text:
    Samuel Cranwell v. Ship Fanny Fosdick, Master and Owners.
    Whoro Hour was stowed upon a vessel, either improperly, or m such proximity to an offensive and injurious oil as to snifer damage, and it was sliowa that the common carrier had boon, put on his guard, as to the danger from such oil to the flour — Held: That ho was responsible for the damage sustained by tho flour.
    The first obligation of the common carrier is to indemnify the shipper for the loss or injury of goods committed to his charge, unless occasioned by accidental and uncontrollable events.
    A custom is without forco in opposition to a positive law.
    APPEAL from the Fifth District Court of Now Orleans, Eggleston, J.

      Gaither 3 McPheeters, for plaintiff and appellant.

      Singleton 3 Clack, for defendants and appellees.
   Duffel, J.

This suit commenced by attachment, and resulted in a judgment in favor of the plaintiff for $1,130 75 ; the defendants appealed.

The plaintiff charges that his agents in New Orleans, shipped, on the 30th of September and the 3d of October, 1857, on the ship Fanny Eosdick, then in this port, and bound on a voyage to New York, in good order and well conditioned, 600 barrels of flour, to be delivered to Frost 3 Forest of New York ; that the flour was stowed with Breckenridge coal-oil, and was thereby seriously damaged, and rendered unmerchantable and unfit for family use, as it was thoroughly impregnated with the smell of the oil, and that the same was sold at auction, for account of whom it might concern, at a loss of $1,582 75, including expenses, and the unwarrantable delay of said ship in leaving the port of New Orleans.

The defendants pleaded the general issue.

The bills of lading contain the limitation weight and contents unknown,” and it is admitted that 48 barrels of Breckenridge coal-oil were stowed in the ship on the 9th, and 150 barrels on the 23d of October, 1857.

The evidence shows that the vessel was well ventilated, and that her cargo was well stowed. William Thompson, amarine surveyor of New York, who examined as such the cargo, says “ the barrels of oil were stowed in the ground tier of the ship, from the main hatch foreward, for about twenty feet; on top of the oil were barrels of molasses and sugar; the flour was stowed, foreward and aft, in the lower hold by itself, there was no oil under it or on the top of it. The cil was from twenty-five to thirty feet from the flour. The stowage of the cargo was good and proper. About half of the flour was between decks. Some little of the flour was stained by the sweating of the vessel, and some little by the sea water.” Although all the witnesses do not agree as to the exact position of the oil and flour, they nevertheless all declare that the oil and flour were placed apart from each other, the distance varying from 25 to 50 feet.

There also appears to be a diversity of opinion as to the damaged condition of the flour. The barrels were externally in good order. Hicks, one of the witnesses of the plaintiff says, that the flour to him “ tasted pure, fresh and good.” Dwyer and Cormier, defendants’ witnesses testify that the flour came out in good order, free from smell. The weight of evidence is, however, the other way, and we have no doubt that the flour was more or less impregnated with the smell of the oil.

One of the witnesses says, that he had some of the flour made into bread, and that the bread retained the smell and taste of the oil, and that the flour could only be useful for starch manufactories; and the general opinion is, that the flour was unmerchantable. The consignees complained to the master and agents of the ship, that this flour was damaged before it was received by them. It was thus received on the 12th of January, 1858, and was sold at auction “ for account of whom it might concern, on the 2Lst January, 1858 : 100 barrels at $5 25 per barrel. 100 barrels at $5 121, and 400 barrels at $>o per barrel.

It is also established, by the evidence, that this ship was a general ship, engaged in the business of carrying general cargoes for freight, and that it is usual to take in such ships sugar, molasses, flour, oil, and other articles of a 'Volatile character which are stowed together in the hold, unless objection bo made; and that no objection was made in this instance; that this ship, and other ships, have carried such cargoes without causing' any injury to the flour, and some of the witnesses argue that this is a custom well known to shippers of flour. On the other side such usage is contested by other witnesses ; and it is in proof that this very oil had been refused on another general ship in the same trade, lost it should have damaged the other cargo, and that “ Fosdich was advised in a friendly way not to fake the oil, as witness thought it would damage the other portion of the cargo.” Another witness says : “ application was made to me, during last September, to take on a vessel for which 1 was agent a quantity of Breckenridge coal oil, which I refused to take, because I felt certain that it would damage the other cargo I had on board the ship, which was principally flour and wheat.”

The witness, Britton, says “ that he does not think that flour would be injured by the odor of this oil permanently, because it passes off rapidly,” but it appears that the smell is very offensive, and that flour is easily injured, by being put in contact with other objects.

Had not the flour been seriously affected, its exposure to the action of the atmosphere, from the 12th to the 21st of January, would have restored it to its natural state; and had it been properly stowed it would not have been affected, according to the opinion of the witnesses who assert that general ships carry flour and coal-oil without any injury to the former. Ve are however of opinion, from the whole testimony, that Breckenridge coal-oil is offensive and injurious to flour, and that the common carrier was put on his guard, and is therefore responsible for the loss incurred by his neglect and want of foresight, in not placing the flour and oil in such a manner as not to expose the flour to the contagion of the oil. Besides, the flour was received in the ship several days before the oil.

We cannot give our assent to a custom which will relieve the common carrier of all responsibility towards the shipper; for we consider that his first obligation is to be held liable for the loss or injury of the goods committed to his charge, unless occasioned by accidental and uncontrollable events. C. C. 2725; Brousseau v. Ship Hudson, 11 An. 428, and the authorities therein cited. Nor will we recognise the force of a custom in opposition to a possitive law. C. C. 3; Tyson v. Laidlaw, 18 La. 381; Ledoux et al. v. Armor, 4 R. 381. Besides the authorities cited and more particularly the cases of Baxter v. Leland, 1 Blatchford; C. C. R. 525 and Nettleton v. ship Fanny Fosdick, recently decided by Judge Betts, in the United States District Court of New York, present a different state of facts in several important particulars. Here we have a real loss, caused either by improper stowage, or by the proximity of the oil and flour, with a full knowledge, on the part of the owner, of the injurious-effect which the oil would produce on the balance of the cargo, to which must bo added the fact that the 60.Q barrels of flour had been received by the ship before she had taken any oil.

The District Judge allowed $1 75 for each barrel and $82 75 for the expenses incurred; we think that a lower estimate, should, under the evidence, have been taken. The witnesses who speak of the flour market at the time this flour was delivered quote it at $6, $6 75 and $7 ; taking $6,50 as the true value, we have $3,900 ; deduct gross proceeds of the flour sold at auction $3,033 50, difference $866 50, to which add expenses $82 75 — total $949 25.

It is, therefore, ordered, that the judgment of the lower court be reversed; and it is further ordered, adjudged and decreed, that the plaintiff do recover of the defendants in solido the sum of nine hundred and forty-nine dollars and twenty-five cents, with legal interest from judicial demand, say 13th March, 1858, till paid, and the costs of the lower court, and with privilege on the property attached. It is further ordered, that the costs of the appeal be paid by the plaintiff'.

Land, J., absent.


source: Caselaw Access Project

author: Vooriiies, J. Merrick, 0. J.,

license: Public Domain

text:
    Meeker, Knox & Co. v. F. W. Vredenburg & Co.
    Where a cargo of goods, deposited in a government warehouse, is sold, the sale is perfect by the consent of the parties, the price having been paid, and the delivery made, fictitiously, by the transfer of the warehouse receipt.
    The Forleral Government does not recognize the validity of a transfer of property deposited in one of its warehouses, before the payment of the Customhouse duties; but the importer is not debarred from disposing of property in the meantime, although it remains in the warehouse for the purpose of securing the collection of the duties.
    Where property so situated was sold, but for the mutual convenience of both vendor and vendee, was suffered to remain in the warehouse, the vendee not requiring the importer to pay the duties and perfect the delivery, for a certain time, at the end of which time it was found that the warehouseman had made away with a portion of the goods — Held: That the property was at the risk of the vendee, and that in the absonce of auy want of care on the part of the vendor, he is not responsible.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      T. G. & A. G. 8emm.es, for plaintiffs aud appellants.

      Mott <& Fraser, for defendants and appellees.
   Vooriiies, J.

The plaintiffs purchased of defendants a cargo of salt, consisting of 8021 sacks (6996 coarse, and 1025 fine salt).

The salt had been imported by F. W. Vredenburg <6 Co., and deposited on storage in the Brooklyn Warehouse, kept by Thomas T. Casey, aud bonded as a United States warehouse. The importers, availing themselves of the privileges allowed in such eases by the Acts of Congress, had stored the cargo of salt, without paying the duties in the meantime. (10th Statutes at large, p. 270.)

When the salt was sold to the plaintiffs, the defendants, in whose name had issued the warehouse receipt, transferred the same to the former, who thereupon paid the price stipulated, — at 60 cents the sack round. The sale was of “ the cargo of L salt per Echo, now stored at the Brooklyn Warehouse, consisting of about 6990 sacks coarse, and 1025 do. fine, at sixty cents per sack round, cash, with benefit to purchasers of any unexpired storage.”

Subsequently, the plaintiffs pledged this cargo of salt to the house of Barelli & Co.

Two months having elapsed since the date of the sale, the defendants paid the duties, as importers, and procured for the plaintiffs a withdrawal permit, by which the salt might be removed from the warehouse. Rut the latter received only the coarse salt and 100 sacks of fine salt, the rest having been fraudulently removed by the warehouseman.

This suit was instituted for the purpose of compelling the defendants to pay the value of the 925 sacks of salt, at the date of the issuance of the withdrawal permit.

The question presented for adjudication is, whether the salt was, at the date of the sale, at the risk of the vendors, or of the vendees.

