marriage contract, entered into in France, between a free white person with a person of color.
    C. C. 95,152.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.
    The brief for plaintiff and appellant is not signed by counsel.

      Grailhe, for defendant.
   Spoítojrd, J.

We prefer to pass the details of this record in silence.

It will suffice to say that they illustrate the wisdom of that Article in our Code, which strikes with nullity the marriage of a free white person with a person of color. C. C. 95.

Whatever validity might be attached in Prance to tho singular marriage contract, and subsequent unnatural alliance there celebrated between the plaintiff and the deceased testatrix, it is plain that, under the facts in evidence, the Courts of Louisiana cannot give effect to these acts, without sanctioning an evasion of the laws, and setting at naught tho deliberate policy of tho State.

The history of the relations between those parties, since they returned to their Louisiana domicil, furnishes another reason for a summary dismissal of tho plaintiff’s demand. C. C. 152.

Judgment affirmed with costs.


author: Ogden, J.

text:
    C. M. V. Hall and Husband v. D. R. Carroll.
    In a suit by wife to annul a judgment against her, it is not sufficient to show matters which might have been a good defence to the action. It must be alleged and proved that the judgment was obtained by fraudulent or improper means.
    Suit was brought on an obligation made by the wife with her husband’s authorization; both husband and wife were cited; a judgment by default was rendered and afterwards confirmed. Held,: The effect of the default was to create a tacit joinder of issue as to both husband and wife, and to justify a final judgment against the wife.
    0. P. 605, 118.
    PPEAL from the Sixth District Court of New Orleans, Ootton, J.
    -£i. Smiley & Perin, for plaintiff and appellant.

      Durant & Ilornor, for defendant
   Ogden, J.

The plaintiff enjoined the. execution of a judgment which the defendant had obtained against her on two grounds. 1st. That the note on which the judgment had been obtained against her was not given for a debt which had enured to her separate benefit. 2d. That she was not legally cited, and was not authorized by her husband or tho Judge to receive citation and answer the petition. The first ground cannot be considered in this action, unconnected as it is with any allegation, that the judgment was obtained by fraudulent or improper means, it cannot support an action of nullity, although if it had been pleaded, it might have found a good defence to the action. Dumartrait v. Deblane & Wife, 5 N. S. 392. Rowley v. Rowley, 2 Ann. 209. Chiopen v. Duplantier, 10 L. R. 570.

The second ground is based upon Art. 605 O. P., which declares that a judgment may be annulled which has been rendered against a person disqualified by law from appearing in a suit. In the suit in which the defendant obtained his judgment against Mrs. Hall, she made no appearance. The suit was brought on an obligation executed by the wife with the husband’s authorization. They were both joined in the action, and neither having made any appearance, a judgment by default was taken, which was subsequently confirmed on proof. The Code of Practice, Art. 118, provides that when the suit is brought against the wife for a cause of action relative to her separate interests, the husband must be made a party, and that if tho husband is absent the plaintiff must demand that tho wife be authorized by the Judge, before whom the suit is brought, to defend it alone, if she bo of age. The husband in the present case was not absent. Citations were served personally on both the wife and the husband. They were not bound to defend the suit. The effect of the default was to create a tacit joinder of issue as to both husband and wife, and to fully justify a final judgment against the wife. 9 Rob. 193.

The appellee’s counsel has asked for an amendment of the judgment of the Court below, increasing the damages to the fullest extent of the penalty consequent upon the dissolution of the injunction. The plaintiff first took a suspen-sive appeal from the judgment, which the defendant had obtained against her. She then, brought a suit to annul the judgment, which suit was dismissed on the exception that she had taken an appeal from the judgment. Erom this judgment of dismissal another appeal was taken, but neither of the transcripts of appeals was filed in this Court, and the remedy of injunction finally resorted to. There being no legal grounds for the injunctions, the highest amount of damages under these circumstances ought to be awarded defendant.

It is therefore decreed that the judgment of the Court below be amended as to the amount of damages, and that the defendant have judgment against the plaintiffs, G. M. V. Hall and Peter B. MeKelsey. the surety on the injunction bond, in solido, for the sum of two hundred dollars, being twenty per cent, damages on the principal of the judgment enjoined, and that thus amended the judgment of the Court below be affirmed with costs.


text:
    Price, Frost & Co. v. Ship Uriel, Master and Owners.
    Where goods are shipped in good order, and are damaged on the voyage, it devolves on the common carrier to show that the damage was caused without his fault, and by one of the perils excepted in the bill of lading. •
    If it is proven that the damage was occasioned by one of the perils in the bill of lading, it is then incumbent on shippers to show that the common carrier was guilty of negligence.
    In estimating damages, the market value of goods of the same kind at the port of delivery must be taken as a standard.
    from the Second District Court of New Orleans, Lea, J.

      Wolfe & Singleion, for plaintiffs.

      Durant & Hornor, for defendants and appellants.
   Ogden, J.

This is an action for damages on 780 bundles of iron, being bar, hoop, band and horse-shoe iron, consigned to the plaintiffs, who are agents of Semple & Bonner, of St. Louis, and shipped from Liverpool on defendants’ vessel.

There was judgment against the defendants, who have taken the present appeal, and rely on the following points:

1st. That any loss or damage the iron may have sustained arose from a peril of the sea, and not from bad stowage or from any fault or want of skill or care on the part of defendants.

2d. That the assessment of damages by the lower court is not correct and legal.

On the first point, the evidence is not very clear and conclusive as to the cause of the damage. The iron, however, was shipped in good order and condition, and the position contended for by the appellees’ counsel, that it devolves upon the common carrier to show that the damage was caused without his fault and by one of the perils excepted in the bill of lading, seems to be supported by both reason and authority. If the evidence had satisfactorily established the injury to have been occasioned by one of the perils excepted in the bill of lading, it would then have devolved upon the shippers to show that the defendants were guilty of negligence and might with due care have prevented the injury. Clark et al. v. Barwell et al., 12 Howard, 270.

Although it is shown by the evidence that the vessel experienced some gales on the voyage, yet it is also shown that she was staunch and well built, and she does not appear to have been injured by stress of weather. Notwithstanding the defendants established by the evidence of the stevedore who loaded the vessel, as well as by other witnesses, that the stowage was such as is customary and considered safe, yet the fact of damage being positively shown, and the bur-then of proof resting on the common carrier to show that it was a damage occasioned by the perils of the sea, which fact has not been made to appear, it follows that, in the absence of such evidence, the negative testimony introduced by the defendants does not suffice to exonerate them.

On the point as to the extent of the damages, the rule is that the market value of goods of the same kind at the port of delivery must be taken as the standard. Kent, vol. 2, p. 600; Oakey v. Russel, 6 N. S., 61; Pothier Traite des Contrats de louages Maritime, 1st part, No. 35. The damages were estimated on personal inspection at the port of New Orleans at seventy per cent., but the plaintiffs, in their answer to interrogatories propounded to them by the defendants, state that they had learned from their principals at St. Louis, who are the owners of the goods, that at St. Louis the damage had been assessed at not under ten nor over thirty-five per cent.

