author: Mebrick, O. J.

text:
    Hezekiah Hawley v. A. G. Sloo.
    A promissory note payable generally must bear the rate of interest of the place -where it is made. If the place of performance is different from that of the contract the interest will be according to the latter.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Elmore & King, for plaintiff.

      Mott & Eraser, for defendant and appellant.
   Mebrick, O. J.

Plaintiff alleges in his petition that defendant is a resident of Indiana. He commenced the present suit against him by attachment as such absentee. It is admitted that the plaintiff resides in Tennessee and that the rate of interest in that State is six per cent.

The obligation sued on is in these words:

$5,325 10. On the first day of December next, I promise to pay to the order of Hezekiah Hawley five thousand three hundred and twenty-five dollars for value received. Witness my hand and seal this 18th November 1854.
(Signed) A. G. SLOO. [Seal.]

We do not consider the words “ Hezekiah Hawley, Memphis, Tenn.” as forming any part of the instrument, it being probably a mere label upon the note put there by the holder for his convenience and security.

The judgment of the lower court decrees in favor of the plaintiff six per cent, interest upon the amount of the note, according to the law of Tennessee. The defendant has appealed and contends that plaintiff cannot recover more than five per cent, interest.

Plaintiff’s counsel maintains that the decision of the lower court is correct on these grounds, viz: that it must be presumed from the domicil of both plaintiff and defendant, that the note was executed in a common law State; that this court will take judicial notice of the common law, by which “ It is a general rule that where there is a precedent debt or duty, the creditor need not allege o£ prove any demand of payment before the action brought, it being the duty of the debtor to find out his creditor and tender him the money,” (Chitty on Bills, p. 249, 7th edition) and that the note sued on was therefore payable in the State of Tennessee, the domicil of the creditor, and drew the rate of interest allowed in that State.

Eor the purpose of the decision of this case, we will allow the somewhat forced presumption that the note was made in a common law State.

The passage quoted above from Ohitty on bills, we think, has reference particularly to the defence of the maker of a note and acceptor of a bill on an action to be brought on the bill of exchange or promissory note. We do not suppose the learned author intended to assert that it was the duty of an Englishman, without any special promise so to do, to follow his creditor out of the realm, say to New York or California, and there make payment according to the rate of interest allowed by those States. The contrary seems to be clearly established by the common law writers as well as by the decisions of this court. The subject is considered by Story on promissory notes, sec. 49. Ho says: “In the next place, as to the place where a promissory note is made or is payable. By our law, it is not essential that any place of making or of payment should bo specified on the face of the note, unless specially provided for by statute. It is usual indeed, in the date, to include the place where the note is made; and this in many cases may be very important, in order to ascertain the proper rules by which it is to be interpreted; for the interpretation will be, or may be essentially governed by the law of the State where it is made. But, in the absence of any place stated on the face of the note, resort may be had to parol evidence to establish the validity of the note as well as to impeach it. But very different considerations will apply to the place of payment ; for, if the note is intended to bo paid at any particular place, that place must be stated in the instrument, andpwol evidence is not admissible to show that although no place of payment is therein stated, yet the parties agreed that it should be papable, at a particular' place. It is not sufficient to make the note payable at a particular place, that there should be a memorandum of the place where it is payable, at the foot or in the margin thereof, but it should be in the body of the note itself and constitute a part thereof.” See also Chitty on Bills, 151, 154, 165. 11th American from 9th London edition.

Chief Justice Parker, cited by Mr. Justice Story, says: “ When a merchant of France, Holland or England enters into a contract in his own country, ho must be supposed conversant with the laws of the place where he is, and to expect that his contract is to be judged of and carried into effect according- to those laws; and the merchant with whom he deals, if a foreigner, must be supposed to submit himself to the same laws, unless he has talcen awe to stipulate for a performance in some other country, or has in some way excepted his particular contract from the laws of the country where he is.” Story, Conflict of Laws, § 278.

So bills drawn in Ireland to be filled up in England, as to dates, sums, times of payment and drawees, relate back to the date of the original signature of the drawer, and are to be deemed Irish bills. Smith v. Mingay, 1 M. Selwyn, 87.

Kent says in his Commentaries that “ parties are presumed to contract in reference to the laws of the country in which the contract is made; and it is a maxim that locus regit aetum unless the intention of the parties to the contrary be clearly shown.” 2 Kent, p. 258, 2d edition.

Chitty says that “ effect is also to be given to the intention oí the parties according to the law of the country where the contract is made and in which it is to be performed, and not according- to the law of the country into which either or all of them may remove. ****. The construction and interpretation of the contract must be governed by the laws of the country where made — lex loci eontr’aetus; the mode of suing and the’time within which the action must be brought must be governed by the law of the country where the action is brought: in ordinandis judiciis, loci consuetudo ubi agiturS Same edition, p. 168. In note 1 to p. 169, it is said “ that as the law of the place where the contract is made regulates the rights and duties of the parties, if a hill he drawn and endorsed in a place by a person resident there, he is answerable upon such endorsement only so far as the laws of that country bind him upon a bill so drawn and endorsed. See also Powers v. Lynch, 3 Mass., 77; Hicks v. Brown, 12 John, 142.

Story, Conflict of Laws, also says in another place that “ a contract to pay generally is governed by the law of the place where it is made; for the debt is payable there as well as in any other place.” Sec. 817. The same doctrine is held in the recent case of Peck v. Hibbard, 26 Vermont, (Deane,) 698.

It follows that a note payable generally must bear the rate of interest of the place where made, for the general rule is that “by the common law the lex loci contractus will in all cases give the rule of interest following out the doctrines of the civil law Quum judicio boncie ftdei disceptatur, arbitrio judiáis usurarum modus, ex more regionis ubi contradmm constituitur; ita tomen ut legi non offendat. And if the place of performance is different from that of the contract, the interest will be according to that of the foriner.” Story, Con., § 296, 343, 345. See the case of Brey v. Winter, 4 N. S., 277; also 8 Savigny, p. 282, sec. 374, Berlin edition, and 3 An., 402, and C. C. Art. 10.

It is not shown or pretended by the argument that the note sued on was executed in Tennessee. If it be conceded that it was executed in Indiana, still, as it does not appear what rate of interest is there allowed, we must presume that it is the same as allowed in Louisiana, viz, five per cent.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and it is now ordered, a'd judged and decreed, that said Hezekiah Hawley do recover and have judgment against said Albert G. Sloo for the sum of five thousand three hundred and twenty-five dollars, with five per cent, interest thereon from the first day of December, 1854, until paid, with a privilege on the property attached, the plaintiff paying the costs of appeal and the defendant those of the lower court.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    Stadeker v. His Creditors. — Labatt, Syndic.
    Where a rule to inflict on a syndic the penalty for not keeping a bank book, &c., &c., has been passed upon by the court in homologating the syndic’s account, a second rule, on the same grounds, cannot be taken, unless the right was reserved in the dismissal of the first rule.
    Nor can the debtor take the rule on the pretence that he is the transferee of claims of creditor unless he has been legally subrogated to those claims.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Ho Gay & Edvsa/t'ds, for plaintiff and appellant.
    Jf. H. Oohen, for defendant.
   Cole, J.

On the 27th of November, 1856, a rule taken on the 5th of said month by J. Stadeleer, the insolvent, on D. C. Labatt, syndic, to produce his bank-book properly balanced, was dismissed, reserving to the plaintiff in rule all his rights in the premises.

On the 6th of November, 1856, the final tableau of the syndic was homologated so far as not opposed.

On the 28th of November, 1856, the said insolvent took a rule on the Syn. die to hold him responsible under the 2d and 3d sections of the Act of 1855, entitled “ An Act to regulate and define the duties and powers of administrators, executors, curators and Syndics,” (session Acts of 1855, p. 78) for not having deposited the money received by him in his official capacity in one of the chartered banks of the State, and for not having kept a bank book in his capacity of syndic.

The insolvent also allodged that he had obtained an acquittance and release by payment to his creditors of all their claims except a trifling amount of his original liability.

This rule was dismissed with costs on the 11th March, 1857, and the insolvent has appealed.

A final tableau having been homologated so far as not opposed, this second rule was taken too late, unless the reservation in the dismissal of the first rule of all the rights of the insolvent in the premises signified he should have the privilege of taking a second rule. (Succession of Anderson, 12 An., p. 95).

There is however a fatal objection to the success of appellant.

Certain dividends were transferred by some of hie creditors to him, and paid to him by the sjmdic, but the appellant was never subrogated to their rights, if any they had, for damages and interest due as a penalty for violating said Act of 1855.

Appellant has therefore no cause of action.

It is, therefore, ordered, adjudged and decreed, that the judgment bo affirmed with costs.


author: Buchanan, J. Merrick, O. J., Cole, J. Voorhies, J.,

text:
    City of New Orleans v. The Heirs of Guillotte.—On a Rehearing.
    The city of New Orleans having voluntarily accepted a partnership with individuals in the profits to be derived from a market-house, cannot claim to be on a different footing as regards its social rights, at least in what regards the financial administration of the partnership property, from another partner. .The peculiar quality of this corporation, clothed by the Constitution with many of the most important functions of government, does not take from the other party to the partnership the right to be consulted in matters which concerned the social interest.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      J'. J. Michel, for plaintiff and appellant.

      F. Buisson and JR. JM. Ogden, for defendants.
   Buchanan, J.

In this case, it has been decreed by this court, in conformity to the demand of the plaintiff’s petition, that a partition should he made of the Magazine street market, held in partnership by plaintiff and defendants; and, as the impossibility of making the partition in kind was proved, it was ordered that the partition should be made by licitation. See Opinion Book 27, p. 12.

