author: King, J.

text:
    Tufts et al. v. Carradine et al.
    An attachment gives a privilege to the creditor on the property attached. C. P. 264,265. An ¡attachment is given with express reference to a future judgment and an execution thereon; and the seizure under the execution relates back to the date of the attachment, and gives ■effect to the privilege from that time. And where several attachments are levied on the same property on the same day, though at different times, the order of the seizure determines the right of priority. C. P..723.
    The general rule .that, the law admits of no fractions of a day, is subject to numerous exceptions. There are oases in which the law expressly forbids the different hours of the same day from being recognized as affecting the rights of parties ; hut the prohibition must bo confined to the cases enumerated.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Lockett and Goold, for the appellants,
    cited Gilbert on Execution, pp. 15, 55. 3 Co. Litt. 135 B, p. 357, Thomas ed. 1 Coventry & Hughes’ Dig. p. 436. 4 Dallas, 321. 1 Nott & McCord 405. 8 Johns. 349.

      Prentiss and Finney, for the defendants,
    cited C. P. 723, 265. 1 Cowen 592. 1 Lord .Raymond, 251. .3 La. 178. 15 La.-461. 8 Mart. 511.
   The judgment of the court was pronounced by

King, J.

Five attachments were issued at the suit of different creditors, .and were all served on the same day, but at different hours, upon funds of the defendants in the bands of Winston, a garnishee. The attachment issued by the plaintiffs, Tufts ¿j- Hobart, was the last served; that of the appellees, Wills, Wingfield 8f Co., the first served. Tufts Sf Hobart obtained the first judgment, and issued a fieri facias, in virtue of which the funds attached were levied upon. The garnishee declined paying over the money in his hands to the sheriff, on the ground that it had been seized under attachments in four other suits. Tufts Sf Hobart thereupon took a rule upon the plaintiffs in the four other attachment suits, to show cause why the former should not be first paid out of the funds in the hands of the garnishee. The district judge determined that the creditors acquired privileges in virtue of their attachments, and were to be paid by preference in the order in which their several attachments were levied, and the plaintiffs have appealed.

In relation to the facts there is no controversy. It is admitted that the attachment of the appellees was made an hour prior to that of the plaintiffs. The .latter contend that our law creates no privilege in favor of the attaching creditor, but in express terms invests the creditor with a privilege on the property seized under a fieri fiadas ; and that they acquired this privilege in virtue of their levy under execution, which cannot be superseded by the attachments. They further contend that, a day is considered in law as indivisible, and, if a privilege exists in favor of attaching creditors, all seizures made on the same day will be deemed simultaneous, and stand on an equal footing.

1. It is true that the term privilege does hot occur in the 264th and 265th articles of the Code of Practice relied on by the appellees; nor was the use of that term indispensable in establishing a privilege. A lawful cause of preferrenceis declared, which is equivalent to the use of the technical term. C. C. 3151. This interpretation was given to those articles in the case of Emerson v. Fox et al., 3 La. 178; and we think that it is supported, as well by the letter of the law, as by the reasons upon which the right is founded.

We are notaware that the question of priority established between seizures, either under attachments or writs of fieri facias, when made at different hours of the same day, has hitherto been presented to the court of the last resort in this State. We think that the question admits of but little doubt. The 723d article of the Code of Practice provides that, “when several successive seizures are made of the same property, the creditors making them are entitled toa preferenceoverother ordinary creditors accordingto the order of theirseizures.” Seizures made on the same day are not excepted from the operation of the rule. The order of the seizures determines the right of priority. The conservatory measure of attachment being given with express reference to a future judgment and an execution thereon, is necessarily governed by the s ame-rule The seizure under the execution relates back to the date of the attachment, and gives effect to the lien from that time.

It has been repeatedly held that, the general rule that the law admits of no fractions of a day, is amere legal fiction; that it is subject to numerous exceptions; and that, whenever it becomes necessary to determine who of several persons has a priority of right, time may be distinguished with accuracy. In the case of Callihan v. Hallowell, 2 Bags. S. C. Rep. p. 9, the court said that: “ Time is in its nature essentially divisible from years down to hours and minutes; a minute therefore will give priority as essentially in point of time, as a year or a day.” The court, in its opinion, refers to the case of Combe v. Pitt, 3 Burr. Rep. 1423, 1434, in which Lord Mansfield said: “But though the law does not in general allow of the fraction of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour may not be so too, when it is necessary, and can be done; for it is not like a mathemalical point, which cannot be divided.” See also Simon v. Stalls, 1 Wendell's Rep. p. 593. 11 Johnson’s Rep. 229, Opinion of Mr. Justice Story in The Matter of Joseph Richardson et al, Law Reporter, vol. 6, p. 397. In no class of cases have the subdivisions of the- day been- more frequently recognized than in the conflicting rights growing out of the institution of judicial proceedings, and the execution of writs, from which preferences result. There are cases in which our laws expressly forbid the different hours of the same day from being recognized, as affectiDg.the rights of parties, as in the instance of the inscription of mortgages; but the prohibition must be confined to the cases enumerated, and must be considered as an admission that the rule would be otherwise in the absence of an express enactment.

Judgment affirmed.


source: Caselaw Access Project

author: Eustis, C. J.

license: Public Domain

text:
    Ducloslange et al. v. Ross.
    A bequest of land "on the condition that, in case the legatee should die without posterity and without having disposed of the laud, it should belong to a third .person”, creates a fideicommisswn, prohibited by art. 1507 of the Civil Code'.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Grivot and Roselius, for the plaintiffs,
    cited C. C. 1507. 18 La. 23. 5 Toullier, no. 38.

      Micou, for the appellant,
    relied on Duplessis v. Kennedy,- 6 La. 232. Rachal v. Rachal, 1 Rob. 117. Liautaud v. Baptiste, 3 Rob.- 441.-
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiffs allege that, in 1819, Baptiste Beaulieu, a free man of color, made a donation by act inter viüos, of a certain lot of ground in this city, to Eulalie Ducloslange, their sister, on the condition that, in case the said Eulalie should die without posterity and without having disposed of said lot, the same should belong to the petitioners and another of their sisters, since deceased; that said Eulalie died without issue of her body, or having disposed of said lot; that a pretended sale, under which the defendant holds and claims the lot, is a mere simulation, and was made under the threats of the hnsband for the purpose of defrauding the petitioners, during the last illness of the deceased, When she was almost in extremis They pray that the said sale be annulled, and that they be decreed to be the owners of the property. The district judge was of opinion that the simulation of the sale to the defendant was established, and that the property must be considered as having belonged to the deceased up to the time of her death. He gave judgment for the plaintiffs, and the defendant appealed.

The district judge was of opinion that the clause in this act of donation, relied upon by the plaintiffs, did not create a substitution under article 1507 of the Code.

Previous to the Code of 1809, substitutions, fideicommissa, and entails to a limited extent, formed a part of the laws then in force ; b if by that Code substitutions and fideicommissa were prohibited; and not only were the ordinary terms of prohibition made use of by the legislator, but the article containing it formed part of the chapter entitled: “ Of dispositions reprobated by law in-donations inter vivos and causd mortis” — “ Des distributions réprouvées par la Ioi, &c.” This chapter contains but two modifications of the prohibition. It provides that what was called in the civil law the vulgar substitution, by which a third pei-son is called to take the gift or legacy in case the donee or legatee does not take it, should not be considered a substitution, and should be valid; and that the disposition inter vivos, and causd mortis, by which the usufruct is given to one and the naked property to another, should be received in the same light. Code of 1809, p.218, art. 43, et seq. In the Code of 1825 the chapter is retained, without any material changes. It appears, therefore, that, not oDly are substitutions in donations inter vivos and causd mortis prohibited in the most formal manner, but that the prohibition is equally formal and imperative as to fideicommissa

It is quite possible that the donation under consideration might not be consid©red a substitution, according to the doctrine of authors who have discussed the subject with reference to the provisions of the Napoléon Code. But the differ-' ence between the two Codes on this point does not enable us to avail ourselves of the benefit of their lights in determining on the matter before us. By the Napolóon Code, art. 896, substitutions are, in general terms, prohibited, with several exceptions, however, which are expressly reserved; but fideicommissa are not prohibited ; on the contrary, so far from being abolished, they are maintained, and their recognition is considered as resulting from article 967 of that Code. If the donation creates a fideicommissum, the plaintiffs are incapable of having the benefit of it under article 1507 of our Code. The prohibition of the Code is so general that no particular class of fideicommissa is excepted from it. That, without the conditions of the donee’s not having disposed of the lot and her dying without posterity, the donation by its terms would create a substitution, we think, cannot be questioned; and we think it clear that neither of the contingencies having happened, if that fact have any effect upon the donation, it is to create a fideicommissum, according to the common received definition of that term in the civil law. Mackeldey, 726, 785,786. Domat defines a fideicommissum to be a disposition causa mortis, by which the heir or legatee is requested to give, or to return, acertain thing to another person. Lib. 4, tit. 2, § 2. Potest quis singulas res per fidei-commissum relinquere, veluti fundum, argentum, homiuem, vestem, et peeuniatn numeratam; et vel ipsum hteredem rogare ut alicui restituat, vel legatarium. Inst. lib. 2, tit. 24, De Sing. Reb., per fideicom. relict. The charge derendre, appears to be the distinctive characteristic of the fideicommissum. 5 Touliier, 28. Conditional fideicommissa are classed by Touliier as one of the principal kinds. Vide also, Institutes of Justinian, by Ferriere, lib. 2, tit. 23, quccst. 2. That known under the name of De eo quod supererit closely resembles that created by the clause under consideration. The charge was to return, to a third person, what remained of the property at the decease of the heir or legatee. The right of the latter to dispose of the property held under that fideicommissum was restricted, and finally reduced, to fixed limits, by one of the novels of Justinian. Novel ad Senatusc. Trebellianum. MerlinRep., verbo Substitutionfideicommissaire, section 10, § 9.

