author: Buchanan, J. Buchanan, J.

text:
    Mad. Widow J. F. Robert, Testamentary Executrix of Louis Allard, v. Etienne Alphonse Ride and Adrien Mairot.
    Appeal dismissed for want of proper parties.
    The practice of the Supreme Court is to notice ex officio^ and without any motion to dismiss having been made, the want of proper parties for a final decree".
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Tissot and Mlleul, for plaintiffs and appellants. Castora and Le Gardeur, for defendants.
   Buchanan, J.

A motion is made to dismiss'this appeal, because all the parties to the proceedings, interested in maintaining the judgment of the District Court, have not been made parties to the appeal.

The petition involves two causes of action; one of which is the nullity of a sale of land made by the deceased Allard to the defendant Ride in February, 1837. The parties originally cited as defendants were Ride and Mairol, to whom Ride is alleged to have sold the land in April, 1853.

By a supplemental petition plaintiff alleges that Mairol had sold the land in question to Lize Pellelon in May, 1853, and tliat Lize Pellelon had sold to J. F. Burgnot on the 6th June, 1853', both said sales being prior in time to the institution of this suit. Judgment is asked as in the original petition, for the rescission of the sale of the land, against Pellelon and Burgnot, in solido with the original defendants.

All four defendants have pleaded to the action, which was decided in their favor by the District Court. Plaintiff appealed by motion, and gave a bond in favor of Ride and Mariot only.

It is clear that the other two defendants, Burgnot, who is the actual possessor of the land, and Pellelon, his vendor, who is cited in warranty to defend his title, have an interest in maintaining the judgment of the District Court appealed from; an interest so much the greater, if the allegations of plaintiff’s petition be true, that Ride and Mairol are absentees, and utterly irresponsible in a pecuniary point of view.

Let the rule be made absolute, and the appeal be dismissed, with costs.

ON A REHEARING.

Buchanan, J.

We have been requested by counsel on both sides to consider this case as if a rehearing had been granted upon the motion to dismiss the appeal.

It is needless to Inquire whether the motion to dismiss in this ease should have been filed within three days after the transcript was brought up from the inferior court, inasmuch as the practice of this court has been to notice, ex officio, and without any motion to dismiss having been made, the want of proper parties for a final decree. Swearingen v. McDaniel, 12 Rob., 205; Succession of Perry, 4 An., 577.

The parties mentioned in the appeal bond are alone parties to the appeal; and it is immaterial to inquire who filled up the blanks in the appeal bond. If that was done by the Clerk of the court, he can be viewed in no other light, pro hac vice, than as the appellant’s agent. Hill v. Bowden, 2 An., 452.

Let the judgment already rendered remain undisturbed.


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Gordon & Co. v. Goodrich & Co.
    M., one of the partners, defendants, was the agent of the Bank of Kentucky. Pending this agency, defendants received from S., L. & Co., of Louisville, a consignment of flour, which they were directed to sell and retain proceeds towards payment of a draft drawn by plaintiffs They sold the fio ur, and M., acting under instructions from the bank, attached the proceeds. After the attachment, defendant received a despatch from S., L. & Co., directing them to deliver the flour, or its proceeds, to plaintiffs. ByiheGouH: The defendants, as factors, and holding the funds as an irregular deposit, ought not to defeat the arrangement of the parties by taking upon themselves the agency of the Bank of Kentucky. The two agencies are incompatible, and having received the consignment of the flour for a particular purpose without objections, and made a sale, they became absolutely the agents of the parties interested in the shipment of which they had notice, and they cannot be permitted to defeat the very object of the consignment of the flour by diverting the proceeds to their individual claims against S., L. & Co., nor by acting as the agent of third parties.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      JBunton, for plaintiffs. Mdise & W. M. Randolph, for defendants and appellants.
   Merrick, C. J.

The defendants were the factors in this city of Messrs. Spratt, Logan & Co., of Louisville. On the 12th day of September, 1853, the plaintiffs, for the accommodation of SpraU, Logan & Co., drew a bill of exchange at six months, payable to their own order, on said SpraU, IjOgan & Co. (New Orleans) for four thousand dollars. The draft was accepted, payable at the counting-room of the defendants, and endorsed by the plaintiffs, and negotiated by Spratt, Logan & Co.

Spratt, Logan & Co., on the 2d of February, 1854, shipped the defendant 500 barrels of flour. The letter accompanying the shipment is as follows:

“ Gentlemen — By the Jas. Robb we ship you 500 bhls. flour, to he sold on our account, and proceeds to be retained towards payment of Gordon & Co,’s acceptance of our draft of $4000, due at your counting-room 12th, 15th prox. This lot Is in the best possible condition, and we trust you will get a big price for it. Your friend,

Spratt, Losan & Co.”

The draft accompanied the shipment of flour, and no other similar draft was presented at their counting-house. Goodrich & Co. could not have misunderstood the instruction, although the word acceptors was used for drawers and endorsers. The flour and letter were received by the defendants on the 7th of February, 1854 The same day Spralt, Logan & Co. delivered to the plaintiff the following instrument:

“ Louisville, Feb. 7th, 1854

Messrs. Goodrich & Co. will deliver to Gordon S Co.’s order the five hundred barrels of flour, or the proceeds thereof, shipped to them by the steamer James Robb by us. . Spratt, Losan & Oo.”

Gordon & Co. endorsed this instrument in favor of Hewitt, Norton & Co.

On the 10th of February Spratt, Logan & Co. notified Goodrich & Co. to sell the 500 barrels flour sent by the James Robb, and hold proceeds subject to Gordon & Co.’s order, and advise Hewitt & Co.

This appears to have been received by McKnight, of the of Goodrich & Co., the 13th of February, 1854, at 10 o’clock, 'a. m.

W. Logan McKnight, of the firm of Goodrich & Go., acted also as agent of the Bank of Kentucky, under an agency which had existed for some time. He received, on the 12th day of February, a dispatch in those words:

“To Wm. Logan McKnight:

Your dispatch received. Do not pay anything on my account. Attach for the bank the two thousand dollars in your hands, and any other assets you can find. No security be had here. V. McKnight.”

On the 13th day of February, the same day the 'dispatch was received from Spralt, Logan & Co., W. L. McKnight, as agent for the Bank of Kentucky, gave bond and sued a writ of attachment against Spratt, Logan & Go., and had the same served upon himself, and received notice-of the same as a member of the house of Goodrich & Co. It appears also, that although the dispatch of Spratt, Logan & Co. was received by Goodrich & Co. at 10 o’clock on the 13th of February, that W. Logan McKnight was not advised of it at the time of the attachment, and he had no notice from any one respecting the flour or its proceeds except the letter accompanying the bill of lading.

. The defendants, as factors, and holding the funds as an irregular deposit ought not to defeat this arrangement of the parties by taking, upon themselves the agency of the Bank of Kentucky. The two agencies are incompatible, and having received the consignment of the,flour for a particular purpose, without objections, and made a sale, they became absolutely the agents of the parties interested in the shipment of which they had notice, and they, cannot be permitted to defeat the very object of the consignment of the flour, by diverting the proceeds to their individual claims against Spratt, Logan & Co., nor by. acting as the agents of third parties. Story on Agency, Nos. 206, 210, 217. See also the case of Dwight Durkee & Co. v. Price, Frost & Co., 11 An., 333.

The judgment, which was for $3303 23, the proceeds of the sale of the flour, must be affirmed.


author: Buchanan, J. Merrick, O. J. Spofford, J.,

text:
    Antoine Truxillo et al. v. Manuel Truxillo

    A judgment homologating an administrator’s account and discharging the administrator, rendered upon publications made pursuant to Art. 1172 of the C. C., is not res judicata as to the heirs. The form of notice prescribed by that Article is meant merely for creditors. The heirs should have been cited.
    Plaintiffs, heirs of A., in an action against his administrator to recover their share of the succession, in their petition, declare their heirship to be derived through their ancestor B., a predeceased brother of A.; and, in the same connection style themselves ii7ieirsv of B. Held: That under Art. 982 of the 0. C. this was equivalent to an express acceptance of the succession of B., though that succession was not the subject matter of the litigation.
    Representation is a legal fiction, the effect of which is to put the representative in the place, degree and rights of the party represented. It is true, a person may represent one whoso succession he has renounced ; but that is not the case of plaintiffs, w7io declare, in their petition, that they W'e Hie 7ieirs of the pa/i't/y whom, they represent.