As the year for which the market was farmed was approaching its termination, when this judgment was rendered, the city council, by resolution, ordered that this particular market should not ho farmed for the coming year, to the highest bidder, as the other markets, hut that the commissary of the market should collect the market dues to the day of sale, rendering an account and paying over to the City Treasurer, day by day, the dues thus received. The defendants remonstrated against this change in the mode of administering the revenues of the market, as injurious to their interest; and notified the council that a person named by them, and who would give unquestionable security, was prepared to give at the rate of fifteen thousand dollars a year, or twelve hundred and fifty dollars a month, for the privilege of collecting the revenues of the market in question, until the sale of the market be effected under the judgment of partition. This proposition was rejected by the council, and a rule was taken in the suit by defendants, to compel the plaintiff to submit to this provisional arrangement, as being for the interest of both parties concerned. The rule was, upon hearing of the argument and evidence, made absolute, and plaintiff has appealed.

The price offered for the farm of the revenues of the market, is proved to be eleven per cent, greater than that which was received last year, and no evidence has been offered by plaintiff impugning either the sufficiency of the rent, or of the security offered for its payment. The solvency of the sureties offered has been proved, on the part of defendants, by the evidence of those sureties themselves. This is not contradicted, the plaintiffs resting altogether upon their claim of an exclusive right of the city government to regulate the administration of the revenues of the public markets of the city.

A more mature consideration of this interesting question, upon a re-hearing granted, has satisfied us that circumstances of this case make it an exception to the rule governing the administration of the markets of Now Orleans in general.

The city has voluntarily accepted a partnership with individuals, in the profits to be derived from a market-house. Having done so, it cannot claim to be on a different footing, as regards its social rights, at least in what regards the financial administration of the partnership property, from another .partner. In vain does the city appeal to its peculiar quality of a corporation clothed by the Constitution and laws of the State, with many of the most important functions of government. Its partners, the defendants, had a right to bo consulted in a matter which concerned the social interest. If, indeed, the defendants had asked to disturb and innovate upon the practice established by law and usage in the administration of the market, the case would have been very different. But it is, on the contrary, the city which, to the injury of the de ondants, as the evidence seems to demonstrate," commits an invotion of that kmd.

The judgment heretofore rendered by us on this appeal, is, therefore, set aside and annulled; and it is adjudged and decreed, that the judgment of the district court be affirmed with costs.

Mr. Justice Cole took no part in this decision.

Merrick, O. J.,

dissenting. I see no reason to depart from the doctrines and conclusions contained in the opinion of this court first pronounced in this case. The joint ownership of the soil by the Heirs of Guillotte with the city, gives the former no right to interfere with the police of the market nor the regulations which the city authorities may deem it necessary from time to time to ordain, for the sale of provisions within the market. The power to establish markets and regulate the administration of the same, has boon conferred by the people and the Legislature upon the common council. It is a portion of the sovereign power delegated to them. First Municipality v. Cutting, 4 An. 336.

If a private person allows the city to hold a market over his soil, he must submit to such regulations as the city authorities see fit to enact. He may withdraw his property from the city, or claim an indemnity for the same, but so long as he suffers his property to be used as a market, he submits it to the authorities having1 the power to regulate, and, as a consequence, adminis.ter the market. So also as to the joint owner with the city. He may compel a partition if he chooses, but he cannot interfere with the regulations which the city may adopt for its control, management and police; nor can he prevent the city from discontinuing the market altogether, when it shall deem that the public interest requires such discontinuance. Having conceded this much as incontestible, I find myself unable to bring about a conclusion differing- from that arrived at on the former occasion.

It appears to me to follow, that the common council alone have the power to judge of the expediency of farming- the market or of placing the collection of the dues under the direction of an officer, such as the commissary of the market. They have also the power to decide upon the fitness of the person who is to exercise the functions of such office. Should it appear to them that the public interest would be better protected; that there would be better order, less extortion, and a more certain and efficient collection of the dues, by placing1 a market in a populous portion of the city under the control of an officer of the police (as they attempted to do in this instance), in my opinion they had not only the right, but it was their duty to note such regulation in the interests of public order.

Although a market may not be a locus publicus in the sense that the ownership of the soil is necessarily vested in the public, still it is a public place in this sense. It is a place to which all persons have a right to resort daily, to supply themselves with such provisions and necessaries as are there vended. And as order and cleanliness are essential to the public welfare and health, the market, which is thronged 'at certain hours with all classes of persons and filled with all manner of perishable comestibles, must, of necessity, be under the control of a vigorous and efficient police to prevent it from becoming an intolerable nuisance. It is, therefore, a public place, because it is submitted to the exclusive control and government of the city authorities. In the case of Gutting, just cited, this court said: “The right to establish markets is'a branch of the sovereign power and the right of regulating them, is necessarily a power of municipal police. See Blackstone Com. 1 vol, 214; Domat Droit Public, lib. 1, sec. 3. This is vested by positive law in the Mayor and council of each municipality, upon whom rests the responsibility of the peace, comfort and order of the assemblages collected at fixed hours at those great thoroughfares.”

I will add that markets are not established as sources of public or private profit, but for the public good.

There is but one way of judging of the exercise of the legislative power which may be conferred upon municipal corporations. It is to inquire whether they violate any principles of the Constitutions of the State and the United States, and any legislative enactments. If they do not, the ordinances of such bodies on the subjects delegated to them, have the force of supreme law, and the courts have no option but to compel obedience to the same. To control them would be to legislate for them. 7 M. R. 4, Claiborne v. Police Jury.

Looking- at the ordinance of the common council in this light, I find the de. fendants anxious that the joint property shall still be administered as a market, and that the common council have legislated upon a subject-matter submitted, to their control. Docs it violate any provision of the Constitution or any statute law ? I cannot find that it does.

But it is said that the defendants have tendered to the court a person who will lease the market and will give the city eleven per cent, more than was given the year previous.

Supposing the individual a suitable person to take charge of the market, and that he will be prompt and efficient, and practice no injustice or extortion, still it does not appear to mo that the resolutions in question work any injustice to the defendants.

The markets are regulated and the dues and revenues arc collected under ordinances and regulations of the city. As the farmer and lessee cannot exact more than allowed by the regulations, so it is not to be supposed that the officer charged with making the collections will receive less. If tho joint proprietor, theiefcre, receives his proportion of tho exact income of the market, there is no room for complaint. Certain it is, he does not expect the city to join in an unjust speculation to be made out of the lessee whom he tenders to take the control and the revenues of tho market.

Neither have I heard it objected that the commissary of this market, to whom the collection of the dues are intrusted by the ordinance, is wanting in integrity, or that he is not energetic and efficient.

Suppose the courts to take from the city the control of the markets, where can they find powers for their government and police ? Their powers are judicial and not legislative.

I cannot, therefore, see any .sufficient justification for a judicial interference with the common council of New Orleans in a matter by law left to their control as a legislative body to whom a portion of the sovereign power has been delegated, and whose official acts as such on all things within their jurisdiction, have the force of law.

OVERRULED OPINIOKS.

Cole, J.

The parties ave joint owners of the Magazine street market, and are entitled to receive ‘their respective share of its revenues in the proportion fixed by a final judgment, signed 29th December, 1858. On the ITth of November, 1856, this court having decided that this market should be sold for the purpose of effecting a partition among the co-proprietors, the city of New Orleans did not •sell the lease thereof for the year 1857, but passed a resolution authorizing the commissary of the market to collect its revenues under existing ordinances, and to pay the same into the treasury of .the city, where an account thereof is kept.

The defendants were not satisfied with this proceeding of the council, and on the 2Sd of December, 3856, took a rule on the city to show cause, why they should not be ordered to accept a certain proposal, made by L. Ai'mmgmid, who had offered to the city council to collect the revenues of the said market-house, and to account for the same, at the rate of $15,000 per year, until the sale of the property for the purpose of partition should be made.

The District Court made the rule absolute ordering him to collect the revenues, and to pay monthly Into the hands of the City Treasurer a sum of $1,250.

He was also ordered to furnish a bond in the sum of $20,000.

3?rom this judgment the city has appealed.

The question in this case is, whether, the city of New Orleans has the exclusive control of collecting the revenues of the Magazine street market?

This must be answered in the affirmative.

The authorities of the city of New Orleans alone have, by law, the right to ordain in what places markets shall be held; they have then the right of regulating this market; of authorising therein the sale of some articles and of prohibiting that of other commodities. They can also make it a source of revenue to. the city by requiring the vendors therein to pay certain prices for the privilege of selling, and they have the right to collect the same by any one they think proper, or to farm out, for a fixed price, the right of collecting and keeping the revenues of the said market.

These prerogatives constitute a part of the police power of the city.

Appellees seem to think they have a right to a joint control of the collection of the revenues, because they and the city are joint owners of the marxet-house; their error consists in mingling the right of property in the market-house, with the right to the market therein held. The market-house and the market therein held are distinct; the former may be joint property, but the latter is created by the city, the vendors therein derive their right from the city, and it alone can ordain how much they shall pay for the privilege of selling and collect the revenues for the same. Although, then, the parties are joint owners of the property, and entitled to a partition of revenues in due time, according to their respective shares, yet they are not joint owners of the right to give authority to sell in. the market-house, to regulate the price, or to collect the revenues. It is not a valid reason to take from the city its xmlice power, because it may in error have built a market-house on private property.

It authority to constitute a market exists alone in the city, then the prerogative of fixing prices for the privilege of selling therein, and of collecting the revenues thereof, is vested solely in its authorities. Vide First Municipality v. Cutting, 4 An. 336; Act amending Act to incorporate the city of New Orleans, approved March 14th, 1816; Bullard and Curry, p. 101, 1st sec.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and proceeding to render such judgment as ought to have been rendered by the lower court, it is ordered, adjudged and decreed, that the rule taken in this case by defendants, be discharged with costs in both courts.