This new appraisement at St. Louis induces the belief that there was error in the appraisement at New Orleans, into which, considering the nature of the goods, the appraisers may have fallen, either from making too superficial an examination or from being deceived by the appearance of the iron when the ship was just unloaded.

The evidence furnished on this subject by the answers of the plaintiffs to interrogatories, leaves it a matter of conjecture as to the extent of the damages, as ascertained by the appraisement at St. Louis, and considering the plaintiffs are only agents of the owners of the goods, we think justice will be promoted by subjecting the case to a new trial, when such details can be had in regard to the appraisement at St. Louis, and probably as to what the goods were sold for, as will enable the court to form a correct estimate of the actual damage which had been sustained on the arrival of the ship at New Orleans.

It is therefore decreed, that the judgment of the court below be reversed and the case remanded for a new trial, with leave to either party to take out commissions to take testimony at St. Louis, and that the plaintiff pay the costs of the appeal.


author: Buchanan, J.

text:
    Leland et al. v. Rose.
    ^^PPLIOATION for a mandamus to the Sixth District Court of New Orleans.
   Buchanan, J.

This application for mandamus cannot be entertained, the petition not being sworn to, as required by Article 840 of the Code of Practice.

We may remark further, that were the petition sworn to, it presents no cause for a mandamus. The proper remedy would be an appeal from the judgment complained of.


text:
    Young, f. m. c., v. Egan, et al.
    A devise, in Alabama, of a slave to an executor, coupled with a trust to remove him with a view of emancipating him, will be regarded by the courts of this State as an absolute devise. The trust is not compulsory.
    Mere words of recommendation c-r precatory words in a devise do not constitute a trust unless it be clear they were used in a peremptory sense.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Price, for plaintiff:
    The only point in this case appears to be that by the laws of the State of Alabama the testator could not thus emancipate his slave.
    This question has been so ably argued and discussed in the case of Ross el al. v. Verlner el al., in 5 Howard’s Miss. Rep., 805, and in the case of Alwood's Heirs v. Beck's Administrator, 21 Ala. Rep., 590, that I will not trouble the court with multiplying authorities.
    It is further objected that the devise to the executor vested in him the legal title to the slave, and he could execute the trust or not.
    This objection is without weight when we consider the fact that the executor ■ qualified and accepted the trust, and he was bound by the request contained in the will just as much as if the words used had been imperative. See 2d Story Eq. Juris., fifth ed, sec. 1068, and the authorities there referred to.

      Egan & Dupuy, for defendant and appellant:
    The principle is well settled that when the object of a devise is to be executed in a foreign country, it must not be against the public policy of the laws of the place where it is sought to be enforced, or the court will declare it void. 2 Story’s Equity, 429; 0 Vesey, 567. So that I contend, to give the will force would be a violation of the policy of this State, as evidenced by the Act of the Legislature of ISth March, 1852, page 214, and also introduce into our jurisprudence a new title — a fidei commissum.

    “Our statute does not expressly declare the policy of the State on the subject, but our Constitution is an exclusion of any other mode of emancipation than the Legislature has enacted, and operates with as much force as if express negative terms were embraced in the statute itself.” There are many good reasons why slaves should not be emancipated by last will and testament. Under the existing laws of Alabama the character of the negro must be shown to be good. Yet if the owner be permitted to emancipate his slaves by will, there is nothing to prevent the most vicious negroes from being turned loose on society. Again, wills are made usually during the last illness of the testator, when influences are brought to bear on the mind calculated to cause a disposition of property that .sober reason could not approve. The greater part of the wealth of Alabama consists in her agricultural products. Liberate her slaves, and you sap the foundation of her prosperity — her agriculture and her commerce would be gone. To prevent this, she has thrown every restriction around slavery, and left hut one door open by which slaves can become free. This condition has not been complied with. If the boy is entitled to be decreed free, it is by virtue of a will executed in Alabama by one domiciled and subjected to her laws. If the clause directing Stephen Gharpentier to free said hoy is binding, it derives its force from the Act of the General Assembly of 1834. In the case of Haywood v. McCraven’s executors, 2 North Carolina Repository, 657, it decides “that a devise to emancipate slaves, although in-some instances to be sent out of the United States to a foreign country, is void.” The court said that such a devise is repugnant to the positive provisions by statute which has pointed out but one method by which slaves can be emancipated. * Such is the law of Alabama. Can the testator choose a different, or can the executor who-represents the deceased another method of emancipation? An instrument of emancipation must conform to the laws of the country where the emancipator was domiciled at the time of his death, or it is void. 1 Randolph, 234, and a case in 6 Randolph, 503-4 shows that an attempt to emancipate slaves, contrary to the law in force at the time, is void, although a trust is created to support it. In the case of Bynum v. Boswich, 4 Dosans, 206, the court decided that a bequest of slaves to a trustee, with directions to liberate them, was void, being in opposition to the provisions of an Act of South Carolina, which forbids emancipation in any other way than by deed ex-ecuted in the lifetime of the master, a certain time" before his death, in a prescribed form.” It is an undoubted maxim of the law that a legacy must take effect at the death of the testator, or it is void. 3 Peters, 497, 498.

      Bozier, for one, and Moise & W. M. Randolph, for another warrantor.
   Buchanan, J.

The record of the probate of F. Gay's will was properly admitted in evidence. The Alabama Code which requires the depositions of the witnesses who prove the will to be signed by them, was not promulgated until after the probate of the will in question.

Francis Gay, a resident of the State of Alabama, made his will on the 22d November, 1850, which was proba'ed on the 2d December, 1850, in the Probate Court of Mobile countjq in said State, and which contained the following clause:

“ I give and bequeath my negro slave, named Albert, to my friend Stephen Gharpentier, (barber in Mobile,) for him, said Stephen, to hold in his own right. Hereby requesting him, said Stephen, however, as soon as ho can with convenience, to have the said slave taken to some Slate or country, where slavery and involuntary servitude is not known, there to be and remain free and emancipated forever. And I do hereby will, give and bequeath unto my executor hereinafter named, the sum of one hundred dollars, for the purpose of having the said slave removed to a free country, and request him to apply the same accordingly.” After some other legacies, the testator names the same Stephen Gharpentier his universal heir and executor.

Stephen Gharpentier sold the slave Albert, named in this will, to McRae, Coffman, & Go., at New Orleans, on the 11th April, 1851; and he afterwards passed by several mesne conveyances, into the hands of the defendant J. G. Egan, whom he has sued in this action for his freedom, which he claims to be entitled to under the above clauses of the will of his former master Gay ; and also for five hundred dollars damages for illegal detention.