There is no necessity for explaining the difference between the substitution and the fideicommissum. It is sufficient to state that they are not identical, for though every substitution is a fideicommissum, every fideicommissum is by no means a substitution. Gibbon, in a note to his admirable chapter on the roman law, adds; ‘-The substitutionsfideicommissaires of the modern civil law is a feudal idea grafted on the roman jurisprudence, and bear scarcely any resemblance to the ancient fideicommissa. Note 154 to chap. 44. Dec. and Fall of R. E. Both are prohibited by our laws from motives of public policy; and under that prohibition, we cannot consider the plaintiffs as having any right of action against the defendant, ,

The judgment of the District Court is, therefore, reversed, and judgmeut readered for the defendant, with costs in both courts.


author: King, L

text:
    Baker et al. v. Doane et al.
    The right to proceed by rule, or motion,' implies- the pendency of an action between the parties, and is confined to incidental matters arising in the progress of the contestation, except in certain cases where a summary proceeding is expressly allowed by law.
    The surety on a bond given for the release of sequestrated property cannot be proceeded against by a rule to show cause. He is not a party to the original action; and the right of proceeding summarily, expressly granted by law against sureties on bonds given in cases of arrest, attachment,or appeal, has not been extended to sequestrations. Stat. 20 March, 1839, s. 2, 3,20.
    The right to resort to summary proceedings cannot be extended beyond those cases in which it is expressly authorized by law. C. P. 98, 170, 754, 750.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Peyton and 1. W. Smith, for the plaintiffs.

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

King, L

The defendants are sureties on a bond given for the release-of property under sequestration. A judgment was rendered against the defendants in the original cause, and an execution issued, which the sheriff returned no property found. The plaintiffs then took the present rule on .the sureties, to show cause why they should not be condemned, in solido, to pay the amount of the judgment rendered against Doane and Bossiére, the defendants in the original suit. Morrison and Deacon, the sureties on the bond, excepted to the proceeding against them by rule as unwarranted, averring that they had valid defences to oppose to the demand, which they desired to plead specially in an ordinary action by petition and citation. The exception was overruled, and a judgment rendered against the sureties, from which they have appealed.

We think that the judge erred, in overruling the exception. The rule in relation to proceedings of this character is concisely stated in the case of Thomas, Administrator, v. Bourgeat, Executor, 6 Rob. 437. The court then said: “ The right to proceed by rule, or on motion, 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.” The surety on a bond to release property sequestered, can in no sense be considered a party to the suit. The right has been expressly conferred of proceeding summarily on motion against sureties on bonds given in cases of arrest and attachment, and on appeals, but has not been extended to cases of sequestration. In the absence of express legislation, the remedy of the judgment creditor against the sureties on such bonds, would be by a new action in the ordinary form. Summary proceedings, being departures from the rules which govern actions generally, cannot be extended beyond the cases expressly authorized by law. C. P. arts. 170, 98, 754, 756. Acts of 1839, p. 162, § 2, 3, 20.

The judgment of the District Courtis, therefore, reversed, and the rule discharged; the appellees paying the costs of both courts.


author: lime, J.

text:
    The State v. Caldwell.
    On an information against a party for the violation of the statute against gaming hy playing at a particular game, an ordinance of a municipal corporation authorizing the game, and receipts of its treasurer for the price of a license to. exhibit the game during the time when the alleged breach of the statute occurred, are inadmissible. But the ordinance, though no such legal justification or .excuse as authorized its admission to the jury as evidence, might be received hy the judge after verdict, in mitigation of damages.
    Jurors cannot be heard as witnesses to impeach their own verdicts. The court must derive its knowledge of the misconduct of the jury, horn some other source than the jurors themselves.
    from.the First District Court of New Orleans, McHenry, J.

      Elmore, Attorney General, for the State.

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

lime, J.

The defendant was convicted of a violation of the “ Act to prevent Gambling,” approved the 19th of March, 1835 (Acts p. 134); and from a judgment condemning her to pay a fine of $2,500, has appealed.

The grounds of complaint in the court below, are presented in two bills of exception. The first was taken to the refusal of the judge to permit the defendant to introduce in evidence the ordinances of the Third Municipality, authorizing the game of bagatelle to be played, and the receipts given by the treasurer of the Municipality to the defendant, for a license.to keep that game during the time within which the alleged breach of the statute occurred. The judge did not, in'our opinion, err, in rejecting this evidence. The ordinances, if such exist, being in violation of the statute, are nugatory, and cannot avail the accused "as a means of defence. She can . neither plead ignorance of the prohibitory statute, nor protect herself from the consequences of an infraction of it by the authority of an inferior legislative body, wholly incompetent to give such authority. Although the ordinances furnished no such legal justification or excuse as authorized their introduction before the jury as evidence, the judge could, in the exercise of his discretion, have received and considered them, after verdict, in mitigation of the sentence.

The second bill of exceptions was taken to the refusal of the judge, on a motion for a new trial, to permit two of the jurors who tried the cause to bo sworn to prove that they were overawed by abuse and threats from other jurors, and forced to render a verdict contrary to their judgment. The evidence was properly excluded. Jurors cannot be heard as witnesses to impeach their own verdicts. The practice is well settled that, the court must derive its knowledge of the misconduct of the jury, from some other source than the jurors themselves. 11 La. 141. Judgment affirmed.


text:
    Swagar et al v. Pierce et al.
    An attachment will not lie in an action for damages ex delicto.

    APPEAL from the Fourth District Court of New Orleans, Straiobridgc, J.

      Elmore, W. W. King, and Mott, for the appellants.

      Randall, for the desndants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit for damages caused by the collision of the steamer Childe Harold with the steamer Homer, the former owned by the defendants and the latter by the plaintiffs. It was commenced by attachment, and the attachment was dissolved, after a hearing by the district Judge, from whose decision this appeal was taken. In the case of Prewitt v. Carmichael, decided in October last, 2 An. Rep. p. 943, we held that, under the provisions of the Code of Practice, an attachment could not be maintained in an action for damages for a tort. That case was thoroughly argued, and the subject was examined with great care; on ajreview of it, we are satisfied that our decision was correct. Judgment affirmed.


text:
    Succession of Holbert.
    The privilege acquired by a creditor, under art. 722 of the Code of Practice, by the seizure of real property of his debtor under a ji. fa., must be postponed, in case of the subsequent death of the debtor, to those for funeral and law charges and for the expenses of the last illness of the debtor. But the moveables of the succession must be exhausted before the immovables can be resorted to, for personal and law charges, and the expenses of the last illness. C. C. 3220, 3233, 3236.
    A surviving wife can claim to be supplied with mourning apparel at the expense of the succession, only where there has been a constitution of dowry. Art. 2353 of the Civil Code applies only to such cases.
    Though an administratrix was authorized to employ counsel, and the amount allowed by the judge, in homologating a provisional tableau and distribution, appears to be just, the services having been necessary for the settlement of the succession, and rendered for the general benefit of the creditors who are bound to remunerate the attorney, yet where no contract is shown for a fee, and no sum appears to have been paid to the attorney, and the claim is presented in the shape of an allowance, courts will be prohibited from making it, by art. 71 of the Constitution.
    APPEAL from the First District Court of New Orleans, McHenry, J.

      Hornor, for the appellants,
    as to the right of the widow to claim from the succession of the husband an allowance for mourning dresses, relied on C. C. arts. 2353, 2389, 2391 ; 3 La. 154, 465 ; 12 La. 129 ; contending that such an allowance could only be made where there was a dowry.

      Collens, contrk,
    cited, to the same point, 14 Toullier, no. 279. 13 Ibid. 243. 14 Duranton, 467. 19 lb. 47. Boileau, Comm, on Code Nap. art. 1570. 10 Mart. 188. C. C. 2353.
   The judgment of the court was pronounced by

King, L

The administratrix of Holbert presented a provisional tableau of distribution, which was opposed by M. L. Dawson Sf Co., who allege that they are creditors of the deceased. The grounds of opposition are: 1st. That the opponents have not been recognized as creditors, with the first privilege for the amount of their demand. 2d. That the sum proposed to be paid for funeral expenses is excessive. 3d. That the sum allowed to the widow for mourning dresses, is unauthorized by law. 4th. That the fee awarded to counsel of the succession is excessive, and not entitled to a privilege as a law charge. Other items of minor importance were also opposed. The oppositions to several of the charges were partially sustained ; but the opponents, being dissatisfied with the relief given them, have appealed.