Voorhies, J.,

dissenting. In our former decision between the parties, in remanding the case for a partition by licitation, we observed: “ It appears to us erroneous to style the Magazine street market a locus pubUcus. ^ Market-houses are not included in the enumeration oí public things, contained in Articles 444, 445 and 446 of the Civil Code. A market-house may welL be the subject of private ownership. In many cities, butcher’s meat, fish and vegetables are sold in shops, like any other commodity. Even in New Orleans there are to be found market-houses which belong to individuals, &c. A‘ * * * But from this general power of establishing markets and regulating butchers, it does not seem to follow, that the city corporation must needs be the owner of all the market-houses within its limits, any more than of all the bakeries and taverns, whose occupants are subjected to the same municipal supervision, &c.” A. K.

It cannot be denied, that the police of the city extends over all the market-houses within its limits, whether held by lessees under it, or owned by individuals. Neither can it be denied that the city has the exclusive right to fix the rent of its own market-houses, and regulate the mode of collecting the same But has it the exclusive right either to lease or to direct the mode of collecting the rent of market-houses belonging to individuals? Clearly not. Then, in her joint ownership of such property, as in the case at bar, it is difficult to perceive any good reason why the city should be vested with any more right than the other party in fixing and collecting the rents thereof.

The plaintiff is appellant from a judgment making the following rule absolute, and claims the exclusive right to collect the rents of the property in question, pending the litigation, viz:

“ On motion, &c. — It is ordered by the court, that plaintiff do show cause why they should not accept the proposal of Zouis Aimingú/ud to collect the revenue of the lower Magazine street market from and after the 1st January, 1857, and to account to the owners of said market at the rate of $1,833 38 per month, until the sale of saidmarket be effected,pursuant to the judgment of the Supreme Court.”

The court a quo considering it necessary, in order to secure the interest of both parties in the collection of the revenues until the partition by licitation under the decree of this court, ordered that the plaintiff “ proceed at once to farm out the collection of said revenues in the usual manner, and after due advertisements, by sale at public auction, the farmer or lessee to take the same only up to the said licitation, and that in the meantime and until the plaintiff shall have so farmed said revenues, Zouis Arming and be appointed, and authorized to collect said revenues from and after the 1st of Janua/ry, 1857, and to account for the same at the rate of $15,000 per annum, and to pay over to the City Treasurer on the last day of every month, the sum of $1,250, on his entering into bond in the sum of $20,000 in favor of plaintiff and defendants, according to their respective rights, for the faithful performance of his duties,” &c.

By a judgment of the Sixth District Court of New Orleans between the parties, tlieir respective proportions in the property in question has been finally fixed.

The only ground urged in answer to the rule is, “ that the collection of the revenues of the markets of this city is entrusted to the Common Council of the city of New Orleans, and they cannot be divested of said trust. That the maintaining of the rule would cause plaintiff damages in the sum of $500.”

It is evident that the proposition assumed, can only apply to market-houses of which the city is the exclusive or sole owner, and not t© such as belong to individuals, or of which it is a joint owner, as in the present case. It is difficult to perceive in what respect the appellant is aggrieved by the order of the court authorizing a third person, under a heavy bond, in consequence oí the disagreement of the parties, to collect the revenues of the property and to account to them for tho same, as we have Seen. There is not an iota of evidence in the record, to show the alleged damages. On the contrary, both parties are damaged by the course of the City Council, Neither party having the exclusive possession or control of the property, it was therefore fit and proper, under the pe'culiar circumstances of the case, for the court, in the exercise of its discretionary and equitable power, thus to protect the interest of both parties, and to make the property bring as large a revenue as possible. And it must be observed, that the plaintiff complains with bad grace, for the order has conferred upon it more authority than that sanctioned under the rules prescribed by law, as to the rights and obligations of parties in regard to private ownership. The appellees, perhaps, would have the right to complain, but they have not done so.

K am, therefore, of opinion, that the judgment of the cow* below ought to be affirmed.

Spofford, J., concurred in this opinion


text:
    J. M. Denman & Co. v. S. M. Lopez & Co.
    The provisions oí our laws on letting and hiring do not favor abrogation of leases, where the loss or inconvenience is not caused by the fault of the lessor. Except in extreme oases tlie remedy of the lessee is for indemnification.
    APPEAL from the Second District Court of New Orleans, Morgan, J.

      OlaA'lee & Bayne, for plaintiffs.

      Gollins and FouThouse, for defendants and appellants.
   Cole, J.

The plaintiffs leased to the defendants the “ Falcon House,” from the 1st November, 1854, until the 31st of October, 1855, for the yearly rent of $2,100, payable on the first day of each month. '

On the 28th of November the defendants abandoned the premises.

On the 30th, plaintiffs obtained a provisional seizure, and instituted suit for the year’s rent; the defendants admit the execution of the lease, but allege that it was dissolved by a fortuitous event, which occurred on the 20th Nov.:

“a fire which destroyed the adjacent building, the walls of which fell upon and against the western wall of the building leased, and thereby destroyed the said wall, so shaking and injuring said wall, that the building became totally unfit for the purpose for which it was leased, untenable and insecure.”

The leased premises were occupied as a coffee-house, called the Faleon House, situated on Gravier street, north side, and separated from “Placide’s Varieties” by an alley some twelve or fourteen feet wide.

The theatre made the “ Falcon House” a valuable stand for the sale of liquor by the glass and as a restaurant. Its chief value, for that purpose, depended upon the existence of the theatre there.

On the 21st November, 1854, the theatre was burned, and the defendants aver, that the “ Falcon House” was so damaged by the fall of the wall of the “ Varieties Theatre” on its side wall, as to authorize them to quit the premises and to consider the lease terminated; that even if the building was not materially damaged, yet if they had reasonable grounds to believe that it was not safe to be inhabited, they then had the right to abandon the premises and deem, the lease cancelled; particularly as the lessors, according to their averment, never offered to furnish them with another lodging during the repairs.

It appears from the evidence, that on the 27th November, 1844, M. Filié, the City Surveyor, gave a certificate in his official capacity, that the western wall of the “ Falcon House” was badly cracked, occasioned by the falling of the walls of the Placide’s Theatre,” lately destroyed by fire, that said wall was dangerous and ought to be pulled down and rebuilt.

The record shows, that this opinion of Filié was incorrect; that the building was but slightly injured; $180 or 200, being all the expense of the repairs.

It was standing at the time of the trial inApril, 1856, and has been occupied in the upper part for the storage of carriages since November, 1855. Heavy weights have been placed therein, without any injury or causing- uneasiness. One of the witnesses says, he has seen as many as ten or twelve carriages on the first floor and perhaps four or five on the second floor.

Filié, in his examination in court, says, if he had thought that the wall was sprung from settlement of the wall and not from the fire and commotion, he might not have condemned it. In his cross-examination he testifies, that “ nothing in the ‘ Falcon House’ appeared to be injured by the fire.”

The opinion of Filié, as to the danger, was corroberated only by men who have had no experience in building, whilst several builders testified, that there was no danger ; and it is also shown, that the repairs could have been done, if necessary, in fifteen days.

The lapse of time has established the error of Mr. FiliSs opinion.

It appears to us, that defendants cannot base a claim for relief on Arts. 2666, 2667 or 2669.

The provisions of our laws’ on letting and hiring do not favor abrogation of leases, when the loss or inconvenience is not caused by the fault of the lessor, but specifies indemnity as the proper remedy except in extreme cases.

This was the doctrine of the court in the case of Fanny Dussuan & Husband v. L. F. Generis, 6 An., 279, where the tenant suffered a temporary inconvenience from the overflow produced by a crevasse, and also in the case of Dorville v. Amat, 6 An. 566, where the adjoining proprietor found it necessary to demolish the party-wall, in order to erect a more substantial one to suit the character, of the building he was about erecting.

In the case of Pontalba v. Domingon et al., 11 L. 192, it was held, that the lessee is bound to allow the necessary repairs to be made on the leased premises, but may have an allowance by a suspension of the rent for the time he is obliged to quit for this purpose.

The case of Coffin v. Redon, 6 A., 487, quoted in defendant’s brief, was decided in favor of the lessee, because there was an original defect in the construction of the building, and a part of the building had to be reconstructed; the lessor’s implied warranty was violated, and the lessee had the right to demand the dissolution of the lease.

In the case at bar there was no original or latent defect in the building; but repairs became necessary from a cause independent of the control of the plaintiff.

Defendants cannot shelter themselves behind the certificate of Filié : it is true, they may have acted prudently in removing, if they believed it, but they must incur the risk of being held liable, if the certificate is found to have been given in error.

The certificate of the City Surveyor in the case at bar is not binding on this court.

If such a doctrine should bo adopted, then the tenure of leases would depend upon the opinion of the City Surveyor as to the safety or danger of buildings.

Defendants may have quit the premises under the impression of the building being dangerous, but as that impression is not sustained by the evidence, they are liable to plaintiffs on the lease.

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


author: Voorhies, J. Merrick, C. J.,

text:
    W. C. Auld v. J. B. Walton.

    Appeals in cases of contested elections must be considered as falling within the general rules applicable to appeals in all civil cases and where proper and necessary the return day may be extended.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      Benjamin, Bradford & Finney, for plaintiff and appellant.

      R. Sunt, for defendant.

       Omitted in the Reports of 1856.

   Voorhies, J.

The defendant has filed a motion for the dismissal of this appeal, on the ground that it was not made returnable by the District Court within the time imperatively fixed by law.

This is a contested election case, in which the grounds of action are fully set forth in plaintiff’s petition.

The election in question was held, as required by law, on the 5th of Nov., 1855, for the office of Clerk of the Fourth District Court of New Orleans.

The case was tried by a jury, and resulted in a verdict in favor of the defendant. The District Judge, after refusing a new trial, rendered a final judgment in accordance with the verdict on the 26th of May, 1856. On the 4th of June, 1856, the plaintiff obtained an order from the Judge granting him an appeal from the judgment, returnable on the fourth Monday of the same month. In the meantime, on the 16th of June, the plaintiff filed an application in this court-for an extension of time to bring up the transcript, based on the certificate of the Clerk of the court below, that ho could not have the transcript ready for the return day- — the fourth Monday of June. Nothing appears to have been done with this motion, owing, probably, to the adjournment of this court previous to the time within which the appellant was bound to file the transcript.

