Lesassier & Wise vs. The Southwestern.

In addition to this, it is in evidence that Durham, Howell & Co. brought the bill of lading to the office of Lesassier & Wise, and left it there for Barnett, the consignee, thus showing that they had shipped the cotton to his order. This circumstance corroborates the legal effect of the bill itself. Barnett's idea, that he shipped the cotton, is a very natural one under the circumstances. He procured it to be shipped, and, as between him and Lehman, Abrams & Co., to whom he intended to transfer it, he may be regarded as substantially the shipper. But in the eye of the law Durham, Howell & Co. were the shippers.

Second. It is contended that Barnett was not insolvent when the property was stopped by Durham, Howell & Co. His check for the cotton was not paid. That, certainly, was one pretty strong circumstance, though not conclusive. But it seems that he was, in fact, insolvent at the time. He has never settled his obligations then outstanding. Cotton was falling and he was largely obligated on cotton. Lesassier & Wise seem to have thought his situation such as to justify their being considerably alarmed. I think he was insolvent.

so.

Third. It is contended that the delivery of the bill of lading by Isaacs, at the instance of Barnett, to Lesassier & Wise, to enable the latter to protect themselves, was such a transfer of it as cut off the right of stoppage in transitu. I do not think Lesassier & Wise advanced nothing, and gave up nothing, in consideration of this delivery. They simply took it as an additional provision against possible loss on their outstanding obligations for Barnett. It was a plank seized hold of by them to enable them to better protect themselves against the hazard of past transactions. It can in no sense be regarded as so much. received in payment of indebtedness due. It was not so regarded by them at the time. They were not then sure that Barnett would owe them in the final result of existing speculations. But they feared he would. And they naturally desired to have additional security. A transfer of a bill of lading as a mere collateral to previous obligations, without anything advanced, given up or lost, on the part of the transferee, does not constitute such an assignment as will preclude the vendor of the goods from exercising the right of stoppage in transitu.

Kimball vs. Taylor.

In my judgment the decree of the district court must be affirmed and the libel dismissed with costs.

SAMUEL S. KIMBALL VS. CHARLOTTE H. TAYLOR.

1. The existence of martial law does not prevent the administration of justice between the citizens in the civil courts. When such courts are authorized

by the military power, they may exercise their functions, and their judgments and decrees will be binding on the parties.

2. That provision of the constitution of the state of Louisiana which requires the style of process to be, "The State of Louisiana," does not apply to citations.

3. Under the practice of the clerks of the state courts of Louisiana, the absence of a seal from a citation in the copy of a record is no proof that the original citation was without seal.

4. Service of an irregular or erroneous summons or citation is not void, when the service is personal.

5. Property cannot be considered "abandoned," in the sense in which the word is used in the act of congress (13 Stat., 375, sec. 1), unless the owner was voluntarily absent, and engaged either in arms or otherwise in aiding or encouraging the rebellion.

6. The code of Louisiana required that before property could be seized and sold on an order of seizure and sale, the judgment debtor should be served with notice thereof. The defendant was expelled by the United States military authorities, from the city of New Orleans, and carried within the Confederate lines. During his enforced absence, his property in New Orleans was seized and sold by the sheriff, notice of the seizure and sale being served upon a curator ad hoc appointed by the court. Held, that the sale was void.

7. Such sale is not protected by the prescription of five years provided for in section 2809 of the Revised Code of Louisiana.

Submitted to the court on both the facts and the law. Messrs. Allan C. Story and Wm. Grant, for plaintiff. Messrs. L. Madison Day and H. J. Leovy, for defendants.

WOODS, Circuit Judge. This is a petitory action to recover possession of and establish title to certain real estate in the city of New Orleans.

Kimball vs. Taylor

Both parties claim title under one Moses Greenwood. Plaintiff introduces an authentic act of sale from Greenwood to him, dated the 15th of December, 1870, and it is shown that in 1859, and for several years thereafter, Greenwood was in possession, and that defendant is now in possession.

The defendant offers in evidence a record of the sixth district court of the parish of New Orleans, in the case of Eliza Chapin v. Moses Greenwood, showing a judgment in favor of Mrs. Chapin against Greenwood, of the date of February 7, 1863, for $1,000, with eight per cent. interest, a fieri facias issued thereon, dated December 16, 1864, and levied on the property in dispute in this case, and a sale thereof by the civil sheriff of the parish of Orleans, by virtue of said writ, on the 20th day of February, 1865, to Spencer Field.

The defendant also introduces deeds from Field to Mrs. Marsden, and from Mrs. Marsden to herself; the latter dated November 15, 1867. The defendant, besides claiming title, pleads the prescription of five years.