    A petition is a judicial proceeding in the sense of Article 9S2 of the Code.
    Plaintiffs claim nothing in. the succession of B. They refer to him. merely to show, that through him? they are entitled to inherit from his brother A. It is with respect to the succession of the latter only that they assume the quality of heir, in the manner intended by Art. 982 0. 0. Spofford, J., with whom concurred Lea, J., dissenting.
    This article was taken from Art. 778 of the Code Napoleon, the commentators upon which generally recognize the distinction upon which this case should turn, a distinction pointedly made in Anderson v. Cox, 6 An. 18. Spofford, J., with whom concurred Lea, J., dissenting»
    PPEAL from the District Court, Fifth District, Parish of Assumption,

      Cole, J. C. A. Johnson, for plaintiffs. Mailhot <& Mills, for defendant and appellant.

       The judgment originally pronounced in this case was rendered Feb. 12,1885; present Slidell, C. 3., Voorhies, Buchanan, Ogdkn, and Spofford, JJ. A re-hearing was granted by the Court as thus organized. Bending the re-hearing, Slidell, 0. J., and Ogden, J., resigned theiv seats on the bench,.and their places were supplied by Merrick, C. J,, and Lea, J.

   Buchanan, J.

This is a suit by heirs against an administrator for an account.

The defendant pleads that he filed an account of administration as far back as 1847, which was notified in the manner required by law, and after the legal delays was homologated, and the administrator discharged from his trust by .the judgment of court: which judgment he pleads as res judicata.

He pleads further that a large portion of the assets placed upon the inventory of this estate, consisted of notes of the administrator himself, which are more than five years past due and are now extinguished by prescription.

Further, that the ancestor of plaintiffs, by representation of whom they claim as heirs of the deceased, was indebted to said deceased by judgment in the sum of $769, with interest; which judgment constituted an item in the inventory, and is due by plaintiffs to the estate.

Defendant annexes to his answer an estimate of moneys received and disbursed by him as administrator, to serve as an account of administration in case the court should be of opinion that he was bound to render another •account.

The record shows that Joseph Truxillo died on the 19th September, 1846, intestate. The defendant obtained letters of administration. The inventory amounted to $2,569, composed principally of three notes, due by the administrator himself, and of a judgment obtained many years previously by the deceased against his brother, Juan Truxillo, who died before Joseph,, and by representation of whom the plaintiffs claim as heirs for one third of the estate of Joseph Truxillo. On the 5th May, 1847, defendant filed his account of administration, in which he charged himself -with everything in the inventory, except the judgment against Juan Truxillo, and credited himself with funeral expenses, costs of court, and commissions. He also claimed to be a creditor of deceased for thirteen years boarding, at $10 per month. There was a balance, according to this-account, in favor of the administrator, of $24 80-100.

The account was published by posting notices at the court house door (there being no newspaper published in the parish,)' during ten days, and, no opposition being made, was homologated, and .judgment entered, discharging the defendant as administrator.

There is no doubt that this judgment of homologation is not res judieata against the heirs. The form of notice pursued was’ in accordance with Article 1172 of the Code, which has reference merely to creditors.

The defendant invokes Article 1057, which mentions legatees in connection with creditors, and argues from thence, tha,t heirs are synonimous with legatees, and that the law contemplates the same kind of notice to both. The argument is fallacious. There was, in this case, no will, and consequently no legatee. To bind the heirs, under the circumstances disclosed by this case, they should have been cited. The evidence shows that they were all residents cf the parish. See Millaudon v. Cajus, 6 L. R., 222; Baldwin v. Carleton, 11 Rob.

The only serious question in this case, in our opinion, is the right of the defendant to offset the judgment against Juan Truxillo, to the share of plaintiffs in the inheritance of Joseph Truxillo. The counsel of plaintiff contends that the former having died before the latter, was never the heir of the latter, but that plaintiffs have inherited directly from their uncle. The plaintiffs came to the succession of their uncle concurrently with an aunt and several cousins, by representation of their father, Juan Truxillo, the judgment debtor of their uncle. Representation is a legal fiction, the effect of which is to put the representative in the place, degree and rights of the party represented. It is true, a person may represent one whoso succession he has renounced; but that is not the case of plaintiffs, who declare in their petition that they are the sole heirs of Juan Truxillo. The case of Destrehan v. Destrehan, 4th N. S., is not analogous to the present case. The claimants in that case, had not only renounced the succession of the party whom they represented, but their relationship to the deceased was in the direct descending line, and the decision turned entirely upon peculiar provisions of the' Code applicable to that relationship alone, in connection with the subject of collation.

We are of opinion that the administrator has the right to oppose the judgment against Juan Truxillo to the claim of plaintiffs in the inheritance of Joseph Truxillo. That judgment was for $769, and bore 5 per cent, interest from October, 1853. At the time of the death of Joseph, it amounted, including 28 years interest, to. $1,653

The plaintiffs, being heirs of Joseph, for one-third, the judgment was extinguished at the death of Joseph, 'to the extent of one-third, by confusion, say.. S51

Balance due on judgment $1,102

The amount of Joseph's inventory was, as we have seen. $2,569

Add 23 years interest on the judgment against Juan Truxillo, of which the capital ($769) is inventoried. 884

Gross amount of Joseph Truxillo's estate...... $3,453

Deduct charges included in the account of administration rendered by defendant in 1847, which are admitted by plaintiffs to be correct_ 273

Nett amount to be divided among the heirs. $3,180

Of which one-third belongs to plaintiffs, say.,. 1,060

The plaintiffs had nothing to claim in the estate of their uncle, as the evidence shows. There is, therefore, no reason for charging the defendant with the expense of this suit.

The judgment of the District Court is reversed; and the judgment of this court is in favor of defendant, with costs in both courts.

O. A. Johnson, for plaintiff, applied for a re-hearing:

The conclusions of the court, if we have rightly’ understood them, amount substantially to finding that plaintiffs have made themselves the heirs, pure and simple of Juan Truxillo. The evidence to sustain them is the declaration made in our petition, that we were the sole heirs of Juan Truxillo. The part of the petition in which this declaration occurs, is here copied in full.

“That your petitioners are entitled each to one-sixth of the said estate for this — viz: That the said José left no heirs of his body, and that his legal heirs were his sister, Marcellina Truxillo, widow of Domingo Aeosta, of the parish of Assumption, for one-third; and the children and representatives of the late Antoine Truxillo, brother of the deceased, for one-third ; and the children and representatives of the late Juan Truxillo, also a brother of the decased, for the remaining third; that the representatives of said Juan Truxillo are your petitioners, Antoine, son of said Juan and your petitioner, the widow Domingo Truxillo — the said Domingo being, together with said Antoine, your petitioner, the only children and sole heirs of said Juan, deceased ; and the said Domingo having died intestate, leaving for his sole heirs his children, Philogene and Jean Baptiste, sole issue of the marriage of said Domingo with your petitioner, 'his widow; and the said Philogene and Jean Baptiste having since died intestate and without heirs of their body, whereby your petitioner, their mother, became their solo heir, and is sole entitled to their rights.”

We say the conclusions of the Court are based upon the finding that the plaintiffs have made themselves the unconditional heirs of Juan Truxillo, inasmuch as thejudgment has, by giving.effect to the offset pleaded, applied our funds to the payment of the debt of Juan. No other theory of the case adjudged by the court, is admissible. It cannot, for instance, be maintained that the debt of Juan has been extinguished by funds belonging to his estate, for Juan died before José, and this share in the estate of the latter, which has been applied by the court to the extinguishment of Juan’s debt, thus never made a part of Juan's estate. In other words, our funds, derived from a source foreign to the estate of Juan, have been made use of to pajr the debt of Juan. To our minds, this is nothing more or less than a condemnation of the plaintiffs as unconditional heirs of Juan-, and the warrant to this judgment is the language used by us in the extract from our petition above given, which the court seems to consider as an express acceptance of the succession of Juan. %

I. The first question which we submit then is, whether the court have not given to the declaration referred to, a meaning and effect which do not belong to it. Though the opinion of the court does not cite any law applicable to the above state of facts, it is plain that its conclusion, if legitimate, must rest upon Art. 982 of the Code, which is in these words:

“ 0. C. 982. The simple acceptance may be either express or tacit. It is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, orín some judicial proceeding.”

Now a most obvious limitation in the interpretation and application of this article, a limitation inherent in the very nature of the case, at once suggests itself; and that is, that the public or private acts or the judicial proceedings spoken of in the Article, must be such as have, for their subject matter, the succession with reference to which the quality is assumed, or at least, some right or thing supposed to depend upon it. Such was expressly held to be the rule in Anderson v. Cox, 6 A. R., 13.