The 11th section of the Act of 1855, provides : “ That in all cases in which the right of office is involved, and an appeal is taken from the judgment of the District Court, returnable before the Supreme Court, holding session in New Orleans, it shall be returnable in ten days after judgment of the lower court, and the Supreme Court, on the motion of either party, shall proceed to try the same by preference.” Session Acts of 1855, 814.

This enactment, it is contended by the appellee, is conclusive upon the subject, leaving nothing to the discretion of the court.

The section quoted does not, in our opinion, apply to the present case. It was originally enacted in 1858, when an appeal did not lie in cases of contested elections, but only in certain cases involving title to office, in which the usual remedy was by mandamus or quo warranto; and reenacted in 1855. It is clear, therefore, that it formed only an exception to the general rule on the subject of appeals in all civil cases.

The 1st section of the Act of 1856, under which this appeal was taken, provides : “ That in all contested elections, brought before the courts of this State, the party cast shall have the right of appeal to the Supreme Court, as in other civil cases, where it is shown in the record that the amount of the emoluments of the office in contest is over $300, &c.” Session Acts of 1856.

Under the provisions of this enactment it appears to us obvious, that all appeals in cases of contested elections must be considered as falling within the general rule applicable to appeals in all civil cases. Adopting a different construction, would, in our opinion, have the effect of substituting the execption to the general rule, defeating thereby the clearly expressed will of the Legislature. For it must be obvious, that there is a manifest difference between a case like the present and one in which the title only to office is involved. In the first, the election may be declared null and sent back to the people, neither party being entitled to the office; whereas, in the other, it must be adjudged, that one of the litigants is entitled to the office.

Considering our construction of the law to be correct, it follows, that the order of the Judge fixing the return of the appeal cannot be viewed as erroneous. To require the return day to be made within a delay in which it was impossible to make out the transcript, wonld bo, it seems to us, requiring a vain thing to be done. As the record is voluminous, containing upwards of 340 pages, even an extension of the return day in this case might, therefore, have been necessary and proper. 9 A., 14; 10 A., 778.

It is, therefore, ordered, that the motion to dismiss the appeal be overruled at the appellee’s costs.

Merrick, C. J.,

concurring. I am inclined to the opinion, that the Acts of the Legislature of 12th and 30th of April, 1853, and of February 14th, 1856, are in pari materia; and, consequently, that it was the duty of the District Judge to make the appeal returnable within ten days rafter the rendition of the judgment.

But it does not appear, that the irregularity in the order was attributable to the appellant. It is, therefore, cured by the statute of 1839, reenacted in 1855. See section 14, p. 315.

For this reason, I concur in the decree.


author: Voobhies, J. Spomokd, J.,

text:
    John Davidson v. Widow Poydras De Lallande.
    In cases requiring proof of dates of delivery of a great variety of articles, &c., a memorandum, made at the time, may be referred to by a witness, because of the difficulty, and often impossibility, of malting the proof with certainty without such reference.
    Where a plantation, slaves, &c., were sold at public auction, testimony offered by the purchaser to establish his claim to certain articles alleged by him to have formed a part of his purchase, was properly excluded on the objection, that they were not embraced either in the printed advertisement or in the inventory read at the sale.
    A witness maybe interrogated on cross-examination upon matters unconnected with those on which he was examined in chief.
    APPEAL from the Sixth District Court of New Orleans, Ootton, J.

      Dunea/n & MeOonnel, for plaintiff and appellant.

      Janin & Griffon, for defendant.
   Voobhies, J.

On the 29th March, 1855, the plaintiff became the purchaser of a certain plantation, with the slaves, implements of husbandry, &c., attached to the same, which was sold at auction as the property of the defendant. He alleges in his petition, that two of the slaves, one named Gelestine, aged 13 years, and the other Isidore, aged 6 years, and certain other articles, embraced in the sale, were never delivered. He therefore prays, that the defendant may be condemned to pay him, as the value thereof, the sum of $3842, besides interest and costs.

The court below having given a judgment adverse to his pretensions, he appealed.

The record contains several bills of exceptions, taken by him to the ópinion of the Judge on the trial below, to which he has called our attention.

1st. The defendant introduced in evidence two written statements, attached to the following document, in connection with the testimony of B. L. Millaudon, then on the witness’ stand, one dated the 6th and the other the 12th April, 1855, and both signed by said Millaudon and W. J. Bai’den, agents of the defendants, viz:

“ Inventory of articles on the Poydras plantation, taken on the 6th of April, 1855, and delivered to Mr. Dmidson by Messrs. B. L. Millaudon and W J. Barden.
The hands are the same as those mentioned in the inventory taken on the 8th February, 1855, with the exception of two children marked on the advertisement by error after the name of negro woman Arthemis. The number is 123, instead of 125. 61 mules and one horse, 20 oxen, 5 cows, 3 yearlings, 3 calves, 15 carts and wagons, 1 water cart, 8 three-horse ploughs, 27 two-horse ploughs, 4 harrows, 100 empty sugar hogsheads, 16 barrels of pork and beef, 7 barrels of fish, 125 cords of wood. I acknowledge to have received all the abovementioned articles and plantation from Messrs. B. L. Millaudon and W. J. Barden.
Parish of St. Bernand, 6th April, 1855.”
[Signed] John Davidson.

In the first of these statements it is asserted, among other things, that the slave MatMlde never had any other children than those described in the advertisement by the names of Gelestine, Isidore and Bose, whereas the words “two children” were erroneously superadded, and that the articles therein specified were delivered to the piaintiff. In the other, that the largo number of articles therein specified, “ not included in the above inventory,” were also delivered to the plaintiff.

The admission of these statements was opposed on two grounds: 1st, because they were res inter alios aeta. 2d, Because, ex pa/t'te, they were inadmissible, the witness himself being competent to prove the facts therein stated, nor could they even be furnished to the witness for inspection without first showing that his memory was not clear and retentive in regard to some of the particulars.

We do not think the Judge erred in overruling these objections. The evidence was clearly pertinent to the issue, and could not, therefore, be considered as res inter alios acta. In cases requiring proof of the delivery of a great variety or articles, dates, &c., it would be extremely difficult, nay, frequently impossible, to make such proof with certainty and precision unaided by memoranda taken at the time, as in the present case. It is true, a memorandum thus taken does not, per se, make proof of the facts therein set forth. But the rule on this subject may be considered, we think, as correctly laid down in 1 Green-leaf, § 466.

2d. We do not think the Judge erred in excluding testimony to prove the plaintiff’s claim to two old boilers, old iron, &e., on the ground, that the same were not embraced either in the printed advertisement or inventory read at the sale. The plantation appears to have been sold d la folie endúre, the two previous purchasers having failed to comply with the terms of the sale. The plaintiff now seeks, and we think without any legal grounds, to recover the value of those articles, alleged to have been included in the former sales. The previous purchasers, if sued by the defendant for damages resulting from the inexecution of their contract, might, it is true, avail themselves of this as a ground of defence, but surely the plaintiff cannot be permitted to claim anything more than what he has purchased.

3d. The plaintiff objected to the examination of L. Millaudon, when cross-examined by the defendant’s counsel, touching matters totally unconnected with those on which he was examined in chief; that the defendant should have made Millaudon his own witness for that purpose. The Judge in our opinion did not err in overruling this objection, which appears to us to be clearly indefeasible under our rule of practice.

On the merits, we conclude from the evidence, that the tradition or delivery of the property thus conveyed to the plaintiff has taken place in accordance with the terms of the contract between the parties. The slaves Gelestine and Isidore, embraced in the deed of sale, are clearly shown to have been delivered with the others, amounting to 123, as evidenced, not only by the deed of sale, but by the above document signed by the plaintiff, in which the error in relation to the two children of the slave MatMlde is acknowledged to have been made in the advertisement

Judgment affirmed.

Spomokd, J.,

concurring. Upon the authority of Durnford v. Clark, 1 Martin, 202, I conclude that the refusal of a District Judge to confine the cross-examination of a witness to matters connected with his examination in chief is not assignable as error in this court.


author: Cole, J. Mekeick, O. J., Vooehies, J. Spoffokd, J., BirciUNAif, J.

text:
    J. Levois v. F. Gerke. — On a Re-hearing.
    The 6th section of the Act of the 29th of March, 1826, (session Acts, p 140) which provides for a sequestration of the property and a meeting of the creditors of any merchant or trader who shall abscond or conceal himself in order to avoid the payment of his debts, is still in force.
    That law provides for a mode of proceeding different from the one had in view in cases of voluntary and forced surrender, and is not affected by the Acts of 1855 upon those subjects.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J,

      O. & G. B. Schmidt, for plaintiffs and appellants.

      A. & A. Pitot, for appellees.
   Cole, J.

Leváis and others, creditors of B. Gerke, acting under the provisions of the 6th Section of the Act of 29th March, 1826, obtaining a sequestration of all his property, and an order calling all the creditors to a meeting, jn order to appoint a syndic and liquidate his affairs.

Durand, Dortie and Laeapere, creditors of Gerke, who had obtained an at. tachment against his property, intervened in the proceedings, and in their capacity of attaching creditors, whose interests were injured by said proceedings, demanded that the same be set aside and quashed, on the ground, that the 6th section of the law of 1826 had been repealed by the statutes of 1855, relative to insolvency.

' The demand of the intervenors was sustained by judgment of the court below, and the plaintiffs now seek to have the said judgment reversed, on the ground, that the said 6th section is still in force, and this is the principal question for our present consideration.

