text:
    Flower et al v. Their Creditors.
    Since the promulgation of the Code ofl825 partnership creditors have been entitled to share equally with the individual creditors in the distribution of the individual assets, it being declared by art. 3152 of that Code that a privilege can be claimed only for those debts for which it is expressly provided. The rule was different before the adoption of that Code.
    -The fright of partnership creditors to be paid by preference out of partnership funds, is expressly established by art. 2794 of the Civil Code.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Roselius, for the appellants.
    The only question which this case presents is. whether the individual creditors of William Flower are entitled to be paid the full amount -of their claims out of the assets surrendered by him; or whether the partnership creditors have a right to participate pari passu with the personal creditors, in the distribution of those funds ? The judge below decided this question in favor of the opposing creditors; from which decision the individual creditors have taken this appeal. It is contended that as the opponents are creditors of a commercial partnership, the question presented for decision is governed by the commercial law. If I am correct in this position, the case is free from difficulty; for the rule of that system of law is well settled. See Story on Partnership, no. 376. 3 Kent’s Comm. sec. 43, p. 64. Murray v. Murray, 5 Johns. Ch. Rep. p. 71. See also Gow on Partnership, p. 235-6, 3d ed. Twiss y. Massey, 1 Atk. p. 67. Ex parte Cook, 2 P. Will, p. 500. Exparte Ellon, 3 Ves. p. 240. Ex parte Abell, 4 Ves. p. 837. Ex parte Clay, ,6 Ves. p, 833. Bolton v. Puller, 1 Bos. and Pull. pp. 539, 544. Watson on Partnership, pp. 262, 263, 2d ed. Ib. p. 324 to 334. The late bankrupt law of Congress recognized the same principle.
    That the rule was the same in Louisiana previous to the enactment of the Code of 1825, is admitted. But it is contended, on the authority of Morgan v. His Creditors, 8 N. S. 599 et seq., that the rule has been changed by the provisions of arts. 2794 and 3152 of that Code.
    With all deference 1 insist that that case is not good law; and I do this with-the more confidence, as in a subsequent case, that of Hagan v. Scott, 10 La. 348, Judge Martin, who was the organ of the court, laid down the law as follows : “ So far as regards W: P. Scott’s interest in the undivided half of the lot of ground, it is shown that J. B. Scott assumed and paid debts of his vendor to the full amount of the value of that share. These last debts were separate ones of W. P. Scott, and his separate creditors had a right to be paid out of separate property, paramount do the claims of the creditors of any partnership in which he had been concerned.” The judge of the district court seems to have considered this as a mere obiter dictum. But a reference to the case will show that it turned almost exclusively upon the decision of that question; for if •'it had not been for the paramount claim of the separate creditors of W. P. Scott to be paid out of his separate property, the sale to J. B. Scott would have been clearly fraudulent.
    That the question to be decided in this ease, falls within the dominion of the commercial law, is plain. Has the commercial law, with regard to the point under consideration, been altered by the Civil Code of 18251 A negative answer to this question results from the fact, that the legislature contemplated the enactment of a Commercial Code, simultaneously with the Civil Code. Art. 2798 of that Code, provides that: “ Commercial partnerships are divided into two kinds, general and special; they form the subject of a title in the Commercial Code ; but the articles of this title govern them in all points in which there is no repugnance between the articles of this title and those contained in the Commercial Code. Where such repugnance exists, the latter must, as to commercial partnerships, prevail. And again, in art. 2823: “ The particular rules, by which commercial partnerships are governed, will be found in the Commercial Code. All the provisions of this title, not repugnant to those contained in that Code, are also applicable to commercial partnerships.
    Notwithstanding this special reference to it, no Commercial Code was ever adopted. In this state of things it is but reasonable to conclude that the general commercial law, which was in force at the time, stands in lieu of the contemplated Code.
    I am aware that it may be objected that the Commercial Code never received legislative sanction. This is true; but does it follow that, in the anomalous state of our legislation on this subject, we cannot refer to this Code for the purpose of ascertaining whether the legislature intended to introduce a change in the commercial law of the country by article 2794 ? I admit that if this article, in express terms, referred to commercial partnerships, its provisions would govern the case at bar, notwithstanding their conflict with article 138 of the project of the Commercial Code. But does the art. 2794 speak of commercial partnerships ? Certainly not.
    It is not my business to impugn the correctness of the decision in Morgan v. His Creditors, if it is limited to ordinary partnerships. To persist in applying it to commercial partnerships, would be in direct opposition to the will of the law-maker, as clearly manifested by his express declarations. There can scarcely be a doubt, that if the attention of the court, in the argument of the case of Morgan v. His Creditors, had been called to the 138th article of the Commercial Code, the decision would have been different. I am fortified in this opinion by the views expressed and decision rendered by the same court, in the case of Kimhal v. Blanc et al., 8 N. S. 386 et seq., and decided only two months before that of Morgan v. His Creditors.

    It is true that the provisions of the 3l52d art. of the Civil Code conflict with the doctrine which we have endeavored to establish 1 That article enacts that, “ Privilege can be claimed only for those debts, to Which it is expressly granted in this Code.” But we must not forget that this Code expressly provides, that its enactments are inapplicable to commercial partnerships, unless they are in harmony with those of the Commercial Code. C. C. 2798. The reasoning would certainly be fallacious, if not absurd, to say, in the language of the article just cited, the articles of this title govern commercial partnerships in all points in which there is no repugnance between them and those contained in the Commercial Code ; where such repugnance exists, the latter must, as to commercial partnerships, prevailbut the Commercial Code has never received legislative sanction ; therefore, all the articles under the title of partnership in the Civil Code are applicable to, and govern commercial partnerships. This is a defective syllogism; it is what logicians call a non seqwitur. According to sound and correct logic, the conclusion, it is respectfully submitted, ought to be the very reverse. To state the argument again, it should stand thus: the applicability of the provisions of the Civil Code, is made to depend on their conformity with those of the Commercial Code; 'but as the- latter Code has never been adopted, it is impossible to ascertain whether such conformity exists ; consequently, none of the provisions of the Civil Code are applicable to commercial partnerships. Besides, it is impossible in the nature of things to apply all the provisions inserted in the Civil Code under this title, to commercial partnerships. How, then, is it possible, in the absence of the Commer Code, to discriminate between those that are applicable to commercial paiijf&rships, and those that are not ? - Jy ,
    J2. N., and A. N. Ogden, contra.
   The judgment of the court was pronounced by

Slidell, J.

The question presented to us in this case is, whether dividual creditors of William, Flower are entitled to be paid the full amKum their claims out of the assets surrendered by him; or whether the partners' creditors have a right to participate pari passu with the individual creditor the distribution of those funds. The district judge decided the question in favor of the partnership creditors, and the individual creditors have appealed.

We have carefully perused the elaborate argument presented by the appellants, and are not insensible to the plausibility and force of the view he has taken of the case; but we are not at liberty to regard this question as an open one. The question first arose under the Code of 1825, in the case of Morgan v. His Creditors, 8 Martin N. S. 600. It was considered at length by Judge Martin, as the organ of the court. It was then held that the rule of law, as it existed previous to the adoption of the new Code, had been changed; that under the new Code partnership creditors are entitled to be paid by preference out of the partnership assets, because that preference is expressly declared by art. 2794; that they are entitled to share ■ rateably with the individual creditors in the distribution of the individual assets, because by article 3152 it is declared that privilege can be claimed only for those debts for which it is expressly granted. The court noticed the fact that, at the time the new Code was adopted, a Code of Commerce was contemplated, and was the subject of frequent reference in the Civil Code; but as the Code of Commerce was not adopted, it was the opinion of the court that the Civil Code, as adopted in 1825, was conclusive upon the question, and the right of partnership creditors to participate on an equal footing with the individual creditors in the distribution of individual assets was fully and solemnly recognized.

