text:
    Maunsel White v. Charles Jones.
    The liquidating partner of a commercial firm may sue in his own name, by representing the claim sued on as arising out of the business of the late firm, so as not to deprive the defendant of any means of defence to which he would be entitled in a suit in the name of all the partners.
    The liquidating partner, to whom the assets have been assigned, cannot, by a release in favor of his late partner, render him a competent witness in his favor.
    In a suit on an account, a special denial by defendant of the correctness of the charges for interest, discount and commissions, is restrictivo of the genoral denial, and proof that no other objection was made to the account when presented, when thus corroborated, will suffice.
    When the defendant offers in evidence the credit side of an account copied from the merchant’s books, the whole account must be taken together, but the defendant is not excluded from showing the incorrectness of particular items of debit.
    In the absence of a written agreement to pay eight per cent, interest on an account, legal interest only can be recovered from judicial demand.
    Compensation cannot be allowed for services rendered, when the procuration is gratuitous.
    Whore a draft is drawn by a planter on his factor, for the benefit of the latter, the former is entitled to commissions at two and a-half per cent, for the risk incurred as drawer of the draft, according to the mercantile usage established in such cases.
    In the absence of any allegation or proof of fraud, the acknowledgment of payment and release of a partnership debt by one of the partners, by an act under private signature, during the existence of the partnership, will be binding on the liquidating partner.
    from the District Court of the Parish of Catahoula, Mayo, J.

      Smith <& Spencer, for plaintiff. McGuire & Ray, for defendant and appellant.
   Buchanan, J.

This is a suit for balances of three accounts-current, and balances of interest, due the firm of Maunsel White & Co. by the defendant.

The house of Maunsel White & Co. was dissolved by the following notice, published in the newspapers on the 2d February, 1852 :

“ The copartnership heretofore existing between the undersigned, under the firm of Maunsel White & Co., is this day dissolved by mutual consent. The affairs of the late firm will be liquidated by Maunsel White, to whom its assets are transferred for that purpose.

(Signed) Maunsel White,

Cuthbekt Bullitt,

Theodore Rion.”

This suit is instituted by the liquidating partner in his own name; and an exception was filed by defendant to his right to proceed in this form. The exception was properly overruled. The petition sets forth the fact of the claim being one arising out of the business of plaintiff’s late firm; and the defendant is deprived of no right which he could have exercised had the suit been brought in the name of all the partners.

The plaintiff offered one of his late partners as a witness; but this testimony was objected to, and was properly rejected. For the witness was, really, although not nominally, a pai'ty plaintiff in this suit. The written release by Maunsel White was a vain thing. He could not release Rion’s liability to the creditors of the late firm of Maunsel White & Co. Rion was, therefore, directly interested in increasing the assets of said firm, from which to pay the creditors in course of liquidation. Besides, Rion is defendant in reconvention, as will be hereafter seen.

Defendant, in his answer, denies generally all the items to his debit in the accounts sued upon, and specially denies “ in any event ” that the charges for interest, discount and commissions are legal.

This special denial is restrictive of the general denial, and corroborates the testimony of Miller, plaintiff’s witness, who swears that the accounts -were rendered to defendant, who made no other objections to them, except that excessive interest and discount were charged.

On trial, defendant offered in evidence the credit side of the three accounts-current sued upon.

Those accounts-current arc proved to be exact transcripts from the books .of Mawnsel White & Co. Defendant’s offer of the credit side of those accounts was, then, the same thing, as if the defendant had offered the books from which the accounts-current were copied. A merchant’s books, says Article 2244 of the Oivil Code, are good evidence against him ; but if used in evidence, the whole must he taken together. Hen. Dig., p. 512.

The accounts are, therefore, evidence before this court, of all that they contain ; but we do not understand Article 2244, as excluding the right of defendant to show the incorrectness of particular items, either upon their face, or by proof, under the general and special denials contained in his answer. And,

1st. His objections to the charges of interest appear to us to be well taken. The interest charged is eight per cent., the highest rate of conventional interest; but the circumstances of this case do not bring it within the doctrine of Flower v. Millaudon, 19th La., and of several other decisions, so as to dispense plaintiff with the written proof of an agreement to pay this rate of interest. In the absence of such agreement, the only interest that can be allowed, is legal interest from the judicial demand. C. C. 1935, 2895.