Holbert was the surely on a twelve months’ bond, taken under a judgment obtained by M. L. Dawson Co. An execution issued on the bond, in virtue of which a lot of ground was seized by the sheriff, but, before a sale could be effected, Holbert died. His administratrix tools possession of his property, consisting principally of the lot of ground in question, then under seizure, and a few moveable effects, sold them, and, in the tableau now presented, proposes to distribute the proceeds' among the creditors according to their respective privileges. By the proposed distribution, the entire fund in the hands of the administratrix is absorbed by claims which are recognized as superior to that of the opponents. The demand of the opponents has been satisfactorily proved, and by their seizure they were invested with a privilege, which attached to the proceeds of the property when subsequently sold by the administratrix. C. P. art. 722. 3 Rob. 106. They contend that this privilege upon the price of the lot is superior to all others. The position is clearly untenable. The privileges for funeral and judicial charges, and for the expenses of the last illness, extend both to moveables and immovables. These charges are to be first paid, although it maybe to the exclusion of privileges of anterior date, and only yeild to certain privileges specially enumerated in the Code. The privilege acquired by the opponents in virtue of their seizure falls within none of the excepted instances. It has been correctly urged, however, that the moveables must be first exhausted, before the immovables can be resorted to, to pay privileged claims for funeral expenses, law charges and expenses of the last illness. C. C. arts. 3220, 3233, 3236. The tableau exhibits at present but $37 05, in the hands of the administratrix, derived from the sales of moveables; but it discloses the existence of demands for collection, from which the representative expects at an early day to realize a sum which will be more than sufficient to pay all the claims which we consider entitled to privilege. Those funds must first be applied to that purpose, and, in the event of a deficiency, the privilege of the opponents must yeild, and the fund derived from the sale of the land be made to contribute to the general privileges. Under these circumstances the tableau was prematurely -presented, and the cause must be remanded, for the purpose of enabling the administratrix to file a further tableau, exhibiting the amount derived from collections of dues to the succession. This disposition of the cause becomes necessary to prevent the privilege of the opponents from being defeated or impaired, and no serious inconvenience can result from it, as the administratrix declares her expectation of being immediately placed in funds, which we consider to be first applicable to privileges which may come in conflict with that of the opponent. Yide also Persil, Priv. and Hyp. pp. 21, 22. Troplong, Priv. and Hyp. vol. 1. no. 251.

The opposition to the claims for mourning apparel for the widow and daughter of the deceased, ought to have been sustained. Art. 2353 of the Code, relied on in support of the claim, has been repeatedly held to apply only to cases where there has been a constitution of dowry. The question can no longer be considered open. 3 La. 154, 465. 12 La. 129. The widow, in the present instance, appears to have brought no dower into the marriage.

The funeral charges amount to $441 75. This expenditure is extravagant, when the station of the deceased, and the estate which he left are considered. These charges were properly reduced by the judge to $200. C. C. arts. 3160, 3161.

The opposition to the fee of the counsel for tire administratrix ought, in our opinion, to have been sustained. The administratrix, it is true, was authorized to employ counsel, and the measure of compensation fixed by the judge appears to us just, under the evidence. The services were necessary for the settlement of the succession, and for affecting a distribution, and were rendered for the general benefit of the creditors, who are bound to remunerate the attorney. 3 Mart. 363. 10 La. 440. But an insuperable objection offers itself to our affirming the judgment in respect to this item, in the form in which the claim is presented. No contract is shown for a fee, and no sum.appears to have been .paid to the attorney. It.comes before us in the shape of an allowance, which •courts are prohibited from making. Constitution, art. 71. Pandelly v. His Creditors, 1 Ann. R. 22. Landry v. His Creditors, Ib. 38. Succession of Asbridge, Ib. 207. Succession of Holland, Ib. 225.

The sum awarded .to the appraisers was also .an unauthorized allowance. 1 An. R. 207. When properly presented and proved, .it will rank as a law charge.

The account of the notary for making the inventory is not satisfactorily proved.' When established, this claim will also be entitled to privilege, as a law charge. C. C. art. 3164.

The remaining items of the tableau, ordered by the judge to be paid, are sustained by the testimony, and properly classed.

It is, therefore, ordered that, the judgment of the District Courtbe reversed. It is further ordered that the case be remanded for the purpose of enabling the administratrix to file an additional tableau, and for further proceedings in conformity with the principles expressed in the foregoing opinion. It is -further ordered that the funeral expenses of the deceased be restricted to $200 ; that the following claims figuringon the tableau heretofore filed be recognised and paid in due course of administration, viz., the sheriff’s and clerk’s fees up to the filing of the tableau, amounting to the sum of $4517, Magore Sf Weiss, $4, and Doctor A. Mercier, $90; that said claims be paid according to their respective privileges as classed in the tableau heretofore filed; and that the moveable property of the succession be first applied to the payment of said privileges, and such other privileged claims of the same character as may hereafter be presented and proved ; and, in the event of the moveables being insufficient for that purpose, then the proceeds of the real property are to be applied to the payment of said claims; that M. L. Dawson Sf Co. be recognized as judgment creditors of the deceased for $2042 10, with interest at five per cent from the 12th of May, 1845, until paid, with a privilege over all other creditors of the deceased who have thus far presented themselves, except those for funeral and law charges and expenses of the last illness, on the sum of $510 arising from the sale of a lot of ground ; that the claims for the mourning apparel of tjxe widow and child of the deceased be rejected ; that the claims of the attorney for professional services, of the notary, and of the appraisers, be rejected, without prejudice to their rights to cause the same to be proved on a future tableau and to be paid according to their respective ranks as preferred claims. It is further ordered that the following claims be recognized as ordinary debts and paid as such in course of administration, viz: the claim of A. Brodwick for $15, of J. Kealy for $38, and of J. Drux for $7 18 ; and that the succession <of the deceased pay the costs of this appeal.


text:
    Coby v. Kock.
    One held in slavery by a person who purchased him in good faith, believing him to be a slave, may recover against the latter wages for the time of his confinement in jail under a sequestration in the suit for freedom,- with a fair allowance, in addition, as damages for the imprisonment; but no damages or wages will be allowed for any period anterior to the institution of suit.
    APPEAL from the Third District Court of New Orleans, Kennedy, J. This is an action to recover from the defendant damages for illegally holding the plaintiff as a slave. The petition was filed on the 6 April, 1846. The defendant answered that, about the 18 June, 1844, he purchased, by a notarial act, from one Miesegaes a negro, the plaintiff, whom he considered a slave : That he acted in good faith, believing him to be a slave, and continuing in that belief until a judgment of the United States District Court declared him to be entitled to his freedom : That plaintiff never rendered him any service: That Miesegaes, from whom he purchased him, reserved to himself the right of redeeming the slave and the use of him, which he enjoyed during ten or twelve months, without ever paying him any compensation therefor : That, at the expiration of that time, and immediately after entering respondent’s house, plaintiff ran away, and was taken up only many months afterwards, and but a short time previously to his instituting against respondent a suit for his freedom in the District Court of the United States.
    It was admitted in the court below that the plaintiff was declared free by a judgment of the United States District Court, on the 6 March, 1846 : That the petition in that case was filed, on 25 November, 1845: That plaintiff was employed in the store of Miesegaes until the day on which he was delivered to defendant, in June, 1845; and that he run away on that day, and was not taken up until the date of the sequestration, on the 27 November, 1845, which was set aside, on or about the 22 December, 1845, on motion of defendant’s counsel, until the decree for freedom was rendered : That the services of the plaintiff were worth $15 a month.
    The defendant offered the act of sale from Miesegaes in evidence. He also introduced a witness, Upton, who stated that he knew the plaintiff well; that he was a long time in the employment of Miesegaes, as a porter; that, after he had been discharged, he told witness that he had never informed his former owners that he was free.
    The judgment of the District Court is in these whi-ds;
    “ The defendant, Koch, appears to have purchased the plaintiff and held him in slavery in good faith, having every reason to believe him to be a slave. On the principles of the cases Phillis v. Genttn, 9 La. 208, and Eugenie v. Preval, 2 An. R. 180, taken together, the plaintiff has no claim against defendant for wages prior to the institution of the suit for his freedom. See also arts. 495, 3414 of the Louisiana Code. At that date he was at large, having previously absconded, and he came again into the possession of Koch, only on the 27th November, 1845. He was decreed to be free on 6th March, 1846, and appears to have been restored to liberty on the same day. This claim for wages therefore covers a period of three months and seven days, at the ralo of $15 per month, the admitted value of his services, equal to $48 50. I consider $25 in addition a fair allowance, as damages for the two or three months that he was detained in jail, considering that his own silence as to his freedom, which was not unknown to him, as appears by Upton’s testimony, contributed in some degree to the belief that he was a slave; and that, in point of actual hardship, there is not much difference between imprisonment and idleness for two or three months, and hard labor as a slave for the same period. It is, therefore, ordered that, the plaintiff recover from the defendant the sum of $73 50, and costs of suit.” From this judgment the defendant appealed.
    David, for the plaintiff.

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

Eustis, C. J.

For the reasons given by the district judge, the judgment is affirmed, with costs.


text:
    Carrigan v. De Neufbourg.
    The fact that the owner of a lot had already built a wooden house on it, leaving a space for a passage between the house and the division line, will not deprive the owner of a contiguous lot of the right given, by art. 671 of the Code, to the owner who first builds in a city, town, or their suburbs, in a place which is not surrounded by walls, of resting one half of his wall on the land of his neighbor, provided he builds with stone or brick atleast as high as the first story, provided the whole thickness of the wall do not exceed eighteen inches, not including the plastering, which must not be more than three inches. Art. 071 establishes a servitude with which urban property is encumbered, without reference to title or the agreements of parties. C. C. 662, 670.
    APPEAL from the Fifth District Court of New Orleans, Buchanan. J.

      Preston, for the plaintiff.
    Plaintiff’s lot is entirely surrounded by a fence on his own ground alone ; the pavement of his alley extends to his very line ; the roof of his house to the same, and his cistern and its foundation to the same line. His whole ground was, therefore, occupied and surrounded before the defendant commenced building his house, or erecting his walls. But article 671 of the Code gives the right to build a party wall only to the proprietor who first builds in cities or towns. The right is by no means given to him who purchases along side of property already built upon. In this case the plaintiffhad enclosed and improved the whole of his ground with buildings and a wooden fence, before the defendant purchased his ground. The article of the Code derogates from the right of property, and should, therefore, be strictly construed.
    The first wall mentioned in the article is a generic term, equivalent to enclosure, and means a brick or wooden wall.