But it is said by the learned counsel for the appellants that, there can scarcely be a doubt that if the attention of the court, in the argument of the case of Morgan v. His Creditors, had been called to the 138th article of the Commercial Code, as prepared by the jurists commissioned for that purpose, although not adopted, the decision would have been different. It is correctly stated by counsel that the proposed Commercial Code did expressly grant the separate creditors a preference upon the separate estate, thus following the pre-existing law, and harmonizing with the jurisprudence of the other States of this Union, of England, of Spain, and of Rome; but the learned counsel has been misled in this particular by the meagre manner in which that case was reported. No argument of counsel was given by the reporter; but, upon examining the record, we find an elaborate brief, in which the proposed Code of Commerce is quoted, and the same argument substantially presented as has been deduced from the same source on the present occasion.

In the case of Town v. Morgan’s Syndics, 2 La. Rep. 112, the doctrine recognized in Morgan v. His Creditors was repeated. The question then was, by which Code the rights of the holder of Morgan’s individual note were tobe controlled, the note having been endorsed by him whilethe Code ofl808 was in force, and having matured after the adoption of the new Code ; and it was then said, as in the former case, that by the old Code the creditor would be entitled to be paid by preference out of the individual estate; but that if the new Code were applicable he must share pro rata with the partnership creditor's. The point therefore was distinctly before the court.

Again in Bernard v. Dufour, 17 La. Rep. 599, the rule was treated as the familiar and undisputed doctrine, upon the authority of Morgan v. Creditors, which was cited.

The only cases cited by counsel which clash with the authorities above mentioned is, Hagan v. Scott, 10 La. Rep. 349. But it is impossible to consider the incidental dictum which that case presents as seriously impairing the authority of Morgan v. His Creditors. It could only have originated from a hasty reference to’the defective marginal note of the case, in which the rule under the old Code only is stated, and that under the new Code is entirely omitted, although expressly recognized by the court.

The' rule which was, after careful argument deliberately adopted and declared as far back as 1830, and which our courts have since, as we believe, uniformly followed in the distribution of insolvent estates, has become a practical rule of property, and we do not feel at liberty to disturb it. The profession have acquiesced in it for many years, the public have acted upon it, and, though its correctness may be debateable, it certainly does not fall within the category of those gross errors which no length of time or right of authority are permitted to sanction. Judgment affirmed.


source: Caselaw Access Project

author: Rost, J.

license: Public Domain

text:
    Moore v. Hampton et al.
    A sale made by a sheriff, under an agreement of parties, and on terms different from those! prescribed by law for forced sales, will not be viewed as a forced sale, but as subject to the! rules of ordinary sales, in which the vendor is bound to express himself clearly respecting! the thing to be sold, under the pain of having any obscure or ambiguous clause construed] against him.

      After possession for twenty years by a purchaser under a sale made by one acting as an agent, the authority of the agent cannot be contested.
    The rule established by art. 2256 of the Civil Code, prohibiting the admission of parol testimony to contradict or enlarge valid written acts, will not exclude such evidence when adduced to identify land sold, where the titles contain no specific! description of the property. Such evidence explains and elucidates tkd title; hut goes neither against nor beyond it.
    from the Fifth District Court of Ne.W Orleans, Buchanan, Í.

      Benjamin and Micou, for the appellant.

      Preston and llsíey, for the defendants.
   The' judgment of the court was pronounced by

Rost, J.

This is a petitory action; The plaintiff claims as universal legatee of her first husband, Wm. Donaldson, the undivided half of a tract of land, formerly held in common between the said Donaldson and John W. Scott. The defendants allege that the title of Donaldson was divested by a sheriff’s sale, as far back as the 10th of November; 1815, being thirty years save a day previous to the institution of this suit. They further,allege that their ancestor, Wade Hampton, acquired the said property by authentic act, from Carlos De Armas, the purchaser at the sheriff’s sale, They have pleaded the prescriptions of ten, twenty, and thirty years. . .

The material facts of the case are as follows: Before the change of government, Conway had obtained a complete grant for ninety-six arpents front of land on the Mississippi river; by forty arpents in depth, with diverging side lines. He had also applied for and obtained a grant for an indefinite extent of vacant lands included within the prolongation of his side lines. Scott and Donaldson, subsequently acquired a portion of all these lands, and formed a partnership, by notarial act, in relation to them. They afterwards made a partition of the front tract to the depth of eighty arpents, and took possession of their respective shares. The lands in the rear being yet undefined, and not having been separated from the public domain by an actual survey, continued in common between them under "their contract of partnership, and they established a steam sawmill on what they supposed to be the extreme north west corner of them. After the change of government, they obtained from Governor Claiborne, then exercising the powers of the Spanish Intendant General, an order for the survey of these lands, and, in obedience to this order, a plat of them appears to have been made by the surveyor Lafon, extending to bayou Manchac, and including the seat of the saw-mill. Up to this time the title was incomplete, on account of its uncertainty as to boundaries and extent. On the 98th of August, 1813, Donaldson being indebted in a large sum to the succession of Daniel Clarke, and being anxious, as he states in the act, to do all in his power to protect the succession, mortgaged to the executors his share of the front lands, with seven slaves employed (hereon, and also an undivided'half part of the steam saw-mill, owned jointly by the mortgagor and the heirs of John W. Scott, then deceased, together with an undivided half part of a tract of land on which said mill is placed, and also twenty-slaves employed at the mill. Donaldson having died without paying the debt, "Clarke’s executor’s obtained a judgment upon it for the sum of $30,338, and all the property mortgaged was ordered to be sold.

An agreement was then entered into between the executors of Clarke, the heirs of Scott, and the executor of Donaldson, styling himself also the attorney of the present plaintiff, who was the universal legatee of the said Donaldson. By this agreement the sheriff of the parish of Iberville was authorized to make sale of the whole of the steam saW-mill and of the tract of land whereon the same was placed, which tract of land is stated in the act to be held in common between the heirs of Donaldson and the heirs of Scott, and the same one undivided half of which was ordered by the decree to be sold to satisfy the plaintiff’s debt, under the mortgage made to them by Win. Donaldson. The parties farther agreed that the sale should be made on a credit of one and two years, the sheriff taking good security and mortgage on the property sold. This agreement appears to have been made the judgment of the court, and in conformity therewith the saw-mill and the tract of land were sold by the sheriff, and adjudicated to Carlos De Armas.

Sometime after, Carlos De Armas sold to Wade Hampton, “ the undivided half part of all that certain steam saw-mill, situated in the parish of Iberville, and also the undivided half part of all that certain tract of land on which the said mill is placed, and which was sold at sheriff’s sale on the 16th day of November, 1815, as the property of the late John W. Scott; the other half of said property, having previously been sold by the vendor to the purchaser, this being, says the act, all the remaining or residuary right, title and interest which the vendor holds in or to the property above mentioned, described, or alluded to. After this sale Patrick Wale, the executor of Donaldson, delivered the title deeds in his possession to Hampton, and wrote to him, “they now belong to you, and are only useful to you.” Since this sale, Hampton and his heirs have been in ■possession of the whole tract of land, without opposition or hindrance on the part of the plaintiff.

The plaintiff now alleges that the claim has been confirmed and patented by the United States ; that it embraces about 34,000 superficial acres, and extends through two parishes; that the tract of land on which the saw-mill was placed must be understood as having reference to some inconsiderable portion of the grant, and cannot by any .fair rule of construction be made to embrace the whole it. There was a judgment against her in the first instance, and she has appealed.

Her counsel contend: First, That the title of the defendants is a forced sale under which nothing passes, unless it contains such a description of the thing sold as will identify it. Second, That the title of the defendants is by itself too vague and indefinite to convey any part of the land in controversy, and that evidence aliunde is not admissible to enlarge or extend it. Third, That the evidence in the record, not eminating from the defendants’ themselves or their ancestors, would not, if admitted, support their claim.

