text:
    The Farmers and Merchants Bank of Memphis v. Franklin et al.
    Where merchandize is shipped to a factor, with directions to sell it, and apply the proceeds to the payment of a bill drawn by the owner in favor of the shipper for the repayment of an advance made by the latter, the factor who receives the consignment is bound to comply with the conditions upon which it was delivered to him. He cannot apply the proceeds to the payment of any debt due to himself by the owner.
    The commercial books and counting-house furniture of a merchant, and iron chests found in his counting-house, in which his books and papers are kept, are exempt from seizure. C. P. 644.
    APPEALS from the Commercial Court of New Orleans, Watts, J.

      Benjamin and Micou, for the plaintiffs. Maybin, Claiborne, and Gcrymes, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

Z. L. Gower, a needy speculator, operating at Memphis, in the State of Tennessee, purchased one hundred and ninety-eight bales of cotton from the firm of Goodman & Means, merchants of that place. The terms of the sale were cash. For the purpose of paying for the cotton, Gower offered to the plaintiffs for discount the bill on the defendants at ten days sight, for the sum of $6200, upon which this action has been instituted. The plaintiffs refused to discount, or purchase the bill, until the payment was fully secured by the drawer. One of the vendors went with Gower to the bank, and informed its officers that the cotton was in the ware-house of Goodman & Means, and would be shipped by them to the defendants, who are factors in the city of New Orleans, for account of Gower, but subject to the payment of the bill. It was expressly agreed between the plaintiffs, Gower, and Goodman & Means, that the latter should retain the exclusive possession of the cotton, and that it should be shipped by them to the defendants, under specific instructions to sell it, pay the bill out of the proceeds of the sale, and account to Gower for the balance. On the faith of that agreement the plaintiffs took the bill, and the cotton was shipped by Goodman & Means to the defendants. Letters of advice were transmitted to the defendants with the bills of lading, advising them that Gower had drawn upon them in favor of the cashier of the plaintiffs for $6200, at ten days sight, that the cotton was shipped by them to cover and protect the amount of the bill, and was to be sold for account of Gower. The defendants took possession of the cotton, and sold it for a sum more than sufficient to pay the bill; but, instead of obeying their instructions, they suffered the bill to be protested for non-acceptance and also for non-payment, and converted to their own use the whole proceeds of the sale of the cotton, amounting to $6608 46, under the pretence that Gower, the drawer, was indebted to them in the sum of about $3000, which he had promised to cover by shipments, and for which they had, as factors, a privilege upon the sum in their hands, superior in dignity to the claim of the plaintiffs. The plaintiffs have instituted this action to recover the amount of the bill, and the case is now before us on the devolutive appeal, taken by the defendants from the judgment rendered against them by the court of the first instance.

If the privilege claimed by the defendants had rpally existed in their favor, it would still be difficult for them to explain, by what rule ‘of law, or precept of mol.a]g) ti10y have retained to the day of their insolvency the balance of $3600, due by them over and above the amount of that privilege. But it is clear that Abe privilege could not be enforced to the prejudice of the plaintiffs’ rights. In the case of Fetter v. Field, ante p. 80, we held that, “ according to the course of trade in this city, the bill of exchange drawn on a particular shipment, accompanied by the bill of lading, usually represents the price of the property sold or the means of reimbursement of the price to some party.”

The fact that the bills of lading were accompanied by a letter of advice, informing the defendants that a bill had been drawn which the shipments were intended to cover and protect, would have affected them with notice that the cotton had not been paid for, if Gower himself had been the shipper ; but he was not the shipper; the cotton never was in his possession; but was shipped by Goodman Sf Means, subject to their instructions alone. When the defendants received the cotton, they became the agents of Goodman Sf Means, and Gower had no right in it till after the instructions of the shippers had been complied with. The defendants were bound to comply with the conditions upon which they obtained possession of the cotton. Had they refused to receive it, that possession would have remained in Goodman & Means, and the defendants could not have frustrated the rights of the plaintiffs by attaching it as the property of Gower, before delivery to him. We are satisfied that the court below has done justice between the parties.

The record contains another appeal taken under the following circumstances : The plaintiffs caused the commercial books and counting-house furniture of the defendants, and also two iron chests found in the counting-house, and in which the books and papers were kept, to be seized under execution. The defendants took a rule upon them to show cause why the seizure should not be set aside, on the ground that the effects seized are protected from seizure by law. After hearing, the rule was made absolute, and the plaintiffs appealed. The defendants rely upon article 644 of the Code of Practice, which exempts from seizure under execution the tools and instruments necessary for the exercise of the trade or profession by which a debtor gains a living. They also rely upon the dicta of the late Supreme Court in the case of Lambeth and another v. John Milton, 2 Robinson, 81.

There is no dispute between the parties as to the facts of this part of the case, and we are constrained to say that the judge of the first instance has made a correct application of the law to them. , Since the repeal of the laws authorizing the creditors of bankrupt merchants to proceed against them for a forced surrender, that class of debtors stand on the same footing as other insol • vents, and are entitled to the same immunities under the laws regulating the execution of judgments.

For the reasons assigned, it is ordered that the judgment of the Commercial Court be affirmed on the appeals, the defendants paying all the costs of the original suit, and those of their appeal to this court; the plaintiffs paying the costs upon the rule in both courts.


source: Caselaw Access Project

author: Sudem., J.

license: Public Domain

text:
    Fink v. Lewis.
    Where a witness, to whom a question had been propounded, while under cross examination, for the purpose of impeaching his credibility by showing that he had been guilty of gross fraud on another occasion, notwithstanding the objections of the party by whom he was introduced, voluntarily answers it, and thereby admits his own turpitude, his answer cannot be excluded on the ground of irrelevance. It is important to enable the court to judge of the credit due to the testimony of the witness. Per ewiam : No rule of evidence forbids a party to avail himself of the voluntary acknowledgement of a witness of the opposite party, to show the degree of credit due to his statements.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Hoffman, for the appellant. Elmore and W. ¡V. King, for the defendant.
   The judgment of the court was pronounced by

Sudem., J.

This suit is brought upon a promissory note executed by the defendant in favor of Thomas Powell, which the plaintiff alleges he acquired after its maturity, by a sale under execution against Powell. The answer of the defendant contains two pleas :

1st. A plea of payment, to wit: that he placed in the hands of Powell, while the holder of the note, a large amount of Texas money to be sold to pay the note; and that Powell sold the money, while holder, for more than the amount of the note, which was thus extinguished. To this plea was annexed for reference a receipt signed by Powell, and bearing even date with the note, in which Poibell acknowledges to have “received from Lewiá $6,000 in Texas eight per cent bonds, which are to be disposed of at the best price that can be obtained for them, and the proceeds to be applied to the payment of the note,” which is then described.

2d. That the plaintiff acquired no legal'title to the note by the sheriff’s sale. The ground stated in the second plea has not been urged in argument before us, and we shall therefore dismiss it from our inquiry.

Before noticing a bill of exceptions, which has received our careful consideration, it is necessary to make some preliminary remarks which are pertinent to its examination.

Powell was the only witness by whom the defendant attempted to prove the execution of the receipt at the time at which it purports to be dated, and the verity of its statement. It appeal’s by other testimony that Powell had been incarcerated by his creditors; that Fink had contributed to his incarceration; that he was much incensed at this and at the sale of his assets under execution, and that he had repeatedly declared that he would use every exertion and stratagem to be revenged. The question really at issue between the parties, and indispensable to the decision of the cause', was upon the receipt and the appropriation of the money, that is, whether the receipt was executed, and the facts therein stated took place, at the nominal date of the receipt, or whether it was executed subsequently to the acquisition of the note by the plaintiff, and for the fraudulent purpose of defeating a recovery upon the note. It appears that, among other assets sold under execution to the plaintiff, was a note of one Ferguson, for $2,000,to Powell’s order, purportingto be dated June 1st, 1839, to which was appended a letter of credit, purportingto be addressed to Powell, and signed by Péter W. Smith, to the following effect:

“I hereby agree and obligate myself to stand responsible to you, foranyfaci-lifcies which you may please render to my friend and relation, James W. Ferguson, which is not to exceed over five thousand dollars.

I am very respectfully,

Your obedient servant,

(Signed,) Peter W. Smith.

To Mi'. Thomas Powell. New Orleans, May, 1839.”

Fink had brought suit upon this obligation against Smith's executor. On the trial of the cause, Powell became a witness for the defendant, and testified as follows: “ That he knows that the letter of credit attached to the petition signed [Sic in record] by Peter W. Smith. The first time that deponent saw this document was a few weeks before Peter Smith’s death. The first time he saw this document it was directed and addressed to J. W. Stillwell, or Stillwell & Co. Witness saw Ferguson cut off the address to J. W. Stillwell, or Stillwell & Co. and insert in lieu thereof that of Thomas Powell. This letter of credit was used two or three weeks before deponent heard of Peter Smith’s death. Deponent never made advances, or gave any facility to Ferguson upon this letter of credit. The consideration of the note of Ferguson existed before witness saw the letter of credit, and before its date. Witness settled with Ferguson in the latter end of September, 1840, and the note of Ferguson was antedated, and dated as it purports to be. It was so antedated as to make it appear it was given on the letter of credit. Witness says he never knew there was such a man as Peter W. Smith before he saw this letter of credit. Witness says he has no interest in this controversy.”

(Signed) Thomas Powei/l.”