The form and effect of written instruments are governed by the laws and usages of the places where they are made, unless they have been made in one country, with the intention of being carried into effect in another country. Civil Code, Article 10. The exception contained in this Article of the Code does not apply to the case at bar. The testator lived and died in Alabama. 1-Iis will was intended to be carried into effect in Alabama, where his property was situated. The respective rights of Gharpentier and of the plaintiff under this will, are to be governed by the laws of Alabama.

In that State, the emancipation of a slave by last will, is forbidden by law. Trotten, adm'r. v. Blocker & Wife, 6 Porter, 269. But a devise of a slave to an executor, coupled with a trust to convey him out of the State, with a view to his emancipation, has been held by the Supreme Court of Alabama, not to be illegal. Atwood's heirs, v. Beck, adm'r., 21 Alabama Rep. now scries.

The case last quoted, however, only went the length of declaring that the Courts of Alabama would not interfere, at the instance of the next of kin of the testator, to prevent the executor from executing such a trust. The language of the decision is as follows: “ Conceding in this case, that there is no one who could compel the executor, or the administrator with the will annexed, to carry this trust into execution, and that he must be left to his own conscience, and to the obligation imposed by his official oath, yet as we have seen that the trust is not illegal, and the removal may lawfully be made by the representative of the deceased, it is clear the Court will not interfere to prevent the trustee from complying with and'carrying out the lawful desires of the testator. Whether it is such a trust as the Court may compel the execution of, against the will of the trustee, is not now presented before us; it is sufficient that the trustee is willing and proposes to carry it into execution. It is he who interposes the trust, and asserts its validity; and it only remains for the Court to direct him to do what, by his answer, he avers his willingness to perform.”

We think it may be fairly inferred from this language, that the trust to transport the slave out of the State for the purpose of his emancipation, was recog. nized by the Supreme Court of Alabama, as legal, only so far as it was not compulsory; and indeed, this conclusion seems to flow necessarily from the premises.' The law of Alabama prohibits emancipation of a slave by last will. Therefore, a legacy of-freedom to a slave, is null. But a testator bequeaths his slave to A., coupled with a condition or trust that A. shall remove the slave into a State where involuntary servitude is not recognized, there to he or remain free. The trust, if voluntarily executed, has nothing illegal in it; because a man may do what he pleases with his own; and if the devisee, who becomes the owner of the slave upon the death of the testator, choose to travel into another State of the Union, or into another hemisphere, with his slave, the courts will not prevent him from so doing. But if the devisee prefer, on the contrary, not to send or take his slave into a free State, hut to retain him in the State of Alabama, or in any other slave-holding State, and to enjoy his services, or to convey him to another, the same reason should prevent the courts from in., terfering. To treat this trust as compulsory, would be, to enable a testator to, do indirectly, and in freudem legis, that which he could not have done directly. In Louisiana, the trust contained in the legacy of the plaintiff to Charpentiei\ would he considered as not written ; and the bequest of the plaintiff to Chart penlier “to hold in his own right,” would alone stand. The bequest would viewed as an absolute one, and unqualified of the right of ownership in the plaintiff. Such was the decision of this court, in the case of the State of Louis*, iana v. McDomglt’s executors. And the principle was recognized as correqt under the common law, no less than under the civil law, by the decision of the Supreme Court of the United States, in the same ease, when the author-, ities were carefully and elaborately reviewed, in the opinion delivered by Mr, Justice Campbell.

Again, the words of the devise on which the plaintiff founds his claim to free-, dom, are precatory “ requesting him, the said Stephen, as soon as he can with, convenience, to have the said slave taken to some State or country,” &e. Now, Judge Story, in his commentaries on Equity Jurisprudence, paragraphs 1068 to 1070, after stating that Courts of Equity have gone great lengths in creating implied or constructive trusts from mere recommendatory or precatory words of the testator, expresses his doubt of the soundness of the principle of such latitude of construction; and declares that the tendency of the more modern authorities, is to give to the words of wills their natural and ordinary sense, unless it is clear that they are designed to be used in a peremptory sense. He concludes that whenever (among other instances) the prior dispositions of the property import absolute and uncontrollable ownership, courts of equity will not create a trust from words of this character. Such we take to be the case in the present instance. The testator commences dy devising the ownership of the slave, Albert, absolutely to Stephen Gharpentier; and concludes by requesting Gharpentier to have the slave transferred into some other State or country where slavery is not recognized by law. The devise is absolute, depending on no contingency. The request is addressed to the discretion, or, to use words of the Supreme Court of Alabama, “ to the conscience ” of the de-visee. It is to be observed that in the case of Atwood's heirs v. Beck, the terms of the trusts wore preremptory. Lastly, supposing the words of request in this devise to have the effect of a command, they clearly did not import a command to give to the plaintiff his freedom within the limits of a slave holding State. The policy of Alabama, as we gather from her legislation, is to prevent the multiplication of the class of free persons of color, by restricting the power of emancipation. The testator, aware of this policy of his State, has endeavored to conform to it. He did not contemplate that the plaintiff should have his freedom in Alabama, or in any other slave holding State. It does not seem to be carrying out the intentions of this will, to set the plaintiff free in Louisiana, as the District Court has done by the decree appealed from.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there be judgment for defendant and warrantors, with costs in both Courts.


author: Slidell, 0. J.

text:
    Mason v. Poulallier.
    The verdict of the jury was against the principal in an injunction bond, and did not include the surety ; but the judgment of the court was against the surety also. Held: That the surety was not, on this account, entitled to a reversal. The surety is considered by the statute in the light of a plain-tiffin the injunction suit.
    In assessing damages against the plaintiff in injunction, the judge is authorized to allow an amount up to twenty per cent, without proof; beyond that, there must be proof of the damage.
    from the First District Court of New Orleans.

      G. & O. B. Schmidt, for plaintiff and appellant:
    We beg leave further to observe, that by the provisions of Art. 519, C. P., the jury possess the right of giving a general verdict determining both the facts and the law of the case; but this is a general verdict, which does not condemn Goeler, the security, to pay any thing. The judge, therefore, was evidently guilty of an error in condemning Goeler to pay the damages assessed against 'the plaintiff, whatever they were, since the verdict decrees nothing against Goeler.

      It may be contended that the law condemns the principal and surety in solido to pay the damages assessed against the party who has wrongfully obtained an injunction, and that therefore the court did nothing more than apply the law to the facts of the case as found by the jury. This, however, wo think it erroneous, because the acts of the legislature decreeing the payment of damages in like cases, have drawn a distinction between the case when the defendant in execution sues out an injunction, and whore a third parly resorted to the same remedy, and have enacted that in the former case the plaintiff in injunction and his surety shall be condemned in solido, while in the latter case they only say they may be, thereby evidently leaving the matter to the discretion of the court or jury that may try the case. Acts of 1831, page 102, sec, 3; Acts of 1833, p. 93, sec. 3.
    Inasmuch as the jury in the above cause gave no verdict against Goeler, it is evident that no judgment could have been rendered against him. And -we further respectfully contend that the verdict is a mere nullity, having failed to determine two important issues in the cause, to wit: 1st, the amount on -which the damages and interest were to be paid; 2d, the extent of the liability of Goeler, the security. See Garland v. Davis, 4 Howard, U. S. R. 131; Reynard v. Bru-nett, 3 Brevard, 113 ; Rarmanv. Ohildress, 3 Yerger, 327.