Should these grounds be well taken, so far as to leave us nothing to act upon save the mortgage given to the executors of Clarke, the evidence of the circumstances under which it was given, the will of Donaldson, and an ordinary judicial sale of the property mortgaged, it would still be proved that Donaldson did mortgage one equal undivided half part of the steam saw-mill, owned jointly by him and the heirs of John W. Scott, together with an undivided half part of a tract of land on which said mill was placed; and that he owned at the time, jointly with the heirs of Scott, and in equal shares, the back lands within the prolongation of their side lines, covered by the last grant made to Conway, on the extremety of which the mill was placed; and as the plaintiff has failed to show that any portion of the land covered by this grant had been set apart by Donaldson and Scott and attached to the saw-mill, effect could not be given to the mortgage unless Donaldson was held to have mortgaged the whole. Any obscure or ambiguous clause would of course be construed against him, in order to prevent such a result. It would further have been shown that property was at the time much depressed in value, that the debt due by Donaldson-was large, and that he was willing and anxious to secure and pay it. Even under that state of facts we would find little difficulty in coming to the conclusion that he intended to give, and did give, to the executors of Daniel Clarke, all the security in his power; he says expressly that he did, in the act of mortgage. Lands such as those embraced in this grant were then of very little value, and no reasonable doubt can exist that, in the contemplation of the parties, the sawmill and the slaves were the principal object mortgaged, and the land a mere accessory. Under the Spanish colonial government, even as late as 1816, the usual quantity of land granted, in consideration of the erection of a saw-mill, was twenty-five square miles. The validity of a grant of that description was recognized by the Supreme Court of the United States, in the case of the United States v. Sibbald, 10 Peters, 314. Such was then the meaning of a sawmill tract.

But we do not assent to the propositions assumed and urged upon us by the plaintiff’s counsel. The sale made by the sheriff took place |under an agreement of the parties, and on terms different from those prescribed by law for forced sales. The plaintiff did not herself sign that agreement; but she could not after twenty years contest the authority of- the agent who represented her therein, even if her direct participation in those proceedings did not appear, as it does, by her subsequent agreement annulling the sale made by the sheriff of the parish of Ascension of the remainder of the property, and making provision for its resale by theHskeriff of the parish of Orleans. Bedford v. Urquhart, 8 La. 248. Bourguignon v. Boudousquié, 6 Mart. N. S. 153.

The interlocutory decree entered upon that agreement was- nothing more than the authentication of it, and the sale made under it was not a forced sale. The purchaser derived his title, not from justice, though its officer pursuing the strict'forms of law, but from the consent of the owners that the sheriff should sell on terms which they prescribed. Union Bank v. Marin, ante p. 34. This was a public sale, subject to the rules' of ordinary sales. The vendors were bound to express themselves clearly respecting the thing to be sold; and any obscure, ambiguous, or doubtful clause, should be construed against them.

Another consequence of the agreement is, that-the sheriff of the parish of Iberville was authorized to sell any portion of the back lands situated in the parish of Ascension, as, by another agreement, the front lands in the parish of Ascension were sold in the parish of Orleans.

When this sale took place the rule was as it is now, that no parol evidence,is admissible against or beyond what is contained in written acts, nor on what may have been said before or at the time of making said acts. It is substantially the same as that of the common law, that parol, contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument; and the same interpretation appears to have been given to both by the civil and common law courts.

Under our rule, the evidence is said to be against the act, when it is introduced to prove the falsity of what is therein stated. It is said to be beyond the act, if the object of itbe to add to the act a clause which it does not contain, or to enlarge those which it does contain. But when titles to land contain no specific description of the property conveyed, as in this case, the question of ownership can only he determined by the application of the title to the land, and by parol evidence. It is conceded that some land was mortgaged and sold with the saw-mill. The evidence adduced for the purpose of identifying the thing sold, explains and elucidates the title, and goes neither against nor beyond it. The facts it establishes are analogous to those of extent and boundary, Dalloz, An. 1837, 1st part, p. 339.

At common law, parol evidence is always admitted to ascertain the nature and qualities of the subject to which the written contract refers; and, while the controversy is between the original parties or their representatives, all contemporaneous writings relating to the same subject matter are legal evidence. 1 Greenleaf, Evidence, nos. 282, 283, 286. Barnes v. Mawson, 1 Maule & Selwyn, 77.

We consider the letters of Patrick Wale, and the parol evidence introduced by the plaintiff, as properly before us. This testimony clearly proves that the whole of the back-lands were designated by Donaldson and Scott, and known in the neighborhood as the saw-mill tract, It identifies the land mortgaged by Donaldson, and is corroborated by the letters of Wale, by the agreement of parties under which the sale of the land took place, and by the description given of the property in the sale from De Armas to Hampton. Morgan v. Livingston, 6 Martin, 19.

If all the property of Donaldson had not been mortgaged and sold, it is not to be believed that the plaintiff would not long ere this have caused a sale of the remainder to be made, for the purpose, if for no other, of securing to herself means of support, which it is admitted she had not. Her long acquiescence in the possession of Hampton, under all the circumstances of the case, is conclu, give against Jier as to the extent pf land mortgaged and sold.

Judgment affirmed.


author: Existís, C. J,

text:
    Wilson v. The State Bank of Alabama.
    A prayer for a trial by jury is in time, if made before the case is set for trial. C. P. 494, 495, Under the 17th see. of the stat. of 10th February, 1841, a prayer for a jury should be disre, gprijed until the jury fee is paid; but the payment may be made at any time before tl>8 case is fixed for trial.
    Though a 'statute direct a thing to be done at a particular time, it does not necessarily follow that it may not be done afterwards.
    PPEAL from the Fifth District Court of New Orleans, Buchanan, J,

      T. J. Lacey and Boselius, for the appellant.

      Elmore and King, for the defendants.
   The judgment of the court was pronounced by

Existís, C. J,

This case has been argued on the following bill of exceptions ;

Be it remembered that when this case was called for trial before this court, the plaintiff objected to proceed with the trial before the court on the ground that a jury had been prayed for, and the jury fee of twelve dollars deposited with the clerk, before the case was fixed for trial on the court docket; but the court decided that the plaintiff was not entitled to a trial by‘jury, because he had not advanced the jury fee at the time when the supplemental petition for a trial by jury was filed, to wit, on the 18th day of February, 1847, but had advanced the said jury fee only on the 5t.h March, 1847, fifteen days after the filing of the prayer for a jury. The jury fee having been advanced by the party on the 5th March as aforesaid, the clerk of the court on that day inserted the cause in the issue docket of jury causes; but without erasing the cause from the issue docket of court causes, upon which it had been long previously placed. On the next day, Saturday, the 6th of March, 1847, the court docket was called, and this cause being reached, was called and fixed as a court cause, tp be tried on thursday, the 25th of March: but on that day it was continued for want of time, and was again called by preference on Saturday, the 3d April instant, and was fixed for trial, as a court cause, for the 21st April instant. On Saturday, the 17th April instant, the causes at issue on the jury docket being called, this cause was reached on that docket, and was fixed for thursday, the 29th April, for which day it now stands fixed on the trial docket: But the cause being called for trial on the 21st on the conrt docket, the cousel for plaintiff objected to going into the trial as above stated; and the court, in overruling the objection, makes the above statement of facts and dates, at the request of the parties.

To the decision of the court as above the plaintiff, by counsel, ex.cepted, and this bill is signed this day in open court, in the presence of both parties.

The act of the legislature of February 10th, 1841, provides that the juries in the District, Parish, and Commercial Courts, sitting in the city of New Orleans, shall be entitled to a compensation of one dollar for every case in which there is a verdict, tobe charged .as costs; but shall be advanced by the party when he files his petition or answer praying for a trial by jury, otherwise said prayer shall be disregarded and the case tried by the court,” &c. The title of the act of which this section forms a part is, “To create two additional sheriffs for the parish of Orleans, to fix the place of holding the courts of justice, and for other purposes,” the evil it intended to remedy was an accumulation of suits, and its object was to ensure a promptand efficient administration of justice ; so the preamble declares, and in the furtherance of which this provision relating to jury trial was enacted. '

This is not a general statute operating throughout the State, but exclusively confined to the courts in New Orleans. It is exceptional and local in its operation, and prima facie can hardly be considered as impugning any matter of right enjoyed by the citizen in other parts- of the State ; and for this reason, if there were no others, a strict and literal construction of its provisions in relation to such rights would be inadmissible, It is true that the right of a trial by jury incivil cases is not secured by the constitution ; but its importance as a right given by law and as a political institution, this court is not permitted to undervalue or overlook.

