amount, must bear the loss of the difference between the amount so paid,
and that for which the draft was given. Dunbar v. Armor, 1.
2. Where a slave, concealed on board a vessel, is carried away and lost to
the owner, the master and owners of the vessel will be responsible for his
value, though he was received on board by a person employed on the ves-
sel, contrary to the orders, and without the knowledge of the master and
owners thereof. The latter are answerable for the damage occasioned by
the acts of those they employ, and cannot excuse themselves on the plea,
that they were done contrary to their orders, and without their knowledge.
C. C. 2299. Winston v. Foster, 113.
3. The owners of a steamer employed in carrying freight and passengers for
hire, are responsible as partners and common carriers, in solido, for any
loss of property confided to them, occasioned by want of care or skill in
those in charge of the boat. Kelly v. Benedict, 138.
4. Action to recover the amount of certain notes delivered to defendant for
collection, with directions to apply the proceeds in a particular way, and
not accounted for. Defendant having answered, that he is not indebted to
plaintiff, and had been always ready to account, an interlocutory judgment
was rendered, ordering him to file an account within a fixed period. No
account being filed within the time, a rule to show cause why he should not
be ordered to pay the amount claimed, was made absolute, and judgment
rendered for the amount, On appeal; held, that the judgment should be
affirmed. Nichols v. Nichols, 175.
5. The consignees of a vessel, who receive goods belonging to a third person
residing in another place, and re-ship them by a steamer to him, will not be
responsible for any loss resulting from a fortuitous event, as the snagging
of the steamer, where compensation is claimed only on the ground, that the
goods should have been re-shipped sooner, and not for the omission to in-
Deaver v. Bedford, 245.
5. The consignees of a vessel are entitled to take charge of goods shipped by
her, on which they have a lien for freight, drayage, and the expenses of
storing. The best means of notifying the owner, is by advertising them.
Ib.
7. Where a factor or merchant accepts a bill on the faith of produce consigned
to him, it must be considered as an advance on it, and he has, for the
amount thereof, the same privilege as though the advance had been made
in money; and other creditors, who have no privilege, cannot take the pro-
perty from him, without paying his advances. Lambeth v. Turnbull, 264.
8. A creditor of a consignor, who has attached property of his debtor, in the
hands of a consignee, who claims a privilege for acceptances made by him
on the faith of the consignment, must show, in order to take the property out
of the hands of the latter without paying the amount of his acceptances, that
the acceptances were not made in good faith, and that the consignee is not
bound to pay them. Ib.
9. The interest of the party by whom property is held as security, is an in-
Hence the right of agents, consignees and factors, to insure
the goods of their principals.
Bell v. Western Marine and Fire Insurance Company, 423.
10. The acknowledgment of a debt by an agent, will stop prescription. C.
C. 3486. Greig v. Muggah, 473.
11. One acting as an agent, may sue in his own name for the recovery of the
amount of a draft drawn by himself, and accepted by the debtor of his prin-
cipals. Johnson v. Brashear, 477.
AGREEMENTS BETWEEN PARTIES OR COUNSEL.
All agreements between parties or counsel, derogating from the rules of prac-
tice fixed by law, must be entered on the minutes of the court, or reduced
to writing and filed in the record, or they will not be noticed.
A stake-holder who pays over the amount bet on a horse-race, without the
sanction of a majority of the judges of the race, will be responsible to the
winner. Dauterive v. Broussard, 516.
See PLEADING, 19, 20, 21.
1. The signature of the appellant is not necessary to an appeal bond; it is
enough that it be signed by a sufficient surety. Jones v. Sidle, 59.
2. The 4th section of the act establishing the Commercial Court of New Or-
leans, so far as it attempts to authorize the Supreme Court to decide on
cases in the first instance, and to determine matters not decided on in the
inferior court, is unconstitutional. The Supreme Court cannot decide on
the merits of a case which has not been acted on by the lower court.