      Goold & Stansbury, for defendant:
   Slidell, 0. J.

The examination of the evidence has not satisfied us that the jury erred in their conclusions upon the question of fraud and simulation.

It is suggested as error that the judgment includes the surety in the injunction bond, although the principal only is named in the verdict. The surety is considered by the statute in the light of a party plaintiff in the suit. See Acts of 1831, p. 102 ; 1833, p. 93. The mere discrepancy between the verdict and judgment in such a case is not, in our opinion, .a sufficient ground for reversal in favor of the surety, who is one of the appellants.

We think, however, the appellants rightfully complain as to the amount of damages allowed.

The judgment b.elow allowed 'twenty per cent, damages on the amount of the judgment enjoined, and $100 counsel fees. It does not appear that proof of damages was adduced, except as to counsel fees. Up to the amount of twenty per cent, the judge is authorized by the statute to assess damages without proof; (Brown v. Lambeth, 2 Annual, 822;) but, in order to allow damages beyond that amount, there should be evidence that the defendant in injunction has sustained damages beyond that amount. It was so ruled in Wileott v. Bundy, 13 Louisiana, 381, in which the court remarked as follows: “ On dissolving an injunction in this case, the judge condemned the plaintiff and his surety to pay twenty per cent, damages, ten per cent, interest, and fifty dollars counsel fees, which it was proved the defendant would he obliged to pay in consequence of the injunction obtained by the plaintiff. The law of the 25th March, 1831, provides that in case the injunction be dissolved, the court in the same judgment shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest at the rate of ten per cent, per annum on the amount of the judgment, and not more than twenty per cent, as damages, unless damages to a greater amount he proved. It does not appear that any proof was administered except as to the counsel fees. If a greater sum than twenty per cent, was allowed, proof of damages to a sum exceeding that amount should have been made under the statute. The sum of fifty dollars is therefore disallowed. The judgment is therefore reversed so far as relates to that sum, and confirmed as to the residue.”

The affidavit did not make such a showing under the circumstances of the case as would authorize us to say the judge erred in refusing a new trial.

It is therefore decreed, that the judgment be amended by striking out the allowance of $100 for counsel fees, and by allowing as damages under the statute the sum of $273 95, and that, so amended, the judgment be affirmed —the costs of the appeal to be paid by the appellee, Sarah Poulallier.


author: Slidell, O. J.

text:
    The State v. The Judge of the Second District Court of New Orleans.
    A mandamus will not lie where the party has a remedy by appeal.
    an application for a mandamus to the Second District Court of New Orleans,

      lea, J. Livingston, for the application.
   Slidell, O. J.

It appearing to the court that no sufficient cause for a mandamus having been shown, the party having a remedy by appeal.—See Succession of Macarty, 2d Ann. 950.

It is therefore ordered, adjudged and decreed, that the application for a writ of mandamus in this case be refused at the appellant’s costs.


author: Spofeobd, J.

text:
    State v. C. Ramos—Baldwin, Relator.
    Under the Consolidation Act of 1852, writs of quo wcM'rcmto may issue at any time, and at the instance of any citizen, to try the right of any Mayor, Recorder, or other officer of the city of New Orleans, to the office which he holds.
    A resolution of the late Board of Assistant Aldermen was adopted, declaring “ that Clement Homos, Recorder of the Second District of this city be, and he is hereby presented to the Board of Aldermen for impeachment, upon the following charges,” &c. — which were specified. Held: .That from the time of the adoption of the resolution an impeachment was pendi/ng in the sense of the law.
    The Act of Consolidation which confers upon the Board of Aldermen the sole power to try all impeachments, is not unconstitutional.
    from the Sixth District Court of New Orleans, Cotton, J.

      Schmidt, for Baldwin.

      C. Dvfour and P. B. Bonford, for respondent and appellant.
   Spofeobd, J.

(Slidell, O. J. and Ogden, J., absent.)

At the relation of Alexander Baldwin, styling himself Captain of the Police of the Second District, a writ of quo waoranto was sued out from the Sixth District Court, upon the 14th of April last, citing Clement Ramos to show cause why he should not cease to exercise the functions of Recorder of the Second District of New Orleans, until an impeachment preferred against him by the Board of Assistant Aldermen should be finally decided.

In his answer filed on the 17th of April, the defendant admitted that certain proceedings were had by the late Board of Assistant Aldermen, the object of which was to cause him to be impeached before the Board of Aldermen for alleged offences; but he denied that those proceedings amounted to an impeachment, and averred, that before they matured into a formal impeachment, the Board of Assistant Aldermen, who commenced them, ceased to exist, whereby the proceedings fell; he further averred, that under the Constitution and laws, there was no power vested in the Board of Assistant Aldermen to impeach him, or in the Board of Aldermen to try him for the alleged commission of any offences in the exercise of his office of Recorder; he finally averred that the proceedings in the pretended impeachment were irregular, null and void, for want of a sworn accusation specifying his offences, for want of citation and opportunity to confront his accuser and the witnesses, and to offer witnesses in his defence before the Board of Assistant Aldermen; and because the evidence was not taken down in Writing.

Upon those issues, the cause was tried and decided adversely to the defendant, who has appealed.

No question is made touching the legality of this proceeding by quo war-ranto to test the issues involved. Sec. 40 of the Act to consolidate the city of New Orleans (Session Acts 1852, p. 55) provides, that the right of any Mayor, Recorder, or other officer of the city of New Orleans to fill the office held by him (de remplir la place qu'il ocaupe) may be tested, at any time, by any citizen, by a writ of quo warranto, which shall be tried as summarily as possible, both in the inferior and appellate courts.” The remedy of quo warranto is not limited strictly to the cases put in the Code of Practice. In Reynolds v. Baldwin, 1 Ann. 165, it was held to be the proper remedy for the usurpation of a franchise, as well of an office. Here, it is alleged, that the defendant claims, without authority of law, to exercise the functions of Recorder, after he has been suspended from office by an impeachment. We think the plaintiff has pursued the appropriate remedy.

The argument in this court has been restricted to four points, which we will examine in their order :

1. It is contended by the appellant, that a mere resolution to impeach, is not an impeachment. Eor, the purposes of the present case, that may be conceded, for there is something more than a mere resolution to impeach in the proceedings of the Board of Assistant Aldermen.

