Oneto v. Delauny

' Porter, J., delivered the opinion of the court. The plaintiff charges that a box of goods belonging to him was shipped from New-Orleans to St. Martinsville, and that through error or fraud they came into thp possession of the defendants, who refused to deliver them lo him. The general issue was formed by the answer, and the [34] cause tried before a jury, who found a verdict for the defendant. The plaintiff appealed. iUyi’o/the°depoi tíiíd extpersons deposited0 'does depositorf'°'h° boArcmonded "on ío° in'Xdia°ge’ defenianls° “re's” fhetuáí'i't’dilfno't appear that tho plaintiff had taken responsibility!'10' ofTdeposltory'to utheow°!eroftile canebodprad¿cod vice of legal pro- poTmoir’0rfn"X ém, refer» m‘y íhroughTcfby c¿urt“h°”ty<>f“ [34] On the trial the judge charged the jury “that if they were °f opinion the case of goods described in the petition was deposited by another than the plaintiff with defendants, the court instruct the jury, that a delivery to the depositor does not make the defendants liable, though they may have been claimed by the plaintiff as the obligations of the defendants as depositaries were only due from them to the individual depositing.” This doctrine in the terms used by the judge, is not correct. The responsibility of the depositary is too much limited. His obligations are not due alone to the individual depositing, they are also due to the third person where the thing deposited does not belong to the depositor. But though thelaw was thus inaccurately expounded to the jury, we do n°t think the cause should be remanded. The charge of the judge did not at all affect the legal rights of the plaintiff before the jury, because the evidence shows beyond all doubt, that he did not take those steps necessary to create responsibility on the part of the defendants to him. It was not attempted to be shown, it is on the contrary proved, that no-other opposition was made to the delivery of the goods save that which resulted from the petition verbally asserting a cla,m 1° the box containing them. This in our opinion did not produce any obligation on the part of the defendants to the plaintiffs. The interposition of legal process was necessary to produce it. The art. 2926 of the La. Code provides,, that the object deposited must be restored to the depositor, “unless there be in the hands of the depositary an attachment on the property, or an opposition made by the owner.” The word oppositicn is in our judgment here used technically, and must be understood in the same, sense it is so frequently employed in the Code of Practice, namely, an opposition through and by the authority of a court of justice. The depositor is prima facie the owner of the thing deposited, and the possess*on of the depositary is- Iris possession. We cannot therefore believe it was the intention of the Legislature to [35] deprive the presumed owner of the enjoyment of his property, on the mere assertion of a right to it by another. Indeed such a construction would lead to this strange result, that although the depositor could not be deprived of the goods while he kept them in his own hands, without a writ of sequestration obtained at the suit of the claimant, he could be deprived of them if they were placed by him in the hands of a third person, though the possession of that person was confessedly his. Independant of this consideration, it is obvious that the contrary rule would give rise to, and frequently produce the most scandalous collusion between the depositaries and third parties. Simon, for plaintiff and appellant. This opinion renders it unnecessary to examine the effect of the verdict which was first rendered. By the terms of that verdict, the same question of law is presented as that suggested by the bill of exceptions to the judge’s charge, which has just been examined. It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.