The 6th section of the Act of 29th March, 1826, entitled “An Act supplementary to an Act entitled 1 An Act relative to the voluntary surrender of property, and to the mode of proceeding, as well for the direction, as for the disposal of debtors’ estates, and for other purposes,’ ” reads as follows :

“That if any merchant or trader abscond or conceal himself, in order to avoid the payment of his debts, it shall be lawful for three of his creditors or more to apply to any competent Judge, and after having made an affidavit, that the said merchant or trader has actually absconded or concealed himself, in order to avoid the payment of his debts or to he sued therefor, as well as of the specific amount of their respective claims, to obtain from the said Judge an order authorizing the sequestration of the property of the said merchant or trader, and that his creditors may be called to appoint syndics, who shall be put by the Judge in possession of the property of said merchant or trader, as by way of forced surrender; and, in such case, all the other formalities and rules prescribed by law, in matter of voluntary surrender of property, shall be complied with.”

At the time this statute was enacted, no law existed in Louisiana which empowered the creditors of a debtor who had fled from the State to seize his property and distribute it ratably among the mass of his creditors, and to carry into force, as to him, the provisions of the 8510 Art. of the Civil Code, which is as follows: “ The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exists among the creditors some lawful causes of preference.”

Anterior to the enactment of this statute, a debtor could secretly-leave the State, and some favored creditors could attach his property and obtain a privilege by the attachment before the other creditors were even cognizant of his departure.

This statute was then indispensable for the safety of the commercial community, and supplied a void in the legislation of the State.

It provided for the disposal of the estates of debtors who had absconded, a mode different from, and independent of, the laws then in force for forced and voluntary surrenders.

The laws then in vigor for forced surrenders required, as an indispensable requisite for a forced surrender, that the debtor shall be in actual custody.

The laws then in force for a voluntary surrender required, among other formalities, that the debtor should present a petition to a competent court, praying for a call of his creditors."'

Section 6 provides a new mode of proceeding against a different class of debtors from the laws then in vigor for a forced or voluntary surrender.

It is true, that this section authorizes proceedings as by way of forced sur. render and voluntary surrender; but, as it authorizes to proceed partly by forced and partly by voluntary surrender, this shows that the Legislature contemplated a mode for disposing of the property of debtors who had absconded or concealed themselves, entirely distinct from the remedies then in being.

It should also be remembered, that under the Constitution of 1812, laws were not enacted distinctly with a title for each, but laws upon many distinct subj ects were embraced under the same general title.

By reference to the Act approved March 29th, 1826, it will be found, that sections 7 and 8 apply to successions; these sections are not, however, repealed by the repealing clause in the Acts of 1855, relative to insolvent laws, because they are not upon the same subject-matter, and there is nothing therein inconsistent with them.

Inasmuch as the insolvent laws of 1858 do not embrace the class of debtors referred to in section 0th of the Act of 1826, and as the subject-matter of the Acts in question of 1855 are voluntary and forced surrenders, and as said section 6th provides a mode different from either species of surrenders, and constitutes a distinct remedy, and as there is nothing in the laws of 1855 relative to insolvency which clashes with the provisions of this section, we are of opinion that it is not repealed by the repealing clause in those laws.

It is not now the time to decide on the rank of the attaching creditors or of those who have sued out the writ of sequestration; the rank and priority -of the different creditors will be fixed during the proceedings under the 6th section of the Act of 1826.

It is, therefore, ordered, adjudged and decreed, that the former judgment of this court in this case be set aside, and that the judgment of the lower court on the rule be avoided and reversed, and the rule be dismissed, and intervenors pay the costs of both courts.

Mekeick, O. J.,

dissenting. The putting of the creditors in the possession of the goods of the debtor who absconded or secreted himself to avoid the pursuits of his creditors, is nothing peculiar to modern times. It was recognized by Justinian as to those who, having given surety, concealed themselves, and in a certain manner by the former laws of the country when the debtor fled. Dig. Lib. 42; E. 4 Legis 2 and 7; Partidas 5, Tit. 14, Law 10 ; See also Mackeldey Parte Speciale, §767, No. 3, C.

The Code of 1808 as well as the Code of 1825 recognized two kinds of surrender, forced and voluntary. They are defined as follows:

“ The voluntary surrender of property is that which is made at the desire of the creditor himself.”
“ And the forced surrender is that which is ordered at the instance of the debtor’s creditors or some of them, in cases provided by law.”

Both of these kinds of surrender are “ subject to formalities which are prescribed by special laws.” Code 1808, p. 294, Arts. 168 and 169 ; Civil Code, 2168, 2169.

These two kinds of surrender have been treated as the two divisions of the subject by the lawgiver ever since the promulgation of the Codes.

The sixth section of the Act of 1826 in question, putting- the creditors in possession of the property of the merchant or trader who absconds or conceals himself, has been treated by the lawgiver as properly coming under the one or the other of these heads ever since the passage of that x\ct.

It is so treated in the Digests of Moreau, Bullard and Curry and the Digest of 1852, -which were published under the legislative sanction.

It is so classed, as I think, in the Act itself, for the title of the Act is “ An Act supplementary to an Act entitled ‘ An Act relative to the voluntary surrender of property and to the mode of proceeding, as well for the direction as for the disposal of debtors’ estates, amd for other purposes.’ ” The first six sections of the Act, including the one in question, treat of the surrender of property to the creditors where the debtor is living. The seventh section relates to insolvent successions where no one will accept the administration, and whether this section is or is not repealed, it does not appear to me materially to affect the argument. It is evident, that the Legislature, by the sixth section, intended for the causes mentioned to authorize three of the creditors to obtain an order for the surrender of the property of the debtor. The surrender was not, therefore, voluntary, and must fall under the other division indicated by the Code, viz: the “ surrender which is ordered at the instance of the debtor’s creditors” Judge Porter said, in a case arising under the old law, in the case of Ward v. Brandt, that:

“ The failing circumstances already alluded to ” (in cases where courts were authorized to decree a forced surrender) “ are those eases where the debtor who is a trader or merchant conceals his person or his property from his creditors with ail intention to defraud them, or who absconds, taking with him his effects and books of account; or is unable to pay all his debts ; or who applies for a respite; or to have the benefit of these laws made for the relief of insolvent debtors; or against whom execution has issued; or who fails to discharge his debts as they become due.”
“ In all these cases that proceeding which our law contemplated by the expression ‘ forced surrender ’ may be ordered: the creditors may apply that a concurso be formed ; that syndics be appointed; that the property be sequestered and applied to the common benefit, and that the debtor, if he conceal his effects, be imprisoned until he makes a full and fair disclosure respecting them.” 9 M. R., 636.

It seems to me, therefore, that a fair construction of the sixth section of the Act of 1826, both by reference to the Act itself, the former legislation, the decisions of this court, and the legislative action since the statute was passed, requires that it should ho classed under the head of forced surrender. But all laws on the subject-matter of both voluntary and forced surrenders, except what is contained in the Civil Code, the Code of Practice, and the two statutes of 1855, are repealed. Acts 1855, 319, sec. 4; 438, sec. 36.

And on the subject of the legislation of 1855 we have held, that the object was to furnish in one body all the law on the subject-matter treated of in each Act, so that, in order to know what the law is on that subject one would not be compelled to look beyond the Act itself. I see, therefore, no good reason to change the judgment heretofore pronounced by this court.

Voobiiies, J., concurs in this opinion.

OVERRULED OPINIONS.

Vooehies, J.

This is an action brought by the plaintiffs against the defendant, an absconding debtor, for a forced surrender of his property, in accordance with the 6th section of the Act of the 29th of March, 1826, entited “ An Act supplementary to an Act entitled an Act relative to the voluntary surrender of property, and to the mode of proceeding,as well for the direction as for the disposal of debtors’ estates, and for other purposes.” A writ of sequestration was issued as prayed for. The Sheriff’s return thereon shows, that all the property belonging to the defendant had already been seized by him undev a writ of attachment sued out bv Durand^ Dortie and Lacapere.

On the execution of the sequestration, Durand, DorUe and Zacapere, the attaching creditors, took a rule upon the plaintiffs to show cause why the proceedings in the present case should not be dismissed, on the ground of being illegal and unauthorized bylaw.

In support of the rule it is urged, that the section above quoted, on which the plaintiffs’ action is based, was virtually repealed by the statutes of 1855.

The Acts of 1817 and 1826, relative to the voluntary surrender of property, exclusive of that section were consolidated in the Act entitled “ An Act relative to the voluntary surrender of property and mode of proceeding,” approved the 15th of March, 1855. The 36th se'ction of this Act expressly declares all laws contrary to its provisions, and all laws upon the smne subject-matter, except what is contained in the Civil Code and the Code of Practice, to be repealed. That section, it is evident, was properly excluded from this Act, even if still in force, as inapplicable to the voluntary surrender. All the Acts in relation to forced surrenders were consolidated in the Act entitled “ An Act relative to forced surrenders and the mode of making the same,” approved March 14th, 1855. The last section of this Act also contains the repealing clause of all laws contrary to its provisions, all laws upon the same subject-matter, exceept what is contained in the Civil Code and the Code of Practice. The 6th section of the Act of 1826, which clearly applied only to forced surrenders, was not embraced in this Act. As it was upon the same subject-matter, namely: forced surrenders, it was thereupon expressly repealed. That such was the clear intention of the lawmaker, we think also results from the fact that all the statutes considered in force at the time were re-enacted in 1855, as the ltevised Statutes of the State. Session Acts of 1855, 818 & 432; 11 A. 439. As the repeal of that section leaves the plaintiffs’ action without any legal foundation, it is clear, therefore, that the other grounds of defence which they have urged cannot avail them. The law authorizes persons whose interests may be affected by a suit pending between other parties to intervene in such suit and join one of the parties or oppose both. Code of Practice, Art, 389 Ss 392, as amended by the Act of 1886. We are therefore of opinion, that the rule was properly taken to set aside the proceedings in this case. The claim of Durcund, DorUe and Zacapere against the defendant Gerke, appears to us to be fully sustained by the evidence. Moreover, it could not be contested by defendants in the rule. 1 L. 481; 8 L. 54.