‘‘AH law, ‘ says the court ’ must receive a reasonable interpretation. The judicial proceedings meant by Art. 982, are those in which the heir appears to claim as such some right in the succession.”1

So Marcadé, in treating particularly of the “acceptation cxpresse” and of the “qualification d’héritier,” even in acts pertaining- to the things or rights with respect to which the quality has heen assumed, uses the following emphatic language:

“De méme, ce sera uniquement la manifestation d’une intention certaine qui pourra constituer Facceptation expresse ; et il ne suffirait pas toujours que le successible cút pris dans un acte la qualité d’héritier. En effet, le mot héritier non pas seulement dans le monde, mais dans le Code lui-méme, signifie tantót celui á qui l’hérédité est irrévocablement acquise, tantót celui-lá seulement qui est appelé á la reeueillir et qui est libre de l’accepter ou de la répudier, tantót méme celui qui a formellement déclaré n’en pas vouloir; c’est ainsi que 1’art. 790, nous parle des ‘néritiers qui ont renoncé.’ S’il en est ainsi, il est bien impossible de prétendre que j’ai accepté par cela seul que je me suis qualifié d’héritier.’ Vol. iii. pp. 149, 150.

“ L’acceptation d’une succession,” says the same author, loe. cit. “ n’est et ne peut élre rien autre chose que la manifestation de la volonté d’etre héritier; mais il faut que la volonté soit certaine et indiquéo do maniere a ne laisser aucun doute.”

But this degree of certainty can only exist when in the acts or judicial proceedings specified by our article, something depends or is supposed to depend upon the assumption of the quality. To the same effect we quote Marcadé again, who sums up a verbal criticism of the structure of the Corresponding-Article of the Code Nap. with this sententious but comprehensive and accurate paraphrase of the Article itself:

“ Notre article devait dono se contenter de dire que l’acceptation résulte de tout fait on de toute déclaration écrite manifestant d’une maniére certaine l’intention d’agir en maitre de la succession.”

Now, in the case at bar, the assumption was, of the title of heir of Juan Truxillo, in an action instituted by us to assert, not any right or claim to his succession, or anything supposed to depend upon it, but in an action to obtain our share in the succession of José: in which action no demand was made or matter presented for argument by us, which could be held in any degree to turn upon the question, whether we were or were not the heirs of Juan Tmxillo, in the technical sense in which the court has interpreted our assumption of that quality. In short, the declaration in our petition, that we were the sole heirs of Juan Truxillo, was language of description merely, used to set forth the affiliation or relationship of plaintiffs to José Truxillo, and, except for that purpose, having no place or significance in the instrument of pleading in which it is found. It was tantamount to declaring Juan Truxillo to be our “ author ” in respect of the rights of heirship claimed by us in the succession of José, but nothing more, it was the equivalent of the words “ suc-cessible ” or “ habile á succéder ” in the examples put by Marcadé. Ibid. 150.

The subject matter of our action being, not the succession of Juan, but that of José, to sustain which, we sought only to trace title through Juan, it certainly cannot be maintained that the use of the language in question amounts even to an act of heirship, much less to a-n express acceptance of the succession of Juan. It is not such an assumption of the quality of heir in a judicial proceeding as is contemplated by Art. 982, and can only be consigned to the same class with the cases supposed by Marcadé, in the passage first cited from that author, and, equally with them, would justify his emphatic language, “ il est bien impossible de prétendre que j’ai accepté. par cela seul que je me suis qualifié d’héritier.”

Two cases from our own reports having been cited by defendant, viz: Lescesne v. Cottin, 2 N. S. 475, and Frazier v. Hills, 5 A. R. 114, it is only necessary to state, that in both of them the subject matter of the “judicial proceedings ” was the succession with reference to which the quality of heir had been assumed and that in neither, was there any room to doubt of the intention of the party, “ d’agir en maitre de la succession.” In short, the state of facts was just what we contend that it must be, to give rise to the application of Art. 982.

We submit then that the court has inadvertently given to the declaration relied on, taken in connection with the instrument of pleading in which it is found and weighed with reference to the object and purpose of our suit, a meaning and effect which do not belong to it; and that the court has evidently been led into that error by the state of facts developed by the defense with which our action was met and resisted.”

A re-hearing having been granted, the judgment of the court was pronounced by

Merrick, O. J.

(Spofford, J., and Lea, J., dissenting.) The plaintiffs, not content with describing themselves in their petition as children and representatives of Juan Truxillo, deceased, further aver, that they are “ the only children and sole heirs of said Juan, deceased.” This allegation was no doubt introduced out of abundant caution, and to strengthen ¿¡he plaintiffs case not only on the ground that they, the plaintiffs, represented Juan Truxillo, but because they were also his heirs.

Article 982 of the Code declares, that the simple acceptance of a succession may be either express or tacit; that it is express when the heir assumes the quality of heir in an unqualified manner, in some authentic or private instrument, or in some judicial proceeding. We understand a petition to he a judicial proceeding, and think the expression referred to was intentionally introduced into plaintiffs petition at the time it was drafted, but perhaps without a very accurate knowledge of the condition of the succession of Juan Truxillo, deceased.

La loi considére également comine une acceptation expresse le fait du suc-cessible qui prend, d’une maniere méme purement énonciative le titre d’héri-tier dans un acte, soit authentique ou sous'seing privé, soit judiciaire ou extra-judiciaire. 2 Zacharise, sec. 611. Sirey, 88, 2. 349 Limoges, 19 February, 1881.

We attach no importance to the exception filed by the defendant, 21st of March, 1858, that the plaintiffs had not accepted the succession of Joseph Truxillo.

It is therefore ordered by the court, that the judgment heretofore pronounced in this case, by this court, remain undisturbed.

Spofford, J.,

with whom concurred Lea, J., dissenting. A closer examination of the petition has led me to the conclusion, that the plaintiffs have not therein assumed the quality of heirs of Juan Truxillo, in such an “ unqualified manner” as to denote their acceptance of his succession as heirs pure and simple.

Their language, it strikes me, is that of description merely, used only for the purpose of tracing their rights to inherit from José Trwxillo, through his predeceased brother Juan. The succession of Juan does not seem to have been in their thoughts.

In Anderson v. Cox, 6 An. 13, it was held “that the judicial proceedings meant by Article 982, C. C., are those in which the heir appears to claim, as such, some right in the succession.” This means, of course, some right in the' succession in regard to which he assumes the quality of heir. Now, the plaintiffs claim no rights to the succession of their-ancestor Juan; they refer to him, only to show that, through him, they are entitled to inherit from his brother José ; it is José’s succession alone of which they assume the quality of heirs in the manner intended by Article 982 of the Louisiana Code.

This article was taken from Article 778 of the French Code: and the commentators upon that code, generally recognize the distinction upon which it seems to me this case should turn, a distinction pointedly made in the case of Anderson v. Cox.

Thus, Zacharim (tome ii, §611) says: “Bien qu’en general, tout acte ins-truméntame dans lequel un successible a prls, d’une maniére énonciative, le titre d’héritior, emporto virtuellement acceptation expresso de l’hérédité, il en serait cependant autvement * * * s’il résultait évidemment des circonstances quede terme hérilier a été employe comme synonime de successible ou d’habile d se dire Mritier.”

So Touiliier (tomo ii, Deuxiéme Partie, No. 325)-: “Le titre d’héritier n’en imprime done pas irrévocablement le caractére; il ne constitue l’acceptation que lorsqu’il a été pris par un habile á succéder, dans Vintention d’accepter la succession et de s’obliger aux charges qu'elle impose.”

So Rogron, commenting upon Article 778 Code Civil: “ On peut quelque-iois prendre cette qualité sans avoir voulu accepter.”

And Márcadé, in his lucid commentary upon Article 778, is still more emphatic : “De méme, ce sera uniquement la manifestation d’une intention eer taine qui pourra constituer l’acceptation expresse; et il ne suffirait pastoujours que le successible eut pris dans un acto la qualité ,d’héritier. En eff'et, 1c mot Mritier, non pas seulement dans le monde, mais dans le code lui-méme, si-gnifle tantót celui á qui l’hérédité est irrévocablement acquise, tantót celui-lá seulement qui est appelé á la recueillir et qui est libro de l’accepter ou de la répudier, tantót memo celui qui a formellement déclaré n’en pas vouloir ; e’est ainsi que l’Art. 790, nous parle des ‘héritiers qui ont renoncé.’ S’il en est ainsi, il est bien impossible de prétendre que j’ai accepté, par cela seul que je suis qualiflé d’héritier; et la premiere partie de l’article est encore plus mal rédigée que la seconde.” Tome iii, No. 204. Again: “ Notre Article (778) devait done se eontenter de dire que l’acoeptation résulte de tout fait, ou de toute declaration écrite, manifestant d’une maniére certaine l’intention d’agir en maitre de la succession.” Tome iii, No. 205.