2d. There is a charge in account B, under date of the 31st July, 1850, of ¡$5000, for a draft of defendant in his own favor, payable at four months date from the 25th of July. There appears to be an error in the date of this draft. It was dated 29th August, 1850, and is proved to have been drawn by defendant on account of disbursements for a steamship which was being- built in New York by Maunsel White & Co., to whose benefit the proceeds of the draft accrued. This item must, therefore, be deducted from plaintiff’s claim.

3d. As to the discounts which are objected to by defendant, we have not found any such items in the accounts.

The deduction, as above, for interest ($1821 95), and for the draft ($5000), reduce the grand balance of accounts'A, B, and O, ($16,384 24,) to $9,562 29.

In his answer and amended answer, defendant sets up claims in reconvention and compensation against plaintiff and against plaintiff’s late partners, Cuthbert Bullitt and Theodore Rim, for a total amount exceeding forty thousand dollars, upon seven distinct specifications.

The jury who tided the cause in the court below rejected all these reeonven-tional demands, with the exception of the second, which they reduced from five thousand four hundred dollars to five hundred dollars.

We think that, under the evidence, if any allowance be made defendant, as compensation for his services in effecting a sale of the steamship in New York, it ought, in reason, to exceed five hundred dollars. Indeed, a witness who seems to have had an intimate acquaintance with the whole transaction, estimates the value of defendant’s services to plaintiff’s firm, in this matter, at two thousand seven hundred dollars, exclusive of his traveling expenses. But we are of opinion, that under the law of mandate, as laid down in our Code, Art. 2960, the defendant lias not made out a case for the allowance of a compensation for these services. We would allow him his traveling expenses, but there is no proof in the record of their amount.

We concur with the jury in rejecting items 1, 3, 4, 5 and 6 of defendant’s claim.

We are of opinion, that defendant is entitled to commissions of two and a-half' per cent., as charged by him (item No. 7), for drawing bills upon Maunsel White & Co., for the accomodation of the latter, as shown by the evidence, to the amount of $166,820 84. Defendant, as drawer of these bills, incurred a liability to pay them, in case they were not honored at maturity by the acceptors. For this risk, incurred by defendant for plaintiff’s benefit, the former is entitled to that remuneration which mercantile usage in this State has fixed as adequate and proper in such cases.

In accordance with the views above expressed, we state the rights of the parties as follows:

Balance of account-current 0 in favor of plaintiff, rectified by the deduction of certain items, as above, in that account, and in the accounts

A and B. $9,562 29

Fee Contra.

Commissions of two and a-half per cent, due by plaintiff to defendant, on $166,820 84. 4,170 50

Balance in favor of plaintiff. $5,391 79

The last question to be considered relates to two notes of defendant in favor of, and endorsed by John G. Codes, secured by mortgage of property of defendant. The notes and mortgage were assigned and transferred by Cocks to plaintiff’s late firm, on the 21st March, 1849. This transfer, although absolute on its face, is alleged by plaintiff to have been made as a collateral security for advances made and to be made by plaintiff’s firm to defendant. By a paper bearing date the 8th of May, 1850, Cuthbert Bullitt, a partner of the late firm of Maunsel White & Co., acknowledged payment of the notes of defendant in favor of Cocks, and released the mortgage in the name of his firm.

This release was recorded in the parish of Catahoula, where the mortgaged premises are situated, on the 23d of June, 1853. The present suit was instituted in February, 1854. It is argued by plaintiff’s counsel, that the release of this-mortgage, being an act under private signature, has no date except that of its registry, which was after the dissolution of the copartnership of Maunsel White <& Co.; and that Bullitt was without authority to make a release at that date, the assets of the firm having been assigned to plaintiff, as liquidating partner. But we are of opinion, that plaintiff is bound by the date which the instrument of release bears. That d -te is more than eighteen months anterior to the dissolution of partnership ; and plaintiff, in the absence of any allegation or proof of fraud, cannot be allowed to repudiate the act of his partner, which was his own act, so long as the partnership endured.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that plaintiff recover of defendant five thousand three hundred and ninety-one dollars and seventy-nine cents, with legal interest from the 12th February, 1854, until paid, and costs of the District Court; those of appeal to be paid by plaintiff and appellee.