It is, therefore, ordered, that the judgment of the court below be affirmed, with costs.

Spoffokd, J.,

dissenting. The 6th section of the Act of 29th March, 1826, (p. 140) supplied a casus omissus in the previous laws.

Provision had been made for voluntary surrenders by insolvents; provision had also been made for obliging contumacious debtors, within reach of process, to pay their debts or make a surrender.

But the case of a debtor who absconded or concealed himself had not been thought of; he could not be reached by any existing remedies. Such a debtor would not, of course, make a voluntary surrender; and lie could not be forced to make a surrender, because he could not be cited. The evil to be remedied was found to spring chiefly from transient merchants and traders. A new law upon a new subject was therefore enacted; it was declared that “ if any mercha/nt or trader abscond or conceal himself, in order to avoid the payment of his debts, it shall be lawful for three of his creditors or more, to apply to any competent Judge, and, after having made an affidavit that the said merchant or trader has actually absconded or concealed himself, in order to avoid the payment of his debts, or to be sued therefor, as well as of the specific amount of their respective claims, to obtain from the said Judge an order authorizing the sequestration of the property of the said merchant or trader, and that his creditors may be called to appoint syndics, who shall be put by the Judge in possession of the property of the said merchant or trader, as by way q/'forced surrender, and that in such case, all the other formalities and rules prescribed by law in voluntary surrender of property, shall be complied with.”

This is simply a provision for the judicial sequestration and distribution of the property of absconding or concealed merchants and traders, who have not paid their debts, who will not make a voluntary surrender, and who cannot be forced to make a surrender.

Plainly, therefore, such proceedings cannot be called voluntary surrenders, nor forced surrenders. There is no surrender at all. There is a sequestration of property and a distribution of it among those whose common pledge it is, without the assent or dissent of the owner, who is not to be notified at all. Nor did the Legislature speak so loosely as to call it either a voluntary or a forced surrender. One step was to be taken “ as byway of a forced surrender,” and others as in voluntary surrenders.”

Now, in revising the statutes in 1855, two Acts were passed, one entitled “ An Act relative to forced surrenders and the mode of making the same ” (Sess. Acts, p. 818); the other entitled “ An Act relative to the voluntary surrender of property and mode of proceeding, (Sess. Acts, p. 432). The case before us does not fall within the meaning of either of these Utles. This however is a minor consideration; what is of far deeper significance, it is not provided for, or in any way alluded to, in any section of either Act. So far as these two Acts go, the case of an absconding or concealed merchant or trader, or an insolvent who cannot be reached by process and will not appear, is a casus omissus, as it was before the adoption of the 6th section of the Act of 1826. The provisions of that section are in no wise inconsistent with the two Acts of 1855; therefore there is no implied repeal; as we have seen, they are not upon the same subject-matter, therefore, they are not expressly repealed. In the case of Holmes v. Wiltz, 11 An., 439, we held that the repealing clause only swept away such anterior legislation upon the matter specifically treated of in the new legislation as was not retained in the latter. In Stafford v. His Creditors the new law treated specifically of the penalty for a fraudulent bankruptcy, and we held that so much of the old law concerning this penalty as was not retained in the new, was repealed. It seems to me that the present case does not fall within the doctrine of either decision. On the contrary, I think the doctrine of both, carried to its legitimate consequences, must lead to the conclusion that the 6th section of the Act of 29th March, 1826, is still in force; and such is my opinion.

BirciUNAif, J.

I concur with Mr. Justice Spofford, as to the effect of the repealing clause in the Acts of 1855. His opinion on that point seems to me to conform to the interpretation which we adopted in the case of Holmes v. Wiltz.

The sequestration of an absconding merchant or trader’s effects at the instance of three of his creditors, under the sixth section of the Act of 1826, is not, in the terms of the statute, a forced surrender ; and it is clearly not a voluntary surrender. There is nothing in the statute, that I can perceive, which gives a greater right to the plaintiffs in such a proceeding than the plaintiffs in any other sequestration would have. I am, therefore, of opinion, that the attachment previously levied upon the defendant’s property at the instance of the appellees, could not be affected by the subsequent sequestration of the plaintiffs; and that the judgment should he affirmed so far as to dissolve plaintiffs’ sequestration of the property previously attached by appellees.


text:
    L. A. Finley, Syndic, v. P. Mallard.
    The intevest on a claim is not suspended by the debtor placing it upon his schedule, •whore the creditor takes no part in the proceeding although the debtor may obtain a respite.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Walker c5 Pierce, for plaintiff. G. leGanleur, for defendant and appellant.
   Cole, J.

The sole question in this case is, whether the debtor, who, being in embarrassed circumstances, applies to his creditors for a respite to pay the various sums due by him, as put down in his bilan, is bound to pay interest to a creditor whose claim was placed on the schedule, but who did not vote or take any part in the proceedings.

The lower court decided the question in the affirmative, and defendant has appealed.

The law makes the debt at bar bear five per centum interest from its maturity ; the interest was then a part of the contract at the time the note sued on was made ; defendant knew at the time he signed it, that if it was not paid at maturity, it would afterwards bear five per centum interest.

The other creditors cannot, by granting- a respite, deprive plaintiff of his right to get the whole amount duo him after the expiration of the time accorded by the respite.

This would be a violation of the contract.

Defendant did not in his petition ask to bo relieved from the payment of interest, but only a certain extension of time for the payment of his debts.

The debt at bar was a certain sum bearing interest; the interest was accessory to the principal debt, and when time was given to pay the principal debt, the interest was therein included, and the respite was really time granted to pay the original debt and the interest that might accrue thereon.

The respite cannot be considered as creating a novation of the debt, or as a new contract by which plaintiff agreed to take at a future time less than the amount actually due, hut only a postponement of the payment of the amount due to a period beyond the maturity of the debt. Vide 2 Kent, 461; C. C. 1932; Session Acts 1852, 95.

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


text:
    H. E. Lawrence v. J. S. Grout.
    A plat of survey purporting to be an extract from an approved map of a particular township, certified by the Register of the Land Office is inadmissible as evidence, it being only the copy of a copy and therefore not the best evidence.
    The Surveyor General of the United States for the State is the proper person to certify the township maps.
    The reservation in the Act of Congress of March 2d, 1849, which devotes a part of the swamp lands to the State, of lands which are “ claimed or held by rndvoiductlsj' does not apply to persons who claim or hold lands without a sufficient basis for perfecting a title thereto.
    No claim can be enforced for improvements made on land while the title is in the sovereign.
    APPEAL from the District Court of St. Mary, A. Voorhies, J.

      J. 6?. & A. Olivier, for plaintiff and appellant.

      J. W. Wallcer, for defendant.
   Cole, J.

The plaintiff and appellant claims to be the owner of lots 1 and 3 of section No. 3 in T. 16, S. of Range 12 E. in the S. "VV. land district of the State of Louisiana, containing fifty-one 44-100 acres; and complains, that defendant has committed divers acts of trespass and waste upon lot No. 3 aforesaid, to his damage five hundred dollars.

He prays to be quieted in his title to said land, and that writs of possession issue.

The defendant avers, that he is the legal owner and possessor of lots No. 4 and 0 in section No. 3 of T. No. 16 S. R. No. 12 E., which he acquired by purchase for a valuable consideration, the title to which originally came from the United States.

Plaintiff offered in evidence a patent for the lots claimed by him from the State of Louisiana.

The only question in the case is as to the identity of Lot No. 3 ; for plaintiff has evidently a title to it. There is a confliction in the number of the lot which defendant supposes he bought, between the map of said township 10, as certified by the Register and that certified by the Surveyor General of the State, the former represents the lot claimed by defendant as No. 4, and the latter represents said lot as No. 3.

Defendant insists, that lot No. 4, of which ho is probably the owner, is the lot No. 3 claimed by plaintiff; and, to prove this, offered a plat of survey purporting1 to be an extract from an approved map of township 10, certified by R. Benguerel, Register of the Land Office at Opelousas.

Plaintiff objected to the introdudtion of this plat, upon the general principle, that it was not the best evidence, and that it was the copy of a copy.

Wo are of opinion that this plat was inadmissible.

The certificate is in these words :

Land Office, Opelousas, Li., April lAih, 1850.
“ I hereby certify, that the foregoing- diagram is a true copy of sections Nos. one, two, three, four, five, nine, ten, eleven and sixteen of township No. 10, south of range No. 12 east, taken from the map of said township, on file in this office.”
R. Benguerel, Register.

The Register does not certify, that it is a copy from the original plat filed in his office, and the Surveyor General in the copy offered by plaintiff of the township map No. 10, S. R. 12 E. certifies, that it is a “copy of the original, now on the files of this office,” which shows, that the map offered by defendant was a copy of a copy.

The surveyor General of the United States for this State is the officer who has charge of the public surveys, and he is the proper person to certify the township maps. Land Laws, vol. 2, 294, sect. 6.

It has been held by this court, that the copies of public surveys, deposited in the office of the Register of the Land Office, are placed there for his government, and to enable him to perform the duties imposed by law; but he has not legal authority to certify copies so as to make them legal evidence. The law intrusts that power to another person. Millaudon et al. v. McDonogh, 18 L., 115.

It is contended, that this decision has been overruled by two decisions, one in 1st R. and the other in 3d R.; an examination of these decisions will show, that they do not militate against the one quoted from 18th L.

In Boatner v. Scott, 1 R., 552, it appears, that the copy of the plat of survey was “certified by the Register of the Land Office to bo a corroct transcript of the original survey in his office,” and the court considered it good evidence, because it was certified by the officer who declared that ho had the custody of the original survey.