It appears of record that a special committee, to whom a communication of certain persons praying for the impeachment of the defendant had been referred, made a report, in which they stated that they had examined a great number of witnesses, and that certain charges, which they set forth with sufficient distinctness, had been proven; whereupon, they reported that, in their opinion, the said defendant should be impeached, and the necessary resolution for his impeachment and suspension from office were reported.

On motion, the report and resolution of suspension were adopted by a vote of ten to five.

The following resolution was then adopted:

“Resolved, That Olement Ramos, Recorder of the Second District of this city be, and he is hereby presented to the Board of Aldermen for impeachment upon the following charges,” &c. Then follows a specification of the articles of impeachment. The defendant’s. answer admits that he was aware of these proceedings such as they were, and they were duly promulgated on the 10th of April, several days before the quo wcurranto was applied for.

We are of opinion, that from that time an impeachment was pending in the sense of the law. Sec. 21 of the Consolidation Act (see Acts of 1862, p. 47) declares, that “ the Board of Assistant Aldermen shall have the sole power of impeachment of city officers, not otherwise provided for; and, pending such impeachment, and until the final disposition thereof, the party impeached shall not exercise any of the functions of his office.”

2. But it is urged that the Act of Consolidation in conferring upon the Board of Aldermen “ the sole power to try all impeachments,” transcended the authority given to the Legislature by the Constitution. The argument is, that the power of impeachment is a judicial power, and could not be conferred upon a legislative or municipal body.

But, by the terms of the section, (See. 21) which confers the power, “judgment in cases of impeachment, shall not extend further than removal from office and disqualification to hold any office under the city charier: but the party convicted shall be liable to indictment, trial and punishment according to law.” We think that, in this enactment, the Legislature only gave to the city government, such powers as are proper for its police and good administration, and that no article of the Constitution was invaded thereby. Article 128, of the Constitution of 1845, (preserved in Article 124 of the present Constitution) provided that the Legislature may vest in the Aldermen such criminal jurisdiction as may bo necessary for the punishment of minor crimes and offences, and as the police and good order of said city may require.

3. Again, it is said that if the 21st Section of the Consolidation Act, were a proper exercise of legislative power, the Recorder is not a city officer within the fair meaning of the provisions of that section.

Section 4, of the Consolidation Act, vests the executive power of the city of New Orleans, in one Mayor, three Recorders, &c. The fact that the Recorders, as an incident to their office, and the better to enable them to discharge its duties, are commissioned as Justices of the Peace, does not divest them of their character as city officers.

4. Lastly, it is contended that the Board of Assistant Aldermen, should have proceeded according to the formalities prescribed by the Act of 1826, (Ses. Acts, p. 204,) and, it not appearing that they did so, the whole proceedings should be treated as absolutely null.

That act is expressly limited to accusations against public officers before the Legislature. It would be straining our powers to say what the Legislative Department has not chosen to say, that the forms therein prescribed, shall be pursued in impeaching city officers, under the 21st Section of the Consolidation Act. The sole power of impeachment is confided to the Board of Assistant Aldermen, the sole power of trying the impeachment to the Board of Aldermen, the right of appeal to this court, is not given.

We will not do indirectly what we cannot do directly; and we disclaim any general right of supervision over the boards, in the exercise of the impeaching power which the law has entrusted solely to their sound discretion. If they err, they are responsible to the public, by whom they are elected.

We are unable to say that the proceedings as they stand of record, are absolutely null and void upon their face.

The judgment, is, therefore, affirmed, with costs.


text:
    Keith, Curator, &c. v. City of New Orleans.
    Where an obligation bears interest on its face, it is not necessary to protest the same to make it carry interest. O. C. 1981.
    from the Second District Court of New Orleans, Lea, J.

      Clarice & Bayne, for plaintiff.

      Livingston, for defendant and appellant,
   Buchanan, J.

The obligation of defendant bore interest upon its face, from date. It was not necessary, therefore, for a protest in order to make it carry interest, C. C. 1931.

The city advertised on the 28th of August, 1852, that it was ready to pay all obligations ; and that it would resist the payment of interest after that date. But there is no proof, nor even allegation, that this advertisement came to the knowledge of plaintiff.

Judgment affirmed, with costs.


author: Slidell, C. J.

text:
    In the Matter of Amelia & Virginia Seghers.

    In proceedings to emancipate a minor under the Statute of 184T, when the family meeting has not given a satisfactory detail of the causes which make the emancipation necessary or desirable, and where it does not state the situation, nature and amount of the minors property, it is discretionary with the District Judge to refuse its homologation,
    from the District Court of the parish of West Baton Rouge.

      Jitlien Seghers, for the applicant..

      An application to put this case on the summary docket was refused.

   Slidell, C. J.

This is an appeal from the refusal of the District Judge to homologate the proceedings of a family meeting, and to decree the emancipation of the minors. The reasons for his refusal are fully and forcibly stated by the District Judge, and his conclusion meets our concurrence. We cannot recognize the doctrine that in a proceeding under the Statute of 1847, where the family meeting has not given a Satisfactory detail of the causes which make the emancipation necessary or desirable, and where the Judge is left wholly uninformed as to the situation, nature and amount of the minor’s property, he is to be considered a mere automaton, to sign an homologation, stripped of any judicial discretion, and excluded from enquiring whether according to the evidence before him and his conscientious conviction, the welfare of the minor will be proa oted by the decree.

Judgment affirmed, costs to be paid by appellant.


author: Spoífokd, J.

text:
    The State v. Merrick, Judge of the Seventh District Court.
    The propriety of admitting to bail a prisoner accused of a capital crime, before conviction, is in all cases entrusted to the discretion of the judge empowered to issue the writ of habeas corpus. A mandamus will, therefore, not be granted to compel the District Court to admit a prisoner to bail.
    After the finding of a true bill of indictment for a capital offence, no inquiry can be made into the merits of the ease upon habeas corpus, unless under circumstances of the most extraordinary character.
    N an application for a mandamus.