We now proceed to the consideration of the plaintiff’s bill of exceptions. Powell was the defendant’s witness, and was under cross-examination. The plaintiff exhibited to him a copy of his deposition in Fink v. Garrett, Executor, and asked him whether the said paper did not contain a true copy of his deposition made in that case, stating to the court that he made the inquiry for the purpose of showing the depravity of the witness, and thus impairing his credibility. The defendant thereupon objected to the introduction of said paper and to the question, upon the ground that the inquiry was irrelevant to the case, and not pertinent to any question asked in the examination in chief. While the matter was thus under argument, Powell, who had made no objection to the question, voluntarily answered it, declaring that the copy of his deposition exhibited to him was true and correct. The plaintiff still insisted that his question was admissible, and that the witness’ voluntary answer should be received in evidence; but the court sustained the defendant’s objection, and refused to permit the answer of the witness and the paper to go in evidence, and a bill of exceptions was accordingly taken.

We think the court erred. The object of the question was to show the turpitude of this witness, and thus weaken his credibility. Powell was the defendant’s only witness to prove the alleged payment, and it was of great importance to the judge below, as it is to us, to know how far he could be trusted. If Powell had refused to answer, a different question would have been presented, which it is unnecessary now to decide. The voluntary answer of Powell is clearly pregnant with the acknowledgment that he had committed the acts stated in the affidavit, and consequently is utterly destructive of his own character as a man of honesty and truth. His conduct exhibits a mixture of turpitude and effrontery, which has been rarely witnessed in a court of justice. On his evidence the judge of the court beiow was called upon, and we are now called upon, to say whether the note has been paid. The witness who tells us it has been paid, tells us at the same time voluntarily that he has committed a most gross fraud on another occasion. Our duty is the investigation of truth. This acknowledgment of the witness materially aids us in that inquiry, for it has satisfied the mind of every member of this court that, he is not a credible witness. We know of no rule of evidence which forbids the voluntary acknowledgment by a witness of his own turpitude, and prevents the opposite party, when that acknowledgment is made, from availing himself of it, for the purpose of estimating the witness’ credibility.

It is proper to add that there are other circumstances in proof, besides the acknowledged turpitude of the witness, which appear to us suspicious. Among these are the discrepancy between the receipt itself, which authorizes Powell to dispose of the Texas bonds at the best rate that can be obtained for them, and PoioelVs declaration that he was limited not to sell them under seventeen cents, which limit he says he violated by selling at fourteen cents. Also the inconsistency between the fact that the note remained in Powell’s hands, although he declares that, after the alleged sale, he rendered Lewis an account current showing a balance in Lewis' favor. Moreover, the defendant avers in his answer, not that, on a settlement of accounts, Powell had rendered an account current showing a balance in defendant’s favor, nor that Powell had violated a stipulated limitation, but that he had sold the Texas money during the time he held the note, for more than the amount of the note. The body of the note and the receipt are both in Powell’s handwriting, and he declares that the note and receipt were both given at the same time, and at the same place, to wit, at his hotise. These documents have been brought up in the original. We believe, on inspection of them, that they are upon different paper. They have not the appearance of being written with the same pen ; the ink also presents a different appearance in the two instruments ; and there is a greater tremulousness of the nerves indicated by the receipt than by the note.

From a careful consideration of the whole matter, our conclusion is that the plea of payment is not sustained by the evidence, and the plaintiff must therefore have judgment.

It is therefore decreed that the judgement of the court below be reversed; and it is further decreed that the plaintiff, John JD. Pink, recover of the defendant, Nathaniel Lewis, the sum of $941 18, with interest at the rate of ten percent per annum, from the 13th day of November, 1841, until paid, and costs in ■both courts, with privilege upon the property attached.


author: Slidem., J.

text:
    Conrey et al. v. Brenham et al.
    Acceptance of service of process by an attorney of record on behalf of bis client, will, in the absence of proof to the contrary, be presumed to have been authorized.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Mott, Prentiss and Finney, for the plaintiffs,
    moved to dismiss the appeal, on the ground that the citation of appeal could have been served on the attorney of the appellees, only in case of their absence from the State. Code Prac. arts. 582, 584. 4 Mart. N. S. 238. 5 Ibid. N. S. 427. 8 Ibid. N. S. 282. 14 La. 292. 15 La. 143.

      Q. jB. Duncan and Roselius, for the appellant.
   The j ndgment of the court was pronounced by

Slidem., J.

In this cause the citation of appeal was returned as follows : “'Served on appellees by handing copy to-Mott, Esq., their attorney, they being absent from the parish.” A motion has been made by the counsel for the appellees to dismiss the appeal. Upon suggestions made by the counsel for the appellant, we, ex officio, called upon the sheriff for a statement under oath of the facts touching this service, which affidavit has been filed. By this it appears that, there were ten judgments in the Commercial Court in favor of various plaintiffs against the same defendants. All the plaintiffs were represented by Mr. Mott, in the proceedings in the court below. ■ The affidavit of the deputy sheriff contains a list of these ten cases, and states that, “ on the 23d June last past, he was charged with the service of petition and citation of appeal in the ten cases herein before recited, suits instituted in the late Commercial Court of New Orleans; that on said day he repaired to the office of Messrs. Mott & Kane. He there met with Robert Mott, Esq., who was writing at his desk, and asked said gentleman if he would accept service of the same. He took the bundle, placed it on his desk, and said, it is all right.” Upon the filing of this affidavit, which we consider, under the circumstances, as having the force of an amended return, the court called the attention of said attorney to its contents, and directed that if he had any reply to make it should be in writing. The attorney has accordingly filed a written reply, in which he states that the ten citations were handed to him in a bundle. That what he said has passed from his memory, but that it was never his intention to accept service for those of the appellees who resided in New Orleans, and that he probably thought the citations contained in the package were for those of his clients who .resided out of the State. He adds that if this statement should be considered an acceptance of service, he then refers the court to the case of L’Eglise v. His Creditors, 4 Mart. N. S. 238, where it was decided that an attorney at law of an appellee had no power to accept service, when the appellee was present in the State.

The dignity of the profession, and the necessity, for the convenient administration of justice, that great confidence should be reposed by the courts in attor-nies at law, warrant the presumption, in the absence of contrary proof, that an acceptance of service by an attorney of record is authorized by his client. What was said to the sheriff’s officer, whose affidavit of what occurred is un-contradicted, was tantamount to an acceptance of service; and as the appellees have not furnished, by their own affidavit or otherwise, proof that the act of the attorney was unauthorized, we must dismiss the motion.

The motion to dismiss the appeal is refused.


author: Rost, J.

text:
    Britton v. Andrews et al.

      In an action against the principals, on an unaccepted bill drawn on them by their agent, the latter is a competent witness for the plaintiff. Per Cwriam: The rule that a witness inter-estedmthe subject of a suit, or in tbe record, is incompetent to testify on the side of his interest, is not, under the commercial law, applicable to agents and factors offered to prove acts done within the scope of their employment.
    PPEAL from tlie Commercial Court of New Orleans, Watts, J.

      Hoffman and F. B. Conrad, for the plaintiff. Roselius, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff seeks to recover from the defendants the amount of a bill of exchange, drawn on them by Solomon Andrews, of Natchez, payable to the order of said plaintiff, ten days after sight, for $5000. He avers that the bill was protested for non-acceptance, and also for non-payment. That the defendants were bound to accept and pay it, they having authorized the drawing of bills upon them by Solomon Andrews, who was then engaged in commercial business at Natchez, aided by, and in connection with, the defendants, purchasing cotton, either on his own account or on joint account with them, and drawing bills of exchange upon them; that, from time to time previous to the drawing of the bill sued upon, Solomon Andrews drew bills upon the defendants, a large amount of which the petitioner purchased from him, and all of which were accepted and paid by the defendants; that the bill sued upon was drawn by Solomon Andrews, in the course of his business in the purchase of cotton, which was shipped by him to the defendants; that, through the assistance and support of the defendants, Solomon Andrews had obtained credit, and was enabled to negotiate this and other bills. The defendants’ answer is a general denial, and a prayer for general relief. On the trial the plaintiff admitted that the amount really due on the bill was $3,265 11, and the court having rendered judgment in his favor for that sum, the defendants appealed.

The evidence in the record, excluding the testimony of Solomon Andrews, satisfies us that the defendants gave out to the world that he was backed by them, and that they would accept his bills. It is further shown that he was to share the commissions with them, upon all cottons shipped to their house by his procurement. The fact that his account upon the books of the defendants was concealed under the name of the Natchez Agency, and the object of that concealment, have not been satisfactorily explained by them. The legitimate inference from the want of explanation on their part is, that the truth, if it were ascertained, would make against them. We are very much aided in this inference by the disclosure that the letters, written by the defendants to the Agency, were uniformly committed to the flames as soon as they had been read by Solomon Andrews, for which all sufficient reason he has been unable to produce them on the trial. We consider it sufficiently proved that the Natchez Agency was really what its name implies, and that Solomon Andrews was the agent of the defendants at Natchez in their commercial business. They are consequently bound for all bills drawn by him upon them in favor of bond fide holders.

The question which presents the greatest difficulty in this case, under the pleadings and the evidence adduced, is, Whether the plaintiff presents himself before us as a bond fide holder. He avers in his petition that the bill was drawn by Solomon Andrews, in the course of his business in the purchase of cotton shipped by him to the defendants, and relies to establish that fact on the testimony of the drawer himself. The defendants have excepted to the introduction of his evidence, on the ground of interest. The plaintiff has an undoubted right to the benefit of his testimony. So far from being incompetent to testify in the cause, the defendants themselves might have him sworn as their witness. The rule that a witness interested in the subject of the suit or in the record, is not competent to testify on the side of his interest, is not, under the commercial law, applicable to agents and factors, when offered to prove acts done within the scope of their employment. 1 Greenleaf on Evid. § 416. The allegation that this witness is unworthy of belief, comes with ill grace from the defendants, after having established him as a merchant, and passed him upon the public as honest and trust-worthy.