source: Caselaw Access Project

author: Cole, J.

license: Public Domain

text:
    J. Eager v. G. A. J. Brown and Wife.
    A deed of trust is tlio common law form of securing property to the wife.
    Under the common law, a married woman cannot possess persoual property independently of her husband, excopt when a trust is created for her sole benefit.
    A deed of trust creates for the wife a separate estate, and her husband, as trustee, cannot reduce the property into his possession, so as to make it his own ; if he sells it while trustee, he holds the proceeds in trust, and not as owner.
    A deed of trust executed in Alabama, vesting title in the wife to property, is valid after the removal of the parties to this State, and if the husband’s affairs become embarrassed, the wife may claim a separation of property and the administration of her separate estate.
    When property of the wife is sold in a foreign State, and the proceeds thereof are received by the husband in that State, the wife has no privilege upon the property of her husband for the same in this State.
    If he receives the proceeds of the sale, while trustee of his wife, he is personally liable for the amount so received by him — but in a contest for the amount received by him, between the wife and his creditors, his personal liability to the wife, must yield to the rights of the creditors.
    from the District Court of the Parish of Ouachita, Richardson, J.

      McGwire <& Ray, for plaintiff and appellant. Raker & Ludeling, for defendants.
   Cole, J.

Plaintiff, a judgment creditor of Brown, brings this suit against defendants, to set aside, on the ground of fraud, a judgment of separation of property obtained by his wife, F. L. Bledsoe, against him on the 5th of May, 1856, for $1,955, with interest, and which also declared her to be the owner of several slaves.

He also seeks to set aside a Sheriff’s sale under fi. fa. in the case, by which she purchased two slaves and a carriage, seized and sold as the property of her husband, for $1,534, two-thirds of their appraised value, and credited her judgment by that amount.

The District Judge considered that the amount of her judgment against the husband for personal property, ought to be reduced to six hundred dollars, but rendered a judgment of nonsuit against plaintiff. The District Judge was of opinion that plaintiff was bound to pursue, by a different proceeding, his claim for a part of the proceeds of the sale, and relied upon the case of Henderson v. Trousdale, 10th An. p. 548.

The record shows, that Brown had no property at the time of his marriage with the defendant, F. L. Bledsoe, and before the celebration of the marriage, an ante-nuptial act of settlement was executed in the State of Alabama, in which it is declared, that a marriage is about to be solemnized between George Brown and Frances L. Bledsoe, and that the latter is possessed in her own right of a considerable personal estate, consisting of slaves; also, a considerable amount of household and kitchen furniture, together with some stock, and an undivided interest or portion in the estate of Samuel J. Bledsoe, deceased, to which she is of right entitled, as the widow of said deceased, and which estate has not yet been fully administered.

That the said Brown being desirous of settling and securing this property, before described, as also the undivided interest in said deceased’s estate, together with all the future increase of the female slaves, now owned by said Frances L. Bledsoe, or of those that may be drawn, as the distributive share in the estate of S. J. Bledsoe, to the said Frances L. Bledsoe, for her sole, separate use and benefit, free from any debts, liabilities, contracts, or agreements, which the said George Brown may now owe, or which he may hereafter contract and owe, for the sum of five dollars in hand paid, and in consideration of the premises, the said Frances L. Bledsoe gave, granted and delivered to George Brown, all her right, title and interest to the said property, in trust, nevertheless, and for the following uses, interest and purposes, and no other, that is to say, in trust for the separate use and benefit of the said Frances L. Bledsoe, free from the claims, or demands, debts, liabilities, or contracts of him, the said Brown, now existing or that may hereafter exist.

And it is further agreed, between the said two parties to this indenture, that the said Brown may have the entire use and disposal of the money arising from the labor of said slaves, but shall have no power or authority to sell or dispose of any of the aforementioned property, or of its future increase. And the said Brown does hereby agree and promise to take said property into possession as trustee, with no other interest or claim than before stated.

It is further agreed, that the said Frances L. Bledsoe is not, by this indenture, to be debarred from making any future disposition of her property, different from that contained in these presents.

We have thus extracted from the indenture, what is necessary for this decision.

This deed of trust is the common law form of securing property to the wife. 2 Kent, 161 et seq.