The sale was perfect by the consent of the parties, the price having been paid, and the delivery made fictitiously by the transfer of the warehouse receipt. C. C. 2431; Martin v. His Creditors, 14 An. 393, and 15 An. 165.

It is true that the Federal Government does not -recognize the validity of the transfer of property so situated, before the payment of the customhouse duties; but this is for the sole purpose of simplifying the collection of the revenues. The importer is not debarred from disposing of his property in the meantime; but, as a consequence, it remains in the warehouse, as the importer’s property, for the purpose of securing the collection of the duties.

Assuming, therefore, that the cargo of salt, notwithstanding the payment of the price and the transfer of the warehouse receipt, was at the risk of the vendors, are they responsible for the criminal conduct of the warehouseman in making away with a portion of the cargo ?

The Code provides that, until the thing sold is delivered to the buyer, the seller is obliged to guard it as a faithful administrator; and if, through want of this care, thé thing-is destroyed, or its value diminished, the seller is responsible for the loss.” Art. 2443. And further : “ He is released from this degree of care, when the buyer delays obtaining the possession; but he is still liable for any injury which the thing sold may sustain through gross neglect on his part.” Art. 2444.

These rules govern when the seller has not been put in default for delivery ; but in cases of default, there are other rules.. 0. 0.1904, 2216, 2445.

It is not pretended that the loss of the property is, in the least, attributable to the want of care of the vendors. Indeed, it is shown that the salt was suffered to remain in the bonded warehouse, as much for the convenience and benefit of the vendees, as for the advantage of the vendors. Whilst the latter obtained time to pay the duties, the former had their property conveniently stored, as usual in such cases, “ with benefit of unexpired storage,” under the terms of the contract.

The plaintiffs could, at any time, have called upon the defendants to take the necessary steps to perfect the delivery; but have chosen to avail themselves of the unexpired storage, and to use the property as their own by pledging it to third persons. The defendants, to whom no want of care in the premises can be imputed, are, therefore, not answerable for the loss which has occurred.

Judgment affirmed.

Merrick, 0. J.,

concurring. If the testimony of Hugh 0. Donnell be rejected the plaintiff has no case, because it is proven that the whole quantity of salt was deposited in the warehouse, and there is no sufficient evidence to rebut the presumption that plaintiffs have received the whole quantity. They have accepted the transfer of the warehouse receipt, and paid the price. The return of the assistant keeper to the Customhouse on the 22d April, 1858, shows that the importers were permitted to withdraw the whole 8021 sacks, and the plaintiffs surrendered to the warehouse keeper the permit for the whole. It was incumbent upon the plaintiff at least to show that there was a deficiency of quantity at this time, and this he cannot do unless he resort to the testimony of Donnell. If we give credence to Donnell’s testimony, it does indeed prove the deficiency, but it also shows that it took place by the unlawful withdrawal of the salt from the bonded warehouse of the government between the date of the sale of the salt by the defendants to the plaintiffs, and the payment of the duties by the defendants, at which time the salt had first been placed under the free control of the plaintiffs. It is true that it was incumbent upon the defendants, as vendors, to pay the duties upon the salt, and thus perfect the delivery. But this act to be performed on the part of the defendants did not prevent the sale from being complete at the time the price was agreed upon and paid, and the warehouse receipt was transferred to the plaintiffs. For, as the District Judge has correctly said, the sale was en bloc. There was a single object sold, viz, the cargo of salt of the ship Echo, stored in the bonded warehouse of the government. And the sale was perfect so soon as there was a concurrence of wills upon the object, and the price to be paid for the same, and the property of the thing was transferred to the purchaser, and from that time it was at his risk, unless the defendant had been put in default for not delivering the same. O. C. 2431, 2442, 5443, 2445.

The defendants were permitted by the plaintiffs to defer the payment of the duties until such time as the plaintiffs might desire to remove the salt. This did not render the sale any the less perfect as between the parties; nor did it prevent the property in the salt from vesting in the vendees. The defendants wore only bound to redeem the salt, and this perfected its delivery. “ Where the object sold is out of the vendor's possession, he must redeem it at his cost, and deliver it to the buyer, unless it be differently agreed between the parties, or unless it evidently appears from the contract that the buyer himself has undertaken to reclaim it.” 0 . 0. 2458. In this case, all that was contemplated that the defendants should do, was to pay the duties, which they did, and thus complied with their contract. Not having been in default as to the contract of sale, nor guilty of any negligence on their part, they cannot be held responsible for any loss which has happened to the purchaser by the destruction or theft of the thing sold.

The delay spoken of in Article 2445 is the being in mora, as is quite apparent from the French text aud other Articles of the Oode. See 1904 and 2216.

I therefore concur in the decree in this case.

Land, J., absent.


author: Duffel, J.

text:
    Joseph Buie v. Bernard Kendig.
    Whore a slave who had been purchased a short timo before, as a confirmed runaway and a vicious negro, was sold with full legal warranty, and soon after the sale ran away again, and in attempting to escape from his master, who pursued him, jumped into a river and was drowned — Reid: That the vendor was bound to refund the price of the slave, with legal interest from the time of drowning.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Clarke & Bayne, for plaintiff.

      T. G. <& A. G. Semmes, for defendant and appellant.
   Duffel, J.

Plaintiff brings suit to rescind the sale and recover the price of slave Ben or Ben Dacon, sold to him by defendant — alleging that said slave was an habitual runaway, that while in the woods and while petitioner was using due diligence to catch him, said slave in attempting to escape was drowned in the Boeuf river on the 11th of June, 1857 ; that the slave was thus lost by reason of said vice of running away.

The evidence shows that the slave was purchased in New Orleans, on the 16th of February, 1857 — was taken on the Steamer Lotus to the plantation of plaintiff in the parish of Franklin. He left home several times without permission, and ranaway first about the middle of May, and after staying out some time came in and surrendered himself — subsequently he ranaway again, and while in the woods was pursued by plaintiff — his overseer Mr. Fluett and neighbor Isaac Doyal — in trying to escape from them he jumped into .the river, probably to try to swim across, and was drowned. The judgment of the District Court condemned the defendant to refund to the plaintiff the price of said slave, to wit $1225, with legal interest from the 11th of June, 1857.

We are satisfied, from the evidence, that the above named slave is the identical one sold to the defendant by Tobin of Arkansas, as a confirmed runaway and a vicious negro, on the very day, or the day before the sale to the plaintiff, which latter sale was made with a full legal warranty.

Judgment affirmed, with costs.

Land J, absent.


author: Buchanan, J. Mebriok, C. J.,

text:
    The African Methodist Episcopal Church v. The City of New Orleans.
    The ordinance of the city of New Orleans, approved April the'7tb, 1858, relative to the assemblages of colored persons, free or slave, in violation of law, is not unconstitutional in its provisions.
    The Act of the Legislature of March 20th, 1850, entitled “An Act to amend the fourth section of an Act providing for the organization of certain corporations in this State, approved April 30th, 1847,” is a mere legislative interpretation of the word “ persons ” in this Act of 1847.
    "Where a number of free colored persons had associated themselves together as a corporation, for purposes of public worship, and purchased property m their social capacity — Held: That although such a corporation has no legal existence, yet the members, considered as individuals, are entitled to their rights of property in what may have beon acquired in the corporate name.
    APPEAL from the Sixth District Court of New Orleans, Howell, J..

      V. F. & J. B. Cotton, for plaintiff.

      J. J. Michel, for defendant and appellant.
   Buchanan, J.

On the 6th day of October, 1848, ten free men of color organized themselves into a private corporation having a religious object, under the Act of 30th April, 1847, (Session Acts, p. 151,) entitled “ An Act providing for the organization of certain corporations in this State.”

The instrument of incorporation contains four articles.

By the first, a corporate name (The African Methodist Episcopal Church) was taken, and the power of acquiring and holding real and personal property, under such corporate name, was assumed.

By the second article it was declared, that the purposes and objects of the incorporation were, to establish a place of religious worship, and to administer the affairs of a religious body, according to existing laws.

By the third article, the corporators assumed the power of establishing- by-laws and regulations conformably to law and the ordinances of police, and of admitting new members, with perpetual succession.

By the fourth article, it was declared, that all matters purtaining to said corporation, such as the erection of a suitable building for a place of religious worship, the organization of a religious congregation, the election of a preacher, the collection and disbursement of revenues, &c., shall be determined by a majority of the corporators.

This instrument was approved by the District Attorney and by the Governor, and enrolled in the office of the Secretary of State, as required by the Act of 30th April, 1847.

The present suit is instituted, by petition, in the above mentioned corporate name, on the 20th May, 1858. Petitioners allege, that they have purchased, under their instrument of incorporation aforesaid, three churches in the city of New Orleans, which are particularly described. They aver, that since the 7th April, 1858, the city of New Orleans has usurped petitioners’ franchise, and taken illegal possession and unauthorized control of the whole of their property, by the passage and promulgation of a city ordinance which prohibits the members of the African Methodist Episcopal Ohurch from assembling for worship, or any other purpose, in the churches aforesaid, under heavy penalties. That the passage and promulgation of said city ordinance have been the means of driving off each and every member of the large congregations which attended the respective churches aforesaid ; and of preventing the members of the African Methodist Episcopal Church from attending divine worship. Petitioners aver that the ordinance in question is null and void, as violative of the vested constitutional rights of petitioners, and specially as contrary to Article 105 of the State Constitution. The petition goes on to arraign, for unconstitutionality, a certain Act of the Legislature of Louisiana, approved March 20th, 1850, (Session Acts, p. 179,) in case said Act be pleaded by defendant in defence to this action. The Articles of the Constitution which, it is charged, this Act of the Legislature violates, are Articles 109 and 119 of the Constitution of 1845, (in force when the Act was passed,) which are identical with Articles 105 and 116 of the present Constitution of the State.