      \J Muse, for the applicant:
    In support of the application for a mandamus in (he above entitled case, the court are referred to the following authorities, to wit: 1st. Martin’s Reports, by Morgan, marginal page 217. 2d. Hale’s Pleas of the Crown, pp. 148-129. Blaclcstone’s Commentaries by Chitty, vol. 2, pp. marginal, 298-9. 7th An. LongwortJipraying for a writ of habeas corpus, pp. 247-3 -9. In this case, the court quotes the language of Chief Justice Marshall, as follows, to wit: “ Chief Justice Marshall declared upon the trial of Colonel Burr, that the court had power to bail a person indicted for treason, according to its sound discretion.”
    Answer of Merrich, J., to the rule for a mandamus :

    I hereby accept service of the petition and application for a mandamus, and consent, in the event that the reasons heroin given are insufficient, that a peremptory mandamus issue without further notice.
    It will be perceived that the writ of habeas corpus was returnable before me at chambers, and neither the indictment nor bench warrant were, in any manner, drawn in question. But it was contended on behalf of the accused, that he was not guilty of the crime charged in the indictment, and that he was entitled to be sot at liberty upon giving bail.
    On the trial of the habeas corpius, the prisoner placed on the stand the two witnesses named in the bill of exceptions, and (in effect, as I conceive,) offered to go behind the finding of the grand jury, and show that the offence was not murder, or, at least, that it w-as bailable. The District Attorney objected to the introduction of the testimony, and the court refused to receive it, among others, for the following reasons :
    The Act of 1804 introduced the Common Law of England, so far as the in-tendment and construction of crimes, the indictment, the rules of proceeding, and the evidence in criminal cases are concerned.
    In order to know what the law of Louisiana now is, reference should be had to the common law as it existed in England prior to 1804, rather than the same law as modified by recent English statutes.
    On examination of English Common Law, as introduced into Louisiana, I find that the Court of King’s Bench (before bill found) refused to admit to bail on habeas cospus, where the prosecutor, having identified the prisoner, eight credible witnesses proved an alibi. Bex v. Greenwood, 2 Strange, 1138.
    In the case of King v. Dalton, the same court say, that there is a distinction between a finding by the coroner’s inquest and an indictment by the.grand jury; that in one case they will examine the testimony, (which is all reduced to writing,) but, the testimony being secret in the other, it is not subject to examination. 2 Strange, 911.
    In Bacon’s Abridgment, Appendix, verbo Bail in Criminal Cases, D., I find that the Court of King’s Bench will not bail after bill for murder found, though the facts were plainly manslaughter.. — Case of Kirlce and Oase for the murder of Gomcay. The same principle is recognized in Chitty’s Criminal Law, p. 129 of the margin, where lie expressly says that a prisoner cannot be admitted to bail after the finding of a bill for murder. This principle is also recognized in the case of The Territory v. Benoit, 1 Martin, 142 ; and the case of The Territory v. McFarlane, 1 Martin, 210.
    By Art. 104 of the Constitution, it is provided that all persons shall be bailable by sufficient sureties, unless for capital offences where the proof is evident or tho presumption great, or unless after conviction for any offence or crime punishable with death or imprisonment at hard labor.
    Tin's article evidently takes from the courts the power to admit to bail where tho proof is evident, tho presumption great, or there has been a conviction in a capital offence, or an offence punishable by hard labor. In the case referred to, (1 Martin, 143,) tho finding- of a grand jury has been held to be “ too great a presumption of the defendant’s guilt to bail him and, if tho case of Benoit is still law, the argument is conclusive.
    Again, it was not pretended that the witnesses offered upon the stand wore before the grand jury; and, looking upon tho indictment, it appears other witnesses were relied upon on the part of the State.
    Now, suppose the witnesses wore to be heard — suppose even that their testimony, standing alone, should leave no doubt that tho prisoner was only guilty of manslaughter, or no offence at all — could the judge at chambers undertake to say that these witnesses are to be believed, and those before the grand jury to bo discredited? or that the grand jury has found erroneously?
    If the court has this power, then these two consequences flow from it:
    1st. The court has power at chambers to supervise the finding of the grand jury, a body through whose agency alone prosecutions for capital offences originate.
    2d. Power to declare, before the trial by the petit jury, that the accused is not guilty, or not guilty of the higher grade of offence charged against him in tho indictment; and, in fine, to set the prisoner at liberty or to enable him to escape all penalty by forfeiting his recognizance for such minor offence as the judge may think the accused should bo held to answer.
    Not believing that I possessed these powers, I think it would be doing a vain thing to hear testimony which would, as against tho finding of tho grand jury, conclude nothing.
    The evils which would flow from the introduction of the principle that the accused could compel a disclosure of what passed in the grand jury room, are also worthy of consideration.
    If the court should deem these reasons insufficient, I consent that the mandamus should be peremptory at once, — -reference, however, being had to tho fact that it will not be in my power to hear the case again until after having held the courts, as required by law, in the Eighth Judicial District.
   Spoífokd, J.

On the 7th of May, 1855, James Bell was imprisoned in the parish jail of East Feliciana, under a bench warrant, which recited that an indictment had been found against him for the crime of murder.

On the same day ho applied to the District Judge for a writ of 7taleas corpus, alleging that ho was entitled to his liberty, on giving bail, or to an entire discharge.

The writ was granted, and on the 9th of May came on for trial, when, it being- conceded by counsel that the warrant upon which said Bell was detained in custody was in due form, the prisoner was remanded to custody to answer the charge of murder preferred by the grand jury against him, and until he should bo discharged by due course of law.

Upon tho trial of the habeas corpus, the following bill of exceptions was taken :

“ Be it remembered, that on the trial of the writ of habeas corpus granted in the above case, tho accused offered two witnesses, Thomas J. Worsham and Beverly Howley on the stand, to show that he was entitled to bail under the facts and circumstances of the case prior to the finding of the indictment. To which tho District Attorney objected, on tho ground that an indictment had boon found by the grand jury against the accused for murder, which objection being sustained by tho Court, and the evidence rejected, the accused by his counsel excepts,” &c.

By the Court. — The counsel stated that it was conceded that the warrant was in due form, but that, notwithstanding the finding of the grand jury, the court ought to hear the whole testimony, and admit to hail or not, as should appear from the testimony.

(Signed.) Edwin T. Merrick,

Judge, Seventh District.

The prisoner now asks this court for a writ of mandamus, ordering the District Judge to proceed to hear the evidence of the witness, and to admit him to bail or otherwise, according to the testimony.

The District Judge has waived the formality of a preliminary order, and sent up his answer to the application, consenting that a peremptory mandamus issue at once, if the reasons he assigns to the contrary are not deemed sufficient in law.

We observe in the outset, that, had the judge chosen to hear the proffered testimony, and thereupon had remanded the accused to prison, or admitted him to bail, or discharged him without delay, no appeal would lie to this court from either of such orders, as wo would bo without power to revise the acts of the judge in the exercise of the discretion confided to him. Ex parte Mitchell, 1 Ann. 413.

It is very doubtful whether we could employ the summary remedy of mandamus to review the discretion which has been exercised in the present case ; for, let it be observed that the judge granted the habeas corpus, and examined into the commitment and its cause; that he found the mittimus formal and the cause sufficient, to wit: a true bill of indictment for murder, found by a grand jury of the parish and pending in his court; that this finding furnished, to his mind, so great a presumption that the prisoner was guilty of a capital offence, that ho did not deem him bailable under the constitution and laws; and that the only complaint urged against the judge is, that being thus satisfied, he refused to hear two witnesses (whose names were not endorsed among the witnesses on the bill) to impeach the correctness of the finding.