3. No appeal will lie from a claim for three hundred dollars, with interest,
where the interest, being ex mora, began to run only from judicial demand.
Const., art. 4, sect. 2. C. P. 91. Pujol v. Correjolles, 90.
4. Defendants had each obtained, separately, judgment for $100, with interest
and costs, against the Bank of the United States, and had levied separate
executions on different lots of ground. Plaintiffs having taken a rule on
them, to show cause why they should not be restrained from all further
proceedings for the reasons stated, the rule was made absolute, and de-
fendants appealed. Held, that no appeal will lie, each judgment being for
less than three hundred dollars. United States v. Cochrane, 120.
5. Where a cause has been tried by a jury, and no motion was made for a new
trial, it must be an extreme case to induce the remanding of it.
Denton v. Murdoch, 127.
6. Where the record does not contain all the evidence adduced on the trial,
and there is no statement of facts, bill of exceptions, nor assignment of
errors, and the clerk of the lower court certifies that part of the docu-
mentary evidence, not included in the record, was not to be found among
the papers, and there is no evidence to show that it has been since dis-
covered, the appeal must be dismissed, as a certiorari would be useless.
Thayer v. Littlefield, 152.
7. A record certified by the clerk of the court from which an appeal has been
taken, as "containing a transcript of all the proceedings, as well as of all
the documents filed in the case," is insufficient, though nothing else appear
to raise a doubt as to its completeness, where there is no statement of facts,
bill of exceptions, or assignment of errors apparent on the record. Appel-
lants must bring up a complete transcript of the record, with all the evi-
dence upon which the case was tried, or show good cause why they have
not done so. Powell v. Williams, 169.
8. Where an appellant relies upon errors apparent on the face of the record,
they must be pointed out, in conformity to art. 897 of the Code of Practice.
9. Plaintiffs having instituted suit on a note, a creditor of theirs had a fi. fa.
levied on it, when it was agreed by the parties, that the note should be de-
livered to him. The note, while yet in the hands of the clerk, was attached
by certain persons who had commenced an action against the seizing credi-
tor. On a rule taken by the latter, the court ordered the note to be de-
livered to him, and from this judgment the attaching parties appealed.
Pending the appeal, the action commenced by them against the seizing
creditor, was decided against them: Held, that being thus without interest,
the appeal must be dismissed. Palmer v. Day, 182.
10. One who appeals must bring before the Supreme Court all the parties,
contradictorily with whom the judgment complained of was rendered, and
who are interested in its remaining undisturbed.
Duggan v. De Lizardi, 224.
11. In actions on joint obligations, all the original parties must be sued together
even those who may have performed their part; no judgment can be pro-
nounced, unless it be shown that all joined in the obligation; any judgment
must be against each defendant separately for his portion, but, in solido, for
the costs. (C. C. 2080 et seq.;) and all the parties below must be made
parties to the appeal, though a part only have appealed, or the appeal must
be dismissed. Those who have not appealed must be cited as appellees.
Ib.
12. In an action in the name of the State to recover the penalty of a bond
taken for the appearance of one of the obligors, the defendants may urge,
for the first time, after appeal, that nothing became due to the State by its
forfeiture. Per Curiam. Such an objection is not based on the mere in-
capacity to sue, which must be specially denied, but, tending to show the
al solute want of any legal right in the State, may be taken advantage of at
any stage of a cause. It goes to show that the plaintiff has no interest in
the subject matter of the suit, and that the right of action does not belong to
the party who seeks to enforce it. State v. Desforges, 253.
13. Where an appeal has been applied for within the time prescribed by the
Code of Practice, art. 593, it may be obtained even after that period, when
the delay results from the necessity of applying to the Supreme Court, cre-
ated by the refusal of the inferior Judge to allow the appeal.
Succession of Jacobs, 270.