But taking all his testimony to be true, it does not prove that the whole amount of the bill sued upon, or even the amount of the judgment obtained upon it, was invested in cotton shipped to the defendants; that witness says that he drew a bill on the defendants, in favor of the plaintiff, for the sum of $2000, dated January the 26th, 1843, payable one day after sight; also anorher bill in favor of McAlister, Watson & Co., on the said defendants, for the sum of $770 15, dated the 25th of January, at sight; and that, said bills were drawn contrary to instructions, the instructions of the defendants being to draw at ten days sight for any amount. Those two bills were protested, and on their return the witness included their amount in the bill now sued upon. He further states that the money received from the plaintiff for the two bills first protested, was used in the purchase of cotton for the benefit and account of the defendants; that the cotton so purchased and paid for, was shipped to them, and sold by them, in New Orleans, and that he never has received the proceeds of it.

This evidence would clearly establish the rights of the plaintiff to recover the sum of $2770 15; but no considez-ation is shown to have been given for the balance of the bill. It may be true that, if no suspicion attached to the possession of the holder, the amount of the bill not being for an unreasonable sum, he could not be held responsible for the appropriation of its proceeds by the agent of the defendants; but there are circumstances which throw doubts upon his good faith. His admission that only $3265 11 were due on the bill, shows that for the balance no consideration had passed. The evidence adduced by him does not support his claim even to that amount, and under this state of facts he has claimed in his petition the whole amount of the bill as due him for advances made to Solomon Andrews, of which the defendants have received the benefit.

The averment in his petition that all the bills purchased by him from Solomon Andrews, until the drawing of the one sued upon, were accepted and paid, is falsified by the evidence of the defendants. They have shown that he had presented bills from Solomon Andrews for acceptance, bearing dates from the 23d of January, 1843, to the 31st of the same month inclusively, amounting together to the sum of $17,020, which were all protested and remained unpaid, One of those bills, for $4250, bears even date with the one sued upon, was presented for acceptance and for payment on the same days, and at the same time protested. Solomon Andrews is shown to have been without means at that time, and if that bill was ever due it must be due still, and yet the plaintiff does not claim it, and admits that the sum of $3265 11 will balance his accounts with Solomon Andrews.

As the case is presented to us, there seems to be indirection and want of truth on both sides. Each of the parties alleges that the other has conspired with Solomon Andrews to defraud him, and Solomon Andrews himself shows no un-willingnesss to conspire with either or with both. In connexion with this part of the case, it is not a little remarkable that this notorious person, having established himself in business at Memphis in the beginning of the present year, tendered his services there to the defendants and also to the plaintilf, stating that he would not have thought of doing so, but for the belief that the renewal of their commercial relations with him might be made profitable to both. The defendants had a direct interest in placing their connexion with Solomon Andrews on such a footing as would enable them to receive the profits and avoid the losses that might result from their transactions with him, and we have no doubt that such was their object in establishing the Natchez Agency, and in causing their letters to that agency to be burnt as soon as they had been read. Their case is utterly devoid of equity. The interest of the plaintiff in assisting Solomon Andrews to defraud his brothers is not so apparent, and we incline to the belief that his conduct in these transactions may be satisfactorily explained by some local usage with regard to advances on bills, which has not been shown. As the case now stands, it is difficult to apply to it the law of merchants, which we hold to be the law of honor. The issue presented by the pleadings and the arguments of counsel, is one of fraud rather than of commercial use; and we believe therefore that the ends of justice will be best answered, by remanding the case to have that issue tried before a jury.

For the reasons assigned, it is ordered that the judgment be reversed, and the case remanded tobe proceeded in according to law, with leave to both pal-tóes to amend, and directions to the court to cause a jury to be empanelled and sworn for the trial of it; the plaintiff and appellee paying the costs of this appeal.


author: Slidell, J.

text:
    Saul, Commissioner, v. Lalaurie.
    Where an agent has divested himself of all authority, by substituting another in his place, with the approbation of the principal, he cannot afterwards revive his extinct authority, and hind the principal without the consent of the latter. C. C. 2997, 299S, 2999.
    APPEAL from the Commercial Court of New Orleans, Watts, 3.

      Bawle, for the plaintiff. L, Janin, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

This suit is brought against Madame Lalaurie, as endorser of a note, dated at New Orleans, 28th December, 1843, at sixty days, made by the widow Poeyfarré to Madame Lalaurie’s order'. The note is drawn by L. JE. Forstall, as agent of Madame Poeyfarré, and endorsed by Placide Forstall, as agent of Madame Lalaurie. At maturity the note was protested, and notice was given to Placide Forstall, and to the defendant’s son at New Olreans. The question presented is, the authority of P. Forstall to endorse the note.

It appears that, in 1834, the defendant, being about to depart for France, where she has ever since resided, gave a very full power of attorney, under private signature, to Placide Forstall, in which she gives him the management of all her affairs in the State of Louisiana, and, among other special powers, the authority to make and endorse promissory notes in her name, draw, endorse and accept bills of exchange, draw checks on banks, &c. The power contained no authority of substitution. Forstall deposited this act in a notary’s office; and, in September, 1840, being “ about to leave the State,” delegated, by notarial act, to Auguste Delassus of New Orleans, all his powers, general and special, as agent of Madame Lalaurie under the original power, which is expressly referred to, authorizing Delassus to exercise all those powers during Forstall's absence. Forstall then went to Prance, where he communicated to Madame Lalaurie the appointment of Delassus. She approved it, and Delassus continued to act solely as her agent, not only during Forstall’s absence, but after his return, and during a period of about three years, payiug her drafts, making collections and endorsing for her, until, in the year 1843, she ordered Janin to withdraw all her business from Delassus’ hands, and enclosed Janin blank powers to be given to such agents as he might select.

It appears that Delassus had discounted for Madame Lalaurie, a note of Madame PoeyfarrSs, for some $5,000, and when it was about to mature, in order to enable the maker to pay this note, a new note was drawn by Madame Poey-farré, and endorsed by Delassus, as defendant’s agent. This note was for $5234 15 at one year, and was dated the 13th November, 1840. It was discounted by the Commercial Bank; but whether this was done at the request of the drawer or endorser, and to whose credit the proceeds of discount were passed, does not appear. Delassus deposited with the bank a copy of the power of attorney, and of the substitution.

In July, 1841, Forstall passed another notarial act in favor of Delassus. In this act he refers to the notarial act of substitution, of Septemher, 1840; states that it was inserted in said act, by mistake, that Delassus should exercise the powers of the agency only during Forstall’s absence, since, in reality, the intention was to substitute Delassus irrevocably in the agency. He then proceeds to substitute Delassus irrevocably; authorizes him to act fully and without reservation for Madame Lalaurie ; and confirms all acts done by Delassus since his, Forstall’s, return, although the expressions of the former act were that Delassus should act in his absence.

This new act appears to have been occasioned by the suggestion of the cashier of the bank, that Fsrstall’s power contained no power of substitution ; and, by a confusion of ideas, it seems to have been considered that this second nullity cured the first. It is proved that Forstall never, after the act of September, 1840, transacted Madame Lalaurie’s affairs, nor ever attempted to sign for her, except upon the note now in suit; that Delassus, on the contrary, was known as the defendant’s agent, and was so known by the bank. It is not positively proved that the act of July, 1841, was exhibited to the bank; but the inference from all the circumstances is irresistible that, the bank was acquainted with it. It is also certain that the defendant had ceased to consider Forstall as her agent.

In December, 1841, the note endorsed by Delassus as agent fell due in the hands of the bank, and was renewed by a new note of Madame Poeyfarré, for $5000, at sixty days, also endorsed by Delassus, as agent. Renewals, with reduction, were made from time to time, always with Delassus’ endorsement, as defendant’s agent, till at length the transaction reached the month of December, 1843. When this renewal was about to be made, the bank asked that the endorsement should be made by Placide Forstall. This was done ; and the bank also, it seems, required on this occasion a new endorsement, to wit, that of For-stall, Roman & Co.

It is not shown that the defendant ever had any knowledge, before the institution of this suit, of the present, or of any of the previous endorsements given to the Commercial Bank. It appears that she had constantly resided in France, and that under the administration of Delassus her affairs had fallen into great confusion.

It is evident that the acts of temporary and irrevocable substitution were of themselves not binding on the defendant. But her ratification cured the defect, and, within the scope of the agency, she was evidently bound by the acts of Delassus. It is also evident that the irrevocable substitution executed by For-stall, together with the approbation of the principal, and the whole tenor of Forstall’s conduct dui’ing three years, created, as regards Madame Lalaurie, a complete abandonment and divestiture of all authority as her agent. The relation of principal and agent, inter se, was extinct long before the endorsement of the present note.

But it is said the bank is a third person, and is not bound by the relations, inter se, of Forstall and the defendant. This might be true, were there no notice. But the absence of notice is incompatible with the whole course of dealing'of the bank, from the inception of this matter, in 1840, down to the date of the note now sued upon, being a period of three years. Forstall, during all that time, neither with the bank nor the public, acted as the defendant’s agent, and Delassus alone represented her. Forstall having, with the manifest approbation of the defendant, entirely divested himself of all power, and withdrawn entirely from its exercise, and this being evidently known to the bank’s officers, the bank and Forstall could not, in contradiction of the previous course of dealing, and after the lapse of three years, by their own acts, unauthorized and unratified by the defendant, revive an extinct authority, ard bind the defendant as endorser. See Civil Code, arts. 2997, 2998, 2999. Pothier on Obligations, no. 80. Ibid, Contrat de Mandat, 114 et seq. no. 121.

It is therefore decreed that the judgment of the Commercial Court be reversed ; and that there be judgment for the defendant, with costs in both courts.


author: King, J.

text:
    Demoulin v. Anglaire et al.
    A party present at the time of trial may he required to answer instcmter interrogatories on facts and articles, though then propounded for the first time, where the questions require no recourse to books or papers, and the answering of them cannot delay the trial. The party „ interrogated may require the questions to he propounded in writing, hut cannot insist upon being sworn as an ordinary witness, subject to cross-examination.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Pepin, for the appellant. Le Gardeur and Grima, for the defendant Lafon.