It is conceded that if the proceedings in the sixth district court of the parish of Orleans, as shown by the record, were effectual to divest the title of Greenwood, the defendant ought to prevail, otherwise the finding and judgment of the court should be for the plaintiff, unless the plea of prescription should be found a bar to plaintiff's recovery.

I will proceed to notice the objections made to the record of the sixth district court of New Orleans, in connection with the evidence offered in support of them.

It is shown in proof, that during the time of the proceedings in that court, martial law had been declared by the commanding general, and was in force (General Order of Major Gen. Butler, of May 6, 1862). The point is therefore made that there could be no civil court while martial law was in force.

Martial law is not inconsistent with the administration of justice between the citizens in the civil courts. When such courts are authorized by the military power, they may exercise their functions, and their judgments and decrees are binding on the parties. The evidence in this case shows that notwithstanding the declaration of martial law, the civil courts of the city of

Kimball vs. Taylor.

New Orleans were allowed to transact business.

General Order

No. 41, of Maj. Gen. Butler, of the date of June 10, 1862, prescribes an oath to be taken by judges, justices, sheriffs, attorneys and notaries, or other persons who hold any office which calls for the doing of any legal or judicial act. The clear inference from this order is, that officers having taken the oath required, were allowed to perform their duties, and the public history of this city shows that from the surrender of the city down to the close of the war, the civil courts were in the exercise of their functions. Among these was the sixth district court. I think, therefore, that it was a competent court to hear and determine. This view was sustained by the decision of the supreme court of the United States, in The Grapeshot, 9 Wall., 129, in which Mr. Chief Justice CHASE remarks: "It became the duty of the national government, whenever the insurgent power was overthrown, and the territory which had been dominated by it was occupied by the national forces, to provide, as far as possible, so long as the war continued, for the security of persons and property, and for the administration of justice."

It is next objected to the validity of the record that the citation was defective, and therefore the court acquired no jurisdiction. The citation is entitled of the state of Louisiana and of the sixth district court of New Orleans. It is addressed to Moses Greenwood, the defendant, bears teste of the judge of the court, is signed by the clerk, and together with a copy of the petition on which it was issued, was served personally on the defendant, as appears by the return of the sheriff. The defects in the citation are alleged to be an absence of the seal of the court, and that the citation is not in the name of the state. The name of the state does appear in the title of the citation, but it is claimed that the style should be, "the state of Louisiana to Moses Greenwood." This is so inconsiderable a departure from what is claimed to be the law, as not to be worthy of serious attention. But in Bludworth v. Sompeyrac, 3 Martin, 720, it was held that the clause in the constitution which requires the style of process to be "the state of Louisiana" does not apply to citations.

In regard to the omission of the seal to the citation in the copy of the record presented to us, a sufficient answer is found in the

Kimball vs. Taylor.

case of Medley v. Voris, 2 La. An., 140, in which the supreme court of this state held "that the omission of a seal in the copy of a citation in a record of appeal will not be considered as establishing that the citation was issued without a seal, it being the common practice of the clerks not to copy the seal in making a copy of the citation." The court says: "As the party has not thought proper to produce in evidence the citation served upon him, neither this court nor the court below has been enabled to judge if the defect existed, and in the absence of such proof we will presume the clerk did his duty." But if it had been affirmatively shown to the satisfaction of this court that the citation was without seal, this objection to the citation could not stand, the record showing personal service. In Hollingsworth v. Barbour, 4 Pet., 477, the supreme court says: "There is an obvious distinction between this case and the case where there has been personal service of irregular or erroneous process. In that case the party has notice in part, and may, if he will, appear and object to or waive the irregularity." See also Pursley v. Hayes, 22 Iowa, 37; Thompson v. Doe, 8 Blackf., 336.

I am of opinion, therefore, in the proofs as presented, that Greenwood was legally served with a sufficient citation, and that the court acquired jurisdiction of his person.

It is next objected to the validity of the record and proceedings in the sixth district court, that the court had no jurisdiction to order a sale of the property in question, because it was “abandoned property," and the treasury agents were directed by law to take charge of and lease the same, and therefore no court had jurisdiction to seize and sell.

It is a sufficient answer to this to say that the property was not abandoned, as that term is defined in the statute: "Properties shall be regarded as abandoned when the lawful owner shall be voluntarily absent therefrom, and engaged either in arms or otherwise, in aiding or encouraging the rebellion." 13 Stat., 375, sec. 1. There is no evidence to show that Greenwood was voluntarily absent, and there is no proof that he "was engaged either in arms or otherwise, in aiding or encouraging the rebellion." So there is no proof before us to establish that the property sold by order of the sixth district court was, in fact,