This being a mixed question of law and fact, it is proper to observe that Juan Truxillo died on the 23d of February, 1843, that the petition in this case was filed on the 10th of March, 1853, and that nothing else is relied upon to show that the plaintiffs have accepted the succession of Juan purely and simply, but the descriptive words in this petition, the solo object of which is to claim a portion of the succession of José Truxillo, through the deceased Juan.

It appears to me, moreover, that the defendants are estopped to say, that the plaintiffs have expressly accepted Juan’s succession in their petition, because, on the 21st of March, 1853, they filed an exception, in which they averred that “ the plaintiffs having always refused to accept the succession of their uncle, José Truxillo, and the said succession having been duly settled and administered, they have no right to institute this action before legally declaring their intention to accept said succession, and to incur all liability as said heirs by representation of their father, Juan Trnxillo.”

I therefore think that the judgment should be set aside.


author: Bdohanan, J.

text:
    M. C. Lisk v. M. A. Mathis.
    Action of damages for a malicious arrest and imprisonment. Damages disallowed.
    APPEAL from the Fourth District Court, of New Orleans, Reynolds, J.

      Wolfe & Singleton, for plaintiff*. Race & Foster, for defendant and appellant.
   Bdohanan, J.

This is an action sounding in damages for a malicious arrest and imprisonment, upon the following affidavit:

Before me, Elihu Terry, a Justice of the Peace in and for the parish of Carroll, State of Louisiana, on this 25th day of January, 1853, personally appeared Marshall A. Mathis, who being first duly sworn, says, that a man named Manly P. Lisk is fraudulently and unlawfully in possession of the wreck of the steamboat Western World, at the foot of Island No. 93. in the Mississippi River, and that the said Lisk is engaged, contrary to law, in removing the cargo and other property from said wreck. Deponent further says, that he is the duly authorized agent of the several Insurance Companies interested in said wreck, and cargo, and that the said Lisk persists in holding possession of said cargo, contrary to the wishes of deponent, and in defiance of law, and is fraudulently and feloniously carrying away and removing portions of the freight, &c, from said wreck.”

Upon this affidavit a warrant was issued for the arrest of Lisk, and he was brought before the magistrate, who, after a full examination of the witnesses, bound Lisle over for his appearance before the District Court of Carroll Parish. He remained one night in prison, before giving the bail required by the magistrate, which was three hundred dollars. A bill of indictment was laid before the Grand Jury at the next term of the court, which ignored the same.

Plaintiff alleges that the allegations in the affidavit contained are utterly false ; and that defendant knowingly and with malice availed himself of the forms of law, to persecute plaintiff, to break him up in a rival business, and to deprive him of his liberty. He claims ten thousand dollars damages.

The answer of defendant denies malice, asserts that there was probable cause for the prosecution of Lisk, and sets forth in detail the facts, as they were after-wards established by proof on the trial.

The jury gave five hundred dollars damages to plaintiff; and defendant appeals.

The evidence shows that the steamboat Western World was sunk in the Mississippi River about the middle of December, 1852. The wreck lodged or grounded on a bar near Island 93, where she was covered with water by a rise in the river. The Western World and her cargo were insured in various offices in New Orleans and St. Louis; and the defendant Mathis was authorized by all the underwriters of the vessel and cargo to take possession of and save what could be saved from the wreck, for their account. We must suppose that the insured had abandoned, and that the abandonment had been accepted. The underwriters were therefore the owners of the sunken property, and had the right to dispose of and control it; and defendant, who is a proprietor of diving bells, and follows the business of wrecking, was their duly authorized agent in the premises. Having this authority, defendant presented himself at the scene of the accident, ascertained the position of the wreck, (then under water), fixed land marks pointing out that position, and' went down the river for his diving bell boats, with which to commence operations; leaving a person residing in the neighborhood in charge for him. A few days after defendant’s departure, the plaintiff, who is also a wrecker by profession, came to the place with a diving-bell boat, and inquired for the situation of the Western World, telling.defendant’s agent that he (plaintiff) wanted to wreck her. Defendant’s agent inquired of plaintiff where defendant was, and was answered by plaintiff that defendant’s boats were destroyed, and that defendant was not coming back to the wreck. Defendant’s agent then inquired of plaintiff if he was authorized to take possession of the wreck, and was answered that he. was; whereupon the agent showed plaintiff the landmarks of the wreck, and plaintiff anchored his boat over it. Some days after this, defendant returned and. claimed possession of the wreck, but was set at defiance by plaintiff, who no longer pretended any authority from the owners, but placed himself upon a pretended custom of wreckers, as being the first in possession. Defendant then went before a magistrate and made the affidavit for plaintiff’s arrest. The officer who arrested plaintiff proves that in quitting his diving bell boat, he told his crew that they were anchored ©ver the Western World, and to hold possession until his return.

Under these circumstances, we view this as one of the most unfounded churn's for damages for a malicious arrest, that has ever come before us. The plaintiff) by false statements, obtained possession of property which was in the charge of defendant for its lawful owners. The defendant, instead of resorting to violence to regain possession, a course of proceeding unfortunately too common o-n our western rivers, testified his respect for the laws by resorting to the aid of tfc magistrate against a trespasser and a wrong-doer. For the plaintiff has not even attempted to prove that he had any authority frpm the owners of the property sunk. His counsel have argued the case upon principles which »nly apply to property derelict and abandoned; which was not at all the case in referenc© to the property in question.

It is needless that we should cite the authorities which declare that malice and want of probable cause are indispensable prerequisites to recovery in this sort of action. The petition contains allegations of malice and want of probable cause; but the proof is more than deficient; it is contrary to these allegations. It is true, plaintiff had not yet taken out any of the cargo of the Western World at the time defendant made his affidavit. But his acts and his declarations alike rendered it positive that he was about doing so. He had made all his preparations for the purpose. And there can be no doubt that the only thing which prevented its accomplishment, was plaintiff’s arrest. It would be of the worst example, to punish this defendant for resorting to law for the protection of his rights, rather than taking the chances of a resort to arms, or tamely abandoning the field to an usurper.

Judgment reversed; and judgment is hereby rendered for defendant, with costs in both courts.


text:
    City of New Orleans v. B. Saloy.
    Suit for taxes. Defendant excepted that he had been cited as B. Salan/. Exception overruled, and citation ordered to be amended nunc pro time. By the court: In a matter of taxes where the party appears, as in this instance, and admits he is cited, we think the court might well order the correction of the name, where merely inaccurately spelled, instanter, and proceed with the cause. The case might be different where judgment was taken in a proceeding of this kind against a party, in his absence, by a wrong name.
    Ü PPEAL from the Fifth District Court of New Orleans, Augustin. J.

      O. & C. E. Schmidt and Hiesland & Levy, for plaintiff. Saloy, for defendant and appellant.
   Merrick, C. J.

This suit is brought to recover city taxes. It was commenced by publication in the newspaper, in conformity to the thirty-fifth section of the Act of 1852, p. 52.

In the lower court, the defendant filed an exception which commences in these words, viz:

“ The defendant, B. Saloy, excepts to the proceedings in the above suit, and says that he has not been properly cited, inasmuch as the official tax list in which the names of delinquent tax payers are advertised., cites him to appear by the name of B; Salay, whereas he avers that his real name is Bertrand Saloy.”

The court overruled the exception, ordering the citatio-n to be amended nunc pro tunc, and that the name be considered B. Saloy in conformity with the petition filed.

The defendant appeals from the final judgment condemning him to pay $504 taxes.

The exception shows that the defendant was not misled by the error in the name as published. He only complains that he was cited by a name which was spelled wrong. In a matter of taxes where the party appears, as in this instance, and admits that he is cited, we think the court might well order the correction of the name when merely inaccurately spelled, instanter, and proceed with the cause. Lalande v. Terrel, 12 L. R., p. 9.

The case might be different where judgment was taken in a proceeding of this kind, against a party, in his absence, by a wrong name.