      Dufour, for the appellant.
    Although the plaintiff first built upon his lot, still his property was not surrounded by walls, and, therefore, the defendant’s right to erect a party wall on the dividing line was in no wise abridged. When the latter proceeded afterwards to build upon the adjoining lot, he found the place surrounded only by a fence, and he accordingly planned his building under the full guarantee afforded in such circumstances, by article 671 of the Code. No other reasonable construction can be put upon this artice. Indeed, the question is no longer an open one. The Supreme Court of this State have already passed upon cases entirely parallel to the one under consideration. “ The object of the legislature was clearly to promote the inclosure of lots, with stone or brick walls, as much as possible ; and the circumstance of ahouse having been already erected on the adjoining lot, does not preclude the party from the benefit of the provision, when the partition or wall does not interfere with any building previously erected.” Larche v. Jackson, 9 Mart. 726. “ The evidence shows that the plaintiffhad built first, and that the place was not surrounded by a wall. Tin? plai ntiff, indeed, proved that, anterior to the time the defendanteommenced this work, a wall had been built on the lot of the former, a few feet from the dividing line. But the walls erected by a proprietor on his property, which stiJI leave a space between them and his neighbors, cannot be considered as surrounding the premises ; they are not division walls, and it is only those which authorize one co-proprietor to refuse permission to another to raise a separation between them on the land of both.” Crocker v. Blanc, 2 La. 532. These authorities are conclusive.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff and defendant are owners of contiguous lots of ground in the Second Municipality. The plaintiff built a wooden house on his lot, but left a space for a passage between the house and the division line.

The defendant built a wall of his house, which he was erecting, on the line, and took seven and a half inches of the land of the plaintiff to place his wall upon. This suit is for the removal of the wall, and damages for the alleged trespass. There was judgment for the plaintiff, and the defendant has appealed.

Neither of the lots are surrounded by walls. The wall erected by the defendant is of brick. No objection is raised as to the precise quantity of the plaintiff’s land taken for the wall, but the right to take any, or to abridge the passage on the plaintiff’s land in any manner, is denied, and the case has been argued on the law of party walls as established by the Code.

Article 671, which gives the right to the owner who first builds in a place not surrounded with walls to rest half his wall on the land of his neighbor, provided he build in a certain manner, we think must beheld as establishing an. urban servitude with which urban property is encumbered, without reference to title or the agreements of parties, Civil Code 662, 670. We do not think that any constitutional question as- to the enforcement of this right arises in this case, which presents a naked question of law under the provisions of the Code.

Article 671 existed in the Code of 1809, and a large proportion of the buildings of the city contain party walls,.particularly in those parts iu which the land is most valuable. It is acted upon every day, and is well understood by architects and workmen. Notwithstanding the great difficulty of exercising the right it confers, it rarely gives rise to any litigation. The cases of Larche v. Jackson, and Crocker v. Blanc, appear to us to be conclusive, as to the objections raised by the counsel for the plaintiff in argument.

The privilege exercised in the carrying into effect of this servitude does not appear to have been used with any want of proper care, or any disregard of the rights of the plaintiff. The witnesses appear to base their estimate of damages, on the absence of any right on the part of the defendant to construct the wall on any portion of the land of the plaintiff. Assuming that right to exist, there is no sufficient evidence of any damage. Looney v. High, 13 La. 272.

The judgment of the District Courtis, therefore, reversed; and judgment rendered for the defendant, with costs in both courts.


text:
    Murphy v. Diamond.
    In oases of collision between steamers, where there is fault on both sides, neither party can recover damages for any injury sustained.

      APPEAL from the Second District Court of New Orleans, Canon, 3.

      W. E. Murphy and R. Hunt, for the plaintiff.

      Preston and Roselius, for the appellant.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action instituted by the plaintiff owner of the steam-ferry boat plying on the river Mississippi, from. New Orleans to the opposite bank, against the owner of the steamer Southwestern, to recover damages produced by the collision of the two vessels, which took place on the 24th of May, 1847. There was judgment for $1000 in favor of the plaintiff, and the defendant has appealed. Both parties demand the reversal of the judgment ; the defendant that, the judgment be rendered absolutely in his favor, and the plaintiff that he recover the whole amount of his claim.

The district judge gave the following opinion in deciding the cause : “ This case, as every case of the same nature in Louisiana, must be governed by arts. 2294, 2295, and 2296, et seq. of our Civil Code, and article 1928 of the same statute book is an excellent guide in the valuation of damages. After hearing the evidence and the arguments of counsel; the court considering : 1st. That the people of the steamer South Western knew the steam-ferry boat, where she was going, and the presumed course she was to follow, and which she did follow, and they could easily have avoided her without compelling the steam-ferry boat to deviate from her own course:

2d. That the evidence shows that the steamboat South Western was not properly navigated, and, in fact, had no pilot on board, or at least, had not a proper pilot at the helm, when the collision occurred, which in a crowded harbor like New Orleans, is a reckless and very reprehensible imprudence:

3d. That the South Western, when the accident occurred, was not in li6r proper place, and stopped her engine too late, when she was under full steam and impelled by the current:

4th. That, not being in her proper place, it was the fault of her captain and pilot, if she had not sufficient room to avoid, the collision:

5th. That the evidence shows in the defendant, a strong disregard of other people’s convenience and safety: It is ordered, adjudged, and decreed, &c.

These facts make out a case in which we should feel great reluctance in disturbing a judgment in favor of the plaintiff did we not conceive that it was not consistent with the rules of law as established by the settled jurisprudence of the State. In Myers v. Perry, no new principle was advanced; on the contrary, the decision was made in conformity with what we considered as the rule recognized in the cases cited, which were determined by our predecessors. The subject was afterwards reviewed by us in the case of Carlisle v. Holton, ante p. 48, and we came to the conclusion that the rule that, in cases of collission, where there was fault on both sides, neither could recover, was not only a sound rule of law, but most expedient and salutary in its operation in producing prudence and care in the navigation of our water courses.

In the present case, the South Western was coming down the river with a full head of steam, aided by the impetus of the current; she was visible from the landing of the ferry boat. The ferry boat was bound across the river. Common prudence appears to us to dictate that she should have passed under her stern, and let the South Western pass down. For a ferry boat loaded with passengers her course seemsfraught with danger, and entirely unnecessary for any lawful or reasonable purpose. Nothing can be more censured than that a steamer should be navigated as the South Western was; but, we- cannot get over the fact of the fault of the plaintiffs’ boat in contributing to this collision, and cannot sanction the judgment awarding him damages.

The judgment is, therefore, reversed, and judgment rendered for the defendants, with costs.


author: Kino, J.

text:
    Succession of Gray.
    Though a bill of exceptions have been taken 'to the exclusion of testimony, if the testimony be not appended to the hill nor brought up with the the record, and the bill sets forth no fact sworn to bythe witness, nor shows in what respect the testimony was important, the court, being unable to determine if thctestimony was material, will not remand the cause. C. P. 488.
    APPEAL from the Second District Court of New Orleans, • Canon, J.

      Greiner and Durell, for the appellant.

      R. Hunt, contri.
   The judgment of the court was pronounced by

Kino, J.

The curator of the succession of James Gray caused an inventory of certain effects to be made as belonging to the succession of the deceased. He then took a rule in which ¡he suggested that John Gray and Edward Gray, the father rand brother of the deceased, -claimed an interest in a part of the property thus inventoried, and called on them to show cause why the whole property should not be sold, and the proceeds divided between them and the succession, according to their respective rights. John Gray, the father, disclaimed any interest in the property or succession. Edward Gray claimed to be the owner of the entire property inventoried, and opposed the sale. His claim was sustained by the district judge, and the curator has appealed.

We think that the curator has failed to show that any part of the property inventoried belonged to the deceased, and that the district judge did not err in decreeing it to Edioard Gray• The property was not in possession of James Gray at the time of his death, but in that of Edward Gray. The question presented is exclusively one of fact, depending upon the weight of evidence, which we think-greatly preponderates in favor of the appellee.

Our attention has been called to a bill of exceptions, taken by the curator on the trial of the cause. It appeal's that a witness was sworn, who., during the early part of his examination, stated that he was a creditor of the succession. This disclosure was known to the counsel for the defendant in the rule, who permitted the examination to proceed without objection. At the close of the examination the fact was repeated by the witness, whereupon the counsel for the defendant objected to his testimony on the ground of interest; and, on his motion, it was stricken out by the judge.

We are urged to remand the cause for the purpose .of enabling the curator to avail himself of this evidence. The testimony of the witness, though reduced to writing by the clerk, was not appended to the bill of exceptions, and lias not been brought up with the record. The bill of exceptions sets forth no fact sworn to by the witness, nor does it inform us in what respect the testimony was important'. We are thus left without the means of determining whether the evidence be material, and such as should have influenced the decision of the cause, and are unable to afford the relief asked for. 6 La. 471. 3 La. 2í)8. C. P. art. 488. Judgment affirmed.


author: .Slidell, J.

text:
    Davis v. Glenn.
    Where-a buidingicontract stipulates that the building shall be completed and delivered by a certain time, under a fixed penalty “ per month for each house," the builder must be put in default to entitle the other party to recover the penalty. C. C. 2122.
    Where a payment in kind is made, oí slaves estimated at a certain sum, on account of a debt due by contract, and the slaves are reclaimed as an over-payment, the party to whom ■they were delivered will be liable merely for interest from .the demand for restoration, and not for the value of the hire of the slaves.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      M. M. Robinson, for the appellant,
    argued that the judgment below was .erroneous on various questions of fact, and in condemning the plaintiff to pay the costs of the suit below, the judgment being in his favor for a large poitjon of his claim. “ In every case the costs shall be paid by the party cast.” C. P. 549. In the case of Walsh v. Collins, 11 Mart. 576, Mathews, J., in pronouncing the opinion of the court, says: “ The suit being for the whole tract of land, and the plaintiff having recovered one-half, full costs ought to have been adjudged to him.” It had been contended that the plaintiff in that case could not recover costs, because he had failed in part of his claim. The decision is conclusive as to the fallacy of the idea which has misled the judge of the lower court in this case.