The petition concludes by a prayer that the city of New Orleans be cited; and that it be decreed that the city ordinance of the 7th April, 1858, and the Act of the Legislature of March 20th, 1850, are illegal, unconstitutional, null and void; and that the city be condemned to pay petitioners rent for their three churches, for each and every month that the city retains possession, and refuses to allow petitioners to enjoy the free use and occupation of the same.

The answer of the city is a general denial.

Plaintiffs had judgment, and the city appeals.

The ordinance of which the plaintiffs complain does not seem to us to be liable to the charge of unconstitutionality.

It commences by a preamble, stating that assemblages of colored persons, free and slave, have increased of late, in violation of law, and that it is an evil which requires correction.

The ordinance proceeds to declare that no such assemblage, for purposes of worship, shall be suffered by the police, unless such congregation be under the supervision and control of some recognized white congregation or church; also, that no colored person shall be allowed to address any assembly or deliver any public discourse, without previous written permission from the Mayor; that any person contravening the ordinance shall be arrested and brought before the Recorder.

In this ordinance, there is no mention made of the plaintiffs, or of any person, society, or corporation. It is general in its terms, and does not seem to overstep the legitimate bounds of the police administration vested in this municipal corporation.

The Act of the Legislature of March 20th, 1850, is entitled “An Act to amend the fourth section of an Act providing for the organization of certain corporations in this State, approved April 30th, 1847.” It provides that “ in no case shall the provisions of this Act be construed to apply to free persons of color in this State, incorporated for religious purposes or secret associations, arid any corporations that may have been organized by such persons under this Act for religious purposes, or secret associations, are hereby annulled and revoked.”

This Act is viewed by us as a legislative interpretation of the word “ persons ” in the Act of 1847. Had the question been submitted to this court, in the absence of this Act of 1850, whether the Legislature intended to sanction, by the Act of 1847, the formation of corporations composed entirely of colored persons, a majority of this court is of the opinion, that we would have been bound to rule the negative. The African race are strangers to our Constitution, and are the subjects of special and exceptional legislation.

The legislative interpretation of 1850, comes in aid of our own 'views of construction of the Act of 1847.

We are not to be understood as denying the members of this pretended corporation, considered as individuals, the right of property in what they may have acquired in a social name : a right as fully acknowledged by our laws, in the case of colored persons, as of white persons. C. C. 437.

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

Mebriok, C. J.,

concurring. I concur in the decree in this case, but lor different reasons from those advanced by my colleagues.

In October, 1848, ten free men of color obtained an act of incorporation in due form under the act of 1847, p. 151.

The first article of the charter gives them the title or name by which they sue in this case and enables them to acquire such real and personal property as is necessary for the objects of the corporation.

The second article declares the purposes and objects of the act to be, to establish “ a place of religious worship for the said corporation, to exercise all powers requisite to the administration of the affairs of such religious body according to existing laws.”

The third article provides for the passage of by-laws from time to time conformable to law and the ordinances of police, also the mode by which other persons “ having the requisite legal qualifications ” may be elected corporators.

The fourth and last article declares, “ that all matters pertaining to said corporation, such as the erection of a suitable building for a place of public worship, the organization of a religious congregation, the election of a preacher, the collecting and disbursing of revenues, and other or subsequent measures essential to the interests of said corporation shall be established and determined by a majority of the corporators existing at the time of such proceeding.”

The corporation have acquired and own three churches in different parts of the city, of the alleged value of $21,000. Witnesses state that their meetings were orderly, and did not disturb people residing in the neighborhood of the same.

In 1850, an Act of the Legislature was passed, amending the Act of 1847, and making a copy of the Act of Incorporation, certified by the Secretary of State, evidence. The Act has the following proviso, viz, “ Provided, that in no case shall the provisions of this Act be construed to apply to free persons of color in this State, incorporated for religious purposes, or secret associations; and any corporation that may be organized by such persons, under this Act, for religious purposes or secret associations, are hereby annulled and revoked.” Acts 1850, p. 179.

On the 7th of April, 1858, an ordinance was passed by the Common Council of New Orleans, and approved by the Mayor, reciting the dangerous tendency of frequent and numerous assemblages of free persons of color. It ordains that every assemblage of free persons of color for worship “ shall be under the supervision and control of some recognized white congregation or church located within the limits of the city, to whose discipline and management said congregation or church of persons of color shall be wholly amenable, both as to its spiritual as well as to its temporal affairs.”

The ordinance prohibits any slave, or free person of color, from holding meetings and delivering discourses, unless permission shall have been first obtained from the Mayor by the aforesaid white congregation, under a penalty of one hundred dollars, and such license or permission to be renewed annually. The officers of the police are charged with the arrest of any person acting in contravention of the Act.

The corporators, upon the passage of the ordinance, under the advice of counsel, closed their places of worship. They have brought this suit to prevent the execution of the ordinance, and to cause the same to be declared null, and for damages for depriving them of the benefit of their buildings.

Judgment was pronounced by the lower court, declaring the Act of 1850 and the ordinance null and void as to the said plaintiffs, and condemned the city to pay $110 per month, from the 7th day of April, 1858, in the nature of rent, until plaintiffs obtain possession of their property.

The Act of 1847, p. 151, authorized any persons exceeding six, to form, not only religious, but also charitable, literary and scientific corporations, by conforming to the regulations of that Act. The Act is not confined to electors or voters, but extends to persons generally. In this sense, it appears to me, it must be held to apply to all persons capable of acquiring and exercising rights. And free people of color have such capacity. They may hold real estate and slaves, and I assume they may hold bank stock and railroad stock under the term “ persons.” Why, then, may they not hold rights as members of a religious corporation ? I know no reason, except they be expressly dissabled by some statute in existence when they attempted to acquire their rights.

At the time the act of incorporation was granted, it did not occur to the District Attorney or Governor, that free people of color were incapacitated from acquiring rights in the class of corporations authorized by the Act of 1847, for they successively approved the same under their respective signatures, and the act was enrolled in the office of the Secretary of State, according to law, by order of Isaac Johnson, a learned jurist, who had been a member of the Court of Errors and Appeals.

The Act of 1850 admits the capacity of free people to acquire such rights, for it declares that the Act does not apply to free persons of color in this State for religious purposes or secret associations, omitting all mention of scientific, literary, or charitable associations, and it undertakes to annuli those that have been organized for religious purposes or secret associations only. The Act, therefore, impliedly admits the capacity of free colored people as persons. It is a negative with an affirmative pregnant, that free persons of color may still form themselves into scientific, literary and charitable associations, so they be not secret.

The Act of 1855 also, is as general as the Acts of 1847 and 1850, and impliedly authorizes the formations of corporations by free people of color for scientific, literary, and charitable purposes; for after the grant of the general power to form these and religious corporations, the restriction is in these words. “ In no case shall the provisions of this act be construed to apply to free persons of color in this state, incorporated for religious purposes or secret associations. Then it is to be construed to apply to scientific, literary and charitable associations formed by such persons, if they be not secret associations.

But at the time the act of incorporation was formed, there was no restriction or incapacity on their part as to religious corporations.

The question was submitted to the proper authority, to determine whether the object of the association was lawful, and it was so decided by the tribunals appointed for that purpose, the District Attorney and the Governor. Acts 1847, p. 151, sec. 1. If they had erred, we would have no right, as I think, to revise their action in this form of proceeding.

The corporation would exist until annulled in a direct action brought in the name of the State for the purpose of annulling the act of incorporation. See Atchafalaya Bank v. Dawson, 13 La. 497; 5 An. 179.

But I do not .think the District Attorney and the Governor erred. A person is a human being, considered as the subject of rights, as distinguished from a. thing, whether animate or inanimate. Burill, Law Die., verbo Person. Free persons of color are regarded as persons under our law. See Civil Code, Arts. 36,38. They are majors or minors; they may take and hold property by purchase, inheritance or donation; they may marry (26, 95,) and as a consequence, exercise parental authority over their children ; they may be witnesses, (ibid 2261) ; they may appear in notarial acts, (Acts of Legislature 1855, p. 322, sec. 5) ; they may stand in judgment (C. C. 177), and they are responsible under the general designation of “ persons,” for crimes. See also 11 An. 724; also, Institutes L. 1, Tit. 3.

So faras it concerns every thing, except political rights, free people of color appear to possess all other rights of persons, whether absolute or relative. And, in this respect, the Civil Code seems to me to be quite clear; for example, on the subject of obligations, Art. 1775 says : “All persons have the capability to contract, except those whose incapacity is specially declared by law. These are persons of insane mind, slaves, those who are interdicted, minors and married women.” Here it is manifest that the lawgiver, under the term persons, intended to include people of color, because he has enumerated all other incapacitated persons, not excepting slaves.

It is demonstrated in the great case of Dartmouth College v. Woodward, 4 Wheaton, 518, that acts creating a private corporation on the part of the sovereign,, and the acceptance on the part of the corporators, is a contract between the government and the corporators. See also 14 La. 395, to the same effect. All, therefore, it seems, which is necessary to enable a person to become a corporator, is capacity to contract, or in other words, to be sui juris.

By the Act of 1848, reenacted in 1855, any number of persons not less than six, are authorized to form corporations to work mines, to construct railroads, canals, plank-roads, bridges, &c., to effect insurance, to carry on manufactures of cotton, woollen, linen, silk and hemp cloths, and cordage; to construct and carry-on founderies, drydocks or floating docks, to build ships, to supply towns and cities with gas, or water ; to compress cotton; for sea navigation by steam, &c., &c. The enumeration of these objects of industry and enterprise shows that the inducement is here held out to all persons, to take part in such corporations, who have skill, industry and capital to invest in them. Acts 1848, p. 70 ; 1855, p. 182; Phillips’ Digest, 114.