As the common law prevails in Alabama, the general principle obtains there, that a married woman cannot possess personal property independently of the husband, except when a trust is created for her sole benefit.

The deed of trust aforesaid, created a separate estate for Mrs. Brown ; and her husband, as trustee, could not reduce the personal property of the wife into his possession, so as to make it his own, for as he got possession of her property as trustee, he could not change the nature of his tenure of the same, and if he should sell it, when he was the trustee of his wife, he would hold the proceeds, as trustee, and not as owner.

The evidence shows that the defendant was entitled to the slaves, of which she was decreed to be the owner by the judgment of separation, and also to a claim for personal property belonging to her, and received by her husband.

The debt of plaintiff originated in the State of Louisiana, and several years after the execution of the deed of trust in Alabama, and the delivery of the property of the defendant to her husband as trustee. This property was, by the deed of trust, her separate property and estate after marriage.

As it was her property in the State of Alabama, she still retained her title to the same, when she and her husband came to reside in Louisiana, and she was entitled, therefore, to claim a separation of property, as her husband’s affairs were embarassed, and also, the separate administration of her property.

The principal point upon which appellant relies for a reversal of the judgment of separation, is the correctness of the part of the judgment, which allows the defendant $1,935, and as she is obliged to sustain the validity of her judgment against the creditors of her husband, we shall now consider it.

It appears from the evidence, that Mrs. Brown was in part the owner of a note on James Taylor, being a part of her inheritance from the estate of her first husband, B. F. Bledsoe; and that, after the removal of herself and husband to Louisiana, she instituted suit upon tlie same, and obtained judgment for $580, which was appropriated to the payment of her husband’s debts. As this amount was received, or presumed to have been received, as head of the community, by the husband, in Louisiana, and as it belonged to his wife, she had a privilege upon his estate for the same. 2 An. 824.

Besides this sum, the appellee has asked us to amend the judgment, by allowing her $240 for household furniture and $335 for cattle.

It appears that the furniture and cattle were sold in the State of Alabama ; she has not, therefore, a privilege upon the property of her husband in the State of Louisiana, for the reimbursement of the proceeds of their sale.

When property of the wife is sold in a foreign State, and the proceeds thereof are received by the husband in that State, the wife has no privilege upon the property of her husband in Louisiana for the same. But as the husband was trustee, he is, therefore, personally liable to the defendant for the proceeds so received by him ; but in a contest with creditors, this personal liability to the wife must yield to the rights of the creditors of the husband.

We are of opinion, that under the prayer for general relief, we can now finally settle the rights of the parties to this suit. It would be useless to put them to the expenses of future litigation, when the evidence enables us to decide finally upon their respective rights at the present time.

As plaintiff is the only creditor contesting the judgment of separation of property, the rights of the defendant to that judgment can only be affected by the present judgment, so far as it is necessary, in order to secure the rights of plaintiff.

The amount that the defendant, Mrs. Brown, is realiy entitled to with privilege upon her husband’s estate, independantly of the slaves, is $580, with five per centum interest thereon, from the 1st of September, 1855, till paid, and the costs of the suit of separation of property.

The property of her husband seized in satisfaction of the money part of the judgment of separation, was adjudicated to her for $1,534, on the 19th of May, 1856.

The amount of the judgment of plaintiff against George Brown, is $1,435, with five per cent, interest thereon, from the 4th of March, 1855, and costs of suit.

Plaintiff is, therefore, entitled to have the judgment of separation reduced so far as his rights are concerned, to the sum of $580, with five per cent, interest and costs, as aforesaid, with privilege upon her husband’s property, and to obtain judgment against her for the difference between said sum of $580, with interest and costs as aforesaid, and the sum of $1,534, the proceeds of the sale of the property of her husband; this difference being the amount of the funds of her husband, which is in her hands and subject to the payment of his debts.

The interest upon the $580 is to be calculated up to the 19th of May, 1856, when she really received the same by purchasing the property of her husband, and crediting her debt against him by the price of his property bought by her.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; that the judgment of separation of property between George A. J. Brown and his wife, F. L. Bledsoe, be amended, so far as plaintiff is concerned, by reducing the money part of the same in favor of said F. L. Bledsoe, to the sum of $580, with five per centum interest thereon, from the 1st of September, 1855, until the 19th of May, 1856, and the costs of tlie suit of separation aforesaid, with privilege and mortgage upon her said husband’s property, to secure the same.