   The judgment of the court was pronounced by

King, J.

The plaintiff has appealed from a judgment dismissing his demand as to one of the defendants. The questions which arise are presented in several bills of exception, taken to opinions of the judge on the trial of the cause in the court below. The conclusion at which we have arrived in relation to one of these, renders it unnecessary to consider the others.

On the trial of the cause, Lafon, one of the defendants, being personally pre - sent in court, the plaintiff moved ¿hat he be required to answer interrogatories, which were proposed in writing. The application was resisted on the ground tlmt they came too late. The judge recognised the right of a party to require the answers of his adversary to interrogatories on facts and articles when they were appended to the petition, also the right to interrogate a party who was personally present at the trial; but entertained doubts whether, in the latter event, the party interrogated was to be considered and sworn as a witness generally in the cause, subject to cross-examination, or should be required only to answer the written questions propounded. Counsel were unprepared at the time to remove these doubts, and the judge determined that, as interrogatories on facts and articles, they were presented too late.

We think the judge erred. It is well settled that, if a party be personally present at the trial of his cause, he may be required to answer interrogatories on facts and articles instanier, when the questions are such as not to require a recourse to books or papers, and this whether the interrogatories be annexed to the original petition, or be then presented for the first time. 9 Rob. 323. 10 La. 416. The party interrogated may insist, before he answers, that the questions be proposed in writing. If, however, this right be waived, and he be sworn generally in the cause, he testifies as an ordinary witness, and is subject to cross-examination. 1 Rob. 300.

The case of Coco v. Lacour, 4 La. 511, relied on by the defendant, in no way conflicts with the rules established in the decisions just cited. In that case the party proposed to be interrogated was not present at the tidal, and an order requiring him to answer would have delayed the cause. It was held that the trial was not, under those circumstances, to be postponed, without a sufficient reason shown by affidavit why the interrogatories were not presented sooner. The questions propounded to the defendant in the present instance were material, related to facts of which he must have been necessarily conversant, and no delay could have occurred if he had been required to answer them. The plaintiff was entitled to the benefit of his answers, and the cause must be remanded for the purpose of enabling him to obtain them.

It is therefore ordered that so much of the judgment of the Parish Court as dismissed the plaintiff’s demand against the defendant Tomy Lajon, be avoided and reversed, and that the cause be remanded for further proceedings, with instructions to the judge to order the said defendant, Bajón, to answer the interrogatories propounded to him by the plaintiff; the appellee paying the costs of this appeal.


author: Rost, J. Rost, J.

text:
    Garland v. Holmes.
    The claim of a steamboat captain for wages is not prescribed by the lapse of one year, nnder art. 3499 of the Civil Code, where his employer is an absentee.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Byrne, for the plaintiff. Mount and Mott, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, a resident of the city of New Orleans, obtained judgment against the defendant, who resides in the State of Mississippi, fot; wages as. captain of a steamboat, the property of the defendant. The services were rendered from the 14th of September, to the 14^Mr May, 1844, and this action was commenced on the 27th of May, 1845, mor^han one year after the rendition of the services. The defendant filed, ■ under art. 3499 of the Civil Code, a plea of prescription, which was disregarded by the court below, and he appealed.

Points of law not made in the original argument of a ease, will not be noticed on an application for a re-hearing, where justice does not require it.

Mount and Mott, for a re-hearing,

contended that the maxim, Contra non va-lentem &c., cannot apply to the plaintiff’s case, as he might have caused a curator ad hoc to be appointed and have sued. Civil Code, art. 57. C. P. art. 116. 12 La. 606. 6 Rob. 147, 534. 15 La. 145. 19 La. 262. 1 Peters, 360.

We are of opinion there is no error in the judgment. The defendant, at the time he made the contract, resided in the State of Mississippi, and has continued to reside there. The plaintiflf, having found him in Louisiana temporarily, instituted this action, and arrested him. The prescription of one year does not apply to such a case. Prescription does not run against those who cannot prosecute their claims. 7 La. p. 580.

The judgment is, therefore, affirmed with costs.

Same Case—Application for a Re-hearing.

The judgment on the application for a re-hearing was delivered by

Rost, J.

The counsel for the defendant, in support of their application for a re-hearing, have favored us with a printed argument, in which they have attempted to show numerous errors in the judgment and opinion of the court. It is necessaiy to a proper understanding of the grounds upon which they rely, to revert to the facts of the case, and to the points made before us in the argument.

This was an action in which a citizen of Louisiana claimed from an absentee a sum of money, for services rendered as captain of a steamboat running on the' Mississippi and Yazoo rivers, between two points situated in the State of Mississippi, and belonging to that absentee. The answer of the defendant was a general denial, and the plea of prescription. The rendition and value of the services was admitted by the defendant on the trial, and he relied on the naked plea of prescription, without making any showing by which his case could be taken out of the general rule in such cases made and provided. The court below disregarded the plea, under the maxim, Contra non valentón agere non cur-', rit prescrvptio, and the decisions of the late Supreme Court in Morgan v. Robinson, 12 Mart. 76, and Guillet v. Erwin, 7 La. 580. Judgment was rendered against the defendant, and he appealed.

On the appeal his counsel informed us that they relied exclusively on the plea of prescription, and made the following points in support of that plea:

“ The plaintiff sues, 27th May, 1845, as captain of a steamboat, the-defendant as sole owner, for wages due the 14th of May, 1844, more than one year' before commencing his suit. ■ ■

“We rely upon art; 3499 of the Civil Code, which says that, for the payment of the freight of ships and other vessels, the wages of the officers, sailors and others of the crew, are prescribed by one year.

<* The lex fori g^/Ks prescription. Union Co. v. Lobdell, 7 Mart. N. S. 108. Tyson v. McGill, 15 La. 145.

« The plaintiff is within art. 3499 of the Code. See Millaudon v. Martin, 6 Rob. 535. The master of a merchant vessel or steamer is an officer within the meaning of art. 3499 of the Civil Code, and his action for his wages is prescribed by one year.”

Upon the issue thus made before us, we were of opinion that the law, as well as all the equity of the case, were with the plaintiff, and we affirmed the judgment.

It is contended that the precedents upon which the decision rests are not applicable to the case at bar, because they were redhibitory actions against nonresidents, who temporarily resided here, and to whom, under art. 2512 of the Civil Code, the limitation of one year does not apply. This argument rests upon a misapprehension of facts. The decision in Morgan v. Robinson was made in 1822 under the old Civil Code, which did not contain the exception found in art. 2512 of the pi'esent Code. The c'ourt state that there was no exception, and their opinion is not based upon legislative enactments: it is deduced from the consideration that the maxim, Contra non valentem agere non curritpre-scriptio, is an axiom, or first principle of natural law and justice, and therefore applicable to every system of jurisprudence wherein the contrary is not expressly established by legislative power. The court go on to say that the 'express terms of limitation on the subject of prescription, ought not to be interpreted so as to conflict with this universal maxim of justice.

In Guillet v. Erwin, the court recognized the same doctrine, and so far as this case is concerned, nothing contrary to, or inconsistent with it, has since been expressly established by legislative power.

The point is now made for the first time, that the plaintiff could act — that he might have caused a curator ad hoc to be appointed to the absentee; and the views of the court in the case of Georges v. Fitzgerald, 12 La. 606, are cited in support of that position. The court there say: “ In the case of Guillet v. Erwin, it was not urged that the plaintiff might have interrupted the prosecution, by a suit and the appointment of a curator ad hoc. The court did not notice this circumstance, which probably would have induced it to support the plea. But admitting that the appointment of a curator ad hoc, and service of citation on him, are not needed for the interruption of prescription, they may be of great utility to a party, etc.”

These views leave the question entirely open for further adjudication, and when it is properly placed before us, it will receive our prompt consideration ; but it was not presented in this cause. This, and all the remaining points relied on for a re-hearing, were not made in the argument, and cannot be noticed now. It is true we have power to grant, or order a re-hearing, when justice, in our opinion, requires it; but this is far from being a proper case for the exercise of that discretion.

The only question presented to us on the points made by the defendant’s counsel was, whether the claim of a steamboat captain, residing in Louisiana, for wages, is prescribed by the lapse of one year, under art. 3499 of the Civil Code, when his employer is an absentee, and we have decided no other.

Re-hearing refused.


author: Eustis, C. J.

text:
    Durel, Administrator, v. Boisblanc et al.
    Continuous servitudes only canbe considered as established by the disposition which an owner has made of one part of his property in favor of another. C. C. 763.
    The administrator of a succession sold at auction two lots, with the buildings thereon, described as having each thirty feet front, and as adjoining each other. One of the lots, the building on which covered the whole front, was farther described as sold, “ with the brick house uponit, and other dependencies.” The other lot, the building on which coveredbut a portion of the front, leaving a passageway, was described as sold “with the house and kitchen thereon.” Windows in the first house opened on this passage, and there was no access to its yard, but through the house itself, or this passage. Both houses were dwellings. No mention was made of any servitude, either in the advertisement of sale, or by the auctioneer. The tenements were purchased by different persons. Held, that the servitude of lights and way being apparent, and necessary for the occupation and use of one of the dwellings, the purchaser of the lot on which they are established, must have known of their existence, andis bound to take the lot subject thereto. Aliter. were the purchaser ignorant of the servitudes, and they such as to render it probable that the purchaser would not have bought the property, had he knpwn of their existence.
    APPEAL from the Parish. Court of New Orleans, Maurian, J.

      Benjamin and Micou for the plaintiff,
    cited Civ. Code, arts. 2010, 2535. Castera, for Boisblanc, cited 4 La. 312.