      Conklin, for the defendant,
    contended that he was released, by the subsequent agreement for extra work, from the obligation.to deliver the houses at the time originally stipulated.
   The judgment of the court was pronounced by

.Slidell, J.

This litigation grows out of a building contract. The plaintiff asks to recover back alleged over-payments, and also damages for the alleged defective character of the work, and a forfeiture, at the rate of $50 per month, for each house, pursuant to contract, for delay in their completion. It was alleged :by the petitioner that a portion of his payment had been made by delivering two slaves at the times and rate stipulated in the contract, and he asked the restoration of the slaves, with wages from the dates of their delivery. The defendant pleaded the general denial, and set up claims in reconvention. After a .careful .consideration of the cause, which involves maiuly questions of fact, and presents much contradictory evidence, the district judge stated in detail the account between the parties. He .allowed the defendant cred.it, according to the stipulations of the original and amended contract for the buildings, and also some .items of extra work not specified in tli.e contract. He allowed the plaintiff credits for the payments made by him, and other items, among which is .an allowance of $600, as a penalty under the original contract for the delay in completing the buildings. The result of his opinion was that the plaintiff should pay the defendant $365 16, and should also pay the costs of suit; and that the slaves should be restored to the plaintiff. As the Slaves had been estimated in the contract, and were given in payment at a -value of $1.300, the result of this judgment was to recognize the plaintiff as having .made an overpayment to the extent of $1034 84. From this judgment the plaintiff appeal, ed ; and the defendant has asked that the judgment be amended 'in his favor, by relieving him from the charge of $600.

If the appellee had filed an answer seasonably, as required by the 890th article of the Code of Practice, w.e should have declared the judgment erroneous in that particular. Under the original contract it was stipulated that one of the buildings was to be finislied'in the ensuing Jannary and the other in the ensuing March, under a penalty of $50 per month, for each house. But subsequently an agreement was made by which the plan of the buildings was changed by the addition of an attic to each house, and by other work, for which an additional price was stipulated. This second contract contained no stipulation for a time at which the work should be completed ; and it would be unreasonable, in the silence of the parties, to extend the penalty to the new contract, and consider it as still contemplated, though new work was added which would materially increase the time necessary for performance. Moreover, there is no evidence that the defendant was put in default.

By article 2122 of our Code it is declared that, “ whether the principal obligation contain or do not contain a term in which it is to be fulfilled, the penalty is forfeited only when he who has .obligated himself either to deliver, to take, or to do, is in delay” (est en demeure). As long as the obligee does not demand the execution of the contract, the law supposes that it is because the non-performance does him no injury. Hence, without a putting in default, damages are not due; nor, by consequence, the .stipulated penalty, which is intended as a compensation for damages. In the roman law it seems that the penalty was incurred by the expiration of the term, according-to the maxim, Dies interpellat pro homine ; but in France, under the Napoléon Code, which we have copied, the principle was followed which controls the right to damages, except in a limited class of cases, and makes the putting in default a prerequisite. Hence the expiration of the term does not render the penal clause executory, unless it has been stipulated that the obligor should be in default by the mere expiration of the term. See Civil Code, arts. 1927, 1905. Napoléon Code, arts. 1230, 1146. Rogron, 1230. Merlin, verbo Peine Contractuelle, § 3.

The plaintiff and appellant has presented various items, which he contends were improperly rejected in the .court below. Among them are some small items amounting to $139, being, as he contends, over allowances made by the judge of the court below in estimating extra work. There is also an item for $680, for hire of slaves from the date of their delivery; and .one .of $800 claimed as damages for the alleged inferiority of the building to the standard contemplated by the contract. The appellant also contends that he was improperly charged with costs.

The item for hire was properly rejected. The slaves were estimated by the contract at a certain sum, for which they were to be given in part payment of the price of the work. If there had been no stipulation for paying $1,300 in that mode, and $1,300 had been paid in cash, the liability would have been for the return of so much in case of over-payment and interest merely; and such interest, in the most favorable view to .the plaintiff, would only have been recoverable from the demand.of restoration. "We see no reason for applying a different rule because a payment in kind, of property estimated at a specific sum, was substituted fox a payment in money, inpartial satisfaction of the entire price of the work. Besides, these slaves were delivered at an early period of the work; much larger payments were subsequently made, and we do not understand.how the plaintiff has a right to fix the over-payment upon the slaves, an earlier item of payment.

As regards the remaining item of $800, the evidence is quite contradictory; .and, ev.en if wo felt authorized to disturb the judgment of the co.urt below,. which rejected this claim in toto, we certainly could not allow the claim to the full extent.

Considering that, under the judgment as it stands, the plaintiff has the benefit of an erroneous allowance of $600; and that if, on the other hand, there be errors against him, it is not clear under the evidence that they amount, with the addition of the costs erroneously charged, to a sum equal to $600, we think the equity of the c.ase will be best met by affirming the judgment. Although the appellee by the failure to. file his answer seasonably, lost the right to attack the judgment for the purpose of changing it in his favor, he has a right to avail himself of the error made to his detriment by the court below as a protection .against a .change asked by the .appellant. Judgment affirmed.


text:
    Johnson v. Forstall et al.
    Where a final judgment has been rendered against a plaintiff, in an action on a bill of ex•change, on a pica of prescription, -the judgment will be conclusive against him in a subsequent action on an account current, the balance in which results from the nonpayment of the biJl. The cause of action being the same in both suits, plaintiff cannot, by merely changing the form of his pleadings, avoid the consequences of the first judgment.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Perm and Kellog, for the appellant.

      'Conklin and McCarty, for the defendants.
   The judgment of the court was pronounced by

King, J.

The plaintiff instituted a suit, in 1844, against the defendants, on two bills of exchange, drawn upon and accepted by the latter, and protested for non-payment. The prescription of five years was pleaded to that action. The exception was sustained, and a final judgment rendered against the plaintiff. Subsequently the plaintiff instituted the present suit on an account current, into which the two bills of exchange are carried. The balance which appears by the account to be due, is claimed. That balance results from the nonpayment of the two bills in question, and such is the averment in the petition. To this suit the plea of res judicata was opposed ; the plea was sustained, and the plaintiff has appealed. He contends 'that the cause of action in the two suits is not the same, the one being founded on an open account and the other on bills. The debt alleged to be due by the defendants is the foundation of the plaintiff’s claim. The bills in the one suit, and the account alleged to have been acknowledged in the other, are only the evidence of the debt. The indebtedness alleged in both results from the non-payment of the accepted bills. The cause of action in both is clearly identical. The plaintiff, after having suffered a definitive judgment to be rendered against him in the first suit, rejecting his demand as extinguished by prescription, cannot now, by merely changing the form of his pleadings, avoid the consequences of the first judgment, which has arot been reversed or annulled, and still stands in full force against him.

Judgment affirmed.


author: Slidell, J.

text:
    Goodhue et al. v. McClarty.
    Where goods are consigned to a factor with instructions as to the payment of the proceeds, the acceptance of the consignment is an acceptance of the instructions, and an implied promise to obey them; and, andel' snch circumstances, no privilege will attach to the property, in favor of the factor, under art. 3214 of the Civil Code, and the stat. of 17 Nehruary, 1841 for any general balance due to him. To apply the property to the payment of the factor's debt, would be inconsistent with the implied promise, and the just expectation of the consignor. But when the instructions further directed that he should retain out of the proceeds of the consignment a sum to be placed to the credit of the consignor, and the amount of certain charges, he will be entitled' to retain that sum and the amount of the charges out of the proceeds, in preference to any attaching creditor of the consignor.
    APPEAL from the Fourth District Court of New Orleans, Strawclribge, J.

      Bradford, for the appellants.

      Mott, for the defendant and garnishees.
   The opinion of the court was pronounced by

Slidell, J.

This case was recently before us upon the controversy between

the plaintiffs, as attaching creditors, and Gilliatt <$• Co., intervenors. Ante p. 56. Upon the present appeal we have to consider the conflicting claims of the plaintiffs and the garnishees, Hewitt, Her an ¿y Co. As we said, at the former hearing, the tobacco, attached in New Orleans in the hands of Hewitt, Jleran Sf Co., had been shipped by McClariy in Kentucky, to their consignment, and with instructions to them, in the letter enclosing the bill of lading, to forward the tobacco to Gilliatt Co. of Liverpool, and to send the ship’s bill of lading to Maitland Sf Co. of New York, McClarty’s agents there, upon whom the letter of instructions authorized H. H. Co. to draw for the expenses in New Orleans, and for a further sum of $300, to be placed to the credit of McClarty, on account. These drafts he informed them would be provided for out of McClarty’s sterling exchange, sold by Maitland Co. Pending the litigation, the tobacco was ordered to be sold by H. H. Sf Co. at private sale, the proceeds to remain subjuct to the further order of the court. They rendered an account of sales, to the court, from which it appeared that, after deducting charges for freight from Kentucky, inspection, drayage, commissions on sales, &c., there remained in the hands of H. H. Co., nett proceeds, $>1,5S4 97.