The district judge determined that the plaintiff was not entitled to a trial by jury, because he had not advanced the jury fee at the time the supplemental petition for a trial by jury was filed. The statute provides that the jury fee shall be advanced when the petition or answer shall be filed, otherwise the prayer shall be disregarded. It makes no provision for any subsequent application for a jury trial, and a rigid construction would deprive parties of the right unless made when the petition or answer was filed. But we recognized the right of the party to a trial by jury after issue joined, on his application and payment of the jury fee, By the Code of Practice a jury may be prayed for by a supplemental petition or answer, and tile oniy requisite to its being granted, in cases in which it is allowed by law, is, that it be presented “before the suit be set for trial,” the meaning of which clause is interpreted in the case of the Louisiana State Bank v. Ledoux et al., 2d Ann. Rep. 651. Code of Practice arts. 494, 495.

The latter clause of the section quoted provides for the striking of causes from the jury docket, unless the party asking the jury shall advance the jury fee. The intendment of the statute was to clear and keep clear the jury docket from cases in which sham or fictitious defences were set up, as well as to relieve the citizens from the onerous and unnecessary duty of losing their time in vain and vexatious litigation, but not to make the right of parties to a jury trial dependant on the application at any specified time, inasmuch as that was regulated by the provisions of the Code of Practice regulating such applications. Our construction is that the prayer for a jury ought to be disregarded until the jury fee is paid, which must be done before the cause is fixed for trial; that the matter of time is merely directory, the statute not intending to deprive the party of the right in any serious defence, of which the test established was the payment of the jury fee. When a statute directs a thing to be done at a certain time, it does not necessarily follow that it may not be done afterwards. It would not be safe — it would be a dangerous precedent of construction, to hold that a right like this was taken away by a remote implication, unsupported by the purpose, policy, or intendment of the act under consideration. Following the established rules for the interpretation of statutes we can come to no other conclusion than that., the judge erred in refusing to the plaintiff a trial by jury, he having applied for the same and paid the jury fee, at a time when the cause was not fixed for trial.

The judgment appealed from is therefore reversed, and the cause remanded for atrial by jury; the appellees paying the costs of appeal.


author: Smbebb, J.

text:
    Brown v. Matthews, Executor, et al.
    Where alease of land lias not been recorded in the manner required by law for absolute sales of real estate, the lease will be without effect as to purchasers from the lessor. Stat. 26 March, 1806, s. 1.
    APPEAL from the Fifth"|District Court of New Orleans, Buchanan, J.

      Conklin, for the plaintiff.

      Livingston, for the appellants.
   The judgment of the court was pronounced by

Smbebb, J.

The plaintiff purchased on the 7th of November, 1846, of Malone, a lot of ground, with the buildings and improvements. Some buildings had been put upon this-lot by Williamson, a lessee of the vendors of Malone. By the stipulations of the lease, which does not appear to have been recorded either in the office of conveyances or of mortgages, the term was for three years, and expired on the 1st October, 1846. The lessors bound themselves that, “ at the expiration of the lease they shall purchase the improvements then existing on said lot, at the price at which they shall then be valued by two estimators, of which one shall be chosen by each of the parties.” Malone purchased the property from the lessors subject to the conditions of the lease, hut after its expiration sold the property to Brown, without paying for the improvements. Wil- Uamson is dead, and Matthews, his testamentary executor, refused to deliver possession unless plaintiff would pay for the improvements which, he alleges, were of the value of $1,000. This action was brought to obtain possession. The court below decreed, “that the plaintiff have possession of the lot described in the petition, and that defendant remove the buildings and improvements from the same within ten days, or in default thefeof that the same be removed by the sheriff.” From this judgment the defendants have appealed, and the plaintiff asks its amendment in his favor-, so as to authorize him to retain the buildings without making any compensation for them. This answer was not however seasonably filed, as required by the Code of Practice, art. 8S0, and does not therefore require consideration.

If the loase had been recorded in the manner provided for deeds of real estate (act of. 1806), it would then have been our duty to enquire whether a purchaser from the lessor could claim to stand in a better position than the lessor, who probably could not have asked a court to put him into possession at the expiration of the lease without doing equity by paying for the improvements. But by the neglect of registry the lessee has forfeited whatever right he might have had to this relief.

We have been referred by the appellee to the cases of Andry v. Guyol, 13 La. 8, and Diggs v. Green, 15 La. 416, and the articles of the Code there cited, for the purpose of supporting the claim of privilege set up by the appellants. Those were cases of workmen and furnishers of materials. Even if the lessee could be comprehended in those categories, upon which point we express no opinion, yet where the amount exceeds the sum of $500, registration is necessary for the preservation of the privilege. Civil Code, 32311.

Judgment affirmed.


text:
    Slidell v. Rightor et al.
    The verdict ol a jury on a question of fraud will not be set aside but for manifest error.
    Where one who was the principal agent in effecting a sale of lands does not inform the purchasers of the fiiet of his being a.part owner, such omission or concealment, whatever may have been its motive, is not such a fraud as will avoid the contract, where the purchasers have sustained no damage in consequence, and nothing has happened in consequence of such omission which would not have happened without it.
    APPEAL by the plaintiff from a judgment of the District Court of Ascension, Randall, J.

      Beatty and Grymes, for the appellant.

      Ilsley and Preston, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

All the questions raised in this litigation, in relation to the title of Rightor and wife to the land in controversy, were finally determined in their favor, in the case of Rightor v. Kohn et al. 16 La. 501; and moreover the title has been expressly admitted in argument to be satisfactory.

The case, as it is presented to us, involves a naked question of fraud, upon which the defendants have obtained the verdicts of two juries. Verdicts on issues of fraud have invariably been held by our predecessors and ourselves as entitled to great deference, and have never been set aside on appeal, except for manifest error. Our only enquiry, therefore, will be whether manifest error has been shown. Beaulieu et al. v. Burst, 1 Ann. Rep. 56. The fraud is alleged to consist in this :

1st. That the plaintiff was induced to purchase one undivided ninth of certain waste lands described in his petition for an injunction, at the urgent instance and recommendation of Henry T. Williams; that Williams held at the time the office of Surveyor General of the United States ; that he resided in the neighborhood of said lands; averred himself to be well acquainted with their character and value; represented them as well worth the price given for them, and stated that more than two-thirds thereof were high and fit for cultivation ; that to deceive the plaintiff, he offered to become, and did actually become, interested in the purchase of one undivided ninth.

2d. That while Henry T. Williams was making these representations, which the plaintiff declares to be false, and which he avers mainly induced him to enter into the contract, he, Williams, was in truth a secret partner of the vendor Rightor, and jointly interested with him in that portion of the land acquired from Conway and Laville, amounting to 40,000 acres or upwards, and was in fact employed by Rightor and wife to procure the sale to the plaintiff and his co-purchasers.

3d. That the said Henry T. Williams fraudulently concealed from the plaintiff his interest in the land; that, in pretending to become interested for one ninth, he was in fact vendor and vendee to the knowledge and with the connivance of the defendants, who retained an equal share in that ninth,; and that the plaintiff never discovered the fraud till 1842, long after the trial of the case of Rightor v. Kohn et al., already referred to.

The material facts are as follows: The plaintiff and others entered into an agreement in writing with the defendants to purchase the lands in controversy at the price of $2 50 per superficial acre, and stipulated therein that a notarial act should be passed when the quantity of land sold was ascertained by a survey, and the purchasers satisfied as to the title. The plaintiff himself, being an attorney-at-law of high standing in his profession, Was selected by his co-purchasers to examine the titles, and, upon his favorable report, the purchasers acknowledged them to be satisfactory. After this acknowledgment, the promise to sell of Rightor was binding upon them. The apparent legal title was in Rightor, and, after he signed this contract Williams was divested of all interest in the land ; whatever equitable claim he may have had was against Rightor alone for his share of the proceeds of the portion acquired from Conway and Laville. His rights as well as the obligations of the purchasers, were fixed by this contract.