      Musson, for the appellant.
    The purchaser of immovable property oñ'whích a servitude is claimed by a third party, may suspend payment of the price until the seller has restored him to quiet possession. Civil Code, arts. 2536, 2477, 2487, 2041. Code Nap. arts. 1653, 1626, 1636, 1184. Auctioneers, at judicial sales, are bound to disclose the servitudes existing on the immovables they offer for sale. Civil Code, arts. 2496, 2499, 2523, 2602, 762, 763, 764. Code Nap. arts. 1641, 1645, 691, 692, 693. 8 Mart.'704. 9 La. 129. 15 La. 202. 17 La. 97. Apparent, interrupted servitudes cannot be established by destination du pére de familia. Civil Code, arts. 643, 644, 645, 762, 763, 764, 765. Code Nap. arts. 637, 691, 692, 693, 694. See the commentaries of Lahaye and Teulet on all the articles cited from the Code Nap. and the authorities cited by them. Journal du Palais 1840, vol. 1, p. 743. Ib. 11 June, 1831. 8 Locré, p. 395. Favard de Langlade, Servitude, lib. 3, § 4, no. 3. 3 Toullier, 457, &c. 1 Delvincourt 324, 376, 417. 2 Maleville. 144.
   The judgment of the court was pronounced by

Eustis, C. J.

The only questions in this case are of fact, as to the establishment of certain servitudes between two tenements, which, at the sale ofthe effects of a succession by an administrator, were purchased by different persons. There was no designation of the servitudes in the advertisements which .preceded the sale, nor was any declaration made of their existence by the auctioneer. The lots were described as having each thirty feet front French measure on Toulouse street, and as adjoining each other. The lot having a house on .it, which covered the whole front of thirty feet, was purchased by one of the defendants, Boisblanc, and was described in the advertisement as offered for sale “ with the brick house upon it and other dependences.” On the lot purchased by the defendant Rivereau, the house, constructed of brick between posts, covered twenty-six feet three inches of the front, leaving a passage of three feet nine inches between the two houses. It was described as sold with the house and kitchen built thereon. There were windows in the Boisblanc house opening on the passage, and there are no means of access to the yard of Bois-blanc, except through the house or this passage. The house is a dwelling house, and evidently intended and used for the ordinary purposes of a family. Both houses are of one story. The only servitudes which can, under any circumstances, be held to be established in relation to these two estates, are those of way and of lights. Those attempted tobe setup as to the well and privy, want the essential requisites of servitudes, and have not that permanence and caractére de perpetuité, which the law requires for their establishment. Civil Code, art. 763. 3 Toullier 615.

The servitudes of way and of lights are appparent, and necessary for the occupation, and use as a dwelling house,of the property purchased by Boisblanc, and as such are of a permanent character, and can in no sense be said to have been concealed from Rivereau, the purchaser of the contiguous estate. The passage of three feet nine inches being thus charged with the servitudes of way and of lights, it is contended by the counsel of Rivereau that he is not bound to take his purchase; but we think the law obliges him to complete it. If the ser-vitudes were of such a nature as would render it probable that he would not have purchased the estate had he known of their existence, and could we believe that he was ignorant of them, a very different case would have been presented. But these servitudes are visible and palpable, and, on examining the property, he must have seen them, and we have no reason to believe that he has been misled or deceived in relation to their existence. Merlin, Rep. verbo Ga-rantie, § 8.

The judgment of the Parish Courtis therefore reversed.and the defendants Boisblanc and Rivereau are hereby ordered forthwith to comply with the conditions of the adjudication; and it is hereby decreed that the servitudes of lights and of way, as described in the plan on file, be held to be established in favor of the property purchased by Boisblanc, and adversely to that purchased by the defendant Rivereau; that the passage between the two tenements be extended three feet nine inches French measure beyond the rear line of the dwelling house of Boisblanc, so as to give an entrance in the rear to the proprietor, and that from thence the said Rivereau have the full measure of his lot, to wit, thirty feet French measure free from any servitude; and, inasmuch as the terms of payment stipulated in the adjudication have expired, it is further decreed that the judgment be entered in favor of the plaintiff, against the defendant Boisblanc, for the sum of $2,850, with interest, to wit, on one-fourth of said sum from the 6th of December, 1844, at five per cent, and on the remaining in-stalments of one-fourth each, from their maturity at six, twelve, and eighteen months from said date, at eight per cent; and that judgment be entered in favor of the plaintiff against Rivereau, for the sum of $3,175, without interest, he not being in default, and not having taken possession; and that the plaintiff and the defendant Boisblanc each, pay one half the costs of the court below, and of this appeal.


text:
    Rideau v. Bornet et al.
    'The o Wrier of certain, slaves on whom an execution had been levied, having Refused to deliver them to the marshal, the latter sold them, announcing that the purchaser must assume the risk of finding them. In an action by the purchaser against the owner, to recover the slaves, with damages for their detention: Reid, that no evidence having been offered to show that the owner had been put in default before the institution of suit, she is responsible for their hire, as damages for her failure to deliver, only from the judicial demand.
    APPEAL from the District Court of the First District, Buchanan, J.
    David, for the appellant. Delavigne, Simon and Morphy, for the defendants.
   The judgment of the court was pronounced by

King, J.

The plaintiff seeks in this action to recover from the defendants the possession of two slaves, which were adjudicated to him at a marshal’s sale, and damages for their illegal detention. He avers that the defendant, P. C. Bornet refused to deliver the slaves, after they were adjudicated to him, and placed them in the possession of the defendant Philippon, by whom they were concealed. On this allegation he claims $2 a day for each of the slaves, for the time during which he has been deprived of their use, and contends that the defendants have rendered themselves liable, each to a line of $>300, to the use of the pai-ishes in which they respectively reside, which he prays they may be condemned to pay. There was a judgment in the lower court in favor of the defendants, from which the plaintiff has appealed.

It appears that the marshal of the United States, acting under a writ of fieri facias, issued in the case of Lafleur v. Bornet, levied on several slaves, among which were the two, the possession of which is now claimed. The defendant Bornet refused to deliver the slaves to the officer, or to inform him where they were to be found. The marshal proceeded to sell them, announcing that they were not in his possession, and that the purchaser would take the risk of finding them. On these terms, the plaintiff’ became the purchaser at the second exposure, and gave his twelve-month’s bond for the price. Some months after the sale the slaves appeal- to have been in the possession of the defendant Philippon, who finding that they were advertised by the plaintiff in one of the city papers as runaways, immediately returned them to P. C. Bornet, from whom they had been received. The evidence shows no intention on her part to conceal, or harbor the slaves, nor does her conduct, in reference to them, appear to have been otherwise reprehensible.

The claim for §2 a day for each of the slaves, and for a fine of $>300 to be imposed upon each of the defendants, is based on two statutory provisions found in the black Code, which annex penalties to the offences of concealing slaves, receiving them on hire without the permission of the master, and harboring runaways. There is no evidence in the record that the slaves in question were runaways, or that either of the defendants have offended against the provisions of those laws. The defendant P. C. Bornet, however, has tortiously deprived the plaintiff of the use of his slaves, and is answorable to him in damages. There is no evidence before us showing that she has been otherwise put in default than by the institution of this suit, and from that date only is she answerable in damages for their non-delivery. 1 Mart. N. S. 574.

The value of one of the slaves has been estimated at $>10 per month, and the other at S3 per month. The cost of advertising and of recovering possession of them is shown to have been about §60.

The plaintiff was permitted, on the 19th June, 1845, to bond the slaves in question, which had been sequestered in a suit then pending between the plaintiff and Bornet, and from that time he appears to have had them in possession. The service of citation in the present suit was on the 26th March, 1845. The defendant thus detained the slaves two and three fourths months after being put

The right of the plaintiff to recover, is further opposed on the ground that the marshal’s sale to him was null, in consequence of certain alleged informalities. In the suit of Bornet v. David, lately decided, the defendant Bornet claimed and obtained a judgment for the twelve-month’s bond given by Rideau, the plaintiff, for the purchase of these slaves. This is a ratification of the marshal’s sale, which concludes her from questioning its validity.

It is therefore ordered, that the judgment of the District Court be reversed. It is further decreed that the plaintiff bo quieted in his possession of the slaves Aimée and Chouchoule, and that he recover of the defendant P. C. Bm'net, $92 25 damages, the costs of suit in the court below, and one half the costs of this appeal. It is further ordered that the plaintiff’s demand against the defendant Philippon be rejected, and that he pay the costs of the suit against her in the court below, and one half of the costs of this appeal.

       This case, presenting only questions of fact, is not reporte?.


author: Slidem,, J.

text:
    Murdock et al. v. Coleman et al.
    Wlicro plaintiff alleges that a bill of exchange drawn by a third person on a fourth, payable to plaintiff’s order, bat not endorsed by defendant, was received by plaintiff, from defendant, in discharge of a debt duo by the latter, it must be considered a novation of the debt (C. C 0185); and, in the event of the non-payment of the bill, defendant can only be made liable on proof of his knowledge, at the time of the transfer, of the worthlessness of the bill.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Eggleston, for the appellants.
    There was no novation. Civ. Code, arts. 2185, 2186, 2188. Cainv. Robert, 3 Mart. N. S. 145. Markv. Bowers, 4 N. S. 95. 9 La. 223. Turpin v. Creditors, 9 Mart. 562. Nolté v. Creditors, 6 Mart. N. S. 176. Gleasons. Stevenson, 6 N. S. 568. 7 N. S. 178. Bairdv. Livingston, 1 Rob. 184. Howards. Thomas, 3 La. 112. Story on Notes, ss. 104-105, 438. 1 Wheaton’s Selwyn, ed. 1839, p. 74, note 23. The delivery of the bill, it being worthless, was not a payment. Stedman v. Gooch, 4 Espinasse, N. P. C. 5. 6 Term Rep. 52. 7 Term R. 64. 2 Campb. 515. Story on Notes, ss. 389, 502. Ontario Bank v. Lighibody, 11 Wend. 9. 139 Ibid. 101. Maride v. Hatfield, 2 Johns, 455. 2 Hill’s S. C. Rep. 509. 10 Vesey, 506.