Again, the same term, “ persons,” is employed in the Act for the creation of free banks. Phillips’Dig. 32. Was it ever supposed that free people of color could not become owners of bank stock, whether of the free, or the specially incorporated banks ? Suppose they contract for it, or it is adjudicated to them at Sheriff or succession sales? Again, in works for internal improvement, such as railroads, where the palish or other municipal corporation has subscribed stock, the free person of color who happens to own lands is forced to become a stockholder. Phillips’ Dig., p. 119, secs. 28-31.

It is true free people of color have no right of direct representation in our government; but, as far as I have observed, they are not the less the object of all general laws (not political), whether those laws confer rights and privileges, or impose fines, penalties and forfeitures.

I therefore conclude, that the plaintiffs had capacity to form themselves into a religious corporation in 1848, the date of their charter. By that association, and the purchase of property since, they acquired rights. Did the Act of 1850 affect those rights ? I maintain it did not, for these reasons, viz : 1st. The power to declare a corporation forfeited is a judicial power, and cannot be exercised by the Legislature; and 2d. That the Legislature cannot be considered as intending to dissolve this particular corporation, for reasons of public interest, because they have not so declared in the Act, and had they so said, their act would have been inoperative, because no indemnity is made or offered to the corporators. Montpelier Academy v. George, 14 La. 406; Dartmouth College v. Woodward, 4 Wheaton, 518.

On the first of these grounds, it is sufficient to remark, that the power of the Legislature to declare a forfeiture seems to be fully considered in the case of Perry et al. v. The Clinton and Port Hudson Railroad Company, 11 Rob. 412, and denied. In that case, the Legislature had declared that certain property pledged to the State had become forfeited for non-payment of interest. This was held not to be within the functions of tho legislative department.

On tne second ground it may be remarked, that it is no sufficient indemnity, (as has been supposed,) in the case of a dissolution of a corporation for public interest to leave the property acquired by the same in the hands of the corporators. If that were an indemnity, the Legislature might dissolve every incorporated bank, every railroad charter, and every insurance company, and there would be no redress. This supposition appears to ignore the fact that the corporation is a judicial person distinct from the members composing it. In the Dartmouth College case, it was taken for granted by the court, that the trustees, who alone complained,' “ had no beneficial interest to be protected,” and that the donors had parted with their property, and had no interest so long as the corporation existed; yet, it was demonstrated in that case, that the Legislature of New Hampshire could not modify the act of incorporation, because it impaired the obligation of a contract. So in the case of the Montpelier Academy v. George, 14 La. 395, the Legislature which had made large donations to the academy, attempted to change the Board of Trustees. The Article 438 O. 0. was also relied on in that case, as evidence of such power; but it was held that the Act, notwithstanding the Article, contravened the Constitution of the United States and of this State, and the Act was declared to be void.

The property which is held by the corporation does not belong to the individuals, and a's a consequence, the donations made to the corporation were never intended to be given to the ten free persons of color, who alone compose its members.

I have no doubt that the Article of the State Constitution, which says, vested rights shall not be divested unless for purposes of public utility, and for an adequate compensation previously made, will protect free people of color, and corporations formed by them, in the possession of property or rights appreciable in money. Art. 105 Const. Therefore, the Act of 1850 did not prejudice the plaintiffs’ rights.

The city ordinance alone remains to be examined. It is incompatible with the plaintiffs’ act of incorporation, and is an attempt to regulate the spiritual and temporal affairs of a religious corporation composed of free persons of color. It requires them to place, as a body, their affairs, spiritual and temporal, under the control of some white congregation, and their preachers are to be licensed by the Mayor. I find no warrant for this exercise, on the part of the City Council, of power, in any act of incorporation of this city, or in any amendatory act thereto.

The city authorities are authorized to regulate the police of slaves, and the police of theatres, public balls, taverns, places for shows and exhibitions, houses of public entertainment and shops for retailing liquors, and to order the same to be closed, whenever the preservation of order, and the public safety and tranquility require it, and to impose such duties and regulations upon persons keeping the same, as they may deem necessary and proper. See Phillips’ Dig. 370. Beyond this, I cannot find that the City Council has any authority to interfere ,with free persons of color, if they conduct themselves peaceably and respectfully.

The necessity of some regulation of the kind Contemplated by the ordinance may exist, but the power to apply the remedy remains with the Legislature. It has not yet, as I think, been conferred on the city. The city ordinance was, therefore, void. Acts 1856, p: 141; Acts 1852, p. 48, sec. 22; 12 An. 433 ; Bullard & Curry, 101,128.

As the Act of 1850 cannot have any retroactive effect, and as the city ordinance was void, the plaintiffs were under no restraint, and closed their churches voluntarily, and hence have no right to recover damages. A body exercising legislative functions could hardly be considered responsible in damages for merely passing acts which prove to be illegal or unconstitutional.

In the preceding remarks I have refrained from expressing any opinion upon the question, whether the plaintiffs may or may not have forfeited their franchises. That question, in my opinion, can only be considered in a direct action commenced in the name of the State, to have such forfeiture declared.

Land, J., absent.


author: Yooriiies, J.

text:
    H. A. Burton & Wife v. William F. Davis et als.
    An appellee cannot, by a motion in the Supremo Court, procure an amendment of the judgment as against another appellee. Ho can exorcise this right only against the appellant.
    Where an action is brought to recover damages on account of injury done by the accidental falling of a structure, proof that there was no fault or negligence imputable to the defendant, and that there was no original imperfection in the structure, is sufficient to avoid liability on his part.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      Whittaker & Fellowes, for plaintiffs.

      Durant <& Hornor, for defendants and appellants.
   Yooriiies, J.

The plaintiff brought suit for damages against Wm. F. Davis and M. Woodside.

The cause was submitted to a jury, who could not agree upon a verdict. Another jury was empanelled, and, the case being again submitted, the result was a verdict in favor of plaintiff against Davis for the sum of $1,300, and in favor of Woodside against the plaintiff.

Davis alone appealed. The plaintiff, however, moves that the judgment be amended, so as to allow damages against the other appellee, Woodside.

It is well settled, that an appellee cannot, by a motion in the Supreme Court, procure an amendment of the judgment, as against another appellee. He can exercise this right only against the appellant. See the case just decided of Converse, Kennett & Co. v. Steamer Lucy Robertson.

This cause comes up, consequently, only in so much as it affects the demand against Davis, the appellant.

The evidence as to the nature of the injury, or amount of damages sustained, presents no difficulty; but it is far from being sufficient to fix the appellant’s responsibility. He was the owner of a lot situated on Bacchus Street, and adjoining a lot belonging to his co-defendant, Mary Woodside. He had caused to bo put up on his lot, close to his fence along the sidewalk, the bricks and rubbish of a house which had been destroyed by fire. There was an open space between the pile and the fence. Some time afterwards the pile of bricks fell upon the fence, tore it down, and seriously injured the plaintiff, who happened to be passing by.

The evidence, so far from showing any negligence on the part of Davis in putting up the rubbish, or unskilfulness on the part of his employees, indicates that the accident was, in all probability, caused by workmen who were putting up a building in the immediate vicinity.

The injury sustained by the plaintiff is not attributable to the fault of the defendant, Davis. C. C. 2294. Nor indeed, is it shown that the damages occasioned by the fall of the rubbish were caused by Davis’ neglect in attending to this matter, or resulted from the pile of rubbish having been originally constructed in an imperfect manner. C. C. 2302.

It is, therefore, ordered and decreed, that the judgment of the District Court, as regards the appellant Davis, be avoided and reversed; and that the said defendant, Davis, do have judgment against the plaintiffs, with costs in both courts.

Jja.np, J,, absent.


author: Yoorhies, J.

text:
    Martin Duggan v. The City of New Orleans.
    The Street Commissioner has not the right to incur expenses for the purpose of cleaning the city, without the special authority of the Council.
    APPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      T. L. Lemley, for plaintiff.

      J. J. Michel, for defendant and appellant.
   Yoorhies, J.

The plaintiff claimed the sum of flOTV 50 for the hire of carts furnished at the request of the Street Commissioner, for cleaning the city of New Orleans, and obtained judgment for the sum of'three hundred and twenty4fve dollars.

The defendant appealed.

The evidence in the record shows, that the carts were furnished at the request of the deputies of the Street Commissioner, and were used for public purposes. The reasons assigned by the District Judge for the judgment rendered by him, are conclusive in the premises. We 'adopt them as our own.

It is, therefore, ordered and decreed, that the judgment of the lower court be affirmed, with costs.

Land, J., absent.

OPINION OE THE DISTRICT JUDGE.

“ It has not been shown, that the Street Commissioner has the right to employ carts for the cleaning of the streets, except by special authorization of the Council.

Plaintiff has introduced in evidence a resolution of the Common Council, passed on the 19th of July, 1853, empowering the Street Commissioner to employ forthwith an adequate force for cleaning the streets.

Although plaintiff’s claim appears to be sufficiently established by proof, showing that carts have been furnished by him at the request of the deputies of the Street Commissioner at the dates specified in the account, still plaintiff is entitled only to recover for the amount of carts furnished from the date of the resolution above quoted.

The balance of his claim must be referred by him to the equity of the Common Council.”


author: Buchanan, J.

text:
    Catherine Wallace v. Alex. Miller & Henry Schnatman.
    Co-trespassers are bound in solido for damages occasioned by tbe trespass.
    APPEAL from the Sixth District Court of New Orleans, Howell, J.