Judgment affirmed.


author: Buchanan, J.

text:
    Heirs of Oliver H. Spencer v. Executors of John McDonogh et al.
    A curator ad hoc, whose appointment is superseded before trial, has no capacity to take an appeal, and the subsequent filing of an appeal bond by the proper agents of the party in interest, without a petition and citation, or motion for an appeal, will not constitute a valid appeal.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      G. B. Duncan, for plaintiffs. Bovford and Livingston, for defendants and appellants.
   Buchanan, J.

It is needless to examine this motion as to the city of New Orleans, appellant, for although there are many supposable cases where the previous authorization, by resolution, of the City Council, would be required for the institution of a suit, yet when a suit is instituted against the city, and has been defended in the lower court by the City Attorney, whoso quality is not disputed, it will be inferred that he has been authorized to carry the case by appeal to. the Supreme Court, in case of a judgment adverse to the city.

But as to the city of Baltimore, the petition of appeal has been presented by one evidently without capacity — a curator ad hoe appointed by the court in the first stages of the suit, whose appointment had been superseded before the trial of the cause.

An attenipt has been made to cure this defect by giving an appeal bond, under an order of the District Court, in the name of the agents of the city of Baltimore residing in New Orleans.

But it is clear that the requirements of the law, for a valid appeal, have not been fulfilled.'

There ave only two modes of appealing known to the law, to wit: by petition and citation, according to the Code of Practice ; and by motion, according to the Act of 1843.

In this case, the appeal was by petition and citation ; a petition, filed on the 29th March, 1856, purporting to bo that of “the city of Baltimore, represented by J. Livingston, the attorney appointed to represent the city of Baltimore”— and we have already seen that Mr. Livingston had, at that time, no capacity to represent the city of Baltimore; a citation issued upon that petition, and served the 2d April, 1856.

When (upon a motion of appellees to dismiss the appeal, among other grounds, because Mr. Livingston's appointment of curator ad hoc had been superseded, and his consequent want of capacity to. represent the city of Baltimore in taking an appeal) the District Court rendered its judgment, on the 8th April, 3856, allowing the city of Baltimore to file another appeal bond, signed by its proper representatives, a petition was presented on the 12th April in the following words:

“ To the Honorable Judge of the Fifth District Court of New Orleans, the petition of Brantz Meyer, J. L. PeterMn and W. L. Emory, representing the city of Baltimore, respectfully represents, that in obedience to the order of the court, made on motion to dismiss the appeal herein taken in the name of J. Livingston, Esq., curator ad hoc, they present the annexed appeal bond, and pray that the same be filed in conformity with said order. And they pray for general relief.”

This petition is, in no sense, a petition of appeal. Code Practice, Art. 573. It asked for no citation to be issued, and no citation was in fact issued upon it, neither was any motion made for an appeal. We have, therefore, before us no appeal on behalf of the city of Baltimore in either of the modes recognized by law. The only petition and citation of appeal in the record, are nullities, which never bound the city of Baltimore, and cannot therefore be considered as binding upon the plaintiffs.

Rule absolute and appeal dismissed as to the city of Baltimore; and rule discharged as to the city of New Orleans.


author: Spoffokd, J.

text:
    The State v. John Johnston
    Generally speaking, the Supreme Court is inhibited by the restraints of the Constitution from entering upon such inquiries as are necessaiyto determíne a question of continuance in a criminal case. In such cases its jurisdiction is limited to questions of law alone. The propriety of granting or withholding a continuance in most criminal cases, depends wholly upon facts within the knowledge of the District Judge, but not cognizable in the Supreme Court. The only proper mode of bringing the subject before the Supreme Court, is by a bill of exceptions which will show affirmatively upon its face that the ruling of the District Court was predicated exclusively upon a matter of law in which the court erred.
    The non-attendance of jurors who had been summoned, but not excused, is not good cause for a continuance.
    A bill of exceptions was taken to the refusal of the District Judge to grant a continuance because the prisoner had been served with a list of jurors, upon which were the names of three jurors who had been excused for the term prior to the service of the jury list. By the Court: Although in these matters affecfing life and liberty, the clerks of courts cannot be too particular in the discharge of their duties, and should be held to strict accountability for their negligence, still we are not prepared to say that the accidental insertion of the names of three jurors who had been excused for cause in a list of eighty two, could have confused or embarrassed the prisoner in regard to his challenges. Before the trial he knew that those three were excused. He averred no surprise. He did not allege that the absence of the three jurors entailed any embarrassment upon him in getting an impartial jury. We have no reason to suppose that he was surprised or confused by the failure of the clerk to omit the names of three excused persons. All the jurors who had been summoned, and none who had not been summoned, figured upon the list; and we think the statute requiring a list of the jury who are to pass upon his trial to be served upon the prisoner, was sufficiently complied with.
    jCJl PPEAL from the First District Court of New Orleans, Robertson, J.

      Moise, Attorney General. Larue and Field, for appellant.
   Spoffokd, J.

John Johnston has appealed from the judgment of the First District Court of New Orleans, sentencing him to imprisonment at hard labor for the term of eighteen years, for the crime of manslaughter, of which he was found guilty under an indictment for murder.

I. He complains that tiie court erred in overruling- his motion for a continuance to procure the testimony of an absent witness.

This matter of continuances in criminal eases rests so much in discretion, a discretion generally to be regulated by a state of facts peculiarly within the cognizance of the judges of the first instance, that this court has, on numerous occasions, disclaimed the right to interfere with their rulings upon the subject. State v. Hunt, 4 An., 438; State v. Long, Ib., 441; State v. Brette, 6 An., 661; State v. Cazeau, 8 An., 114; State v. Muldoon, 9 An., 24.

Generally speaking, this court is inhibited by the restraints of the constitution from entering upon such inquiries as are necessary to determine a question of continuance in a criminal case. In such cases its jurisdiction extends to questions of law alone. Const., Art. 62. The propriety of granting or withholding a continuance in most criminal eases, depends wholly upon facts within the knowledge of the District Judge, hut not cognizable here. The only proper mode of bringing the subject before this court is by a bill of exceptions which will show affirmatively upon its face that the ruling of the District Court was predicated exclusively upon a matter of law in which the court erred.

II. The prisoner objected to going to trial because the jury list served upon him was defective. And he assigns for error the ruling of the District Court which compelled him to go to trial notwithstanding his objections.

Two defects are relied upon: 1st, that the list contained the names of many jurors who had not attended court during the term, and were not present on the day of trial; and 2dly, because the list contained the names of three jurors who had been excused from serving for the term, prior to the service of the jury list upon the prisoner.

We infer that all the persons upon, the list had been duly summoned, as it is not denied.

The first objection is met and answered by. the ease of the State v. Howell, 3 An., 51, upon which the prisoner relies. Such a Contingency as the non-attendance of some of the jurors who had been summoned and not excused was there anticipated and declared to be insufficient ground for postponing the trial. It was said that “ the inconvenience to' which the prisoner may be subjected in the event of the failure of jurors to attend from unforeseen causes, is one to which he must necessarily submit while deriving the benefit of the statute. It is one of those unavoidable evils which no legislative foresight can provide against, but can never be serious, the number of jurors 'selected at each drawing being limited. The object of the law will be fulfilled if the prisoner be furnished with a list which is correct at the time of its delivery.”

The defendant relies upon the last sentence of this extract to sustain his objection that three excused jurors figured upon the list served upon him, a list embracing eighty-two names.

We do not think the case of the State v. Hoivell supports any such construction of the,statute, which merely requires that “ a list of the jury which are to pass on his trial shall be delivered to the accused at least two entire days before the trial.” Acts 1855, p. 152, sec. 17. In the State v. Howell, the list served upon the prisoner “ contained the names of one hundred and fifty-six persons, of whom one hundred and twenty had been either previously excused or were not summoned, or were exempted by law from serving on juries, and had made known their causes of exemption. It was known to the officers of court at the time the list was served, that those one hundred and twenty persons would not be in attendance, or offered to the prisoner at the trial.”

Upon this state of facts it was well determined that the spirit of the law requiring a service of the jury list had not been complied with; that the erroneous insertion of one hundred and twenty names in a list of one hundred and fifty-six had a tendency to surprise and embarrass the prisoner in the exercise of his riarht to challenge jurors, his challenges having been prepared with reference to the extravagantly erroneous list served upon him.