Suppose he had hoard the two witnesses. No matter what they had testified, under his views of the law, he would still have been bound, in conscience, to remand the prisoner out of respect to the finding of the grand jury under oath, upon other evidence adduced at their secret inquest. To compel him to listen to these witnesses would, then, be an idle ceremony, as we could not review bis decision afterwards.

But, supposing the case to be properly before us, we are not prepared to overrule the opinion of the District Judge upon the law. That opinion has not been met by authorities or arguments at all equal to those in its favor.

Ohitty says: “ A man charged with murder by the verdict of a Coroner’s inquest, may be admitted to bail if it appears by the depositions to amount only to manslaughter, though not after the finding of an indictment by the Grand Jury ; the reason for which distinction may be, that in the first case the court have the depositions to examine, whereas in the latter case the evidence is secret, and does not admit of a summary revision. It is, in fact, to the depositions alone that the court will look for their direction, for where a felony is positively charged they will refuse to bail though an alibi is supported by the strongest evidence. Nor will the court at all admit of extrinsic evidence. So, that they refused to examine whether a man brought up before them had been previously acquitted of a charge precisely the similar. And the court refused to bail a person for receiving stolen goods, the defendant’s affidavit admitting the receipt of the goods, but denying that he knew them to be stolen, because that was a fact triable only by a jury, and it would be of dangerous consequence to allow such proceedings, as it might induce prisoners generally to lay their case before the court, who, instead of the jury, would bo called upon to try the truth of the fact for which they were committed.” Ohitty’s Or. Law, p. 129. See also Petersdorff on Bail., p. 521.

This doctrine of the English courts was adopted by the Superior Court of the Territory of Orleans. In the case of The Territory v. Benoit, reported in 1 Martin, 142, the Grand Jury had found an indictment against the defendant for an assault with intent to murder, and the defendant moved to be admitted to bail. The court replied: ‘'“It cannot be done. Bail is never allowed in offences punishable by death, when the proof is evident or the presumption groat. On a Coroner’s inquest finding a person guilty of a capital crime, the Judges have often looked into the testimony which the Coroner is bound to record, and when they have been of opinion that the jurors had drawn an illogical conclusion, admitted the party to bail. But as the evidence before the Grand Jury is not written and cannot be disclosed, the same discretion and control cannot be exercised, and the Judges cannot help considering the finding of the Grand Jury as too great a presumption of the defendant’s guilt to bail him. We recollect no case in which it has been done. G. J. Mm'shall, who, on the examination of Aaron Burr, had admitted him to bail, concurred in the opinion of the court, that he was no longer entitled to that indulgence after the Grand Jury found a bill against him.”

The rule laid down in this case was affirmed in the subsequent case of The Territory v. McFarlane, 1 M., 216, though with a remark that it would not be rigidly extended to cases in which the defendant had not the benefit of a trial, during the term, when the continuance was not granted at his solicitation.

In the present case, it will be remarked that the the prisoner had not been confined two days when the habeas corpus was tried, and it does not appear that the State has ever had an opportunity to bring him to trial.

In ex parte Taylor, 5 Cowen, 56, it was said by Sutherland, J., that “the indictment must be taken as conclusive upon the degree of the crime.”

In the case of The People v. McLeod, 25 Wendell, 568, reported also in 1 Hill, 392, Cowen, J., remarked that “ Nothing is better settled on English authority than that on habeas corpus, the examination as to guilt or innocence cannot, under any circumstances, extend beyond the depositions or proofs upon which the prisoner was committed.” And in that case, it was held that the prisoner had not the right upon habeas corpus of going behind the indictment and proving that he was not guilty. Notwithstanding a statute of New York authorized a prisoner upon the return of the writ, “ to deny any of the material facts set forth in the return, or to allege any fact to show either that his imprisonment or detention was unlawful, or that he was entitled to his discharge.” See also Hight v. United States, 1 Morris, 407; The State v. Drew, 1 Taylor’s (N. C.) R., 147.

In The People v. Van Horn, 8 Barb. Sup. Court R., 158, it was said that the general rule in cases of felony is that an indictment is to be deemed conclusive of the guilt of the accused, so as to prevent him from being enlarged upon giving bail, although there are several circumstances arising after indictment which may entitle the party to bail and thus constitute exceptions to the rule. And in Archer’s case, 6 Grattan, 705, the court held that a prisoner indicted for felony might be let out on bail where his continued confinement would endan-g'er his life. See also United Stales v. Jones, 3 Wash. C. C. R., 224. So, where the trial of the indictment has been twice postponed without his assent or fault. Ex parte Stiff, 18 Ala., 404.

In The State v. Hill, 1 South Carolina Court Rep., 242, there was a motion to reverse the decision of the Justice of the Court of General Sessions and to liberate the prisoner upon bail. The Session Justice had refused to hear affidavits tending to show that the prosecution was instituted from malice or mistake, and, being under the impression that, after bill of indictment found in a capital case, he had no power to hear evidence to contradict the finding on an application for bail.

The motion was discharged, Justices Nott and Grimke being of opinion that, as the matter was confided to the discretion of the Judge, the constitutional court should not interfere, although they thought ho might have heard the evidence and admitted the party to bail had ho chosen. Justice Smith being of opinion that the Judge below was right in refusing to listen to the evidence, and Justices Brevard and Colcock being of the opposite opinion.

In The Commonwealth v. Rutherford, 5 Randolph, 647, the General Court of Virginia said that on a petition from one in confinement under the judgment of an examining court, the Judge may hoar testimony other than the depositions taken on the prisoner’s examination, and that even an indictment by the Grand Jury would not necessarily exclude other evidence on the question of bail. This opinion was based mainly upon the peculiar provisions of a statute of Virginia.

Upon a review of the authorities, we conclude that, although the propriety of admitting to bail prisoners accused of crime before conviction, seems to have boon, in all cases, entrusted to the sound discretion of Judges empowered to issue the writs of habeas corpus, yet the fact that the Grand Jury have found a true bill of indictment for a capital offence, has generally been considered as affording a sufficiently strong presumption of the prisoner’s guilt to preclude any further inquiry into the merits of the case upon habeas corpus ; that no such inquiry has ever been permitted, except upon the suggestion of circumstances of the most special and extraordinary character; and that wo will not interfere to compel a District Judge to listen to evidence offered, as in the present case, for the purpose of showing that, under the facts prior to the indictment, the prisoner is entitled to bail, but, on the contrary, we express our unanimous approval of the course pursued in this instance by the Judge who rejected the evidence.

The petition for a mandamus is therefore dismissed at the costs of the applicant.


author: Vooruies, J.

text:
    J. W. Rochford, Tutor, v. P. Geraghty et al.
    Privileges are stricii juris and as against third persons must be clearly and conclusively established.
    1'he tacit mortgage in favor of minors must prevail over a conventional mortgage in favor of a third party subsequently inscribed. O. 0.8282, 854.
    by Westmore from the First District Court of New Orleans, Robertson, J.

      Durant & Hornor, for plaintiff.