      G. <& C. E. Schmidt, for plaintiff' and’’appellant.

      J. M. Leggett, for defendants.
   Buchanan, J.

Plaintiff sues the defendants for a trespass, for removing a house from her lot of ground to an adjoining lot belonging to one of the defendants, Miller.

The answer of Miller is a general denial.

Defendant Schnatman pleads, that he was employed by the other defendant to remove the house: and that, if plaintiff has sustained any damage, Miller alone is responsible.

It is proved that the plaintiff bought the lot with the house on it. The defendant Miller’s title to other lots in the same square is also in evidence. He bought the naked lots, and there is not a word of proof tending to justify this singular trespass.

The case appears to have been defended by Schnatman alone; and the whole effort on Ms part, on trial, was to show that he had not been notified of the title of plaintiff to the house. The negative evidence of Ms witnesses, laborers in his employ, opposed to the positive evidence of two witnesses, proving notice to Schnatman that he was trespassing, and that Miller had no title to the house.

There was judgment against Miller, and in favor of Schnatman.,

Plaintiff appeals.

A review of the evidence has brought us to the conclusion, that the defendant Schnatman, as a willful co-trespasser with the other defendant, Miller, is bound in solido with Miller for the damages occasioned by the trespass; which appear to have been correctly estimated by the District Judge.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed as to the appellant, Schnatman; and that plaintiff recover of the defendant, Henry Schnatman, the sum of five hundred dollars, with legal interest from March 22d, 1858, as the value of the buildings removed, and thirty-two dollars for loss of rent, and costs in both courts.

Land, J., absent.


author: Mebrick, O. J.

text:
    John L. Pagett v. Henry Curtis.

      No personal judgment, in the absence of a citation or its equivalent, can be rendered, so as to be obligatory against an absentee. The only good purpose which can be attained by calling an absent person in warranty, through a curator ad hoc, is the giving of notice, as far as practicable, to the warrantor, of the pendency of the action. But it doos not justify the rendition of a final judgment.
    A certificate of proceedings before the Court of Ordinary in tho State of South Carolina, where the Judge acts as cleric of his own court, is good evidence before our courts, under the Act of Congress, when such certificate has the seal of the court, is certified by tho clerk, and tho same person, in his capacity of Judge, declares the attestation to be in due form.
    In a petitory action to recover property, tho defendant cannot object to the introduction in evidonce of the answers to interrogatories, upon the ground that the plaintiff, at tho time of tho service of the interrogatories, alleged ownership simply, without setting forth the particulars of the title so as to enable him to make a cross-examination of the witnesses, when tho petition and such interrogatories sufficiently informed the defendant of their object.
    In a petitory action, it is sufficient, prior to the call in warranty, to make service of interrogatories upon defendant. Defendant cannot object to their introduction in evidence against him.
    Under our law, the widow in community may purchase from the succession of her husband, of which she is administratrix, and, in the absence of proof to the contrary, it will be presumed that the law of any other State is tho same upon this subject as our own.
    An order of the court, entered upon the minutes, is a part of tho record of the case, and it is not, therefore, necessary to offor it in evidenco in order to bring it to tho notico of the court or jury.
    Where property sequestered is bonded, the delivery of it to the party bonding, does not make him the owner and enable him to disposo of it at pleasure.
    APPEAL from the District Court of the Parish of Morehouse, Richardson, J.

      Newton & Hall, for plaintiff.

      Todd & Brigham, for defendant and appellant.

      S. G. Parsons, curator ad hoc, for warrantor and appellant.
   Mebrick, O. J.

This is a petitory action for the recovery of two slaves. The defendant called his immediate vendor, B. F. Kennedy, in warranty and also E. D Duckworth, who he alleged had guaranteed the title to the defendant by a parol contract.

The plaintiff had judgment against the defendant and this last had judgment over against his vendor, Kennedy.

Judgment was rendered in favor of Duckworth.

Defendant and the curator ad hoc appointed to represent Kennedy, appeal.

We do not think the judgment against the warrantor, Kennedy, can be maintained. It is now well settled that no personal judgment, in the absence of a citation or its equivalent can be rendered, so as to be obligatory against an absentee. The courts cannot be called upon to do the vain thing of rendering a judgment which cannot be enforced either at home or abroad. The only good purpose which can be attained by such call in warranty, seems to be the giving of notice, as far as practicable, to the warrantor, of the pendency of the action. See 2 An. 5G2 ; 3 An. 101; ibid 417; 7 An. 145. But this does not justify the rendition of a final judgment.

The defendant calls our attention to three bills of exception prior to an examination of the case on the merits.

The plaintiff claims title to the slaves, by virtue of his marriage with widow Hester Geyton. On the trial, he offered in evidence a document called a sale bill, (which corresponds with the proces-verbal of a probate sale made by an administrator under our law,) in order to show that she had acquired title to the slaves from succession of her deceased husband, Geyton. This document was objected to by the defendant on three grounds, viz :■ that it was not properly authenticated unber the Act of Congress, and it was not produced when a call was made upon the plaintiff for oyer of title, and was only a part of the mortuary proceedings.

It appears that the Judge of the Court of Ordinary, in South Carolina, acts as clerk of his own court. He signs his certificate in both capacities, after having stated that his certificate and attestation is in due form, and he affixes the seal of his office.

The certificate of the Governor was also obtained, who certified that Herbert Hammond, the Judge of the Court of Ordinary, had custody of ordinary wills and records of said court; that his signature was genuine, and that full faith ought to be given to his proceedings and certificates as such.

We see no objection to the certificate. It had the seal of the court, was certified by the clerk, and the same person, in his capacity as Judge, declared the attestation to be in due form. This was all which could be done by the clerk and Judge under the Act of Congress ; and if more were wanting, which we do not perceive, it was supplied by the certificate of the Governor. 0. P. 752.

The certificate shows that the record certified contains " a full, true and correct copy of all the proceedings had and documents filed in the settlement of the personal estate of Robert Geyton, late of Anderson District, deceased, as appears,” &c., The plaintiff was not obliged to produce copies of other proceedings having no connection with the matter certified. It appears from the date of the certificate of the Judge, that the document was not made out until some months after the answer of the plaintiff to defendant’s prayer of oyer. It was not, therefore, in his possession at that time; neither is it shown that he was informed of the existence of the record, from which the defendant even, as well as he, could have procured a copy. The District Judge did not err in admitting the same in evidence.

The second bill of exceptions is to the introduction in evidence of the depositions of witnesses taken by the plaintiff. At the time the interrogatories were served, the plaintiff alleged himself to be the owner of the slaves, without setting forth the particulars of his title. He subsequently amended his petition in this particular.

At the trial, the defendant objected to the testimony on the ground that the petition, at the time the interrogatories were served, did not sufficiently apprize him of the nature of plaintiff’s title, to enable him to make a cross-examination of the witnesses; that the interrogatories had never been served upon the warrantor ; that it was an attempt to prove title to real estate by parol; and that it appeared from the cross-examination, that record evidence existed of the facts stated by the witnesses.

The objections set forth in this bill cannot be maintained. The plaintiff claimed title to the slaves as owner. This, and the interrogatories themselves, sufficiently informed defendant of their object. It was sufficient, prior to the call in warranty, to make service of interrogatories upon defendant. The defendant could not object to their introduction in evidence against him on that account.

Counsel have not pointed out the particular testimony which is objectionable on the ground of the existence of better evidence, as shown by the cross interrogatories. The “ sale bill ” is in evidence, and we discover nothing in the depositions inadmissible under the issue.

As the plaintiff’s wife acquired the slavqs by written title, under proceedings in the Court of Ordinary, there is no ground to raise a discussion on the question of proof of title by parol.

On the merits, it is contended that, inasmuch as Mrs. Geijton was administratrix of her husband’s estate, she could not purchase the slaves, and she acquired no title whatever.

Under our law, the widow in community may purchase, and, in the absence of proof to the contrary, we will presume that the law of South Carolina is the same on this subject as our own. See Acts of 1854, p. 155 ; Acts of 1855, p. 78; Phillip’s Dig., p. 3.

It is next urged, that the identity of the negroes has not been sufficiently proven. The plaintiff moved the court for an order upon the defendant to produce the slaves in controversy, in order that they might be identified. The defendant, in answer to this rule, under oath, said he had not the slaves in his possession or under his control, and that they had not been in his possession since the service of the rule.

The slaves having been sequestered and delivered to the defendant upon his bond, plaintiff moved the court, and obtained an order taking the identity of the slaves as confessed.

The defendant contends before us, that this order of court was not offered in evidence, and that, inasmuch as the plaintiff sues for the slaves, and in default of delivery to him, he demands their value; and inasmuch as defendant gave bond for the property when the sequestration was set aside: he was at liberty to dispose of them as he pleased ; and that his bond stood in the place of the slaves.

The order of the court, entered upon the minutes, was a part of the record in the case, and therefore, it was not necessary to offer it in evidence to bring it to the notice of the court or jury.