But, although in these matters affecting life and liberty, the clerks of courts cannot be too particular in the discharge of their duties, and should be held to strict accountability for their negligence, still we are not prepared to say that the accidental insertion of the names of three jurors who had been excused for cause, in a list of eighty-two, could have confused or embarrassed the prisoner in regard to his challenges. Before the trial, he knew that those three were excused. He averred no surprise. He did not allege that the absence of the three.jurors entailed any embarrassment upon him in getting an impartial jury. We have no reason to suppose that he was surprised or confused by the failure of the clerk to omit the names of three excused persons. All the jurors who had been summoned, and none who had not been summoned figured upon the. list; and we think the statute requiring a list of the jury who are to pass upon his trial to be served upon the prisoner, was sufficiently complied with. See State v. White, 7 An., 532; Boles v. The State, 2 Cushman, 450.

Judgment affirmed with costs.


author: Spofford, J.

text:
    Delphine, f. w. c., v. Mad. Widow Guillet et al.
    The plaintiff was, by will, directed to be emancipated as soon as she could be. She sued for her freedom. It was objected that she could not have a decree ordering the defendants to enfranchise her because she had not prayed for it. Held: The prayer for general relief was sufficient.
    Plaintiff offered to prove that she was of good chai'acter and sober habits, and had always behaved well and conducted herself respectfully towards white persons ; to the reception of which evidence defendants objected, on the ground that no such allegations were made in the petition, which objection was sustained by the District Court. Held: The defendants, by their answer, having put plaintih’s character and fitness for emancipation at issue, the testimony should' have been received.
    xJL PPEAL from the Second District Court of New Orleans, Lea, J.
    xJL Duvigneaud and Collins, for plaintiff. J. & B. Bermudez, for defendants and appellants.
   Spofford, J.

In 1889, Aimé Quillet made his last will in the olographic form, which contains the following clause among the bequests to his wife: “ Je lui reeonnais en outre de ce, trois de nos domestiques a son choix, á l’exception d’une jeune enfant nomrnée Delphine, ágée de six á sept ans, et née de notre domestique appelée communcment Mimi, a qui je donne par le présent la liberté et qui sera émancipée par ma femme le plutót que fai.re se pourra.”

In 1847, the testator having died, the will was duly proved.

In 1854, Delphine brought this suit against the widow and heirs of Aimé Quillet, in which she invokes the benefit of the testamentary disposition in her favor', alleges that she has often applied to the Widow Guiltel to emancipate her, according to the will, but has met with a refusal, and prays that she he decreed by the court to he free, and for all such other relief as the nature of the ease or equity may require.

The answer of the defendants admitted the bequest, but averred that the plaintiff was not then twenty-one years of age; that by law she could not he emancipated until she attained the age of thirty years, and that (he respondents could assign no motive to the Police Jury or Municipality of New Orleans to enable them to authorize her emancipation sooner, nor could they consistently with duty declare that the said Delphine had behaved well any four years since the 28th August, 1839, the date of the will.

The plaintiff prayed for a trial by jury, and there was a verdict in these words. “We, the jury, find that the plaintiff is not free, hut that, under the will of Guillel, she is entitled to her freedom, and require that the defendant he instructed to institute such proceedings as will ensure the emancipation of the plaintiff.”

There was a judgment ordering the defendants to institute such proceedings without delay, and they have appealed.

It is now intimated that the plaintiff was a minor, and should have been assisted by a curator to give validity to the proceedings.

No exception was pleaded to her right to sue unassisted. If the law of minority intended for free persons could he held to extend to one in her condition, she has now attained the age of twenty-one years, and does not require the intervention of a curator.

It is said that the plaintiff has mistaken her right, and should therefore become non-suit; that she has alleged herself to he absolutely free, and that, as she is only a statu liber, she cannot have a decree ordering the defendants to enfranchise her, because she has not specially asked it.

In a suit of this character, the prayer for general relief suggests a sufficient answer to such an objection. '

But the policy of the State has annexed conditions to the enfranchisement of slaves which the courts cannot permit to be disregarded. This the testator evidently knew, for he did not think the manumission would become complete under the will by the event of his death; he diracted his wife to emancipate Delphine so soon as it should become practicable.

According to judicial precedents, this bequest gave Delphine an inchoate right, a right which could be enforced in her favor by the tribunals when a proper time should arrive. But to secure the completion of her enfranchisement, she should show that it has become lawful.

We do not find the requisite proof in the record. But it is, probably, owing to the fault of the appellants in objecting to testimony which we think was erroneously rejected.

By a bill of exceptions we learn that the plaintiff offered to prove by witnesses that she was of good character and sober habits, and had always behaved well and conducted herself respectfully towards white persons, whereupon the defendant objected, on the ground that said facts were not alleged in the petition, and that the action was brought merely to have the plaintiff declared to be free, which objections were sustained by the court.

. The defendants themselves, by their answer, had put the plaintiff’s character and fitness for emancipation at issue, and we therefore think the testimony should have been received. '

Were this an ordinary case of private right, we might perhaps have presumed that the plaintiff was able to establish the facts which the defendants improperly objected to as inadmissible in evidence; but as it concerns the public that none but worthy persons should be admitted to the Status of freemen, it is our duty to exact the proof.

As the necessity for remanding the cause was occasioned by the act of the appellants in objecting to proper testimony, they must pay the costs of this appeal. Smith v. Leake, 4 L., 297; Parmele & Baker v. Johnstone, 15 L., 429.

It is therefore ordered, that the judgment of the District Court be avoided and reversed, and the cause remanded for a new trial according to law, the costs of appeal to be paid by the defendants and appellants.


text:
    Daniel Frederich v. Ralli & Co.
    The duty of a clerk is to treat his employer with respeót, and not to insult or wantonly offend those who come to the establishment to transact business. A course of conduct on the part of the clerk inconsistent with this obligation, is certainly one of the very best reasons that can exist for dissolving the contract. '

    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Durant & Eornor, for plaintiff. Benjamin, Bradford & Finney, for defendants and appellants.
   Buchanan, J.

The plaintiff was bookkeeper in the commercial house of the defendants, at a salary of fifteen hundred dollars a year. The yearly term appears to have finished on the 30fch June. On the 9th June, 1852, the defendants by letter informed plaintiff that in addition to this salary they would thenceforth allow him a gratification of five hundred dollars, which would make his salary two thousand dollars year.

We understand this increased salary, as intended by the parties, and as also appears by an extract from the books, and by an account furnished by plaintiff himself, to run from the 1st July, 1852, being the commencement of the new year then next ensuing.

On the 4th August, 1854, defendants discharged plaintiff from their service, informing him at the same time that his salary would be allowed him to the end of the current month. This suit is brought for the whole of the salary of the year commencing 1st July, 1854, and ending 30th June, 1855. The defendants plead that they had serious causes of complaint against the plaintiff, which justified them in discharging him before the term of his engagement expired.

They enumerate four grounds of complaint, of which it is only necessary to notice the first, which is as follows: “ Habitual insolence to his employers, and habitually rude and offensive conduct to persons coming into the office, to such a degree as to prevent the friends and customers of the house from coming into their office.”

This charge is established to our satisfaction by the testimony of several witnesses. The defendants appear indeed to have exercised an extraordinary degree of forbearance towards the plaintiff, and to have tolerated for a long time conduct most unbecoming the relation which plaintiff occupied towards defendants, an indulgence which can only be attributed to the age of the plaintiff (sixty years) and his business capacities.

The duty of a clerk is undoubtedly to treat his employer’s with respect, and not to insult or wantonly offend those who come to the establishment to transact business. A course of conduct on the part of the clerk inconsistent with this obligation is certainly one of the very best reasons that ca.n exist for dissolving the contract. See the case of Kearney v. Holmes, 6 An., 378.

The plaintiffs have tendered in their answer, and deposited in court a sum of money equal to the amount of the plaintiff’s wages to the day of his discharge, with the costs to the day of tender. They must, therefore, be absolved from the payment of any ulterior costs.

Judgment of the District Court reversed, and judgment for plaintiff, against defendants, for three hundred and sixty-five dollars and thirty-six cents; the plaintiff and appellee to pay costs in both courts,


author: Merrick, 0. J.

text:
    McCan & Patterson v. Steamer Robert J. Ward et al.
    'When the engineer of a steamer directed the manner in which certain repairs to the engine were to be made, in a matter in which his own knowledge was. supposed to be superior to the persons employed by him, and directly against their opinion and advice, such persons cannot be held liable for the imperfection of the repairs.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.

      Durant & Honor, for plaintiffs. T. B. Han't, for defendants and appellants.
   Merrick, 0. J.

This case is before us on appeal by the defendants from a judgment dismissing- their reconventional demand.