After the case between plaintiffs and intervenors was decided by this court, the plaintiffs took a rule on H. H. 4' Co. to show cause why the plaintiffs should not receive this sum of $>1,584 97. This rule the garnishees defended, on the ground that they were creditors of McClariy, and, as consignees, had a privilege on the property consigned, and its proceeds in their hands. They also contended that, if they had not aright to retain the entire sum, they were at least' entitled to retain the sum of $300, for which they had been authorized, by the consignor’s letter of advice, to draw upon Maitland Sf Co.

The question then is whether, under the circumstances of this case, the privilege accorded by article 3214 of the Code, and the-act of 1841, to consignees, or commission agents, can be claimed by the garnishees. By that article “every consignee or commission agent who has made advances on goods consigned to him, or placed in his hands, to be sold for account of the consignor, has a privilege for the amount of those advances, with interest and charges on the value of the goods, if they are at his disposal in. his stores or in a public warehouse, 6cc.” By the act of 1841, the Code was so amended, “ that every consignee, commission agent, or factor, shall have privilege, preferred to any attaching creditor, on the goods consigned to him, for any balance due to him, whether specially advanced on said goeds or not, provided they have been received by him.” By this statute the privilege was enlarged beyond special advances, and extended to a general balance.

For the proper solution of this question, it is necessary briefly to consider what were the rights of Hewitt, Heran 4" Co. prior to the levy of the attachment. They had received this merchandize under express instructions to forward it to Gilliult 4' Co. Those instructions having accompanied the consignment, the acceptance of the consignment was an acceptance of the instructions, and an implied promise to obey them. But to have applied the property to the payment of McCarty's debt to them, would have been utterly inconsistent with the fulfilment of such implied promise and the just expectation of the consignor. An attempt to do so would in fact have been a fraud upon the consignor. Hence it seems clear that upon the receipt of this property by Hewitt, Heran 4‘ Co., a privilege did not attach in their favor for the general balance due to them as the shippers.

This view is fully sustained by the principles of the english mercantile law in the analogous case of lien. By this law the general rule is indisputable that, a factor has a lien on the goods of his principal for his general balance. But it is equally well settled that no right of lien can arise where, from the nature of the contract between the parties, it would be inconsistent with the express terms or the clear intent of the contract. In Snaith v. Burridge, 4 Taunton, 684, it appears that, a consignment of goods had been made for the express purpose of their being delivered by the consignee into, the government stores: it was held that, the possession of the goods gave the consignee no right of lien, because, having accepted the consignment for a particular purpose, he could not, legally, divert it to any other. “ If,” says Mr. Story, in his treatise on Agency, “ the goods are deposited in the possession of the party for a particular purpose inconsistent with the notion of a lien, as to hold them or their proceeds subject to the order of a third person, or to have them transported to another place, or to have them delivered to another person, no lien would attach.” § 362. See also Walker v. Birch, 6 T. R. 259.

Up to the moment, then, of the levy of the plaintiffs’ attachment no privilege existed in favor of Hewitt, Heran Sf Co. Such a pretension would have been a fraud upon McClarty. So far were they from contemplating it that, Heran, in his testimony, declares they would have complied with the instructions and forwarded the property to GilliattSf Co., if it had not been attached. How is their position changed by the levy of the attachment? Could it bring into existence a privilege which had no existence before ?

The argument is that, the creditor of McClarty, by exercising his right, has arrested the transmission of the property, and thus frustrated the purpose of the consignment, and that the case stands as though McClarty himself had countermanded the shipment: that the plaintiffs are the “ ayants cause ” of the debtor, and cannot be in a better condition than him.

But this proposition will not bear the test of a strict analysis. In a certain sense the seizing creditor represents the rights of his debtor. But their positions are far from identical. The creditor may acquire in the thing seized an interest which the debtor himself could not have enjoyed, by reason of equities existing between him and others, which could not reach the creditor. Thus a creditor of the vendor of goods paid for by the vendee but not delivered, may attach the goods, although, as between the vendor and vendee the property had passed and the vendor could not dispute the vendee’s title. Soasecond bond fide purchaser, by recorded title, of land already sold to another by an unrecorded deed, takes a good title, although, as between the first purchaser and the seller, the title of the latter was gone.

The attaching creditor, armed with the power of the law, has diverted the property from its intended appropriation ; but we cannot infer from this compulsory change of its destination that the debtor, who consigned the property with the clear intention that the consignee should not employ it to pay himself, has consented to release the consignee from his implied engagement. Non constat that McClarty desired that Hewitt, Heran Co. should be paid in preference to other creditors. Were we permitted to presume what his wishes would have been, if he had anticipated a contingency which would defeat the transmission of the properly to Gilliatt Sf Co., we should be bound to presume that ho would have desired, what the law contemplates as the general rule, an equal distribution of the property among his creditors.

After the levy, McClarty was deprived of all control. We have said that up to the moment of the attachment H. H. 8f Co. had no privilege. But the attaching creditors acquired one by their seizure. To disturb the plaintiffs' privilege we must not only recognize a dormant and contingent right of privilege, as having existed in favor of Hewitt, Heran Sf Co., but, when it is called into life by the adverse seizure, it is to be declared retroactive So as to take rank before the attaching creditor. Thus a legal fiction, for which we find no precedent in our jurisprudence, would be brought into collision with the express enactment of our Code, which declares that a “privilege can bo claimed only for those debts to which it is expressly granted ; ” in other words, that it is stricti juris.

But, while we are of opinion that Hewitt, Heran Sf Co. have no right to apply the entire fund to the payment of McClarty's indebtedness to them, it is not so with regard to a portion of it. While it was an implied condition of the consignment that they should not take the whole property to pay themselves, it was the express agreement that they should receive $300. besides the New Orleans charges. The property went into their possession under that agreement, and a right to that extent had vested in them before the plaintiffs' attachment.

It is, therefore, decreed that, the judgment of the District Court be reversed, and that the sum of $1,284 97 deposited in court, be delivered to th9 plaintiffs, after first deducting therefrom the costs of suit against the defendant; and that the costs of the rule taken by the plaintiffs upon the garnishees, and of this appeal, be paid by the said garnishees.


author: Kin®, J.

text:
    Yale, Syndic v. Nolan.
    Where a creditor, who had wrongfully obtained certain merchandize from the shop of hiu debtor, on the eve of his cession, in satisfaction of his claim, has a judgment rendered against him in an action by the syndic for the value of the merchandize, he cannot plead in compensation of the judgment the debt, evidenced by a note, due from the insolvent to him. His only right is to a proportional share of the funds of tho insolvent when distributed.

      APPEAL from the Third District Court of New Orleans, Kennedy? J.

      Emerson, for the plaintiff.

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

Kin®, J.

Our conclusion upon the merits renders it unnecessary to consider the motion to dismiss this appeal.

The plaintiff, in his capacity of syndic, obtained a judgment against the defendant for the value of a quantity of merchandize, which the latter wrongfully obtained from the store of Pigneguy, on the eve of P'igneguy’s surrender. The judgment was affirmed by Shis’court. [This case is not reported, having turned on questions of fact. R.] After its return to the lower court, a rule was taken om the syndic, to show cause why a note held by Nolan should not be compensated against the judgment. The rule was discharged, and Nolan has appealed.

The district judge did not, in our opinion, err. The wrongful act of Nolan in obtaining possession of goods, which were the common pledge of the insolvent’s creditors, and which he was required to restore to the syndic, did not establish the relation of mutual indebteness from which compensation results. To sanction Nolan’s present claim, would be to permit him indirectly to secure an unjust preference over other creditors. His only right is to his rateable distribution of the funds of the insolvent.

Judgment affirmed.

      This note was the evidence of the debt, which Nolan attempted to satisfy by taking the merchandize on the eve of Pigneguy’s cession, . K.


author: CEtjstis, C. J.

text:
    Ward et al. v. The Agricultural Bank of Mississippi.
    Where it appears by any evidence that property has been appropriated by judicial authority for the satisfaction of a foreign judgment, the judgment could not have been. _ Rendered executory here, even before the stat. 1 June, 1846, without showing what ,¿ygt disp'ositiqn had been made of the property; it being impossible to say, without such evlrjepne, what amount, if any, is due on the' judgment.
    APPEAL from the Fifth District Court of New Orleans, Buchanan,- J.

      El/■nlore and W. W. King, for the appellants.

      L. Peirce, for the garnishee-
   The judgment of the court was pronounced by

CEtjstis, C. J.

In November, 1842, the plaintiffs obtained judgment in the State of Mississippi, against the Agricultural Bank of Mississippi, a corporation established in that State; and, on the 21st of January, 1846, executory processs was awarded by the court of the late First Judicial District, and Samuel Nicholson, of New Orleans, was made garnishee. He answered the interrogatories propounded to him ; his answers were traversed by the plaintiffs; and the grounds are distinctly set forth in the traverse, by which the garnishee is sought to be made liable for the whole amount of the judgment. The court below rendered judgment on the traverse in favor of the garnishee, and the plaintiffs have appealed.