The object o'f a sequestration is to secure the production of the property sued for, to answer the decree. It is resorted to as an additional security. It cannot, therefore, be admitted for a moment, that the delivery of the property to the defendant, upon his bond, makes him the owner, and enables him to dispose of the property at his pleasure. He must hold the property subject to the order of the court. 0. C. 2428.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court as to said warrantor, B. F. Kennedy, be reversed, and that there be judgment in his favor, and against the demand in warranty of said Henry Curtis, as in case of a nonsuit, and that the said Kennedy recover his costs in the lower court; and it is further ordered, that the judgment of the lower court, in all other respects, be affirmed, the defendant paying the costs of the appeal.


author: Land, J.

text:
    Robert S. Young v. Henry Chamberlin et al.
    The general rule of law is, that the plaintiff in an action of revendication must make out his title, or the possessor will be discharged from the demand. As against a mere naked possessor or trespasser, however, the plaintiff is not bound to show title in himself good against the whole world in order to recover. But in a petitory action, he is hound, even against a naked possessor, to produce a title anterior in date to the possession of the defendant, in order to establish ownership in himself and repel the presumption of ownership in the defendant, resulting from his possession.
    The lesseo is without capacity to stand in judgment as to the question of title ; nothing but the right of possession can be determined on the trial of the case between the lessee and plaintiff.
    Beforo the lessee's possession can bo disturbed in a petitory action, the plaintiff must show a good and perfect title in himself, as required by Art. 44 of the Code of Practice.
    The plaintiff in a petitory action has no right, on the trial of the case with the lessee, to offer evidence to establish that the lessor derived his title from the same common source or author with himself; but in such a contest, he must recover the possession on the strength of his own title and not on the weakness of the lessor's, as shown by the evidence, in a case to which the lessor is no party.
    No distinction can be made, as to the incapacity to stand in judgment, in a petitory action, between ail agent in possession of land, with full power of attorney to manage and superintend, and to sell, mortgage, lease and hire the same, upon such terms as may seem to him proper and advantageous, and a lessee of the land.
    APPEAL from the District Court of the Parish of Catahoula, Mayo, J.

      McGuire & Ray, for plaintiff.

      R. H. Cuny and James G. Taliaferro, for defendant and appellant.
   Land, J.

This is a petitory action for the recovery of a tract of land. The defendants disclaimed title, and alleged that they possessed the land as the lessees of one Hollister, the legal owner, who resides in the State of Michigan.

The alleged owner, Hollister, is not a party defendant to the suit, and the case was tried on its merits, between the lessees and the plaintiff, and resulted in a judgment in favor of the plaintiff for the possession of the land.

The general rule of law is, that the plaintiff in an action of revendication must make out his title; otherwise the possessor, whoever he be, shall be discharged from the demand. As an exception to this rule, it has been held, that as against a mere naked possessor or trespasser, the plaintiff is not bound to show title in himself good against the whole world, in order to recover. But the plaintiff in a petitory action is bound, even against a naked possessor, to produce a title anterior in date to the possession of the defendant, in order to establish ownership in himself, and to repel the presumption of ownership in the defendant, resulting from his possession. 0. P. Art. 44; 8 La. 246. And if the defendants be regarded as naked possessors, the plaintiff has failed, in his evidence, to make out Ms caso against them, because the allegations of Ms petition, which, as judicial admissions, conclude him, establish the fact that his title was not anterior in date, but subsequent to the possession of the defendants, because, at the date of his title the defendants were in possession of the land, and there is no evidence of his vendor’s title prior to that date which can be'considered as affecting the lessor’s right of possession through his lessee.

In a petitory action, the law declares that, if the lessee of the land be sued, he must declare to the plaintiff the name and residence of his lessor, who shall be made a party to the suit, if he reside in the State, or is represented therein, and who must defend it iu the place of the tenant, who shall be discharged from the suit. O. P. Art. 43.

Under this Article of the Code of Practice, the lessee is without capacity to stand in judgment as to the question of title; and if his lessor has not been called in warranty, nor voluntarily appeared to defend the action, nothing but the right of possession can be determined, on the trial of the ease between the lessee and the plaintiff. King v. Fish, 4 N. S. 391; Fusilier v. Hennen, 5 N. S. 71; Bazanzon’s Heirs v. Creswell, ibid 232.

The lessee, therefore, had no right to try the question of title with the plaintiff, and to offer evidence for that purpose, as was done in this case. His possession is that of his lessor, and before his possession can be disturbed, in a petitory action, the plaintiff must show a good and perfect title in himself, as required by Article 44, of the Oode of Practice; for, if the lessor had been made a party to the suit, he might have shown a title in himself paramount to any title exhibited by the plaintiff, "short of a good and perfect title against the whole world, and thereby have protected Ms possession through his lessee. In this case, for instance, the evidence offered by the plaintiff traces his title to one B. F. Young; and the evidence offered by the lessee traces the title of the lessor to the same common author, who, it appears, is the father of the plaintiff. Now, if the lessor had been made a party to the suit, he might have shown, as we have said, a title paramount to that of the plaintiff, and of his vendor, and thereby have protected his rights of possession and property. The plaintiff in a petitory action has no right, on the trial of his case with the lessee of the land, to offer evidence to establish that the lessor derived his title from the same common source or author with himself; but in such a contest, he must recover the possession on the strength of his own title, and not on the weakness of the lessor’s, as shown by the evidence in Ms case, to which the lessor is no party.

It is however contended, that the defendants are not shown to be the lessees of Hollister. The petition alleges, that they are in the actual possession of the land, and there is a power of attorney in the record from Hollister to the defendant, Henry Chamberlin, constituting him his agent and attorney in fact, with power to manage and superintend ” all his property in this State, and to soli, mortgage, lease or hire the same, upon such terms as might seem to him proper and advantageous. No distinction can be made, in a case like the present, between an agent in possession of the land, with the powers above mentioned, and a lessee of the land. They both hold under, and possess for the owner, and are equally incapable of standing in judgment on an issue of title to the land.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be reversed; and it is now ordered, adjudged and decreed, that there bo judgment against the plaintiff as in case' of nonsuit, with costs in both courts.


text:
    M. M. Denson v. H. T. Stewart et al.
    ■\Vhoro an agent, authorized to sell a thing for a particular price, sells it at a higher price, the surplus will belong to the principal, and the agent is entitled only to his stipulated commission.
    A party plaintiff is entitled to an injunction to restrain a third person who is in possession of a sum of money in controversy, from paying it over to the defendant, where the plaintiff is in danger of losing it, owing to the claim of defendant and his insolvency.
    APPEAL from the District Court of the Parish of Caddo, Creswell, J.

      A. B. Levisee, for plaintiff and appellant.

      Geo. Williamson and L. M. Nutt, for defendants.
   Land, J.

The defendant sold, for the plaintiff, a slave for the price of thirteen hundred dollars, but has refused to account and to pay to the plaintiff more than eight hundred and eighty dollars of the price, on the ground that, as he was authorized to sell the slave for $900, he is entitled to retain the balance of the price over and above that sum, in addition to his commissions for effecting the sale.

This suit is brought to recover the sum of $420, the balance of the price, and to restrain John Walters, in whose hands that balance is alleged to be, from paying it over to Stewart, who claims it as his own money.

The right of the plaintiff to recover the whole price for which the defendant sold his slave, less commissions for selling, is too clear to admit of any doubt or argument.

The specification of the price at $900 in the mandate to Stewart to sell the slave, was the mimmum price for which he was authorized to sell, and did not entitle Stewart to retain or claim the balance of the price demanded in this suit, in addition to his stipulated commission of $50 for selling the slave.

There is nothing in the settlement which took place between the plaintiff and Stewart, at the time the $880 were paid over, to extinguish the plaintiff’s right to recover the balance of the price.

The plaintiff was in danger of losing, daring the pendency of this suit, the balance of the price in the hands of John Walters, on account of the claim of Stewart and of his insolvency. The injunction was, therefore, properly granted. O. P. 303.

The plaintiff has failed to make out his case against A. G. Hitchcock, who was made a party defendant with Stewart.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed; and it is now ordered, adjudged and decreed, that the plaintiff recover of the defendant, H. T. Stewart, the sum of $420, less the sum of $50 commissions for selling the slave, with costs in both courts; and it is further ordered and decreed, that the plaintiff’s right to the balance of the price of the slave in the hands of John Walters, be recognized and enforced, and that the injunction issued in this case be perpetuated; and it is further decreed, that this suit, as to A. G. Hitchcock, be dismissed, at plaintiff’s costs.


text:
    Byrne, Vance & Co. v. D. Y. Grayson.
    Copies and sworn extracts from mercantile books, although received without objection, do not make proof of the itoms of a merchant’s account.
    In a suit brought by a merchant on an account current, the proof of the fact that he was the factor of the defendant, and that he (the defendant) had given him his promissory note, in part payment of the balance of the account, does not prove such balance, where defendant’s answer contains a general denial, and a special averment, that at the time he signed the note he had not examined the accounts of plaintiff against him ; such an answer imposes upon the plaintiff the burden of proving the items of account objected to and under consideration.
    It is not sufficient for a party on whom the burden of proof rests, to make out a probable case, he must show by legal testimony, with reasonable certainty, tho existence and verity of his demands.
    Where an account has been settled by a promissory note-, the note is prima facie ovidonco of a lawful and valuable consideration, arid if the note is given in error, or there is a total or partial failure of consideration, or the account for which it is given is tainted with usury or fraud, the burden of proof rests upon tho maker of the note to establish any or all of theso facts to rebut the legal presumption in favor of its validity.
    The charge by merchants, according to custom, of two and a half per cont. commission for the salo of cotton, and the like rate for accepting bills or endorsing notes for the accommodation of their customers and the purchase of supplies, do not form any part of the interest on money loaned, or advanced, and cannot be said to be usurious charges, as commissions for advancing money have been held to bo, when claimed in addition to tho highest rate of conventional interest.
    To constitute usury, there must bo a loan of money; and in the bona fide sale, or discount of a promissory note, made by a factor, there is no loan of money, and can, consequently, be no usury.
    A charge of eight per cent, interest in an account current of a merchant, cannot be recovered without proof in writing of an agreement to pay it.
    Where a planter was indebted to his merchants for acceptances which have fallen due and been paid, and also on a promissory note — Held • That before the maturity of tho note, credits of the planter, where no imputation has been made, should be imputed to tho payment of the acceptances, because they were first due, though less burdensome, and the .credits after the maturity of the note must be imputed to its payment, because the debtor had at the time most interezt in discharging it.