14. Defendants in answer to an action on their promissory notes, alleged that
they had entered into an agreement with the plaintiff, and their other credi-
tors, by which a certain per cent on the amount of their debts was to be re-
ceived as a full discharge thereof, averring a tender of that amount, and that
they had been always ready to comply with the terms of the compromise,
but that plaintiffs had since refused to accede thereto. Plaintiffs having
moved for, and obtained a judgment for the per centage alleged to have been
tendered, reserving their right to prosecute for the balance, and ordering
the plaintiff to retain out of the per centage enough to defray the costs of
the further proceedings should they result in favor of defendants, the latter,
having been refused an appeal, moved for a mandamus to compel the allow-
ance of one. Held, that defendants having admitted the debt to the amount
for which judgment was rendered, and having averred a tender and their
readiness to pay, cannot, under art. 567 of the Code of Practice, be allowed
to appeal therefrom. Skinner v. Dameron, 447.
15. Where a bill of exceptions is not mentioned in the argument, nor otherwise
insisted on before the Supreme Court, it will be considered as waived.
Murdock v. Gurley-Application for Re-hearing, 467.
16. A plea of release not made in the lower court, will not be listened to by
the Supreme Court. This defence will be presumed to have been waived.
New Orleans Gas Light and Banking Company v. Hudson, 486.
Where it is admitted, that an award was made without the arbitrators having
been sworn, parol evidence of their proceedings is inadmissible.
An assignment of a claim, though gratuitous, followed by notice to the debtor,
who had no offset at the time, is valid as to him. Harrison v. Wilson, 275.
VOL. V.
1. Where in an action commenced by attachment against an absentee, the
Sheriff's return on the attachment merely shows, that he attached all the
property belonging to the defendant in the hands of the garnishee, and no
interrogatories are propounded to, nor other proceedings had against the
latter, but the suit is carried on contradictorily, with an attorney appointed
by the court to represent the defendant, he will not be considered as in court
and the suit will be dismissed. Hoey v. Pepper, 119.
2. Where property has been shipped to consignees entitled to a privilege
thereon, so that the consignor or owner cannot take it out of their hands
without paying their claims, a creditor of the owner cannot attach.
Lambeth v. Turnbull, 268.
3. It is not necessary to support an attachment, that the bills of exchange on
which the garnishees are liable, should be within this state, nor that the
evidence of the debt should be seized. There is, in this respect, a wide
difference between an attachment, and a seizure under execution. Any debt
due by a resident to a non-resident, whether by note, acceptance of a bill,
endorsement, or otherwise, will support an attachment. Payment by a gar-
nishee under a judgment against him will protect him from any demand by
his non-resident creditor. Bean v. Mississippi Union Bank, 333.
4. An attaching creditor can recover of the garnishee no more than his debtor,
the creditor of the garnishee, could have recovered at the date of the attach-
ment. Ib.
5. An exception by the garnishees, in a suit against a corporation existing in
another State, filed after issue joined, that the plaintiffs did not make cer-
tain assignees or trustees of the corporation, under a deed of assignment,
parties to the action, will be disregarded, where it does not appear that the
plaintiffs were parties to the deed, nor that they, or the garnishees had no-
tice of the assignment of the debt attached, previous to the institution of the
suit, and neither the corporation, nor its assignees ask to be heard. Ib.
6. Where an attachment has been issued against a debt due by garnishees to
a corporation existing in another State, the former cannot be discharged by
paying or transacting with their creditors, after notice of the attachment.
A garnishee is a kind of stake-holder. He cannot enter into the contest
between the plaintiff and defendant, nor change his position towards either,
after notice of the attachment. He is to render a true account, and can
contest only as to the amount alleged to be due by him, contradictorily with
both parties, and must pay to the party entitled thereto, the balance found
to be due. Nor can he be released by a payment made by the drawers of
the note on which he was indebted as endorser, if made after notice of the
attachment. Ib.
7. Where, in an action against a Bank on its notes, plaintiffs attached a debt
due to the Bank by persons who were made garnishees, the latter will be
entitled to discharge their debt in notes of the Bank, only where they prove
that they were in possession of them previous to the attachment. C. C.
2212.
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