      Emerson & Huntington, for defendants and appellant.
   Vooruies, J.

The plaintiff, as dative tutor of the minors Finer, brought suit against the defendant, their former tutor, and obtained judgment for the sum of 1,G99 89, with interest and costs. The defendant’s property was seized and sold by the Sheriff at twelve months’ credit under an execution issued on this judgment, and John H. Norton became the purchaser thereof for the price of $4,200. A rule was taken on Norton to show cause why he should not give his twelve months’ bond, with good and sufficient security, for the amount of the plaintiff’s claim. Other creditors, who asserted claims to mortgages and privileges on the property, wore also made parties to the rule by the plaintiff. Norton answered that he was ready to comply with the terms of the adjudication and to give bonds in aceordancé with the ruling of the court for the price, provided the sum of $208 33, which he had paid since the adjudication for State and city taxes due on the property, should be allowed him as a credit.

The District Court rendered judgment decreeing that the parties be paid in the following order out of the proceeds of the sale, viz :

“ First. To the said purchaser, John H. Norton, the amount paid by him for city and State taxes, as per receipts filed in court, with interest from 15th June, 1854, $208 33;

“Second. Clerk’s costs in the suit of Rockford, tutor, v. P. Geraghty, $241 and 60 cents;

“ Third. Sheriff’s costs in the above suit, $101 50;

“ Fourth. City of Now Orleans, for paving, $22 03 ;

“ Fifth. John R. Jacobs, for the use of Jacob Barker, $140 00; interest from 21st June, 1852, Clerk’s costs, $9 05, Sheriff’s costs $2 50 — $11 85;

“ Sixth. James W. Rockford, tutor, for the minors Finer, the sum of $1,609 and 89 cts., with interest from 31st December, till paid;

“Seventh. 8. M. Westmore, for $1,700 with 8 per cent, interest from January, 1854, till paid;

“Eighth. Elizabeth Finer, for the balance remaining undistributed, provided it does not exceed $1,500.”

Westmore's distributive share having fallen short of the amount of his claim, he has taken this appeal, in which he alleges that the court below erred in allowing the claims of the ylaintiffi and of J. R. Jacobs, for the use of Jacob Barker, and giving them a preference over his, out of the proceeds of the property to be distributed.

In relation (o the claim of Norton, as he does not appear to be a party to the appeal, we are precluded from noticing the objections urged against it in the appellant’s brief.

The claim for Clerk’s fees is contested by the appellant. It is urged by him that $232 35 of the amount thereof were for costs taxed in the succession of Finer, and doubtless paid by the administrator, but as that functionary was not a party to the concurso, and made no claim, he was therefore not entitled to anj' part of the proceeds to be distributed ; and a large portion of this claim, if not all, should be rejected. As these costs appear to have been incurred in the suit in which the execution was issued, we do not think the Judge erred in assigning to them the rank which he did.

The claim of Jacob Barker, assignee, &c., ranked as a privilege, is strenuously resisted by the appellant. This privilege is alleged to bo for work done upon the house which was sold together with the lot. On the trial of the rule, a copy of a judgment in the suit of John R. Jacobs, for the use of Jacob Barker, was read in evidence; it decrees that “ the plaintiff recover of the defendant the sum of $140 with 5 per cent, interest from 23st June, 1852, until paid; $2 costs of protest, and costs of suit with privilege on the house and premises on Annunciation street, now occupied by said Geraghty.'''’ It was rendered on the 18th December, 1853, and inscribed in the mortgage office on the 28th of the same month. There is no evidence showing the date of the alleged work from which the privilege resulted, nor the amount stipulated therefor. The Code, Article 2746, provides that “ no agreement or undertaking for work exceeding five hundred dollars, which has not been reduced to writing, and registered with the Recorder of Mortgages, shall enjoy the privilege above granted.” The following Article provides: “Por those not amounting to $500, this formality is dispensed with ; but the privilege granted to them is prescribed against after six months, reckoning from the day when the work is completed.” As wo have seen, the judgment was rendered upon a promissory note, which matured prior to the 21st June, 1852. It has often been decided by this court that privileges are sPi’icti juris, and as against third persons must be clearly and conclusively established. It follows therefore that this claim must yield to that of the appellant.

It is finally urged by the appellant that the judgment in favor of Rockford, tutor, v. Geraghty was rendered in July, 1853, and gives no privilege. The suit was instituted against the latter as former tutor of the minors Finer on the 22d January, 1852, to render an account of his tutorship, &c. “Minors have a legal mortgage on the property of their tutors as a security for their administration, from the day of their appointment, until the liquidation and settlement of their final account.” 0. 0. 3282, 354. It is clear therefore that the tacit mortgage of the minors Finer must prevail over the appellant’s conventional mortgage which was subsequently inscribed.

It is therefore decreed that the judgment of the District Court, so far as it grants a privilege to John R. Jacobs, for the use of Jacob Barker, on the proceeds of the sale, be reversed, said claim to be classed as a judicial mortgage to take effect from the date of its inscription, and that said judgment in every other respect be affirmed, the appellee John R. Jacobs, for the use of Jacob Barker, to pay the costs of appeal.


author: Spoitord, J.

text:
    Cochran & Co. v. J. B. Walker.—Rawley, Intervenor.
    Article 3214 of the Civil Code, and the amendatory Acts of February 17th, 1841, and March 8th, 1841, refer only to advances made on goods or merchandise, and do not create a privilege on slaves. ,
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    XL Clarice & Bayne, for plaintiffs.

      Wolfe & Singleton, for intervenor and appellant.
   Spoitord, J.

We think the evidence establishes that, at least, the acceptance of the draft in favor of Dorance & Sons by the intervenor was posterior to the promise to pay over the proceeds of the slaves to the plaintiffs, in accordance with the order of the defendant. There is some obscurity and doubt with regard to the other acceptance in favor of Stephen Twelves.

The plaintiffs, however, acquired an undoubted preference or privilege upon the slaves, by virtue of their attachment, from the date it was levied. C. P., 264, 265, 722; Emerson v. Fox, 3 L., 183; C. C., 3151; Tufts v. Carradine, 3 An., 481.

We do not perceive that the intervenor acquired a privilege upon the slaves by his conditional acceptance of the Twelves’ draft, or by his acceptance of the conditional order in favor of Dorrance & Sons, even if those acceptances were anterior to the promise he made in favor of the plaintiff. By our law slaves are classed with immovables, and privileges are stricti juris. The Article 3214 of the Civil Code, and the amendatory Acts of February 17,1841, and March 8th, 1841, (session Acts, pages 21, 58) refer only to advances made on goods and merchandise, and do not create a privilege upon slaves. Such privileges are regulated by another chapter of the Code. A valid attachment of the slaves in the intervenor’s hands, before he had sold them, released him from his obligation to pay the conditional acceptances.

The judgment is therefore affirmed, with costs.