The daily crescent. [volume] ([New Orleans, La.]) 1848-1851, 1849-05-10
supreme Court Of Louisiana.
Condensed Decisions-NEw ORLEANS Nav 2 I

onehaf and that his associate owns less than ore half
and where paol evidenced introduced to prove the
tents OF such books and accounts order show the
extent oil the ownership such paro evidence unless
ciicaly objected 10 secondary evidence, will receive
the same consideration the books and them
selves Where coproprieto OF vessel dies while the
vessel engaged in her regular trade aud the associate
who owns the preponderatng int crest continues to EN-.
poy her in such trade. after the of the co propre
tor without objection the part of the curator of his
succession, and without security being required by
him from the associate so employing the vessel such
associate and the succession of the deceased proprietor
are liable for the expenses and entitled to share in the
profits of the voyages the extent of their interest
| respectively.
J. b. JoUANNEAU, CURATOR, rs. JOHN C. SHAN
| NON. Appeal from the Second District Court of
| NeU Orleans. .SLIDELL, J.. Miller and Whip
| pie owned the steamboat Medora. Whipple died
in New Orleans in JAM, 1S47 his succession was
| opened here; and after some delay Jouanneau was
| appointed Curator. In Feb. l847, while making
her second trip after Whippe's death, an explosion
| of the boilers took place, Ivy which she was much
injured Miller then sold his interest, three fourths
to defendant who repaired and put the boat in run
ping order. In April the curator brought this suit
In which he claims half of the boat. Shannon
answered, claiming three fourIlls, and asking 10 be
| allowed the sums he had expended for necessary
| repairs.
The first point decided was in relation TO the
extent Of ownership of the parties The enrol
ment, made in 1876, upon the oath of Miller states
that he, together with Whipple, are sole owners of
the Medora. To prove Wlpple's interest to have
been only one-fourth defendant offered the tesli-
mony OF the steamers clerk, who deposes that he
kept the books; that Miller appeared on the books
as owner of three fourths, which he afterwards
sold to Shannon; that Whipple, who acted as the
boats engineer, owned fourth as also appeared
on the books; that he never claimed larger inter
est and in all his settlements of account with the
boat, acted on the basis of interest of one fourth.
Plaintiff objected to this testimony on the ground
that the enrolment, introduced IN evidence by plain
tIH having established the Joint ownership of the
boat by plaintiff and defendant, and The law &C. c.
art $3.50 raising in plaintiff S favor a presumption
that said Joint ownership was equal, the lille of
defendant to greater portion of such boat could
only be established by an instrument in writing.
lnasmuch as plaintiff bad established his interest
by evidence of that character. This objection was
overruled and plaintiff took his bill of exception
II was held by the Supreme Court that the evil
dence was properly admitted that Art 1886 did not
raise presumption jnriS ei de jure, but merely
presumption supplied in the silence of the parties,
when they have not expressly furnished u standard
of ownership, and threw the burden of proof on
Shannon, and he had successfully rebutted The legal
inference. 1t appeared thai no objection made
by plaintiff TO the production of the books and
accounts of the boat and to the parol evidence of
their contents 1t was held that the books and
accounts, under the circumstances, were equivalent
to written title in favor of defendant; and parol
proof OF their contents, unless specifically objected
to as being secondary evidence, must receive the
same consideration as the books themselves. De-
PENDANT was therefore considered TO be the owner
of ree-iourths of the boat.
The next inquiry was in relation to the conduct
of Shannon after Whippe's DEATH and its legal
consequences. The Court said no case had been
found in the books where the question of the right
of employment of the vessel after the death of the
part-owner had occurred. The right of part
owner in possession, who owns the preponderaiing
share of vessel to employ her in her usual trade,
where no objection Is made by his copropretor, ap
pears to be undoubted. Ships are built to plough
the sea- and not to lie by the walls, and their actual
employment is considered as matter not merely of
private advantage to the owners but of public
benefit to the State. Abbott on Shipping, p. l25.
Ii the dissenting part-oWner does not apply for
security from his cOparner he is supposed to con-
sent TO the employment Of the ship, and is liable for
his share of the expenses and entitled 10 share in
the profits. Gould Stanton, Is Conn. k. u.
The present case is not distnguishable, upon prin
ciple, from those cited. If Miller chose to send
the steamer on a voyage, and Whipple did not OBJ
ject, the vessel and the voyage not at Mlllers
sole risk. If Whipple objected, his remedy was by
application to competent tribunal to compel his
associate to furnish secpsify.
The peculiar circumstances presented in this
case illustrate very forcibly the proprety of MAIN
tanning the principles above explained, even after
the death of the part-owner. The steamer had
been advertised to leave, on her usual voyage, on
the day of Whpple's DEATH She was regular
packet, had been taking in cargo on the day of his
death and the day previous, and was heavily laden
If plaintiff argument be correct, and Whippe's
death terminated the controlling power of the ma
Jorlty interest, the steamer should not only have
Withdrawn from all future business, but have dis
appointed passengers already engaged and disem-
barfed the freight she had already received. Such
a proposition certainly involves Injustice to Whip
pies co-proprietor and disregard of the interests
OF commerce. The boat made only two trips after
the part-owner's death, and these were in her regu
lar trade packet.
Under the foregoing principles the solution of the
question arising out OF the explosion Of the boilers
which occurred on her second trip after Whippes
death, was considered free from difficulty. Under
the evidence IL did not appear that the explosion
occurred through any fault negligence OF Miller,
and the whole loss could not he inflicted on him.
The repairs were proved by the experts, who
testified that they increased the value of the vessel
in greater ratio than Their amount.
The Judgment below was reversed; Shannon
recognized as the owner of three fourths of
the MedOra, and decreed to receive three fourths
of the proceeds of the boat, which had been sold
the succession OF Whipple was recognized as the
owner of one fourth, and was aijudged the debtor
of Shannon in the sum Of 1898 Al, and the right Of
Shannon TO be paid said SUN, which was for Whip
pies proportion of the repairs, by preference and
with privilege was reserved for adjudication upon
ableau of distribution; the costs of the appeal to
be paid by the succession, and those below to be
paid by the succession and Shannon in equal por-
tons Fsz
SUCCESSION OF ToUssAINT Messy, JR., On OP-
POSITIONS TO ACCOUNT. Appeal from The Second
District Court Of New Orleans. .ROsT, J :. This
turned upon the proper construction OF several
clauses in the marriage contract between the de-
ceased and his wife. The Judgment was reversed
the opposition of the under-iutor sustained for
$1,000; the remainder of the opposition was over
ruled, the costs of the opposition TO be paid by the
tutrix and those of the appeal by the minors
GALVESTON AND BRAZos CANAL.--Gen. Hamil-,
ton met, a few days ago, the Galveston and Brazos
Canal Committee, in order to if some means
could not be adopted for uniting their efforts 10 con
sruc the canal from Galveston to the Brazos river.
1t was agreed that two component civil engineers
should be employed, one at the expense OF Gen.
Hamilton and one by the committee, to make an
accurate survey Of both the upper and lower canal
rou'es and report that which presents the greatest
advantages In case these engineers disagree, the
&c