They employed the plaintiff to fit a piston-head, furnished by themselves, to the rod of one of the engines of the R. J; Ward. The engineer of the boat attended the work, and gave the directions as to the manner in which it should be done. The plaintiffs proposed to put the head on hot, as usual at that shop, in order that it might become fast by contraction. The engineer of the boat directed that it should be driven on cold and keyed. The work was done in accordance with the directions of the engineer, was taken to the boat and put in its placp by the engineer.

The Robert J. Ward had not proceeded more than fifteen or eighteen miles on her trip up the river before the piston-head came loose, and the boat was detained twelve hours until the same could be repaired.

The reconventional demand is for damages occasioned by that detention.

The law of this case is well settled by one of the witnesses. He says: “As a general rule, the engineer, by giving the direction, assumes the responsibility as to the mode of doing the work. If he superintends it, and receives it without objection, witness conceives that he assumes the entire responsibility.”

In the case before us, the engineer having directed the manner in which the work was to be done in a matter in which his knowledge was supposed to be superior to that of the persons employed by him, and directly against the opinion and advice of those persons, there can be no reasonable ground on which to hold them liable.

Judgment affirmed.


author: Vookhies, J.

text:
    A. Brousseau & Co. v. Ship Hudson, Captain and Owners.
    Action to recover damages fox-injury caused to goods by the bursting of casks containing chloride of lime. (By the Court: Where the common carrier is unable to make good his defence upon some of the grounds which form exceptions to his liability, it is clear he must pay the loss, although not chargeable with any negligence whatsoever; and in fact, even where he has exercised every possible diligence to prevent the loss. He is also liable for a loss occasioned by an acci-. dent arising from any unseen nuisance in the course of his navigation.
    As the damage in this case was not caused by superior force, (force mayeure,) or by accident, (cas-fortuity defendants are liable.
    As between, the shipper and the master, the legal presumption arises from the bill of lading, thal the goods were in good condition, but such presumption cannot affect third persons.
    Code 2725.

      APPEAL from the Second District Court of New Orleans, Lea, J.

      Jlcmner & Hays, for plaintiffs. Wolfe & Singleton,, for defendants and appellants.
   Vookhies, J.

This is an action to recover the sum of $991 84, the alleged damage of four bales of carpeting shipped at New York on hoard of the ship Hudson, to be delivered to the plaintiffs at New Orleans.

The fact that the alleged damage was occasioned by the bursting of four casks of chloride of lime in the hold of the vessel, appears to be conceded. The cause of the accident, it would seem, has been attributed to an excess of unslacked lime in the composition of the chloride.

A witness in the employment of the ship’s husband, testified to the fact of the importation of chloride of lime for upwards of twenty years, and that the bursting of a cask had never occurred before.

The question then arises, are the defendants legally responsible for the damage? Their liability is resisted on the ground, that they were bound, as common carriers, by the usage of the trade, to receive and stow the chloride of,lime in the hold of the vessel, as other goods, for transportation; and hence the plaintiffs must be presumed to have known it, and consented to have their goods stowed with the chloride of lime. The cargo, it is urged, was well stowed, and no neglect was imputable to the defendants.

We think it is immaterial to the decision of the case, whether the alleged usage existed or not.

Under our code, common carriers are liable for the loss or damage of the things intrusted to their care, unless it be shown by 'them, that such loss or damage was occasioned “by accidental and uncontrollable events (par easfor-tm.it, on force majeure)." Art. 2725, 1 R. R. 410. The term vis major (superior force) is used in the civil law in the same way that the words “ act of God” are used in the common law, and so also is the term casus fortuitus. By the act of God is meant inevitable accident or casualty. “ By inevitable accident is meant-anj' accident produced by any physical cause, which is irresistible ; such as a loss by lightning or storms, by the perils of the seas, by an inundation, or earthquake, or by sudden death or illness. By irresistible force is meant, such an interposition of human agency, as is, from its nature and power, absolutely uncontrollable.” Story, Bailments, §§ 25, 489, 511. Angell, Law of Carriers, § 154. The term “ by the act of God,” was construed by the Superior Court of Errors and Appeals of Delaware, 4 Han. R. 448, to mean “ such inevitable accident as cannot be prevented by human care, skill, or foresight; but results from natural causes, such as lightnings and tempests, floods and inundation.” “ To prevent litigation, the law presumes against a carrier in every case, except such as could not happen by the intervention of human means. Ang., Law of Carriers, § 154. Where the common carrier is unable to make good his defence upon some of the grounds which form exceptions to his liability, it is clear that he must pay the loss, although not chargeable with any negligence whatsoever; and, in fact, even where ho has exercised every possible diligence to prevent the loss. He is also liable for a loss occasioned by an accident arising from any unseen nuisance in the course of his navigation. Story, Law of Bailments, §§ 528, 517, 518. 3 Kent’s Com. (2d edition) 299. Emerigon, Insurances, 285. Hemp taking fire in a state of effervescence may be mentioned as an instance of loss which is not attributable to a cas fortuit.

From the principles advanced in these authorities, we think it clearly follows, as a natural deduction, that the damage in this case cannot be considered, in a legal sense, to have been occasioned either by superior force, force mageure, or by 'accident, cas fortuit. Every case, as we have seen, which might have been foreseen and avoided, is not a fortuitous one. Moreover, it is proper to remark, that there is not a tittle of evidence showing the condition of the casks, containing the chloride of lime, when stowed in the hold of the vessel. It is true, as between the shipper of the article arid the master, the legal presumption arises from the bill of ladings that the goods were in good condition, but such presumption cannot affect third persons.

Judgment affirmed, with costs-.


author: Spoffokd, J. Merrick, C. J.

text:
    The State v. Richard Scott.
    Bill of exceptions to the refusal of the court to charge that “ the jury are not the judges of the lair and fact in a criminal case, but must take the law as laid down by the court” — Held: The charge asked for was erroneous. By the Court: In both civil and criminal cases, the jury are judges of the law and the fact; otherwise it would be impossible for them to render a general verdict in
    any case.
    It is in general safe, as it is in conformity with the theory and the presumptions of our criminal jurisprudence, for the jury to regard the exposition of the law given by the court as correct and decisive — but they are under no compulsion to do* so. They not only have the physical power to disregard the instructions of the court, but there might be extreme cases where it would be right to exercise the power. Still the statutes require the Judge to expound the law to the jury and, in general, they will do well to heed it as authoritative.
    -ÍJL PPEAL from tho First District Court, Bobertson, J.

      Mo'ise, Attorney General. Henderson, Jr., and Field, for appellant.
   Spoffokd, J.

The defendant having been found “ guilty without capital punishment,” under an indictment for murder, was sentenced to imprisonment at hard labor for life.

He has appealed, and now seeks, to reverse the judgment of the inferior court for various alleged errors.

It is only necessary to notice/one.

A bill of exceptions declares, that on the trial of this case before a jury, the court instructed the jury in these words: “ The jury are not the judges of the law and fact in a criminal case, but must take the law as laid down by the court.”

The charge was erroneous, and has not been fortified by the citation of a single precedent.

In both civil and criminal cases, the jury are judges of the law and the fact; otherwise it would be impossible for them to render a general verdict in any case. Tresca v. Maddox, ante p. 206. The State v. Ballerio, ante p. 81. Bostwick v. Gasquet, 10 Rob. 81.

In the case of Ballerio, the Judge merely refused to give a charge, which, if unexplained, might have left an erroneous impression upon the minds of the jurors; and we held, that there was no such error in declining to give the instructions asked, as would authorize us to avoid a verdict rendered after a strictly legal charge..

But here is an instruction that is absolutely erroneous; and we are bound to presume that it operated prejudicially to the prisoner.

Our view upon the respective provinces of the court and jury, are expressed with sufficient fullness in the case of Ballerio.

It is in general safe, as it is in conformity with the theory and presumptions of our criminal jurisprudence, for the jury to regard the exposition of the law given by the court, as correct and decisive; but they are under no compulsion to do so. They not only have the physical power to disregard the instructions of the court, but there might be extreme cases where it would be right to exercise the power. Still tile statutes require the Judge to expound the law to the jury and, in general, they will do well to heed it as authoritative.

Judgment reversed, and the cause remanded for a new trial, according to law.

Merrick, C. J.