In Désiré Judue v. Francois Chrétien, 3 R., 15. the court merely declared, that the Registers of the Land Offices of the United States may, like all other keepers of public records, give copies or extracts of any books or documents in their custody, and such copies duly certified are admissible in evidence; but they cannot attest or certify the contents of such books or documents in any other manner.

This decision was given on a bill of exceptions to the opinion of the District Court refusing to admit in evidence a certificate of the Register of the Land Office at Opelousas, attesting that the plaintiff’s claim to the premises had been allowed by the then Register and Receiver of the office, as appeared from the books in the possession and keeping of the Register.

It is evident that the court did not in this case decide the point now under consideration, and that these two decisions are not antagonistical to that in 18 L., 115.

Defendant has then shown no title to the land claimed by plaintiff, but defendant urges, that the Act of Congress of March 2d, 1849, entitled “An Act to aid the State of Louisiana in draining the swamp lands therein,” and which devotes a part of the swamp and overflowed lands in Louisiana to the State, provides that the grant shall not embrace swamp lands which are “ claimed or hold by individuals,” and that the land sued for by plaintiff is swampland, and was claimed five years before plaintiff purchased his warrant.

As defendant has produced no title for the lot in dispute, he cannot fairly come within this provision, for the meaning of the proviso must be, that the lands of those shall not be embraced who claim or hold their lands by a title or some right that can be enforced at law ; it cannot signify, that persons who claim or hold lands without any title or any right which would serve as a basis for -perfecting or obtaining hereafter a title, could prevent such lands from being sol'd as swamp lands, for such an interpretation would defeat the donation.

Besides the 2d section of said Act of Congress declares: “ That as soon as the Secretary of the Treasury shall be advised by the Governor of Louisiana, that that State has made the necessary preparation to defray the expense thereof, he shall cause a personal examination to be made, under the direction of the Surveyor General thereof, by experienced and faithful deputies, of all the swamp lands therein which are subject to overflow and unfit for cultivation ; and a list of the same to be made out and certified by the deputies and Surveyor General to the Secretary of the Treasury, who shall approve the same, so far as they are not claimed or held by individuals,” &c.

In the absence of adverse proof we must presume, that the Secretary of the Treasury performed his duty, and that the lot now sued for by plaintiff was not claimed or held by defendant in the sense of the said statute of Congress.

It is true, that defendant has offered in evidence the receipt of the Receiver and the certificate of the Register of the purchase by William Smith,, under whom he holds, of lots four and six, but he has adduced no title for lot 3, and the judgment in his favor is erroneous.

Defendant asks, that in the event of eviction he may be paid for his improvements. Without deciding whether, under the circumstances of this case, he is entitled to be paid for the same, we would observe, that the evidence as to them is rather indefinite.

Copper testifies that Smith made improvements, but does not state their nature or value. L, B. Heeds testifies that ten acres are probably cleared. But the benefit of this clearing to the land and augmentation of its value are not so clearly shown; besides, it is not proved, that this clearing was made after plaintiff acquired his title from the State — for if it was made when the title of the lot was in the sovereign, defendant could not recover anything therefor.

We think that he is not entitled to any compensation for his improvements.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed, and that plaintiff be quieted in his title to lot No. three in township No. sixteen south of range No. twelve east in the south-western land district of the State of Louisiana, as designated and numbered on the approved township map, marked No. 4, certified by the Surveyor General of the State of Louisiana, and contained at the end of the record of this suit, and that a -writ of possession issue according to law, and that the demand of defendant in compensation be rejected, and that defendant pay the costs of both courts.


author: Spomord, J.

text:
    Charles Mullen v. Girard Follain et al.
    Where a party, whose property was sold under an order of seizure and sale, was present at the sale and bid himselffor the property, he is estopped from contesting the validity of the sale on merely formal grounds which were obvious to him at the date of the sale.
    If the advertisement of the sale was defective in not describing particularly the buildings, he should have objected to the sale and not enticed other persons into bidding.
    APPEAL from the District Court of the Parish of St. Landry, Mwtin J.

      B. F. Linton, for plaintiff.

      J. F Morrogh, Swayee & Moore and J. B. King, for defendants and appellants.
   Spomord, J.

This suit was brought by the former owner of certain real estate in the town of Washington, to set aside a Sheriff’s sale thereof to the defendant Follain, made under an order of seizure and sale, on the ground of ¡informalities.

The informalities alleged in the petition are four :

1st. Want of notice of seizure and notice to appoint appraisers.

2d. Want of appraisement.

3d. Want of a sufficient description of the property seized and sold.

4th. That the seizure was excessive.

The District Judge set aside the sale, and the defendants, Follain, and his warrantor Bapré, the seizing creditor, have appealed.

The judgment was erroneous, because all the alleged defects, so far, at least, as they are as proven, were cured by the conduct of the plaintiff himself.

He appeared at the sale, made no opposition thereto, bid himself for the property, thereby encouraging others to bid, and gave up possession of the whole premises as sold by the Sheriff to the purchaser Follain. If, under such circumstances, he could now attack the sale on merely formal grounds which were obvious to him at the date of the sale, there would be little security for bidders who might be misled by the acts of parties whoso property is exposed to public sale. See Walker v. Allen, 19 La. 311; MacMasters v. Commissioners, &c., 1 Ann. 11; Muir v. Henry, 2 Ann. 598.

It is true, that, in forced alienations of real estate, there must be a reasonably certain description, as one which will enable the property to be identified. Wilson v. Marshall, 10 Ann. 329; Dodeman v. Barrow, 11 Ann. 87. But here the advertisement and Sheriff’s returns both of the seizure and adjudication, so described the lot of ground in the town of Washington as to on-able the parties to identify it and the Sheriff to put the purchaser in possession, which he has done. The proceedings in obtaining the order of seizure and sale, which are of record, embrace the authentic act of mortgage where the lot was also, and, perhaps, more minutely described. Because the plaintiff who, in purchasing, mortgaged to his vendor the land with the house that then stood on it, afterwards erected other small buildings upon the lot, it does not follow that the sale could be annulled on the ground that the new buildings which thus became subject to the mortgage affecting the lot (C. C. 3278) were not particularly described in the order of sale, advertisement, &c- They passed with the lot of which they became a part. (C. C. 497). The plaintiff was bound to know this, and, if he wished a more minute advertisement, should have applied in time to have it made. At least, being present, he should have objected to the sale and not have enticed other persons into a snare by bidding himself. Th‘e remarks of the Court in Seawall v. Payne, 5 Ann. 259, are directly applicable to this state of facts : It is obvious that the plaintiff acquiesed in this description. He had his chance of buying under it, and if those who were competing with him, bought under that description, it seems to us that, on the principles of law on which courts always act in cases of this kind, it is not competent for the plaintiff to avail himself of the defective description of the property which had passed under his eye, and which he had an opportunity of correcting. We think we are authorized to infer, as a question of fact, that the plaintiff, so far as to those with whom he treated about the purchase of the property, assented to the sale in this form, and is estopped from contesting its validity on that account.” Oases cited in Story’s Equity Jurisprudence, secs. S84, 385, 386.

As to the alleged defects, we may remark that the record shows that there was an appraisement, and that the plaintiff appointed one of the appraisers ¡ this was also a waiver of notice of seizure, if such notice was not given, and the party had a remedy for an excessive seizure given by the Code of Practice, Articles 652, 653. It is too late to object on this score, after a judicial sale, and it would not even have been a sufficient ground for an injunction. See Dobbs v. Hawken, 3 Rob. 127; Temple v. Marshall & James, 11 An. 613.

The appellee complains, in the brief filed by his counsel, that the order of seizure and sale was issued in favor of the seizing creditor, without authentic evidence of the transfer of the note and mortgage to himself. This, though shown by the evidence, has nothing to do with the issnes presented by the pleadings. In cases of this kind, the evidence is presumed to be offered to establish only the informalities alleged. No appeal was taken from the order of seizure and sale, and no opposition was made to it; and this action was not brought to annul it for' any such defect as that here insisted upon.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed, and that there be judgment against the plaintiff on his demand, he paying costs in both courts.


author: Coi.e., J.

text:
    S. Leonard v. Benjamin Hudson, Tutor.
    Evidence may be reoelved to show that a note which was given by the former tutor of a minor, in his own name, was in fact signed by him in his capacity of tutor, and that the consideration was a debt due by the minor, Such testimony does not contradict any part of the note, and will authorize a judgment on the note against another tutor to the minor subsequently appointed,
    APPEAL from the District Court of St. Mary, A. Voorhies, J.

      II. O. Wilson, for plaintiff! T. H. Lewis, for defendant and appellant.
   Coi.e., J.

This suit is instituted on a note for $1384 26 with 8 per cent, interest from the 1st of March, lt>51, payable'on the 1st of March, 1852, to plaintiff or his order.

It is alleged, that this note was made by William Smith Qordy, now deceased, as natural tutor of his minor children, for services rendered on the plantation, the right and title of which were vested in the said children.

This suit is instituted against Benjamin Hudson, the present tutor of said minors,

It is urged that evidence was inadmissible to prove, that this note was given by W. S. Qordy, as tutor to his minor children.

This evidence was admissible ; plaintiff had the right to establish in what capaoity the note was signed ; such testimony does not contradict any part of the note. Vide Puscal v. Union Bank, 9 A., 484.

The testimony shows, that the consideration of this note inured to the benefit of the minors; they are then responsible therefor. Succession of Johnson, 4 A., 253,

It is also urged, that the note sued on novated the debt due by the minors, and if the debt be not novated it is prescribed by three years. This is incorrect ; the Civil Code, Art. 3503, provides, that the action for the salary of overseers is “ prescribed by three years, unless there be an account acknowledged, a note or bond given, or an action commenced before that time.”

As a note was given in the case at bar, the three years’ prescription becomes inapplicable, and the case falls under the operation of Article 3505 of the Civil Code.