It is further ordered,"adjudged and_decreed, that plaintiff recover of the defendant, Mrs. Brown, the difference between §1,534 and §580, with five per cent, interest thereon, from the 1st of September, 1855, until the 19th of May, 1856, and the costs of suit of separation, including all the subsequent costs of writs of seizure, sale of property, and any ¿other costs connected with the satisfaction of the judgment of Mrs. Brown.

It is further ordered, that the judgment of separation of property aforesaid, so amended, be affirmed, so far as plaintiif is concerned ; and that the defendant and appellees pay the costs of both courts.


author: Bochanan, J.

text:
    Robert S. Young v. Chamberlin et al.
    An interlocutory order dismissing a call in warranty is one calculated to work an irreparablo injury, and consequently, may be appealed from.
    A party in possession of property as a lessee, when sued in a petitory action for the property, should make his lessor a party defendant to the action, and ask to be discharged ; he cannot defend the suit by calling in warranty his lessor's vendor, without making the lessor a party, or entering an appearance for him.
    from the District Court of the Parish of Catahoula, Mayo, J.

      McGuire & Ray, for plaintiff and appellant. R. II. Cuney and /. G. Talia-ferro, for defendants.
   Bochanan, J.

The defendant appeals from the dismissal of a call in warranty, in a petitory action instituted against him, The appellee moves to dismiss the appeal, on the ground that the dismissal of the warranty is an interlocutory order, and does not work an irreparable injury.

This ground is not tenable. The Code of Practice authorizes a party in possession of land, who is sued for the same, to make his vendor a party to the suit, and to transfer its defence to such warrantor. It is evident, that a subsequent order, by which his warrantor is put out of court, may cause him an irreparable injury, and is, consequently, appealable.

On the merits, it is to be determined, whether or not, the exception to the call in warranty was well taken.

Defendants are sued, as party in possession, for certain land of which plaintiff alleges himself to be the owner ; and for rent of the same.

They answer, by declaring themselves to be lessees of one Hollister, a resident of Michigan, who is owner of the land, by purchase from one McGraw, a resident of Mississippi.

By an amended answer, defendants pray that McGraw be cited to warrant Hollister’s title. McGraw was cited through a curator ad hoc appointed to him, as an absentee, by the court. McGraw appeared by the curator ad hoc, and called his vendor, Benjamin F. Young, in warranty.

B. F. Young appeared, and cxcepied to the call in warranty of McGraw by defendants, on the grounds :

1st. That defendants had no legal right to call in warranty the vendor of Hol-lister to defend this suit.

2d. That defendants are not the lessees of Hollister, as they allege.

I. The course to he pursued by a lessee of real estate, who is sued in the peti-tory action, is indicated in Art. 43 of the Code of Practice, and Art. 2674 of the Civil Code. Both these Articles contemplate that the lessee, thus sued, shall cause his lessor to be made a party. The Article of the Civil Code says, that he shall call his lessor in warranty, or to defend the suit, and shall thereupon be himself dismissed. The Article of the Code of Practice says, the lessee shall make known the name and place of residence of his lessor, who shall be made a party if he reside in the State, or is represented therein; and that the lessee shall, thereupon, be discharged from the suit. In this case, the defendants, supposing them to be in possession as lessees, have not pursued the course indicated by law. They have named their lessor, but they have not called him in warranty, neither have they asked to be thereupon discharged from the suit. They have put in evidence a power of attorney, which shows that one of these defendant is the agent of Hollister in this State. The defendants might, therefore, have made Hollister a party to this suit; but they have not thought fit to do so. In place of that, they have proceeded to defend the suit, by calling in warranty Hollister’s vendox-, without making Hollister a party, or entering an appearance' for Hollister. It is plain, that this coui'se is unwarranted by law. Hollister is not bound by these proceedings. As to him, any judgment that may be rendered will be res inter alios acta.

II. The defendants have introduced no proof whatever that they hold this land as lessees of Hollister, although that fact was put directly at issue by the exception.