For the reasons given in my dissenting opinion in the case of Ballerio, I concur in the conclusion of the court in this case.


author: Spopeord, J.

text:
    The State v. Joseph Jerry Taylor.
    A mulatto having been examined in chief as a witness for the State — on cross-examination it appeared that he had been a slave, whereupon the prisoner’s counsel called on the courtto exclude his testimony, there being no evidence that he had been emancipated. Held: the objection came too late — there being no averment that the incompetency of the witness was not known before the examination in chief. The color of the witness would naturally have suggested an inquiry into his condition onhiswir dwe; and as the prisoner had a person in courtto prove that the witness had once been a slave, there could have been no surprise when, on the cross-examination, the witness testified to that fact. The prisoner could not be permitted thus to take the chances of the witness’ testimony if it had been favorable to him, reserving the right to objeetto his testimony if unfavorable.
    Where the objection to the competency of the witness arises from 7ds own examination, he may be further interrogated to facts tending to remove the objection, though the testimony might, on other grounds, be inadmissible. When the whole ground of the objection comes from himself only, what he says must be taken together, as he says it. j
    i PPEAL from the First District Court of New Orleans, Robertson, J.

      Moise, Attorney General. Field & Wooldridge, for appellant.
   Spopeord, J.

The prisoner, a free man of color, indicted for the murder of a slave, was convicted of manslaughter and sentenced to imprisonment at hard labor for seven years.

Upon appeal to this court he bases his only claim to relief upon a bill of exceptions to a ruling of the District Judge upon a question of evidence.

A mulatto, named Gliarles Robinson, was offered by the State as a witness, and sworn and examined in chief without objection on the part of the defence. In cross-examining the witness, the prisoner’s counsel asked him if he had ever been a slave, to which he replied that he was once the slave of Mrs. Robinson, and since her death, had become free, and was now free, and had been told by many gentlemen that he was free. The Attorney General was then called upon by counsel to produce evidence of the freedom of Charles Robinson} which he declined doing', whereupon the defendant moved to exclude his testimony already given, which the court refused. The prisoner also offered a free man of color, at the same time, to prove that 'Cfhm'les Robinson passed as the slave of Mrs. Robinson ten years ago, which evidence the court refused to hear.

We think the District Judge did not err in refusing to strike out the testimony of the mulatto, Chandes Robinson, which had been received without objection; and this for two reasons; first, because the objection to his competency came too late, and, secondly, because his whole statement upon the cross-examination taken together, shows that he was competent.

I. The objection came too late. There, is no -averment anywhere that the alleged grounds of incompetency were only discovered on the cross-examination and there are reasons to suppose that they were not first discovered then. The defendant has a right to examine the witness upon his voir dire previous to his being sworn in chief; and the color of the witness would naturally suggest an inquiry into his condition. Another reason for supposing that the defendant was not surprised by learning, on the cross-examination, that Charles Robinson had once been a slave, is that he had a witness on hand to prove the fact. Now the defendant cannot be permitted thus to take the chances of the witness’ testimony if it be favorable to him, reserving a right to object to, his competency if unfavorable.

II. In the same breath that the witness stated he was once a slave he stated that he was free. “ When the objection to the competency of the witness arises from his own examination, he may be further interrogated to facts tending to remove the objection, though the testimony might, on other grounds be inadmissible. When the whole ground of the .objection comes from himself only, what he says must be taken together, as he says it.” 1 Green’s Ev. § 422. In the State v. Cecil, 2 M. 208, where even the master was called to prove the incompetency of a witness, and swore that she was once his slave, but he had liberated her, the co'urt could not require the written act of manumission, but remarked that the declaration of the master must be taken in toto and it established her emancipation in the saíne breath. In the case of Roebuck v. Curry, 2 An. 998, relied upon by the appellant, it appears that the objection was taken in limine, and the Judge refused to hear the witness at all until proof of his emancipation. There was a presumption raised that the witness offered was a slave. It could only be removed by legal proof, and the writing was required, which (the court remarked) was stated to be within the immediate reach of the party offering the witness, and who failed to produce it, though time was allowed for the purpose.

III. The case of the appellant was not strengthened by the offer of Louisa J. Parker, f. w. c., as a witness, to prove that the boy, Charles Robinson, passed as the slave of Mrs. Robinson ten years ago; and the court did not err in refusing to'hear her to this fact, because she was not offered until after Charles Robinson had been examined without objection, and there was no allegation or pretence that the fact had just been discovered. “ It was the duty of the party taking a bill of exceptions to state every fact necessary to establish the error complained of. In the absence of such proof, the presumption is in favor of the opinion rendered by the judge a quo.” Porter, J., in Pilié v. Lalande, 7 N. S. 650.

The judgment is, therefore, affirmed with costs.


author: Vookhies, J. Lea, J.

text:
    J. P. Whitney & Co. v. John Gauche.
    Question, of fact as to whether the damage to goods, was before, or after shipment.
    APPEAL from the Sixth District Court, Gotton, J.

      Durant & Honor, for plaintiffs and appellants. Du/our, for defendant-
   Vookhies, J.

The owners of the ship Express sued the defendants on a freight bill for the sum of $937 48. The latter in his answer admitted the correctness of the bill, but claimed a reduction of the sum of $124 87, as ,damage which occured to his goods on their transportation from Liverpool to New Orleans.

This deduction was allowed by the court below, and the plaintiffs appealed. The record discloses that the goods, when delivered to the defendant and unpacked, were found damaged by salt water. One of the witnesses states that a great many articles of crockery, consisting of pitchers, jugs and candlesticks, were broken; that the paper in which they were packed was wet with salt water; that the damage to which crockery is liable, when wet with salt water is, that the salt water tends to rot the straw, so that the articles become loose, and are destroyed by the least handling; and that crockery wet inside of the packages is always damaged. This testimony appears to be corroborated by several other witnesses. In regard to the question of damages to the goods, we think the proof is conclusive. The goods, according to the bill of lading, were shipped in good order and condition by Thomas F. Bennett, on board of the ship Express at Liverpool, on the 18th of July, 1854, to be delivered in like good order and condition to the defendant at New Orleans, all and every the dangers and accidents of the sea and navigation of whatsoever nature and kind excepted.”

The damage to the goods having been established, the burden was then thrown on the plaintiffs to show, that it was occasioned by one of the perils from which they were exempted by the bill of lading. But such is not pretended to have been the case in this instance. The defence rests on the ground that the damage existed previous to the shipment of the goods. It is true that the acknowledgment of the master as to the condition of the goods, extended only to the external condition of the casks, excluding any implication as to then-quantity, quality or condition, or whether properly packed or not in the casks, when received on board. Had the evidence laid a foundation for a reasonable inference, that the damage had occured previous to the shipment of the goods, it is clear that the burden would have been thrown on the defendant to rebut the inference. But we do not think that any such foundation has been laid. We are, therefore, bound to conclude that the damage was occasioned by the fault or negligence of the master of the vessel. This we think is in accordance with the doctrine announced in the cases of Clark v. Barnwell, and Rich v. Lambut, 12 Howard, 280 and 347, relied upon by the appellants.

It is, therefore, ordered and decreed, that the judgment below be affirmed with costs.

Lea, J.

(with whom concurred Spofford, J.) The evidence in this case shows that the crates containing the damaged goods were in apparent good order (viz: externally) when delivered: that they were stowed in a part of the vessel where damage from leakage was impossible: that the hold was kept free of water, caused by ordinary leakage, by pumping regularly every night: that the stowage was good, and that the vessel shipped no water on the voyage. There was no stress of weather. To use the language of two of the witnesses, the vessel did not ship more than a bucket of water on the voyage ; and lastly, it appears that no other goods except those shipped to plaintiff were delivered in a damaged condition. It is moreover shown that these goods came from the interior of England, that they- were brought to Liverpool in canal boats. !

There is but one circumstance tending to rebut the conclusion that it was physically impossible that these goods could have been damaged on board of the vessel, and that is the probability that they were damaged from dampness caused by salt water, which rotted the exterior packing of the goods. It is well known, however, and it has been judicially recognized as a geographical fact, that the river Mersey is filled with salt water, and that the tide ebbs and flows to a very great height. 2d Rob. 403.

If these goods came down the river Mersey it is more than probable that they were damaged in their transportation to Liverpool. Be this as it may, it appears to me to be a physical impossibility that the four damaged casks shipped to Oa/uehe (all of one marie) should, under the circumstances, have sustained damage from salt water on the voyage, while all the other merchandize of which the cargo consisted, remained uninjured. It appears to me that the burden of proof incident to the acknowledgment in the hill of lading, which is conclusive only as to the external condition of the casks, has been shifted from the shoulders of the carrier to that of the shipper. 12 Howard 280, 647.