      Mott, for the defendants.
   The judgment of the court was pronounced by

Slidem,, J.

The plaintiffs, merchants in Connecticut, had consigned to the defendants, a New Orleans house, certain merchandize for sale. The defend-1 ants having realized the proceeds in cash, the plaintiffs’ agent called on them at New Orleans for a settlement, and received in discharge of the balance in favor of plaintiffs a portion in cash, and the residue in a bill of Josiah G. Macy & Co., to the order of Murdock & North, on Macy Sf Holdredge of New York, for $900, at sixty days. The bill thus received by plaintiffs was accepted, but protested for non-payment, and the plaintiffs now claim its amount from the defendants. The case has been presented in different aspects by the original and supplemental petitions. We will consider it in reference to the allegations of those petitions and the evidence in the cause, observing that to these discrepancies in the pleadings, and to the evidence, which in some respects goes beyond the pleadings, no exceptions have been taken by the defendants.

I. In the original petition plaintiffs alleged the consignment, the indebtedness resulting from it, a part payment of the indebtedness in cash, and that the draft was given in discharge of the residue. They allege the protest of the draft; the insolvency of the drawers and drawees, at its maturity and since; and “ that, at the time said draft was given in discharge of said accounts, Coleman Sf Simms knew of the inability of the drawers to pay the same, or might have known it by diligent inquiry, notwithstanding which they delivered the draft to petitioners.” Now under these allegations it is expressly admitted that, the draft was received in discharge, and the original indebtedness was consequently nova-ted (Civil Code, art. 2185); and the defendants could only be held liable on proof of knowledge by them of the worthlessness of the draft. Such knowledge has not been proved. It is satisfactorily shown, on the contrary, that the bills of Macy & Co. on the New York house, were taken for large amounts by bill dealers down to a later period than the date of the transfer of this draft; that the partner who drew the bill did not then anticipate the stoppage of the New York house; and that the defendants had no reason to anticipate their failure, which took place about two months after the bill was accepted. On the above grounds then, the defendants are not liable.

II. By a supplemental petition the averments of the original petition are modified, and the charge of liability assumes partially a new form. The plaintiffs there say that, at the time the draft mentioned in the original petition was delivered to liquidate the account, Coleman & Simms desired their agent to take the draft, which he agreed to do if the parties to the same were solvent, they stating to the agent that the draft was good, and that the parties thereto were solvent; that they took the draft on the faith of these representations; and that in fact the parties were insolvent, the draft valueless, and that the defendants knew it.

So far as concerns any knowledge of the defendants as alleged, we have seen that it is not made out by the evidence. As to the alleged representations of the defendants, and the allegations that the account was thus settled at the request of the defendants, the testimony of the agent of plaintiffs is relied upon. If this testimony stood alone, a case would have been made out which might have fixed a liability upon the defendants, subject to the further enquiry, whether it was discharged by the delay in giving notice of protest. But the testimony offered by the defendants, the other attendant circumstances, and the pleadings in this cause, militate against the agent’s account of the transaction. The bill was not endorsed by defendants, but was drawn directly to plaintiffs’ order, and they were credited with the discount of one and three quarters percent. It is deposed that the account was settled by bill, for the convenience of plaintiffs, and for the sake of the profit to them in exchange; and that Coleman & Simms paid for the bill in cash two or three days after they got it for plaintiffs’ agent. Though the bill was protested on the 22d May, 1845, the plaintiffs did not write to the defendants till the 12th June, 1845, when they acknowledge that the draft was taken in part payment, tell the defendants that they look to thern for payment, but allege no reason for defendants liability but the dishonor and failure of the parties to the bill. So far from suggesting that the defendants knew the parties to be in failing circumstances, they expressly say in this letter: “You were probably deceived, as the house was in better credit in New Orleans than in New York. It was well understood here that they were weak and in failing circumstances, before that date.” It is also to be observed that, in the original petition there was no allegation of fraudulent or erroneous representations.

The judge of the court below was of opinion that no liability was established, and, after a earoful consideration of the whole case, we do not think there was error in his decree. Judgment affirmed.


text:
    In the Matter of the Opening of Robin Street.
    Where an ordinance of the Council of the Second Municipality of New Orleans has been returned by the mayor of the city with objections, the concurrence of two-tliirds of the members of the Council present at the meeting at which tho mayor’s objections are first brought to the notice of the Council, is necessary to give it the force of law. Stat. 17 February, 1805, s. 6. The question oí persisting in the ordinance, must bo determined then ; it cannot be adjourned to a subsequent meeting.

      APPEAL from tho Parish Court of New Orleans, Maurian, J.

      Durant, for the appellants.
    The words “ then present in the said Council,” in the 6th sec. of the stat. of 17 Feb. 1805, incorporating the city of New Orleans, refer only to the time of the final discussion of the objections of the may- or, and mean only that two-thirds of the members must then concur, to give an ordinance the force of law, notwithstanding the veto of the mayor.

      Schmidt, coutrá.
   The judgment of the court was pronounced by

Rost, J.

The Second Municipality applied to the Parish Court for the appointment of commissioners to assess the expenses, &c., of the opening of Robin street, which opening had been decreed by the Council of the Municipality at the request of certain property holders. The Parish Court granted the request, and appointed commissioners.

At this state of the cause, Charles Genois intervened, and opposed all further proceedings, averring that, as a corporator, and owner of land having about 600 feet front on Robin street, situated in the immediate vicinity of the contemplated improvement, to which, if earned into effect, he would have to contribute, he was interested in opposing the attempt to open said street. He did accordingly oppose it for various reasons, among which are the following :

1st. The mayor, whose concurrence is indispensable in such cases, has not sanctioned the opening of Robin street.

2d. The Council persisted in the ordinance, notwithstanding the objections of the mayor, not in the session immediately following the return of those objections, but in a subsequent session, which is illegal and contrary to the true intent of the law.

The Council of the Municipality excepted to this opposition, on the ground that Genois, having neither been cited nor assessed, had no right to oppose the proceedings. This exception having been overruled, an answer was filed deny-Shg all the allegations contained in the opposition. After hearing, the Parish Court sustained the opposition, and the Municipality have appealed.

The exception of the Municipality was properly overruled. The admission that Charles Genois is a proprietor, as he alleges in his petition, is sufficient to entitle him to the remedy he has resorted to, under a fair intendment of the law of intervention.

It is in evidence that, in the sitting of the Council of the 3d of December, 1844, when the ordinance passed, on the 26th of November preceding for the opening of Robin street, was returned by the mayor with his objections in writing, there were ten members of the Council present, the whole number being twelve. From the votes given on that occasion, it is evident that only six were in favor of persisting, notwithstanding the mayor’s veto, and four were against it; therefore the requisite number to carry the question, to wit, two-thirds, were not present. A motion was then made by a member in favor of persisting, to postpone the motion to persistió another sitting, which motion was passed by the same six members, notwithstanding the opposition of the recorder, and his declaration that it was not in order. In the next sitting, to wit, on the 10th of December, the motion to persist was passed, the six members who were in favor of it originally, having been re-inforced by two more members.

It is provided by law that, if the mayor should disapprove an ordinance of the City Council, he shall, within five days, return the same to the Council, with his objections in writing, “and if two-thirds of the members then present in the said Council shall agree to the said ordinance, notwithstanding such objections, then, but not otherwise, the said ordinance jshall have the force of law," &c. The Parish Court was of opinion that it must reasonably be supposed that the legislature meant something, and had an object, in using the words “ then present;" and that unless their meaning was that, two-thirds of the members present at the time the mayor’s objections first came before the Council should concur in persisting, the mayor’s objections should be sustained, it is impossible to give effect to those words. We concur in this construction of the law, and are of opinion that the opposition was properly sustained.

Judgment affirmed.


author: Rise, J.

text:
    Ex Parte Mitchell.
    No appeal will He from a judgment remanding a prisoner, who had applied by habeas corpus for a discharge. Such a judgment is not a final one.
    The provision of art. 63 of the constitution which declares that, the Supreme Court “ shall have appellate jurisdiction only in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed,” confers on the Supreme Court power to revise, after final judgment, questions of law arising in prosecutions by indictment or information, but does not authorize appeals from decisions made on questions growing out of preliminary proceedings.
    APPEAL from the First District Court of New Orleans, Preston, J.

      Ro-selius, for the appellant. Elmore, Attorney General, for the State.
   The judgment of the court was pronounced by

Rise, J.

Robert Mitchell, while confined in the jail of New Orleans, applied to the judge of the First District Court for a habeas corpus, alleging that jjjs confinement was illegal, on several grounds stated in his application. After a hearing he was remanded by the j udge, and from the order remanding him he has appealed. The Attorney General has moved to dismiss the appeal, on the ground that this court is without jurisdiction of the cause.

The 63d article of the constitution confers appellate jurisdiction on this court, “ in criminal cases on questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding $300 is actually imposed.” The framers of the constitution obviously intended by this clause, to grant to this tribunal power to revise questions of law which arise in prosecutions by indictment or information, after a final judgment, and not to allow appeals from decisions made on questions arising in preliminary proceedings.