    APPEAL from the District Court of the Parish of Ouachita, Mayo, J.

      Morrison & Purvis, for plaintiffs.

      John T. Pudding, for defendant and appellant.
   Land, J.

The plaintiffs, commission merchants in the city of New Orleans, sue the defendant, a cotton, planter, on an account-current for a balance of $5,960 45, and interest thereon at the rate of eight per cent, per annum from the 29th day of March, 1858. The account purports to be for the year 1857, and by the allowance of two additional credits, since the institution of suit, the amount in dispute is reduced to $5,812 22.

The first, sixth and seventh items of the account, it is contended, have not been proved, and the question presented at the threshold of the case is, whether these items have been substantiated by sufficient and legal testimony. The only evidence offered to prove the correctness of them, consists of sworn extracts from the mercantile books of plaintiffs, and of the fact, that the plaintiffs were the factors of the defendant at the date of the account, and that he executed to them his promissory note for a part of the balance due.

Article 2244 of the Civil Code declares, that the books of merchants cannot be given in evidence in their favor; they are good evidence against them, but if used as evidence, the whole must be taken together.

If the original mercantile books of plaintiffs were not admissible in evidence in their favor, on the trial of the cause, there is no legal principle which authorized the introduction of the copies or extracts. But it is contended, that the copies were received in evidence without objection, and therefore, make proof of the items of the account against the defendant. This position is in opposition to the authority of the case of the Syndics of Johnston v. Breedlove, reported in 2 N. S. 509, in which case the court held that the account did not make proof of the items, although offered in evidence on the trial below, and affirmed the judgment rejecting the demand founded on it. See Herring v. Levy, 4 N. S. 383; Kendall v. Bean’ 12 R. 407, 12 An. 778.

The fact, that the plaintiffs were the factors of the defendant, and that he gave to them his promissory note for a part of the balance of account, does not prove the correctness of the items in question, which are as follows: “ to balance cash per account rendered $821 52,” to invoice of supplies $239 77,” and “ to freight paid $12 25.”

The defendant’s answer contains a general denial, and a special avei’ment that, at the time he signed the promissory note, he had not examined the accounts of plaintiffs against him. This answer imposed upon them the burden of proof as to the correctness of the items of the account under consideration.

The plaintiffs should have proved expressly the correctness of these items by competent witnesses cognizant of the facts, or of the defendant’s admission of the facts, or tacitly by evidence of the rendition of the account to defendant, and his silence and acquiescence therein for a reasonable length of time. They proved that the accounts of 1856 and 1857 had been rendered to the defendant; but the witness states that he was not in the employment of the plaintiffs at the time, and that his knowledge of the fact had been derived from the plaintiffs’ books. This testimony is of no greater weight than the sworn copies or extracts already considered. They also offered in evidence a written order of the defendant for the invoice of supplies charged in the account, but this order is no evidence that the supplies were purchased and shipped by the plaintiffs to the defendant.

It is not sufficient for a party on whom the burden of proof rests, to make out a probable case; he must show by legal testimony, with reasonable certainty, the existence and verity of his demands.

As to these items, there should have been a verdict and judgment of nonsuit.

The second item of the account for $504 11, the third item for $540, and the fourth item for $1,566, are for drafts drawn by the defendant on the plaintiffs, accepted and paid by them, and are fully proved by the production of the drafts and evidence of the defendant’s signature.

The fifth item for $3,600, is for the promissory note given in part settlement of the balance due the plaintiffs on account, and is fully proved.

Before considering the special defence set up against the payment of this note, it is necessary to state, that the plaintiffs were the successors in the commission business of J. B. Byrne & Co., who had been the factors of the defendant, and to whom he was indebted at the time of the formation of the new firm of Byrne, Vance & Co., in the year 1854, in the sum of $4,709 46, which consisted of two promissory notes, one for $2,000, and the other for $2,500, and a balance of $209 46 on account, which were transferred to the books of plaintiffs, with whom the defendant continued his business. And that the course of business between the defendant and his factors (both the old and new firms,) was for the latter to furnish the former with plantation supplies, to make him cash advances, to accept and pay his bills, to receive and sell his crops of cotton, to charge him 2| per cent, commission for buying his supplies, 2l per cent, for selling his crops, 2J pe cent, for accepting his bills and endorsing his notes, and to charge him in account 8 per cent, interest on the amount of all advances and disbursements; and for the defendant to settle a part or the whole of the annual balances of account against him, by executing and delivering to his factors his promissory note or notes, payable to their order at a future day, with authority to endorse and discount the same in the market on his account, and to place the proceeds to his credit; and that in the execution of their mandate, they discounted or sold the notes, at the rate of discount exceeding the highest rate of conventional interest.

Such having been the course of business between the parties, the defendant, after alleging that.the consideration of the promissory notes and balance of account transferred by the old to the new firm consisted of usurious, and other illegal charges, “ avers that the note or draft in favor of the plaintiffs for $3,600, due February, 1858, was given in error, and that it was given for a supposed balance due; that since then, he has ascertained that a very large portion of said sum, if not the whole of it, was made up of usurious and- compound interest, usurious and illegal commissions and brokerage, and other incorrect and illegal charges made in the accounts of J. B. Byrne & Co. and Byrne, Vance & Co., as aforesaid; that at the time he signed said note, he had not examined the accounts of plaintiffs, nor could he have understood them, if he had examined them, and that he signed said note in error of fact and law.”

It is not shown that the balance of $209 46 due on account, and transferred by the old to the new firm, forms any part of the consideration of the note for $3,600, and, therefore, requires no further consideration.

The promissory notes executed by defendant ih favor of the old-firm, and transferred to the plaintiffs, were prima facie evidence of a lawful and valuable consideration ; and if they, or the note now in dispute, were given in error, or if there had been a partial or total failure of consideration, or if the consideration of all, or any one of these notes, was tainted with usury, or fraud, or other illegality, the burden of proof was upon the defendant to establish the fact, and thereby rebut the legal presumption in favor of their validity. But he has offered no evidence to prove any of these facts, and we have to consider whether the course of dealing between the parties, above stated, was.illegal, and sustains the plea of usury.

First. It seems to be well established by the custom of merchants, and recognized by law, that factors have a right to charge 2|- per cent, commissions for the sale of cotton in the city of New Orleans, and a like commission of 2| per cent, for accepting bills or endorsing notes for the accommodation of their customers, and that these commissions do not form any part of the interest on money loaned, or advanced, for the reason, they have for their consideration the trouble and labor of the factor, and the use and credit of his name. It is equally well established by the custom of merchants, that factors in the city of New Orleans have a right to charge 2£ per cent, commissions for purchasing plantation supplies, as a reasonable compensation for their trouble and services on behalf of their constituents. And as commissions for purchases are considered as a compensation to the factor for his trouble and labor, and rest on the same grounds, for their allowance, as commissions for sales, they likewise do not form any part of the interest on money loaned, or advanced, and cannot be said to be usurious, or to form an ingredient in a usurious charge, as commissions for advancing money have been held to do, when claimed in addition to the highest rate of conventional interest.

Secondly. The sale of the promissory notes of the defendant, in the market, by the plaintiffs and their predecessors, at a greater rate of discount than the highest rate of conventional interest, was not, upon the evidence before us, usurious.

The defendant has not proved that his notes were discounted by his factors on their own account, or that the discount itself was a device to cover usurious interest. To constitute usury, there must be a loan of money. In the bona fide sale or discount of a promissory note, there is no loan of money, and, consequently, no usury. Norwood v. Waddell, 11 La. 493; Bank of Louisiana v. Briscoe, 3 An. 157.

Thirdly. The charge of eight per cent, interest in the accounts current was illegal, and could not have been recovered without proof in writing of the defendant’s agreement to pay the samo. C. C. Art. 2894. But his recognition of the charge, and the execution of his promissory notes for its payment, legalized the interest and furnished the plaintiffs with the written evidence required by law, so far as the balances of account were settled by his notes. It therefore appears, that the course of dealing between the parties, however prejudicial to the interests of the defendant, was consonant with mercantile usage, was sanctioned by law, (with the exception of the eight per cent, interest, for which there is no written evidence of the defendant’s promise to pay,) and does not sustain the plea of usury.

The eighth item of the account for $137 45, is for commissions for endorsing for defendant, and was remitted by plaintiffs in the court below. On the application of defendant for a new trial, the plaintiffs remitted the sum of $156 64 iuclnding this item of account, which was thereby extinguished. 0. 0. Art. 2126.

The defendant is entitled to a credit for the balance of the sum remitted, to-wit, $19 19. 0. 0. Art. 2197. This item for commissions appears to form a part of the first item of the account, as shown by the sworn extracts offered in evidence.

The ninth and last item for $176 56, is for interest on the account in suit at the rate of eight per cent, to the date at which it is made up, and is erroneous.

The only written evidence of the defendant’s agreement to pay eight per cent, interest on any part of the balance of this account, is the promissory note for $3,600, and this agreement does not, of course, extend to any items of account not embraced within the consideration of the note. It was made payable to the order of the plaintiffs, and was endorsed and discounted for the accommodation of the defendant, and paid at maturity by them, as endorsers. Having paid the note, as endorsers, the plaintiffs became subrogated to the right of the holder to demand payment of the interest stipulated, as well as the principal. 0. 0. Art. 2157, No. 3.

The defendant in his answer also alleges, that the plaintiffs have not given him, in the account, the full amount of credits to which he is entitled for the sales of his cotton ; but of this allegation there is no proof.

The credits amount to the sum of $1,785 44, and have not been specially imputed to the payment of any particular items of the account, and where no imputation of payment has been made, the law declares, that the payment must be imputed to the debt, which the debtor had at the time most interest in discharging, of those that are equally due, otherwise to the debt which has fallen due, though less burdensome than those which are not yet payable. C. C. Art. 2162.