The circumstance that the parties interested in the purchase permitted TWilliams to become interested for one ninth in the notarial act of sale, passed some months afterwards, does not, in our opinion, place him in the position of vendor and vendee. That very act states that the other parties had already purchased the land, and, if they had, Williams had no interest in it at the time he became a partner. We are satisfied that he was permitted by the other purchasers to share in the speculation, under the belief that, from his vicinity to the land, his habits and his pursuits, he would be a valuable auxiliary to carry it to a successful result; and that he himself entered into it under the influence of the popular delusion prevailing at the time, and firmly believing that he would realise his share of the million of dollars of profits, promised to the company by one of its members, the engineer Zimpel. Had Williams not taken this interest, the other parries were bound for the whole ; and the fact that he did take it is inconsistent with the fraudulent intent charged to him, and shows that he believed the land worth the price paid for it. If in reality it was not worth that price, the interest which he took diminished the loss of the other parties instead of being an injury to them.

But it is contended that it. has been shown that the plaintiff and his co-purchasers entered into the first contract with Rightor, o'n the representations of Zimpel, one of the members of the company, now absent from the State, who told them that he derived his information as to the nature and value of the land from Henry T. Williams. Two juries have passed upon this evidence without giving it faith, and we cannot say that they erred. Evidence to prove fraud must be strong, consistent and unimpeachable. Follain et al. v. Dupre et al., 11 Rob. 458. 2 Rob. 47, 94. The evidence adduced in this case is hearsay, coming from a person who is still alive. If he, and the witnesses who relate his declarations, were without interest in the event of the suit and the questions at issue, hearsay evidence would be incompetent to establish the specific fact alleged. Its intrinsic weakness, its incompetency to satisfy the mind as to the existence of the fact, and the frauds which might be practised under its cover, combine to support the rule that hearsay evidence is totally insufficient. The principle of this rule is, that such evidence requires credit to be given to a statement made by a person who is not subjected to the ordinary test enjoined by the law for ascertaining the correctness and completeness of his testimony ; namely, that oral testimony should be delivered in the presence of the court, or, a magistrate, under the moral and legal sanction of an oath, and where the moral and intellectual character, the motives and deportment of the witness can be examined, and his capacity and opportunity for observation, and his memory, can be tested by a cross-examination. Such evidence moreover is very liable to be fallacious, and the persons communicating it are exposed to the dangér of a prosecution for perjury. This rule applies though the declaration offered in evidence was made upon oath, in a proceeding where the parties were not the same. X Greenleaf, Evidence, nos. 99, 124, 125. But when it is considered that Zimpel was himself one of the purchasers, and that his pretended declarations are supported exclusively by the evidence of the others, no doubt can exist that the jury properly exercised the discretion vested in them.

A bill of exceptions was taken to the opinion bf the judge admitting that testimony, on the ground that as the mortgage given to-secure the price is indivisible, every part of the land sold is affected to the payment of the note sued on, and the witnesses have a direct interest in the event of the suit. This question is by no means free from difficulty. But as We Concur with the jury that the evidence is insufficient and inconclusive, it is unnecessary to determine it.

It is not material to ascertain the object Which Williams may have had in view in not informing the other purcliasers of his connection with Righlor. That connection appears to have been generally known, and had it not been, if they have sustained no damage in consequence of it, and nothing has happened which would not have happened without it, this omission or concealment on the part of Williams, whatever be its motive, is not such a fraud as would avoid the contract against the defendants.

This purchase was one of the wild speculations so common at the time it took place, not creditable perhaps to the wisdom of the parties concerned, but unattended, in the opinion of the jury, with any circumstances tending to impeach their honesty or good faith. If three-fourths of the land had been fit for cultivation, as it is alleged Williams represented it to be, it could not have been purchased at any time for the price given for it. It was originally granted to the front proprietors for the cypress timber that is on it, and it is well known that cypress swamps are not fit for cultivation. The object of the purchasers, as shown by the letter of the plaintiff to Williams and by other evidence, was to make the timber available by the extension of the New Orleans and Carroll-ton railroad through it, and by the branches it was authorized to extend to the Mississippi 'river. A plantation situated in front of the lands was purchased for that purpose at an enormous price by the company, and the circumstance that Williams joined in that purchase may well have been considered by the jury to be'conclusive as to his delusion and good faith in the entire adventure.

More than two years after,the purchase, and after the company had had a survey of the land made in such a manner as to ascertain its true character, the plaintiff had repeated conversations with the surveyors employed to make it, and was informed by them of the nature and quality of the land. He expressed neither surprise nor disappointment at the information thus received, but, on the contrary, continued to assert, on the strength of it, that the purchase was a most desirable one, that the company would erect saw-mills, establish lumberyards on the river, and realize immense revenues from the timber alone, besides establishing plantations afterwards ; though he did not put entire faith in the assurance given him by Zampel, that their profits would exceed one million of dollars, considering Zimpel as rather a visionary man.

The revulsion in progress at the time these declarations were made, and the suspension of the Carrollton Bank, defeated the speculation. But the parties have had the benefit of it, and nothing in the record would authorize us to say that the jury erred in coming to the conclusion that they received what they bargained for. Thorn v. Beaman, 1 Ann. R. 370. Hall v. Brashear, 2 Ann. R 392. Judgment affirmed.

      Slidell, J. did not sit on the trial of this case, on account of relationship to the plaintiff


text:
    Kellam v. Rippey.
    The only test as to the effect of a decree as res judicata is its finality as to the matters embraced in it, and its having the requisites prescribed by art. 2263 of the Civil Code.
    APPEAL from the District Court of Carroll, Copley, J.

      Thomas and Snyder, for the appellant.

      Hupuy, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

This is the third time this case hasbeen before the Supreme Court. The first time, the question of title was determined in favor of the plaintiff, and the case remanded for the purpose of ascertaining the value of the improvements, and of the rents and profits since the institution of the suit. 3 Rob. 138. ' The second appeal was from a verdict and judgment fixing the enhanced value of the land at $1,833, above the value of the fruits assessed at $600. This judgment was set aside as exorbitant, and as including the buildings, without giving the plaintiff the option, under art. 500 of the Civil Code, to pay for tile labor and materials employed in their construction, or to require their demolition. The case was again remanded. 12 Rob. 44. On the last trial the plaintiff elected the demolition of the buildings, and the jury returned a verdict against him, for $1,913. He has appealed from the judgment rendered in conformity with this verdict.

■ It was contended in argument by his counsel that the decision of the court that, so far as the improvements had added to the value of the land, over and above the fruits since the institution of the suit, the. defendant was entitled to be paid by the party evicting him, is not conclusive against the plaintiff, and that it is erroneous, this not being a case in which the defendant, can recover the value of improvements made by him.

We think the decision final. The right of the defendant to recover was passed upon and expressly recognized; but as the evidence, in the record was insufficient to enable the court to fix the amount to which he was entitled, the case was remanded for that purpose alone. “ The only test as to the effect of a decree is its finality as to the matters embraced in it, and its having the requisites of art. 2265 of the Civil Code. Succession of Durnforcl, 1 Ann. 92.

On the merits, the last jury acted in open defiance of the directions given by the Supreme Court. The tendency of all such exhibitions is to bring the administration of justice into contempt, and we will take cave that they be not renewed in this case. The evidence establishes the quantity of land cleared at the time of the institution of the suit to be .thirty acres, and the enhanced value to those thirty acres by the clearing to be $20 per acre, making the value ofthe improvements, exclusive ofthé buildings, $600. Deducting from this amount the lowest rate of rent proved by the witnesses, since the institution of the suit, and making full compensation for the fences and enclosures which the jury may have taken into account, we are satisfied that the balance due the defendant cannot exceed $350.