A judgment rendered on an application for a habeas corpus, can in no sense be considered a final judgment. It does not decide all the matters in controversy between the State and the accused, but is in the nature of an interlocutory order, the tendency of which is not to work an irreparable injury to the prisoner. If the language of this article had left the intention of its framers in doubt, that doubt would be removed by reference to the 67th article, which gives to this court, and to each of its judges, “ the power to issue writs of habeas corpus, at the instance of all persons in actual custody under process, in all cases in which they may have appellate jurisdiction.” This grant of original power precludes the idea of the exercise of an appellate jurisdiction in relation to the same subject. Appeal dismissed.


text:
    Gilmore et al. v. Brenham et al.
    An appeal will be dismissed only where the appellee shows himself clearly entitled to that relief. In cases of doubt, the interpretation will bo liberal in favor of the appellant.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Mott, Prentiss and Finney, for the plaintiffs. G-. B. Duncan and Roselius, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

In this case the appellees move to dismiss the appeal of John II. James, on the ground that a previous appeal was taken in the same case, which the appellant is to be considered as having abandoned by not filing in due season the transcript of appeal, and thereby having precluded himself from a second appeal, pursuant to articles 589 and 594 of the Code of Practice. For a proper understanding of the case it is necessary to set forth in detail the nature of the proceedings had in relation to this, and ten other causes, in which James, the appellant, was interested; which facts we have ascertained by a careful examination of the records in this and the other cases, and of the original records and minutes of the Commercial Court, which, in consequence of the confusion which has arisen in this matter, and also of an application by the appellees for a. certiorari, we have caused to be brought before us in the originals.

It appears that eleven suits were instituted in the Commercial Court, about the same time, by various plaintiffs, by the same attorneys against the same defendants, of which cases that now before us is one. In each of these suits John H. James filed a third opposition. In each the third opposition was in the same terms, and to the same effect. To each third opposition an exception was filed in each case. The nature of the exceptions in each case was identical. Thus the same questions of law and fact were, so far as the third oppositions and exceptions were concerned, presented in each cause.

Under these circumstances, and manifestly for the pui'pose of saving the loss of time and the expense which would have attended a separate hearing, all the exceptions were heard together. On the minutes of the Commercial Court the titles of all the cases are written down, and included in a bracket, opposite to which is written these words: “ The exception to the third opposition of J. II. James, filed in these cases, came on this day for trial before the court. Mott and Kane, for plaintiffs. L. C., and G. B. Duncan and O. Roselius, for third opponent. After hearing counsel the court took the same under consideration.” It is thus manifest that, for the purpose of this hearing in the court below, the parties had agreed to a joint hearing there, and that the decree in one case should be decisive there of all. When the judge gave his reasons for judgment, ho gave them, and they were filed, in one case only, that of Hefferman; but separate decrees were entered in each, with a reference on each record to the reasons assigned in the one case.

The judgments being identical in their terms, and being all against James, he filed in the record of the suit of Hefferman v. Brenham et al., a petition of appeal. The form and manner of this petition were evidently dictated by the belief that, there was an agreement of counsel to argue the exception in this court at one hearing, as had been done in the court below, and that all the cases should share the fate of the case of Hefferman. Accordingly the petitioner puts at the head of his petition, thus filed in Hefferman’s case only, a list of eleven cases, with their titles and numbers, and then sets forth that in each of the above cases, upon third opposition and exception thereto, decrees had been rendered in which there was error to his prejudice: “Wherefore, inasmuch as the said oppositions in each of the said cases, together with each answer and each judgment, are in the same words and figures respectively, and each party to the said several oppositions hath the same interest in the final decision of the same, he prays to be allowed to appeal from the judgments rendered in the said above recited cases, and that the parties plaintiffs in the several above recited cases, but defendants in said third oppositions, be severally cited to appear, and answer this petition and appeal.” Upon this petition, thus filed in the record of Ilefferman’s case alone, was indorsed and signed by the judge the following order: “ An appeal is allowed in this case according to law, returnable in the Supreme Court on the first Monday of March next, on the appellant’s giving bond with good and solvent security, in the sum of $100, in favor of each of the plaintiffs mentioned in the petition of appeal, with condition as the law directs ; and let the appellees named in said petition bo cited to answer the same.” Signed, Jan. 24,1846.

An appeal bond was filed in Hefferman’s case only, of the following tenor:

“Know all men by these presents that we John H. James and Charles A. Sheafej are held and firmly bound unto Charles Hefferman, Messrs. Gilmore Henderson, LUlard, Mosby & Co., Conrey & Co., Stanton & Co., Miller &¡ Baldwin, Thomas Ronclensliker, D’AquinSf Brothers, Crutehler SfMcRaven, JohnT. Yoe, and William B. Richardson, jointly and severally, and to each of them severally, their and each of their executors, administrators and assigns, in the sum of $100, and to each of them respectively in the sum of $100, for the payment whereof we bind ourselves, our heirs, executors and administrators firmly by these presents. Sealed with our seals, and dated in the city of New Orleans, on the 24th day of January, in the year of our Lord one thousand eight hundred and forty-six. Whereas the above bounden John H. James this day filed a petition of appeal from a final judgment rendered him against on his third oppositions, filed in eleven suits in favor of the aforesaid obligees v. C. J. Brenham & Steamboat Ambassador, and numbered 7484, 7504, 7505, 7506, 7507, 7508, 7509, 7510, 7511, 7512, 7513, on the docket of the Commercial Court of New Orleans, in the State of Louisiana, on the 10th day of January, 1846. Now the condition of the above obligation is such that, the above bound John H. James shall prosecute his appeal, and shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise that the said Charles H. Sheafe, his surety, shall be liable in his place.

(Signed) John H. James, [L. S.]

by Jas. Janius James.

Signed sealed and delivered (Signed) Chas. H. Sheaee, [L. S.] in the presence of

(Signed) Chas. F. Hozet.

Filed 24th January, 1846.

(Signed) Ed. Gardehe, Clk.”

In March, 1846, the record of appeal in the case of Hefferman was filed in this court; citations of appeal in the other suits Were also issued by the clerk and served; and sheriffs re turns were made and filed in this court. The case of Hefferman was set for trial in this court, argued by the same counsel for James who argued at a simultaneous hearing the exceptions in the eleven cases in the court below, and a decree of this court was rendered in Hefferman’s case. Thereupon the counsel of James, acting, as we are justified in supposing, in good faith, and upon the belief that there was an undei'standing that the decree in one case was to govern all, on the 3d of June, 1846, moved this court and obtained an entry of a like decree in the other ten cases, by order, in the following words:

“ Charles Hefferman, Appellee, v. Brenham & James.

6109.

J. H. James, third Opponent and Appellant.

“ It appearing from the inspection of the record in this case, that the plaintiffs in the following entitled suits, to wit, Gilmore & Henderson v. Brenham et al., No. 7504—Lillard, Mosby & Co. v. Same, No. 7505—Conrey & Co. v. Same, No. 7506—Stanton & Co. v. Same, No. 7507—Miller & Baldwin v. Same, No. 7508—Thos. Londensliker v. Same, No. 7509—D'Aquin & Brothers v. Same, No. 7510—Crutchler & McRaven v. Same, No. 7511—Jno. T. Yoe v. Same, No. 7512, and W. H. Richardson v. Same No. 7513, were made parties to this appeal, and were duly cited to answer the same, and that the facts are precisely the same in each of said cases, the same judgment will be rendered in each of them. It is therefore ordered, adjudged, and decreed, that in each of said causes the judgment of the Commercial Court be avoided and reversed, and that this cause be remanded for further proceedings, the appellee paying the costs of this appeal.”

These ten decrees, on a subsequent application of the opposite counsel, the court ordered to be rescinded, by an order in the following words:

“ Charles Hefferman, Appellee, v. Brenham & James.

6109.

J. H. James, Third Opponent.

“ In this cause the plaintiffs in the following entitled suits, to wit, Gilmore & Henderson v. Brenham et al.—Lillard, Mosby & Co. v. Same—Conrey & Co.v. Same—Stanton & Co. v. Same—Miller & Baldwin v. Same—Thos. Londen-sliker v. Same—D’Aquin & Bros. v. Same—Crutchler & McRaven v. Same—Jno. T. Yoe v. Same, and W. B. Richardson v. Same, were made parties to this appeal, and decrees were entered by the court in error, supposing that said parties and their counsel had consented that, the claims of said parties should be determined by the judgment of this court on the appeal in this case. It is ordered that the decrees rendered in said cases on the 3d of June inst. be set aside.”

The appellees then obtained, as to each of the ten cases, a certificate from the clerk of this court that no record had been filed, which certificates they filed in the respective cases in the court below. Subsequently, in June, 1846, James filed a petition of appeal in this case, of which case the transcript has been filed, and which appeal the appellees now move to dismiss.

All this confusion and difficulty, and the serious loss of the time of this court, which belongs to the public and which would be abundantly occupied by the consideration of cases on the merits, would have been avoided, if counsel had entered into a written agreement, instead of relying upon mere verbal understandings, which are generally loose and uncertain, and of which the respective parties may, without a breach of good faith on either side, entertain a different apprehension. As there is no such agreement before us, we must look to the records alone ; and, after a laborious and critical examination of all that appears of record, we have come to the conclusion that the order of appeal of January 24th, 1846, was, in the absence of any agreement of record to explain and control it, by its terms and legal effect an order of appeal in one case, and legally binding the appellees in that one case only. It follows that there is no lawful order of appeal in the case now under consideration, except the order of appeal granted on the 18th June, 1846, by virtue of which order the case is now before us, and that until said order, and the proceedings had under it, the jurisdiction of this court over this cause never attached.

In conclusion we take this occasion to remark that, as this court is one of last resort, and affords to litigants, except in a very limited class of cases, the last and only opportunity for relief from the decrees of the courts of inferior jurisdiction, and as the legislature by the act of 1839 has manifested a like liberal policy, we will always expect an appellee who moves for the dismissal of an appeal to bring himself clearly within the legal rules with regard to dismissal, which in cases of doubt we shall deem it our duty to interpret liberally in favor of the appellant.

For the reasons above assigned the motion to dismiss the appeal is refused, the appellees to pay the costs of said motion.