The only items which have been proved, as we have already stated, are the acceptances of the plaintiffs for the defendant, and the promissory note for $3,600.

The acceptances had fallen due, and were paid before the maturity of the note, and according to the rule prescribed in Art. 2162 of the Civil Code, the credits before the maturity of the note, must be imputed to the payment of the acceptances, bo cause they vete first due. though less burdensome; and the credits after the maturity of the note, must be imputed to its payment, because the defendant had, at the time, most interest in discharging it. See Cox v. Rees, 10 La.; Pargoud v. Griffin, Administrator, ibid 357. The remission must, be imputed to the debt due on account, and not on the promissory note.

The view we have taken of this case renders it unnecessary to pass upon the bill of exceptions taken by defendant’s counsel to the charge of the Judge to the Nry-

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be annulled, avoided and reversed; and it is now ordered, adjudged and decreed, that item eight of the account filed in the record, and marked (X. Y.), be rejected, and that item nine of said account, excepting the interest allowed by this decree, be also rejected. And it is further ordered, adjudged and decreed, that as to the item first for $821 52, as to the item sixth for $239 77, and as to the item seventh for $12 25, of said account, there be judgment as in case of non-suit. It is further ordered, adjudged and decreed, that the plaintiffs do have and recover of the defendant the sum of two thousand six hundred and ten dollars and eleven cents, being the sum of the second, third, and fourth items of said account, with interest thereon at the rate of five per cent, per annum from the 13th day of February, 1858, subject to a credit of seven hundred and six dollars and seventy-three cents, paid November the 9tb, 1857, and to a further credit of two hundred and nine dollars and thirty-two cents, paid the 21st of November, 1857, and a further credit of $19 19, remitted 10th of May, 1859. And it is further ordered and decreed, that the plaintiffs do have and recover of the defendant the further sum of three thousand six hundred dollars, with interest thereon at the rate of eight per cent, per annum, from the 21st day of February, 1858, (this being the fifth item of said account,) subject to a credit of four hundred and thirty-two dollars and ninety-eight cents, paid the 10th of March, 1858, and to a further credit of two hundred and fifteen dollars and five cents, paid the 11th of March, 1858, and to a further credit of two hundred and twenty-one dollars and thirty-six cents, paid the 27th of May, 1858. And it is further decreed, that the defendant and appellant pay the costs of the lower court, and that the plaintiffs pay the costs of this appeal.


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    James Beau v. H. A. Drew.
    "Whore an attorney entrusted with notes for collection, becoming unable to attend to it himself, placed them in the hands of another lawyer at tbe same bar, who instead of prosecuting the suit on the notes to judgment against the maker and his sureties, recoived from the maker other notes in the place of these, on which suit was instituted and judgment recovered in the name of the plaintiff, on which judgment the plaintiff received nearly the whole amount of the notes originally entrusted — Held: That these proceedings constitute a ratification of the acts of the sub-agent, and the attorney originally employed is not liable.
    APPEAL from the District Court of the Parish of Claiborne, Egan, J.

      J. D. Walkins, for plaintiff and appellant.

      II. Gray, for defendant.
   Land, J.

The plaintiff placed in the hands of the defendant, an attorney-at-law, two promissory notes, each for the sum of f785, and bearing interest, for collection.

The defendant was soon afterwards elected Judge of the District Oourt, and thereby became incompetent to act any longer for the plaintiff; and he placed the notes for collection in the hands of Nelson S. Scott, who was at the timo a practicing attorney-at-law, ill the same judicial district.

The attorney employed by the defendant, instead of prosecuting suit on the notes to judgment, against the maker and his sureties, agreed to receive, and did receive from the maker, other notes in the place of them; and on the notes thus received suit was instituted, and judgment recovered in the name of the plaintiff, for more than the amount of the notes placed in the hands of defendant for collection. And on the judgment thus rendered in his name, the plaintiff has received nearly the whole amount of the notes entrusted to defendant.

Under these circumstances, which constitute a ratification of the acts of Scott, the defendant is not liable.

The facts above stated sufficiently appear, independently of the testimony of Scott, and it is, therefore, unnecessary to pass upon the plaintiff’s bill of exception to the introduction of his evidence.

It is. therefore, ordered, adjudged and decreed, that the judgment of the lower court be affirmed, with costs.


author: Merrick:, O. J.

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    Solomon Feazel v. W. D. Cooper.
    Whore the citation is served at the domicil of a party, the omission of the Sheriff to state in his return that the person upon whom the service was made resided in the house with the-defendant, will be a fatal objection to the citation.
    APPEAL from the District Oourt of the Parish of Winn, Richardson, J.

      F. Q. Hargis, for plaintiff.

      John W. Thomas, for defendant and apppellant.
   Merrick:, O. J.

This suit is upon a promissory note. Judgment was made final upon default.

Defendant appeals, and complains that he has never been legally cited.

The Sheriff returns as follows :

“ I served a certified copy of this citation accompanying a certified copy of petition on W. B. Cooper, by leaving the same at his residence, twelve miles from office, with a free white person over the age of fourteen years, who informed me that she was the wife of said Cooper. She further informed me that her name was Mathilda F. Cooper, and that W. B. Cooper was absent from homo.”

It is objected, that the return does not show that Mathilda F. Cooper lived in the house with defendant.

The objection appears to be fatal. 0. P., Arts. 189, 200; 3 An. 130; 4 An. 363.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that this case be remanded to the lower court for further proceedings according to law, plaintiff paying the costs of appeal.


author: Merrick, C. J.

text:
    J. D. Weaver v. C. P. Cox and Wm. Hampton.
    Whore the destruction, of an'instrument is shown by direct testimony, the oath of the party is not required by Art, 2258 of the Civil Codo. '
    It is only necessary, by Art. 2259, that the loss of an instrument he advertised within a reasonable time, and this may he done in a proper case as well after, as before suit is brought.
    Where the paper is shown to have been destroyed, no advertisement is required.
    Where the defendant does not ask for security against the future appearance of an instrument alleged to have been lost, the plaintiff is not bound to furnish it.
    By the Acts of 1852 and 1855, all debts hear interest, at five per cent., from maturity.
    APPEAL from the District Court of the Parish of Franklin, Mayo, J.

      Harper & Whyte, for plaintiff.

      M. A. Jones, for defendant and appellant.
   Merrick, C. J.

This suit is brought upon a draft alleged to have been destroyed by the explosion of the steamboat Princess.

Defendants appeal.

It is objected, that the circumstances tending to show the loss arc not supported by the oath of the party; that the loss ’ of the note was not advertised until after this suit was commenced; that the plaintiff has not been required to give bond against the future appearance of said draft; and that the court erred in rendering judgment for interest.

Where the destruction of an instrument is shown by direct testimony, the oath of the party is not required by Art. 2258 of the Civil Code.

Art. 2259 only requires that the loss be advertised within a reasonable time, and this may be done in a proper ease as well after as before suit brought. Moreover, where tho paper .is shown to he destroyed, no advertisement is required. 8 An. 131.

It does not appear that the defendant asked for security in the lower court under Art. 2258 O. C.

In the absence of such requirement in the lower court, we cannot say that the District Judge erred on this part of tho case.

The judgment bears only five per cent, interest, which is given by the Acts of 1852, p. 95, and 1855, p. 353. The authorities cited by defendant are decisions prior to these statutes.

Judgment affirmed.


author: Voorhies, J.

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    State of Louisiana v. Slave Solomon.
    A slave cannot be sentenced to punishment after he has been acquitted by the finding of tho jury and the magistrates.
    APPEAL from the Fourth Ward Justice’s Court of the Parish of Morehouse.

      Frank P. Stubbs, for plaintiff.
    D. C. Morgan, for defendant and appellant.
   Voorhies, J.

The accused was tried for the crime of murder, and, although acquitted by the finding of the jury and of the magistrates, was sentenced to receive corporal punishment.

The course pursued by the special tribunal, in this instance, is unwarranted in law. A slave cannot be subjected to punishment when he is acquitted of the charges preferred against him. This power is not conferred by the 28th section of the Act of 1857, relative to slaves. Sess. Acts, p. 229 ; State v. Slave Charles, 14 An. 649.

It is, therefore, ordered and decreed, that the judgment of the special tribunal, in so much as it acquits the prisoner, be affirmed ; and that, in other respects, the same be avoided and annulled.


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    H. W. Ramsey v. A. M. Callaway.
    Where an election was contested upon the ground, that after the commissioners had made their return they proceeded to count the votes over again and found that there was a difference which would have changed the result — Held: That where it does not appear that the mistake was committed on the first, any more than on the second counting, full effect must be given to the official returns of the commissioners.
    APPEAL from the District Court of the Parish of Union, Richardson, J.

      F. G. Hargis, for plaintiff and appellant.

      Jno. L. Barrett, for defendant and appellee.
   Voorhies, J.

The parties are contestants for the office of Sheriff in the parish of Union.

By the returns of the election, the defendant had a majority of one vote; but the plaintiff contends that without a mistake of two votes in the returns of one of the precincts or wards, he should have been returned by a majority of one vote.

The evidence does not show an error to have been made by the commissioners, in their official returns of the votes polled in the ward in question. It is true that, the next day, they proceeded to count the votes over .again, when they ascertained that there was a difference of one vote in the general result, and a difference of two votes in favor of the plaintiff. But it does not appear whether the mistake had been committed on the first, any more than on the other occasion. Full effect must consequently be given to the official returns of the commissioners.

These views dispense with the examination of the other questions raised in this cause.

It is, therefore, ordered and decreed that the judgment of the District Court, on the verdict of the jury, be affirmed with costs.