It is therefore orderedthatithejudgment.be reversed, and, proceeding to give such a judgment as should have been rendered in the first instance, it is further ordered that the defendant recover from the plaintiff the sum of $350, for the value added to the land in controversy by his improvements, except the buildings, over and above the fruits since the institutiop of the suit. It is further ordered that one-half pf the costs in both courts be paid by the plaintiff, and the other half by the defendant.


text:
    Jenkins v. Gibson.
    A patent issued by the United States for public lands, is conclusive proof that tbe party in whose favor it was issued bad complied with tbe requirements of tbe act of Congress, as to maMng improvements on the land, &c.
    Improvements made upon tbe public lands of tbe United States, where tbe party mating them is not in a situation to avail himself of tbe pre-emption laws, cannot form tbe object of a contract. Arts. 1885,1886 of the Civil Code limit the rale contained in art. 1960, that no one ought to be permitted to enrich himself at the expense of another, to cases in which the alleged benefit arises from a lawful act. From unlawful acts, though they may have proved beneficial to others, no rights not expressly authorized by law can arise.
    APPEAL from the District Court of Madison, Selby, J.

      A. Pierse, for the plaintiff.
    . Stacy and Sparrow, for the defendant.
   The judgment of the court was pronounced by

Rost, J.

The question which this case presents is, whether the purchaser of an improvement on the public lands, who owns a plantation in this State and resides out of it, can maintain an action for its value against the subsequent purchaser of those 'lands from the United States. The court below was of opinion that the plaintiff could maintain such an action, and accordingly gave judgment in his favor. The defendant appealed.

The plaintiff, not residing upon the land in person, and having a plantation adjoining it, was not in a situation in which he could avail himself of the preemption laws passed by Congress in favor of actual settlers; and, if it were necessary to the decision of the ease, it is also shown that all the previous possessors were mere trespassers, and could have no hope, intention, Qr expectation of acquiring a title by virtue of their possession. As long as it continued they and the plaintiff were liable to be expelled from the land by the marshal, and to be fined and imprisoned. 1 Land Laws, p. 256. Had the United States resorted to this remedy, the plaintiff could not surely have set up a claim for indemnity. Instead of this, they have transferred to the defendant their title and possession, unimpaired by any act of the plaintiff’s, thus enabling him to expelí the said plaintiff by a different proceeding, and it is not perceived how this transfer can create rights or obligations which did not before exist.

It is alleged that the defendant did not himself improve the land. This is an inquiry into which we do not feel ourselves at liberty to go. We cannot interfere with the acts of the government of the United States alienating the public domain, nor say that the patents issued by them were granted upon insufficient evidence. The patent of the defendant is conclusive upon us, that he fulfilled the requisitions of the acts of Congress.

Improvements made upon the public lands, where the party making them is not in a situation to avail himself of the pre-emption laws, cannot form the object of a contract. The object of a contract must be possible, by which is meant physically or morally possible. The possibility must be determined not by the means or ability of the party to fulfil his agreement, but by the nature of the thing which forms the object of it. That is considered as morally impossible, which is forbidden bylaw; and all contracts having such an object are void. C. C. arts 1885, 1886. These articles limit the rule contained in art. 1960, that no one ought to be permitted to enrich himself at the expense of am other, to cases in which the alleged benefit arises from a lawful act. From unlawful acts, although they may have proved beneficial to others, no rights not expressly recognized by law can arise.

We are satisfied that the view we have taken of the rights of the parties in this case is in strict accordance with our own laws, and the necessary consequence of the powers of the United States over the public domain. We be-, lieve that by putting an end to speculation, it will materially benefit the actual settler, who occupies and improves public land in good faith, under the expectation of making it his own.

The judgment is, therefore, reversed; and it is ordered that there be judg, meut in favor pf the defendant, with costs in both courts,


author: Edstis, C. J.

text:
    Roberts v. Smith et al.
    An attorney at law, in whose hands anote has been placed'for collection, has no power, by an agreement made out of court, to give an extension of time to the principal obligor, where the immediate legal consequence would be, if the act were valid, to release the sureties on the note.
    APPEAL from the District Court of Concordia, Farrar, J. This was an action against three makers of a promissory note, two of whom were proved to have executed it as sureties. The note was in the following words :
    “ Concordia, 22 Nov. 1838.
    “ $1861 60. On the twelfth day of February next (1839), we, or either of us, promise to pay to Brander, MoKcnna and Wright, or order, at the Commei-cial Bank of Natchez, Mississippi, eighteen hundred and sixty-one 60-100ths dollars, for value received, and interest at the rate of eight per .cent per annum, from maturity until p.aid,
    Wi. Sidney Smith,
    Elijah Smith,
    Edwd. Sparrow, Security.”
    The judge of the District Court gave judgment against the defendants, in solido. The nature of the defence will appear from the following reasons given by the lower court for its judgment: “The most importrnt question presented to the court for its decision in this case is, whether an attorney al law in whose hands a note has been placed for collection has the power to give an .extension of time, by an agreement made out of court, to the principal obligor, when the immediate legal consequence of such extension is a release of the sureties from all liability on the obligation. The court is of opinion that such an act is not one of mere administration, but is one which can only be done by the owner himself, or some one to whom.he has specially delegated the power, but is not within the scope of the general powers of an attorney at law. The note in question was never sued on by the attorney, Barroiu, and he only acted under such powers as resulted from his having the note in his hand for collection as an attorney at law. The evidence does not satisfy the court that there was any subsequent ratification, either express or constructive, of the act of the attorney by his client, the plaintiff.” The defendants appealed.

      Stacy, for the plaintiff.

      Thomas, for the appellants.
   The judgment of the court was pronounced by

Edstis, C. J.

For the reasons given by the judge of the District Court, this judgment is affirmed, with costs.


author: Eustis, C. 3.

text:
    Old v. Chambliss.
    Where under an execution, issued on a judgment rendered on a joint and several note against two debtors, one of whom was surety for the other, property is sold at a credit of twelve months and purchased by the principal debtor, the surety on the twelve-months' &o®a, on paying it, will have no recourse against the other debtor, who was merely a sure
      ty. Per Curiam; A surety on a twelve months’ bond, on paying it, acquires no right whatever beyond the contract itself to which he was a party, and no interest in the judgmeut under which the property was sold for which the bond was given. This rule applies whore a defendant becomes a purchaser end gives his bond, as well as to cases in which the purchasers are strangers to the original suit.
    APPEAL from the District Court of Carroll, Copley, J.

      Short and Bryan,

    contended that the judgment of the lower court should be reversed, and one rendered in favor of the plaintiff, citing Civil Code, arts. 3021, 3022, 3023. 1 Domat, 401, ss. 1, 2.

      Browder and Bemiss, for the defendant.
   The judgment of the court-was pronounced by

Eustis, C. 3.

In 3uly, 1840, Rufus Bliss obtained judgment on a joint and several note drawn by Felix Bosworth and Robert J. Chambliss, for $725, with interest. On an execution issued, a lot of ground in the town • of Providence was sold on a credit of twelve months, and Bosworth became the puichaser for $500, aad gave the plaintiff Old, as his surety in the bond, under the statute. But the amount of the bond was for $1075, for which the bond recites the lot to have been sold. This discrepancy between the sheriff’s return, in which the price is given, and that recited in the bond, is not explained. The plaintiff sues Chambliss for the amount he has paid on the twelve months’ bond, and claims to be subrogated to the original judgment against Chambliss and his right to issue execution thereon. There was judgment for the defendant, and the plaintiff' has appealed.

We decided in the case of Trent v. Calderwood, 2 Ann. R. 942, that the surety on a twelve months’ bond, on paying it, acquired no rights whatever beyond the interest itself to which he was a party, and no interest in the judgment under which the property was sold for which the bond was given.

We took occasion recently to review the authorities relating to the subject of subrogation on payment, and were satisfied that the principles on which we decided the case of Trent v. Calderwood were correct. Tardy v. Allen, ante p. 66.