It appears by the answers of the garnishee that, at a sheriff’s sale made on an •execution issued on a judgment rendered by tlie late Commercial Court of New Orleans, in the suit of William and James Brown v. The Agricultural Bank, in which suit Nicholson had been made a garnishee, he purchased certain notes, which had originally belonged to the bank, on account of the Messrs-Brown, whose agent and partner he was. These notes were at the time in his possession, and had been received by the agent of the Messrs. Brown in pledge -from the bank, and were sent to New Orleans for the purpose of being attached, in oi'der that they might be bought in on their account, and thus a portion of their debt from the bank be realized. The sheriff’s sale and the whole proceedings, are charged in the traverse as having been collusive and fraudulent, and the pledge set up by the Messrs. Brown as being null and void. It was ex. cepted to the traverse, on behalf of the garnishee, that the matters and things stated therein could only be alleged and put at issue in a direct action. .

The case has been veiy fully argued on its merits, but there is an objection to the mode of proceeding adopted by the plaintiffs which results from the ev_ idence adduced, which must first be examined.

The plaintiffs, residing in New York, obtained their judgment in the State of Mississippi. It was rendered executory in this State, under an article in the Code of Practice which has been since repealed. Scott v. Duke, ante p. 253. As the process was issued and executed previous to the repeal, let us consider what rights the plaintiffs acquired -under it. The condition in which this judgment stands in the State of Mississippi, will be best explained by the testimony of the trustee of the bank. He says: Ward Sf Co. have received portions on account of their claim; they hold a judgment in Adams county, Mississippi, and they sell checks on the sheriff to debtors of the bank, which are received by the sheriff and credited on their judgment. Ward 4* Co. held the assets to the amount of $300,000, set aside by the Chancery Court of Mississippi, for the payment of the judgment; thinks Ward 4* Co. refused to take Agricultural Bank money from the debtors of the bank for their claim, and there is a suit in Chancery still pending on the question.”

It is insisted that these assets will be unavailable to the plaintiffs -in conse^ quence of the right which the debtors have, and insist on, of payin depreciated notes of the bank, and that their only reeource for the j of their judgment, depends on the result of this suit. Conceding 1 lection of their debt in Mississippi will be embarrassed, and thatthe i proceedings there is doubtful, yet the px-oceedings are judicial and| and conducted by the plaintiffs themselves, and the court can only 1 legal effect on the process under which they seek to make the”' liable.

In the case of The Bank of Tennessee v. McKee, 2 An. 461, we held that, where it appeared by the transcript that, a fieri facias had been issued on a judgment rendered in another State, and had been levied upon property, without showing what disposition had been made of the property, the judgment could not be rendered executory in this State, under the article of the Code of Practice before mentioned, because it would be impossible to say, on the evidence, what amount, if any, is due on the judgment. 5 Howard Miss. R. 627. 7 Cowen R. 13. '3 Rob. 103. If. by any evidence, it appears that property has been appropriated under judicial authority for the satisfaction of a judgment, the same rule obviously applies, and it would be an abuse of justice to awai-d summarily an execution against the.properly of the debtor undo? that state of things.

The Messrs. Brown had received a large amount of the property and assetts of the bank to secure their debt, and the plaintiffs debt is in the situation stated. The contest is between these parties, which shall be paid their own debt, to the exclusion of all other creditors. There is no particular equity on either side, and we consider that the law is clearly with the garnishee.

Considering that the judgment rendered on the garnishment for the defendant, will be no bar to a direct action by the plaintiffs, on the matters by them charged, it is ordered that the same be affirmed, with costs.

       Slidell, J., did not sit, haying been of counsel.


text:
    Conrey, Agent, &c. v. Copland, et al.
    The defendants in the action are the only parties who can take advantage of any inaccuracy in setting forth the title of the case in a fi. fa. issued under the judgment; and their rights, in this respect, will be considered as waived, where they subsequently insist on a sale under the seizure and appraisement.
    Whore, after the appraisement of property seized under a fi. fa., it is discovered that no adjudication can be made on the day for which the sale is advertized.it being a day of public rest, and the sheriff makes a second seizure of tho property, advertizing it anew, no new appraisement can be made, where the defendants in execution insist on the sale being made under the first appraisement.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Schmidt, for the plaintiff.

      L. Peirce, for the defendants.

      H. A. Bullard, for the appellant Baah.

   The judgment of the court was pronounced by

King, J.

ParlchiU pledged a number of shares of bank stock, to secure the payment of a debt due by Copland to the plaintiff. The debt not having been paid at its maturity, a suit was instituted against the defendants, in which a judgment was rendered against Copland for the sum due, and the stock pledged was decreed to be sold in satisfaction of the demand. A fieri facias issued, under which the sheriff seized the stock pledged, and inadvertently advertized the sale to take place on good friday. Two days previous to that of the proposed sale the stock was appraised, by appraisers appointed by the parties re.sdectively, at $20,000. On the day appointed for the sale it was discovered that the adjudication could not be legally made, the day being one of rest. It was further discovered .that the title of the suit was incorrectly set forth in the writ, as '■'■Peter Conrey, Agent, fyc. v. Robert Copland.” The plaintiff’s attorney, thereupon; called on the clerk, and caused the writ to be amended, by adding to the title of the suit the name of Charles C. Parkhill, as a party defendant. The sheriff conceived it to be his duty, in consequence of this amendment, to recommence his proceedings. He accordingly made a second seizure of the same properly, advertized it for sale, and notified the parties to appoint appraisers. The plaintiff appointed Bach as his appraiser, but the defendant declined naming one, and protested against'» reappraisement, on the ground that the property seized had already been legally appraised. The sheriff thereupon appointed an appraiser for the defendants. Bach estimated the stock at $1,206; the appraiser appointed for the defendants valued it at $20,000. Being unable to agree, an umpire was chosen, who estimated it $13,920. At the sale the stock was adjudicated for $9,325 to Conrey, for the account of John M. Bach, who had previously estimated it at $1,206. The defendants thereupon took a rule on Bach, lire plai.ut.iff, and the sheriff, to show cause why the adjudication should not be set aside, on the ground that the second appraisement was illegal. The rule was made absolute, and Bach has appealed.

The district judge did not, in our opinion, err, in setting the adjudication aside.

It is not important to enquire whether the omission to set forth the title of the suit with absolute accuracy in the writ was a material defect, or whether the writ could have been legally amended after it had gone into the hands of the sheriff, and had been partially executed. The only parties before us who could have taken advantage of the alleged defect were the defendants, and they not only waived the informality, if it be one, by appointing an appraiser, but further gave their direct assent to the proceeding, by insisting that the sale should be made under the original seizure and appraisement, and by protesting against a reappraisement. They never could afterwards have been heard to controvert the regularity of proceedings, to which they had thus given their assent. Under this state of facts the second seizure and appraisement were both irregular; and it is manifest that the defendants have been prejudiced by the proceeding, as it led to an adjudication for a price much below that which the original appraisement would have authorized. Judgment affirmed.


author: Slidem., J.

text:
    The First Municipality of New Orleans v. The Rector, &c. of Christ Church.
    Ia an action against a religions corporation, service of citation must be made on the president of the corporation in person, “ or at their office, if they hold such in permanence, by delivery to some of their agents.”
    The’deolaration of a sheriff on a return on a citation'that A. is agnnt of B., is not proof of the fact; and such a return, unaccompanied by prooí aliunde, will not authorize a judg. ment, at least where A. is not designated in the petition as such agent.
    A case will not be remanded for farther proceedings where there is an utter absence of legal service of citation.
    Where a judgmeut has been rendered without citation, the party aggrieved is not restricted to an action of nullity, but may be relieved on appeal. C. P. 60S, 609.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Preaux, for the plaintiffs.

      Bradford and L. C. Duncan, for the appellants.
   The judgment of the court was pronounced by

Slidem., J.

A judgment in this case was rendered against both defendants and confirmed, and they have appealed. Both appellants contend that they were not cited. The citation addressed to the corporation of Christ Church was returned as follows : “Served copies of petition and citation on defendants, through John Nicholson, Esq., in person.” This was a religious corpox'ation, and by its charter the rector was declared its president. In suits against religious corpoi'ations the Code of Pi'actice declares that service of citation must be made on their president in person, or “at their office, if they hold such in pei'manence, by delivexy to some of their agents.” The return does not state that Nicholson was the rector, nor is it pretended that he was; nor does it state that he was agent of the corporation, and that service was made upon him at its office. The return is clearly insufficient, and the case stands before us as one in which no citation has been made. The judgment must, therefore, be dedared void.

As to Adrew Hodge, the return of the] eitation, addressed to him alone, lxla¡ieg n0 raention of him whatever. The return is that it was served upon the defendants — “ The rector, church wardens and vestrymen of Christ Church, by leaving the same to W. L. Hodge, their agent.” This return is utterly inoperative against Andrew Hodge. • It is equally so as against the corporation, for it does not allege that it was served upon him at the office of the corporation, nor was any proof adduced of Ms agency. The sheriff’s declaration in a return that A. is agent of B., is not proof the fact; and such return, unaccompanied by proof aliunde, does uot authorize a judgment; at least when A. is not designated as the attorney in fact in the petition.

It is said in argument that Andrew Hodge had no right to appeal, because there is no evidence in the record that he has any interest in this cause. The object-of the suit was to have certain real estate decreed to be the property of the plaintiffs, and the petition alleged that Andrew Hodge “ either has or pretends to have had an interest in said property; and it was, therefore, prayed that he be made a party defendant in this cause, for the purpose of contesting the claim of your petitioners, if he should think proper to do so.” These assertions of the plaintiff are a sufficient answer to the objection. Besides, the judgment not only decreed the land to be the property of the plaintiffs, but condemned, the defendant, of whom Hodge was one, to pay the costs.