       Similar judgments were rendered at the same time, on applications to dismiss appeals taken by James from judgments rendered in the oases of Richardson, of Crutchler et al., of Miller et al., of Londenslilcer, and of D’Aquin, brothers, against the same defendants.


text:
    The City Bank of New Orleans v. Banks et al.
    Where in an action, on an unconditional obligation for the payment of a specific sum of money, against a party who had been discharged as a bankrupt under the act of Congress of 19 August, 1841, the discharge is impeached on the ground of fraud, the defendant can only entitle himself to a trial hy jury, by making the affidavit prescribed by sect. 24 of the stat. of the 20 August, 1S39.
    APPEAL from the District Court of the First District, Buchanan, J.

      Wilde, Lockett and Micou, for the plaintiffs. Cohen and L. Pierce, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This suit, as now before us on the appeal, is pending between the plaintiffs and Thomas Banks and his wife, and was instituted on a bond, or obligation, made by the defendants, on the 30th of June, 1837, for the sum of $55,000. It was given in consideration of a loan made by the plaintiffs to the defendants, and bore a mortgage on property in the city known as Banks’ Arcade. The prayer of the petitioners was, that the parties be'condemned to pay, in solido, the amount of the bond, and interest until paid, with a special mortgage on the property. There was judgment in favor of the piaintiifs for the debt and interest, but without any reference to the property mortgaged. The defendant Banks has appealed. There were other parties originally made in this suit, but as the plaintiffs have discontinued as to them, and there is no connection between them and the matters in issue between the plaintiffs and the appellant, it is not necessary to notice them. Banks had obtained his discharge and certificate under the bankrupt act of 1841, and the plaintiffs gave notice in their petition that, if his certificate should be pleaded in bar of this action, it would be impeached by them on certain grounds of fraud and wilful concealment of property on his part, which were specifically set forth. The fourth section of the late bankrupt act, provides for the pleading of the discharge and certificate in any court of judicature, and that it shall be conclusive evidence of itself in favor of the bankrupt, unless impeached for some fraud, or wilful concealment of property, or rights of property, contrary to the provisions of the act, on prior reasonable notice specifying such fraud, &c. U. S. Statutes at Large, vol. 5, p. 444. The frauds alleged to have been committed by the bankrupt, which the district judge considered as proved, invalidate his discharge and certificate under the bankrupt act. Concurring with him in the opinion he has given as to their character, and also as to the obligations of his co-defendant, Mrs. Banks, it is unnecessary to bring before the public the disgusting details of the turpitude of this bankrupt which the record presents, or to mention any other reasons for our conclusions than those given by the district judge for his.

A bill of exceptions was falten to the decision of the court below in refusing to the defendants a trial by. jury, which they had prayed for in a supplemental answer. The judge refused to the defendants a jury, on the ground that tho affidavit made in order to obtain it did not conform to the requisites of the act of March 20th, 1839. The 24th section of that act provides that, suits against the parties to promissory notes and bills of exchange, and generally those brought on unconditional obligations to pay a specific sum of money, shall be tried without a jury, unless the defendant shall, under oath, deny his signature to the instrument, or make oath of a defence on the -ground of error, fraud, failure or want of consideration, or of a plea of compensation or reconvention. The affidavit of the defendant was to his discharge under the bankrupt act, and denied the charges of fraud and concealment of property as made in the petition.

That this is a suit on one of those instruments included in this section cannot be questioned, and that thejdefence set up in this case is not one of the excepted cases is equally evident. The trial by jury in criminal cases is guarantied by the constitution; in civil cases it rests with the legislature alone, and they have provided that certain classes of cases shall be tried without the intervention of juries. The notice which the plaintiffs gave in their petition that they would impeach the defence of the defendant if made, does not change the character of the suit. It is still a suit upon the instrument, and the defence is not one of those on which the defendant has a right by law to a trial by jury. We think the judge did not err in refusing the defendant’s application.

There are cases in which judges seek the assistance of juries in determining-questions upon which they cannot themselves come to satisfactory conclusions; but this is not one of them. Of the correctness of the decision of the court below on the merits, a shadow of doubt does not exist.

Judgment affirmed.

       Banks pleaded his discharge under the act of Congress of 19 August, .1841.


author: Siidei/l, J.

text:
    Kernion et al. v. Hills et al.
    The usage and practice under a statute may be resorted to in case of doubtful meaning, as a means for ascertaining the intention of the law-maker.
    under the statutes of 20th March, 1816, 6th March, 1818, and 6th March, 1819, regulating the inspection of tobacco in New Orleans, it is the duty of the inspectors to furnish samples, properly labelled, of every hogshead of tobacco inspected by them; and for doing so, they can make no charge beyond the amount allowed by the 1st section of the act of 1819, for each hogshead inspected by them.
    ■Where one, compelled to employ a public officer, to avoid delay in his business, promises to pay an extra charge demanded for certain services, but accompanies the promiso with a declaration that he does not acknowledge the legality of the charge and will immediately sue to recover back the amount, the promise is not binding, and changes in no respect the rights of the parties.
    from the Commercial Court of New Orleans, Watts, J.

      G. B. Duncan, for the appellants.
    The laws on the subject of the inspection of tobacco do not require that the inspectors shall make samples. Bullard & Curry’s Dig. 508-10. The amount claimed is not for services “ under color of office,” but for extra-labor rendered by the plaintiffs as individuals. See Hills v. Kernion, 7 Rob. 522.

      R. H. Chinn, on the same side.

      H. H. Strawhridge, for the defendants.
    The services for which the extra-charge claimed by the plaintiffs was made, was part of the duty of inspection. Usage under the law establishes this. Civ. Code, arts. 195,1960, 1961. Halsey v. Brown, 3 Day, 346. Consuetudo est altera lex. 4 Coke, 21.
   The judgment of the court was pronounced by

Siidei/l, J.

This is a suit brought by six individuals, who formerly held the office of tobacco inspectors in New Orleans, to recover from the defendants, commission merchants, the sum of $1310, as a compensation for making, tying up, and labelling samples of certain hogsheads of tobacco, inspected by them in their official capacity. The charge for the particular services above stated, and which were rendered in the years 1842 and 1843, being at the rate of forty cents per hogshead, being an extra charge beyond the sixty cents, the inspection fees allowed by statute. The claim is resisted on the ground that, under the inspection laws, the inspectors were authorized to receive for the inspection of tobacco, “ sixty cents and no more,” and that sampling and labelling are included in the duty of inspection. The plaintiffs, on the other hand, contending that it is an extra service, not comprehended in their official duty.

The statutes regulating the inspection of tobacco, were passed in the years 1816, 1818 and 1819. The amount of charge and the duties prescribed were somewhat changed from time to time by these statutes, but in none of them is the specific duty of sampling and labelling enumerated. Hence the origin of this controversy. Much testimony was taken as to the mode in which the duty of inspection was performed, and compensation paid, during a long series of years. From this testimony, which is given by respectable individuals who had been engaged for a long time in the tobacco trade in this city, and also in the States of Virginia and Kentucky, it appears that, during a long series of years previous to the year 1836, it was the practice in New Orleans for tobacco inspectors to furnish samples without any extra charge; and this service was considered as embraced within the duty of tobacco inspection. The witnesses also stated that in Virginia, a tobacco growing State, sampling formed part of the process and duty of inspection, and was performed without extra charge, although not expressly required by statute; and such also was the uniform usage in Kentucky. This testimony is, in our opinion, entitled to great consideration.

The object of the inspection laws was to promote the interests of commerce, by preventing frauds, by enabling purchasers by official information to judge of the kind and quality of the article, and by facilitating sales. This object was well worthy of legislative attention, in a State whose capital is a commercial depot for the important and daily increasing commerce of the great valley of the Mississippi and its tributaries. Such being the motive of the law-giver, it is our duty so to interpret these statutes as to give them their entire effect, so far as we can do so without violating their language ; and in this duty of interpretation we may with great propriety resort to the usage and practice under these statutes. Si de interpretations legis queeratur, in primis inspiciendum est, quo jure civitas retro in ejusmodi casibus usafuisset; optima enim est legum in-terpres consuetudo. L. 37, ff de Legibus. Domat, lib. 1, sect. 2, § 19. This rule of the Roman law, founded on manifest good sense, has commended itself to, arid become a part of the jurisprudence of every country. The rules of interpreting statutes are necessarily in many respects analagous to those adopted in the construction of contracts, and our Code expressly declares that the obligation of contracts extends not only to what is expressly stipulated, but also to every thing that by law, equity, or custom, is considered as incidental to the particular contract, or necessary to carry it into effect. Art. 1897.

In addition to the above consideration, there is an expression in the statute which is pregnant with much meaning. The law in defining the fees of inspectors says, they shall receive sixty cents and no more. Now if, under a fair interpretation of the law with reference to all its parts, it could be said that sampling is not required, still the words “ no more” might well be considered as an inhibition upon inspectors to take more even foj^ services not prescribed. The argument that the charge is made, not by the inspector in his official capacity for official services, but by the individual in his individual capacity for individual services, is specious, but involves an unsafe doctrine. It seems to us very dangerous, when a law prescribes for the public officer certain fees and no more., to draw distinctions between the individual and the public officer, except, at any rate, when such a distinction is indispensable to do justice between the parties, by reason of services which it is clearly impossible to class as official, and where his public character has given the claimant no advantage over the citizen in making the bargain.

It is said that the inspectors notified the defendants that they would give samples if required, but that they would make a charge for it, and that the defendants required the plaintiffs to do so, and said they would pay the extra charge. This is true; but at the same time it is evident that the defendants, who were compelled by law to employ the plaintiffs to inspect their tobacco, did this in order not to be delayed in their business, and they coupled with the promise to pay the extra charge the express declaration that, they did not recognise its legality, and would immediately bring suit to recover it back. Now, under such circumstances, the promise was not binding, and in nowise changed the legal position of the parties ; for, if the plaintiffs had no right, as wé have seen, to make the extra charge, the promise was without a lawful consideration, and was in fact against public policy. Judgment affirmed.