The counsel for the plaintiff has contended that from the informality in the bond it resulted that, the plaintiff made a bond fide payment on account of Chambliss as well as on account of Bosworth, of which Chambhss has had the benefit, and for which he ought to indemnify the plaintiff. Even under that hypothesis the plaintiff could only have the rights of Bosworth, had he directly paid the original judgment; and Bosworth himself, had he paid the original note, could have no recourse against Chambliss, for the latter was merely his surety, and had no connection with the debt for which the note was given.

It is also contended that the rule laid down in the case of Trent does not apply to a ease in which a defendant becomes a purchaser and gives his bond, but relates only to cases in which the purchasers are strangers to the original suit; but we think there is no distinction in fact as to the obligations and rights of parties in the two cases. Judgment qjjirmed.


text:
    Copley v. Conine.
    The right to proceed by rule implies the pendency of a suit between the parties, and is confined to incidental matters which arise in the progress of the contestation, except in certain cases in which a summary proceeding is expressly allowed by law.

      APPEAL from the District Court of Carroll, Selby, J.

      Short, for the nppellant.

      Caldwell and Sparrow, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

Copley purchased an improvement on the public lands, which he sold to Conine for three bales of cotton, without ever having taken actual possession of it. Conine went upon the land, but soon after ceased to occupy the improvement purchased from Copley, and made on the same quarter section another settlement, which he occupied till he sold it to Templeton. Conine having failed to deliver the three bales of cotton, Copley instituted an action for the recision of the contract, in which a judgment was rendered in bis favor^ A writ of possession subsequently issued, on which the sheriff returned, “ Unsatisfied in any way the same having expired.” The plaintiff then took what he calls a rule upon the sheriff, Templeton, and Conine, to show cause why they should not surrender the improvement, or pay him in solido the sum of one thousand dollars, this being the price which he alleges Conine received from Templeton for it. There is also a prayer for general relief, and for citation. Templeton and the sheriff excepted to this form of proceeding, on the ground that they were strangers to the original judgment; that it is not res judicata as to them; that the matters complained of are not such as can be litigated in a rule ; and that the plaintiff must proceed against them by a direct action. _ This exception having been overruled, the defendantsreserved it, and answered to the merits. On the trial it was proved that Templeton had never occupied the settlement claimed by Copley, and that when the sheriff came to execute the writ of possession he was perfectly willing that it should be executed within the limits of that settlement. Why the sheriff under those circumstances, returned the writ unsatisfied, is a mystery to us.

A final judgment was rendered in favor of the sheriff and Templeton, and a judgment as in case of non-suit in favor of Conine ; from both of which, the plaintiff appealed.

The court below erred in overruling the exception. The right to proceed by rule implies the pendency of a suit between the parties, and is confined to incidental matters which may arise in the progress of the contestation, except in certain cases where a summary proceeding is expressly allowed by law. Thomas v. Bourgeat, 6 Rob. 437. 9 Rob. 394. 10 Rob. 136.

If the real object of the rule had been to obtain possession of the improvement claimed, it was unnecessary. The plaintiff already had the remedy of the writ of possession, which he could execute against all parties who acquired actual possession after the institution of this suit, and the judgment on the rule could give him no more. But it is evident that this was a speculative proceeding — an action of damages in disguise, which, if sustained, without the consent of the defendants, would effectually deprive them of the legal right of trial by jury and of the advantages incident to ordinary proceedings.

As, however, the judgment on the merits is clearly right, and the defendants have, on that hypothesis, waived their exception and asked that it be affirmed, we believe that the ends of justice will be promoted by decreeing accordingly.

Judgment affirmed.


author: Kme, J.

text:
    Davis v. Spurlock et al.
    An action for damages for the^reach of a contract cannot be maintained without proof of the defendant's having been put in default; but when the plaintiff claims a specific performance of a contract for the delivery of a Certain article, or, in the alternative, the value of the article, proof of a putting in default is not required. The claim for a specific performance may be united in the same action with a demand of damages. Per Curiam: The commencement of the suit for the performance put the defendant in default as to the damages; and, on a failure to comply with the contract, the court was authorized to render a j udgment for damages. C. C. 1905.
    APPEAL from the District Court of Carroll, Selby, J.

      Bryan, and Thomas, for the plaintiff.

      Browder, for the appellant.
   The of the court was pronounced by

Kme, J.

This suit is brought on a joint and seVer'al promissory note, made by R. S¡-J. Spurlock to the order oí Ellis, who transferred it by endorsement to the plaintiff. It is given for the delivery of a quantity of cotton, at a place named in the note. The plaintiff claims the delivery of the cotton, or the payment of its value. The defence pleaded in the lower court was a general denial. A judgment was rendered against the defendants, in solido, for the value of the cotton, and J. Spurlock has appealed.

The execution of the note, and the value of the cotton, are admitted. But the appellant contends in this court, that the demand of the value of the cotton is a claim for damages, and that he has not been put in default,- which was a condition precedent to a recovery. If this were an action merely for damages for the breach of the contract, there would be force in the objection. But the plaintiff has instituted his suit upon the original contract, claiming a specific performance. The value of the cotton is only asked for in the alternative, under the interpretation given to the 1905th article of the Code, the two demands may be united in the same action. The commencement of the suit for the performance put the defendant in default in relation to damages, and, upon the failure of the obligors to comply with the contract, the court Was authorized to' render a judgment for damages, which was the value of the cotton. (J. C. art’. 1905. 18 La. 512. 7 La. 193. The evidence shows that the defendants were at no time prepared to deliver the cotton at the place indicated in the note'»

Judgment affirmed.


author: King, J.

text:
    Palmer v. Moore.
    A bankrupt discharged under the act of Congress of 19 August, 1841, who wishes to avail himself of his certificate, must plead it specially.
    A bankrupt who has failed to plead his discharge under the act of Congress of 19 August 1841, in defence to an action agaiust him, cannot avail himself of it as a means of arresting,by injunction, the execution of the judgment against him.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Johnson, for the plaintiff.

      Stockton and Steele, for the appellant.
   The judgment of the court was pronounced by

King, J.

In April, 1842, a suit was institute'd by Stevens against Wellington, for the recovery of a slave. Wellington called in warranty his vendor Palmer, who is the plaintiff in this action. Palmer was regularly cited, but made no appearance. Defaults were taken against him both by the plaintiff in the action, and by Wellington, the vendee, the first in March, 1844, and the second in February, 1845. The case came before this court in May, 1846, when a final judgment was rendered against Wellington for the delivery of the slave, and in favor of Wellington against his Warrantor, Palmer, for $500, the' price of the slave. 1 Ann. Rep. p. 72. The present defendant, Joseph H. Moore, subsequently purchased, at a sheriff’s sale, the judgment obtained by Wellington against Palmer, and caused a fieri facias to issuo thereon, the exe-> cution of which Palmer has enjoined in this action, on the ground that the' debt for which the execution issued existed previous to his discharge in bankruptcy.. On this ground the injunction was maintained in the court below,- and the defendant has appealed.

It appears that- Paltrier commenced his proceedings in bankruptcy on the 5th of August, 1842, and received his certificate of discharge on the 20th May, 1844, prior to the rendition of the-first judgment against him, and indeed prior to the entry of the decond default. His obligations as warrantor arose before he applied to be discharged as a bankrupt, and nothing before us shows that Wellington, to whose rights Moore has succeeded,.figured oh his schedule as a creditor, or had notice of his proceedings in bankruptcy. This discharge is relied on by the plaintiff as a complete bar to the debt. Moore, the present defendant, contends that Palmer could only have availed himself of his discharge in bankruptcy by pleading it in bat* of the original action, and this is the only question which the case presents.