We are asked to remand the cause for further proceedings, should we reverse the judgment. This the court might perhaps, in its discretion, grant, if the case were one of an informality of a citation duly nerved. But here there is an utter absence of legal service.

When a judgment has been rendered without eitation, the party aggrieved is not restricted to an action of nullity, but may be relieved on appeal. C. P. 608, *609.

It is, therefore, ordered that, the judgment of tho court below be annulled, and that the petition be dismissed, the plaintiff paying the costs in both courts ; and their rights of action, if any they have, being reserved.


text:
    Livaudais v. Livaudais.
    An opposition by a third person will not lie, where the opponent claims to be paid by preference out of the proceeds of property sold under a fi. fa. in a suit between others, hut alleges, at the same time, the nullity of the judgment under which the sale was made.
    APPEAL from the Third District Court of New Orleans, Kennedy', J. The plaintiff having obtained a judgment against the defendant, and caused certain property to be sold under a fi. fa., one Thomas, a third person, filed an opposition, alleging that he was a judgment creditor of the defendant for a certain amount; and that he is entitled to be paid in preference to the plaintiff, out of the .proceeds of the property sold, on the grounds : first, that the judgment on which the plaintiff issued her execution was illegally obtained; secondly, that it was founded on promissory notes, the payment of .which could not be legally enforced against the defendant, nor against his property; thirdly, because neither the said judgment, nor the mortgage resulting from its being recorded, can in any way prejudice the rights of the opponent. The'plaintiff excepted to this opposition and prayed for its dismissal, on the grounds: 1. Because a third oppisition can only take place where the opponent alleges that he is the owner of the property seized, or that he has a privilege on the proceeds thereof ; and neither of these positions is assumed by the apponent. 2. Because, should the opposition be admissible, the grounds upon which it is founded are so vague and indefinite that the plaintiff cannot have come prepared to rebut the evidence, which it might suit the opponent to offer in support of his loose allegations.
    The judgment of the lower court was in these words :
    “A third opposition is allowed but in two cases: 1st. Where the third opponent is the owner of the thing seized. 2d. Where he has a privilege on it. C. P. arts. 397, 401. Athird opposition based on a superiority of privilege necessarily implies either a competition between valid subsisting privileges, or an assertion of a preference for a privileged debt over a mere ordinary dent. In such cases the third opposition admits the legality of the sale which has taken place, since its object is to carry off the proceeds of the sale; and the whole issue, after the third opponent has proved his claim, is, as to the rank of the claims. In this case the third opposition denies that Mrs. de Livaudais has either a privileged claim or a claim of any kind against the defendant Octave de Livaudais; in other words, it virtually alleges the utter nullity of her judgment so far as regards the third opponent; there is, therefore, no question of rank presented, and the legal grounds of athird opposition are wanting. Besides, if the judgment is a mere nullity as regards the third opponent, and it is on that ground alone that he could attack it in a direct revocatory action, can he be allowed at the same time to affirm it for his own benefit, by taking the proceeds of the sale which the judgment alone authorized ? I think not. In that respect the position of the third opponent in this case involves a contradiction. The judgment must stand, with all its legal consequences, in favor of the holder, until is is set aside; and that cannot be done by a third opposition, for the reasons already stated. Let the third opposition be dismissed with costs; reserving to the third opponent all his rights, if any he have, to be prosecuted according to law.” The opponent Thomas appealed.

      Legardeur, for the plaintiff.

      Maurian and Lambert, for the appellant.
   The jndgment of the court was pronounced by

Kino, J.

The judgment in this case is affirmed, for the reasons assigned by the district judge, with costs.


text:
    Slaughter v. McRae et al.
    Where a purchaser does not obtain such an article as he had a right to suppose that he was buying, and the inferiority is of alatent character, though there he nofraud on the partof the vendor, the purchaser will be entitled to indemnity to the full extent of the difference between the value, at the time of the sale, of such an article as he had aright to suppose he was buying, and the value of such an article as he got.
    APPEAL from the Fourth District Court of New Orleans, Strawlridge, J.

      Micou, for the appellant.

      Kendall and .Howard, for the defendants.
   The judgment of the court was pronounced by

Slidell, J.

It is clear, under the evidence, that the purchaser did not get suck an art'cle as he had a right to suppose he was buying, and, as the inferiority was of a latent character, the internal parts of the bales being inferior to those that were accessible upon the usual examination, we have no hesitation in saying that the defendants are bound to restore a part of the price. The amount awarded by the jury indicates that they did not attribute fraud to the sellers, and we will give them the benefit of the conclusion. But even then the verdict does not appear to us sufficient. The plaintiff should be indemnified to the full extent of the difference between the value at the time of the sale of such an article as he had a right to suppose he was buying, and the value of such an article as he got.

It is therefore, decreed, that, the judgment be so amended as that the plaintiff recover the sum of $525, instead of the sum of $330; and that the defendants pay the costs of this appeal.


author: Slidell, J. Rost, J.

text:
    Nelson v. Conner et al.
    A partnership creditor cannot seize under a fc. fa. the interest of any individual partner in the partnership; he must seize the assets of the partnership.
    APPEAL from the Commercial Court of New Orleans, Watts, J.

      Elmore and W, W. King, for the appellant.

      JRoselius, contri.
   On the first hearing of this case, the following opinion of the court was pronounced by

Slidell, J.

Nelson had obtained a judgment against Conner, Gridley Sf Co., Which he transferred, with subrogation, to Thornton Lawson. The transferee issued execution against the defendants, and seized under it all the right, title and interest of Whitehead, one of the defendants, in and to the commercial firm of Conner, Gridley Sf Co. Thereupon Whitehead obtained an injunction arresting further proceeedings upon the writ, upon two grounds: first, that the judgment had been paid, with the funds of the firm, by Conner, one of the solidary debtors, who, for the purpose of defrauding Whitehead, his partner, had induced Nelson to give a receipt for the amount of the judgment in Lawson’s name, and subrogate Lawson to his rights as a judgment creditor;' secondly, that the interest of Whitehead in the partnership could not be legally seized, the judgment being against the partnership itself, and for a part» nership debt. '

I. To establish the fraudulent combination between Conner Lawson, Whitehead, the plaintiff in injunction, propounded interrogatories to Lawson ; his answers were offered by the plaintiff in injunction, and are the only evidence presented by the record. These answers explicitly negative the allegagations of Whitehead. They show that Lawson paid for the judgment transferred to him by Nelson, with his own money; though it appears that a portion of this money used by Lawson in the purchase of the judgment Was received from Conner, on account of the proceeds of certain cotton which Lawson had shipped to Conner, who was his factor. Conner individually, and not as a member of the firm of Conner, Gridley Sf Co., whose partnership affairs were long before under judicial liquidation, had become the factor of Lawson, and was bound to pay over to Lawson the proceeds of his crop thus placed in the factor’s hands; and this duty was not affected by a knowledge on the part of Conner of its contemplated application by Lawson, who was the master of his own funds, and of the judgment thus purchsed with them.

II. Lawson, as the judgment creditor of Conner, Gridley Co., had a right to prosecute his execution against any member of that firm, they being bound to him in solidó. In the exercise of that right it was lawful for him, if property was not poiuted out to him by Whitehead, pursuant to art. 646 of the Code of Practice, to seize any property of his debtor. The interest of a partner in a commercial firm may be seized under .execution (Civil Code, 2794), and the fact , that the firm itself is liable for the debt does not appear to us as debarring the creditor from such a seizure. It is besides proper to remark that, it appears from previous proceedings in this case, that the assets of the firm of Conner, Gridley &f Co. had been placed under the charge of a receiver by an order of the District Court, and when the original owner of this judgment had previously levied upon the funds of the partnership in the custody of the District Court, where the receiver had deposited them, the seizure was declared inoperative. Seethe case of Nelson v. Conner, 6 Rob. p. 339. We are therefore of opinion that there is error in the judgment of the court below, perpetuating the injunction.

On a Re-hearincí.

The judgment of the court was pronounced by

Rost, J.

The additional argument of the plaintiff’s counsel in this case, md a more thorough investigation of the question it involves, have satisfied us that We were in error.

A creditor should never be permitted to seize the right of his debtor to a hing, when he can seize the thing itself. Such a power instead of advancing the ¡ause of justice, would exclusively tend to speculation and oppression. It is not a i sufficient answer to this objection to say that, in the present case, the thing tself, namely, the partnership property, is locked up from seizure by the receivirship, under the order of the First District Court, as was considered in the ase between the same parties in 6 Rob. 339. If the law has taken charge of he fund, and is administering it for the plaintiff’s benefit, it is giving him his emedy in another form; and therefore he ought not to complain.

We have sought in vain in the jurisprudence of other countries for authorities a support of this proceeding. In England, the rule that a separate creditor of partner may seize his interest in the partnership, appeal’s to be substantially he same as that contained in art. 2794 of the Civil Code. But we have been nable to find any case recognizing the right of a creditor of the partnership to lake such a seizure. Wordsworth, on Joint Stock Companies, nos. 280, 287. iaw Library, vol. 29.

The interest of each partner in the joint concern, whatever it be, must be lade up of the assets of the partnership. Those assets, when not under a eneral course of administration for the benefit of all the creditors, may be sized by those who have judgments. This remedy is ample, and we are satfied that the law contemplates no other.

It is decreed that the judgment of the court below;he reversed, so far as it goes; to sustain the ground of payment pleaded in the injunction, and be affirmed so far as it enjoins the plaintiff from gelling under execution, on his judgment against Conner, Gridley 8f Co., the interest of William Whitehead in said firm'; the appellee paying the costs of this appeal;