It is, therefore, ordered, adjudged and decreed, that the judgment he affirmed, with costs.


text:
    Police Jury v. Landry.
    None ai'e legal Voters at an election held by order of the Police Jury to decide whether an ordinance imposing a tax for works of internal improvement shall be approved, but the proprietors of landed estate in the parish or municipal corporation where the election is held.
    APPEAL from the District Court of St. Martin, A. Toorhies, J.

      Deblanc & Fuselier, for plaintiff and appellants,

      Simon S Q-ary, for de. fendant.
   Cole, J.

On the 13th of October, 1852, the Police Jury of the parish of St. Martin levied a tax of $103,750 00 on the landed property of the parish, payable in five equal installments, according to the assessment roll of the preceding year.

The object of this tax was to subscribe for 4150 shares of the New Orleans, Opelousas and Great Western Railroad Company,

“ That no ordinance passed under the provisions of this Act shall be valid or take effect until it shall have been approved and ratified by a majority of the voters on whose property the tax is proposed to be levied, at an election to be held specially for that purpose, by order of the Police Jury or municipal corporation passing the ordinance,” &e.

An election was ordered to ta.ke place on the 16th of November, 1852, in compliance with the Act of 1852 of the Legislature No. 175, p. 128, Acts of 1852 ¡ to ascertain the sense of the voters on whose property the tax was proposed to be levied.

Two hundred and sixty-foul’ votes were polled, giving a majority of thirty-six votes in favor of the tax.

The defendant being sued for the first installment of his tax, contests the validity of the election on several grounds ; as we are of opinion that one of the alleged informalities is sufficient to render the election null, we will only allude to it.

Said Act, approved March 12th, 1852, is “ An Act providing for the subscription, by the parishes and municipal corporations of this State, to the stock of corporations undertaking works of internal improvement, and for the payment and disposal of the stock so subscribed.”

The 3d section of this Act declares;

The second section declares, that the property on which the tax is to be levied is the landed estate situated in the parish or municipal corporation.

It is clear from these sections, that none are legal voters for a tax of the kind under consideration, but the proprietors of landed estate in the parish or municipal corporation where the election is held.

The meaning of the word “voters,” in the latter part of the third section, must be interpreted by the definition thereof in the first part of the same section.

Now it is established, that a sufficient number of illegal votes were taken to determine the result of the election in favor of the tax, and that the tax was carried by means of said illegal votes.

But it is said, that defendant has ratified the election so far as he is individually concerned, but no legal ratification has been shown, even if it was possible for an individual to ratify an election which is null.

Even if defendant signed the list, which contained the names of those who wished to avail themselves of the 13th section of the charter on account of the said tax, still it is not proved, that he was aware of the illegality of the election at the time ho signed the same, and his consequent freedom from liability on account of said railroad tax.

The Police Jury could not, as argued by plaintiff, ratify the election; if illegal, they had no power to ratify it, for none but the legal voters under the statute could declare if the tax should be imposed.

We are of opinion then, that defendant is not liable.

It is, therefore, ordered, adjudged and decreed, that the judgmentbeafflrmed, with costs.


author: Spoppord, J.

text:
    Setter, Hyde & Mackie v. Alexander Landry.
    By the “ action of workmen, laborers and servants for the payment of their wages,” which is prescribed by one year under Act 3499, O. 0., is meant only the action of such workmen, laborers and servants against their immediate employers who hire them by the day or by the month, and not the action of a contractor Who undertakes a specific job.
    'JL'he action on the contract is not barredd by one year, although the charge is made up partly of the items for which they had to pay workmen and material mem

    APPEAL from the District Court of St. Martin, A. Voorhies, J.

      J. G. Olivier, for plaintiffs.

      Simon & Gary, for defendant and appellant..
   Spoppord, J.

The plaintiffs, keepers of a dock at Algiers, sued the defendant, owner of the steamboat Pitser Miller, upon an account for $1972 19 for docking’, overhauling and repairing the said steamer, and furnishing materials for said Work. The defendant sets up a claim for $3000 in reconvention. The District Judge rendered a judgment in favor of the plaintiffs for $1472, rejecting the reconventional demand altogether. The defendant has appealed, and the plaintiff in answer thereto prays that the judgment be increased to the amount claimed in the petition.

The defendant insists, that the prescription of one year is applicable to the whole account sued upon, and if not to the whole, at least to such portions of it as embrace materials furnished for the repair of the vessel. He cites the Article 3499 of the Code to support this plea. The construction of this Art. has been judicially settled. By “the action of workmen, laborers and servants for the payment of their wages,” is meant only the action of such workmen, laborers and servants against their immediate employers who hire them by the day or by the month, and not the action of a contractor who undertakes a specific job, and it is immaterial whether the price of the job be fixed by contract or left for adjustment upon a quantum meruit Gallaspy v. Livingston, 5 An., 671. And by the action “for the supply of wood and other things necessary for the construction, equipment and provisioning of ships and other vessels,” is meant the action of the sellers of the raw materials only, against the parties who buy directly from them whether they bo the owners of the vessel or undertakers for repairs. This was directly decided in the case of Harrod v. Woodruff, 3 Rob., 336, where it was held, that shipwrights who undertake to build or repair a vessel are neither workmen or laborers claiming their wages, nor are they furnishers of wood or other materials claiming the price thereof. They themselves hire workmen and buy materials. Their own contract is to do a job. Their remuneration for this is an entire charge, although made up partly of the items for which they have had to pay workmen and material men ; but the action of the contract is not barred by one year — that of the workmen against their immediate employer for daily or monthly wages and that of material men against their immediate builders for the price, is barred by that term.

The demand for damages pleaded in reconvention grows out of an alleged delay on the part of the plaintiffs in performing their contract to repair the Pitser Miller. But there was no contract that the work should be finished within a limited time. It appears, that a day was fixed for putting the boat in the dock, and that although she was ready, four or five days elapsed before she was docked. The expenses for keeping the boat there for that time would be all the damages that could be allowed. It does not appear that the subsequent grounding of the boat in the Atchafalaya was the proximate result of this delay in docking her. Such damages are too remote and conjectural to be considered even had there been a contract to repair the boat by a certain time. The expenses for the delay actually proven do not exceed $160. As the District Judge allowed a deduction of $500 for overcharges in the plaintiffs’ bill, a deduction which, under the evidence, seems to us extremely liberal, we are not disposed to interfere with the judgment.

The appellant certainly has not sufficient reason to complain; and the appellees’ prayer for an amendment in his favor must also be refused, there not being a manifest error to his prejudice.

Judgment affirmed.


author: Spofford, J.

text:
    Frances E. Lawrence and Husband v J. Burris.
    The husband Is a necessary party to an appeal taken from a judgment in favor of his wife, and if his name is omitted in the appeal bond, when the appeal is granted, as if on motion in open couTt, the appeal will he dismissed.
    APPEAL from the District Court of the parish of St. Mary, A. VoorMes, J.

      J. G. Olivier, for plaintiffs.

      T. E. Lewis, J. A. McOlarty, for defendant and appellant.
   Spofford, J.

Frances F. Brashear, wife of Eenry F. Lawrence, “authorized, assisted and joined by her said husband,” alleging herself to be the owner of a certain tract of land upon the Bayou Bceuf, in the parish of St. Mary, brought suit against the defendant, as the possessor of an adjoining tract, to fix the boundary line between the two eo-terminous estates, and to recover damages for alleged trespasses.

The defendant answered, denying the trespasses, avering that the land upon which the plaintiff says he had encroached, was his, and in case of eviction by her, claiming a large sum against her for the value of his improvements.

A survey was had, and there was a judgment in favor of the plaintiff, fixing the limits in accordance with her prayer, and adversely to the pretensions of the defendant.

The defendant appealed. Ho gave an appeal bond only in favor of Mrs. Lawrence, and not in favor of her husband.

Mrs. Lcmrenee, authorized by her husband for this special purpose, now moves to dismiss the appeal, because the defendant has not made her said husband a party to the appeal.

He is a necessary party. No valid judgment could be rendered against her, even in a matter pertaining to her separate interest, without his presence to assist her.

In this case, the appeal bond is the only test of the question, whether the defendant has made him a party to the appeal. For the order of appeal was granted in chambers, pursuant to the following consent authorizing the Judge to decide the case in chambers: “ Either party shall have the right to appeal from said judgment, as if moved for in open court, on furnishing the bond and security for the amount which shall be fixed to the order to be granted by the Judge presiding. Waiving the necessity of petition and citation of appeal,”

In a case of this kind, it has been held that the parties mentioned in the appeal bond are alone parties to the appeal. Robert v. Ride, 11 An. 410; see also Hewson v. Creswell, 10 An. 232.

In Lanoue v. Reed, 7 La. 113, the appeal was dismissed for the following reasons, assigned by Mathews, J. “The suit is brought against an executor and a testamentary heir; the latter being a married woman, was sued together with her husband. He is not cited in the appeal, which ought to have been done, he being á party to the suit necessarily made so, to protect the interest of his wife!

In Wells v. Scott's Executrix, 10 La. 401, a similar ruling was made. It was objected then that the wife was before the court merety as executrix and might -svell appear without the assistance of her husband. The court remarked that “ the 118th Article of the Code of Practice provides, that in all suits for a cause of action relative to the wife’s separate interest, both husband and wife must be parties. In this case, the husband was a party below, and the judgment is in favor of the executrix for a balance on her account of administration. The balance thus decreed to her evidently does not belong to the estate, and consequently not to the executrix in that capacity, but personally. The judgment became her property, and when the appellants seek to avoid it, her husband must be joined with her.”

The appeal being granted, as if on motion in open court, the only mode in which the appellant could manifest an intention to bring Mr. Lawrence before the appellate court, was by giving an appeal bond in his favor as well as in favor of his wife.

Appeal dismissed.