The englis'Ir rule appears to be settled that, a Bankrupt who intends to avail himself of his certificate, will be required to plead it specially. 12 East. Rep. p. 667. 1 Chitty’s Pleading, p. 473. The necessity for pleading it under our system is equally imperative. The debtor, as has been correctly urged by the appellant’s counsel, is not more completely relieved by the effect of his discharge in bankruptcy, than he would be by an actual payment, which entirely extinguishes the debt. Yet in order to avail himself of the payment as a defence, it must be specially pleaded before final judgment. For by our settled jurisprudence an injunction will not issue to arrestan execution on grounds that might have been pleaded in defence before judgment. 1 Ann. Rep. 284. 8 La. 101. The plaintiff having failed to plead his discharge in defence in the original suit, cannot now avail himself of it as a means of arresting the execution of the judgment against him.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered that the injunction obtained by the plaintiff be dissolved; the plaintiff paying the costs of both courts-.-


author: Slidell, J.

text:
    Selby v. Gibson.
    It is not necessary in order to impeach, on the grounds of fraud or wilful concealment of property, the certificate of a bankrupt obtained under the act of Congress of 19 August, 1841, that the grounds of impeachment should be set forth by plea; it is enough that there be prior reasonable notice to the bankrupt, specifying in writing such fraud or concealment. Act of 19 August, 1841, s. 4.

      APPEAL from the District Court of Carroll, Copley, J.

      Selby, pro se. Stockton, on the same side.

      Browder, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff sues upon two notes of the defendant, due in 1840. The defendant pleaded the general.denial, prescription, and a bankrupt discharge. That the indebtedness onGe existed is fully proved. Our attention therefore will only be directed to the special, grounds of defence.

The plea of prescription cannot be sustained. The evidence of acknowledgments within five years from the maturity of the notes is ample.

The defendant has established his discharge in bankruptcy, by the production of a certified transcript of the record, of the United States District Court in Mississippi. By this evidence it appears that the defendant presented his petition of voluntary bankruptcy, on the 16th February, 1843. He was decreed a bankrupt on the 1st May, 1843. He had his final hearing, and was discharged, on the 7th November, 1843. His schedule of property consisted of certain, lands in Washington.and Warren counties in Mississippi,some cattle, furniture, &c., claims amounting to about $4,000,and eleven slaves stated to-be in Warren, county. For the purpose of defeating the bankrupt discharge the plaintiff offered an agreed statement of what certain witnesses,.if present, would testify. This statement was in writing, and the facts which it was admitted that the witnesses would swear.to, if. present, are thus set forth:

“That the defendant Ambrose Gibson, owned and resided on the plantation on which he now lives, rising.two thousand five hundred acres first rate land, being on the Mississippi river, some seven miles above the town of Lake Providence, on the opposite side of the river, from, some time up to, or about, the tenth day of January, 1843; when he passed an act of sale for. it, and upwards of thirty-seven effective slaves, to his brother Tobias Gibson. That after said sale, said Ambrose Gibson still remained in possession of'said plantation and slaves, and used, the crops raised thereon for his own benefit, until on or about December 15th, 1843, when said Tobias Gibson resold said plantation, lands» and slaves back again to said Ambrose Gibson, said Ambrose Gibson always remaining in possession thereof, from some time in or before the year 1842, up till the present time,.and that he is still in possession thereof, and owner thereof. That said land and ■ slaves are worth an average paid for land and slaves ; and that a sufficient quantity of said land is- ordinarily well improved to work, some say, fifty slaves in raising crops, without any further clearing. That, said plantation, land and slaves, and improvements thereon, are worth $50,000, and were worth nearly about the same amount, in January, 1843. That said defendant Ambrose Gibson, is now in affluent circumstances, worth at least some $50,000 or $100,000. Thatthe price of the said sale from Ambrose Gibson to Tobias Gibson, of January 10 th, 1843, was stated to be $45,000, and that the sale of December 15, 1843, was stated to be $60,000 cash, which was said to have been paid ‘ at and before the signing’ of the said sale. The other sale of January 10th, 1843, was said to be for money then due said Tobias Gibson from said Ambrose Gibson.”

This statement was offered in evidence and received by the court; and the only objection made by the defendant is presented as follows, by the bill or memorandum of exceptions: “ The defendant’s counsel objects to the testimony of said witnesses, Parks, and the clerk and sheriff of Issaquena county, named on the part of the plaintiff to prove the sale from defendant to Tobias Gibson, and from Tobias Gibson to defendant, as it would be proving title by parol. The testimony of the above witnesses is objected to because it is inadmissible under the pleadings, and because it is irrelevant.” Before considering the exceptions thus taken it is proper to notice that, on the 1st December, 1847, the cause was tried apparently ex parte, the plaintiff only offering in evidence the notes, and the testimony of a witness, and a letter to prove acknowledgments of the defendant. On the 3d December, 1847, the cause was reopened, when the defendant offered the transcript of the bankrupt proceedings, and the plaintiff then offered the agreed written statement.

The first exception to be considered is, that which involves the admissibility of the testimony under the pleadings. The 4th section of the bankrupt law, which in our opinion controls this.question, declares that the discharge and certificate when duly granted shall in all courts of justice be deemed a-full and complete discharge of all debts, contracts, and other engagements of such bankrupt which are proveable under the act, and shall and may be pleaded as a full and complete bar to all suits brought in any court of jurisdiction whatever, and the same shall be conclusive evidence of .itself in favor of such bankrupt, unless the same shall be impeached for some fraud or wilful concealment by him of his property or rights of property as aforesaid, contrary to the provisions of this act, on prior reasonable notice specifying in writing such fraud or concealment. It will be observed that the act of Congress does not require that the grounds of impeachment be set .forth bjplea. It suffices if a reasonable notice and specification in writing be communicated to the defendant. The bill of exceptions therefore to the introduction of testimony tending to impeach the discharge as inadmissible under the pleadings, in other words because fraud had not been pleaded, was not well taken. If the exception had been taken .upon the ground of the want of prior reasonable notice in writing, specifying the fraud or concealment, the bill of exceptions on its face would have been tenable; and it would then have been .our duty to enquire whether the record did not furnish satisfactory evidence that the defendant had been notified of the grounds of impeachment. We think it proper to hold the defendant strictly .to the exception as taken, from a consideration of the manner of the trial and proceedings. If the defendant had excepted upon the ground of want of notice, the plaintiff would have had an opportunity of showing the circumstances under which the cause was reopened for the defendant’s benefit, and the agreed statement prepared. The circumstances of the case do not indicate surprise, nor appeal to the equitable discretion which the court might in a doubtful case be permitted to exercise in the furtherance, or for the more secure administration, of justice. The objection of irrelevancy is.cleax-ly untenable.

The remaining gi'ound of exception goes only to so much of the testimony as proves by parol the sale by the defendant to Tobias Gibson, and the x-econveyance by Tobias Gibson to the defendant. If it be conceded that the exception was well taken, itpnerely excludes from the agi'eed statement the fact of those conveyances, but leaves a statement which, unaided by proof of the conveyances, is sufficient to defeat the bankrupt’s discharge. It proves that for a considerable time prior to his banki'uptcy the defendant owned and possessed a large plantation and thirty-seven effective slaves ; that his possession was uninterrupted from that time down to the trial of this cause; that he used the crops for his own benefit during the pendency of the bankrupt proceedings; and that, although certificated as a bankrupt in December, 1843, he was a man of large fortune in 1847. Upon comparing these undisputed facts with the bankrupt’s schedule we find it questionable at best whether the plantation is comprehended among the lands there described, and the fact is indisputable that instead of thirty-seven effective slaves the schedule exhibits eleven only. Of these all the grown slaves are females ; the residue are young children.

The defendant therefore is involved in a dilemma which is fatal. If he insist upon the exclusion of the parol proof of the sale by himself to Thomas Gibson and of the reconveyance by T'obias Gibson to himself, then he ovyned and possessed at the time of his bankruptcy property which he did not surrender. If, -on the contrary, those conveyances and their contents are proved, we cannot .consider them, under the continued possession and other circumstances, as real or bond fide. In either view then the discharge has been successfully impeached. $ee the case of the City Bank v. Banks, 1 Ann. R. 418.

Judgment ajjirntepl.