Judgment affirmed, with costs.


author: Land, J.

text:
    John Taylor v. A. M. Calloway, Sheriff, et al.
    Where a party as third opponent, claiming a privilege upon the proceeds of a sale, over the seizing creditors, appeals from the judgment rendered against him, the appeal will be dismissed if all the seizing creditors arc not made parties to it.
    1 PPEAL from the District Court of the Parish of Union, Richardson, J.

      Baker <& Barrett, for plaintiff and appellant. /. T. Budding, for defendants.
   Land, J.

This is a third opposition, in which plaintiff claims a privilege on the proceeds of the sale of a slave, over the seizing creditors. There was judgment against the third opponent, and he has appealed.

B. A. Smith, the judgment debtor, has filed a motion to dismiss the appeal, on the grounds, that neither the Shexfiff nor seizing creditors, have been made parties to the appeal. The creditor's are interested in maintaining the judgment appealed from, and are, therefore, necessary parties. There is no appeal bond in their favor, which is necessary to make them parties appellees.

It is, therefore, ordered and decreed, that the motion be sustained, and the appeal be mismissed at costs of appellant.


text:
    J. R. Marshall v. Parish of Morehouse.
    An agreement to transfer personal effects vests the property in tho transferee, hut the effect of tlio transfer is strictly confined to the parties to it until the actual delivery of tho object.
    Personal property transferred by contract, but not delivered, is liable in the hands of the transferror to seizure and attachment by his creditors.
    An assignment without delivery is conclusive against the assignor and his legal representatives.
    from the District Oourt of the Parish of Morehouse, Richardson, J.

      Todd & Brigham, for plaintiff and appellant. Compton and McGuire & Ray, defendant.
   Cole, J.

This suit is instituted upon three several bonds, executed by the President of the Police Jury of the parish of Morehouse, and made payable to A. B. Peck, his heirs and assigns.

Plaintiff alleges, his title to these bonds was acquired in the following manner, to-wit: That under two judgments of Marshall <& James v. A. D. Peck, rendered in the District Oourt of the parish of Morehouse, writs of fi. fa. were issued, directed to the Sheriff of the parish of Orleans, and the bonds in suit were seized in the hands of II. M. Wright, under process of garnishment issued from the Sixth District Court of the parish of Orleans, — the bonds having been previously pledged by Peck to Wright, Williams <& Co., of which firm the garnishee was at the time a member, to secure them for advances made to Peck, — that after answer made by said garnishee, and due proceedings had before said court, the bonds were ordered to be sold; the proceeds to be applied, first, to the payment of the debt of Wright, Williams & Co., and the balance to the satisfaction of the writs under which they were seized; and at the sale made in accordance with the de • cree, plaintiff became the purchaser of the bonds for eighteen hundred dollars cash; of which $1,588 72 were paid to Wright, Williams <& Co., and $84 45 for costs, leaving $126 83 to the credit of the writ.

There were three interventions, to-wit, those of Boatner, McLeish and the administrator of Peck’s succession. Boatner claimed one of the bonds by title derived from McLeish; the latter having transferred it to his attorneys in a certain suit, and Boatner having become the sole owner for a valuable consideration.

McLeish intervened, alleging title to all the bonds, except the one which he had transferred to Boatner, and averring that the bonds had been transferred to him by the payee, Peck, for a good and valuable consideration.

Bussy, the administrator of Peck’s estate, sets forth in his intervention, that the bonds were purchased by plaintiff at a sale decreed in proceedings which had been provoked by Marshall & James against Peck & Wright, garnishees; that plaintiff was a member of this firm, and all said proceedings originated and were carried on after the death of Peck, and were illegal; he, therefore, prays to be decreed the owner of the three bonds.

There was judgment, decreeing that the bonds should be paid by the defendant to the administrator of Peck’s succession, dismissing the interventions of Boatner and McLeish, as in case of nonsuit, and reserving the right of plaintiff to assert his privilege on the judgment, or its proceeds.

Plaintiff and Boatner appealed.

The decision of this cause requires us to notice but one point.

McLeish, the assignee of Tech, and Boalner, the transferree of McLeish, cannot contest the title of plaintiff, because the bonds were never delivered by Tech to his assignee.

In the transfer of debts, rights or claims, to a third person, the delivery takes place between the transferror and the transferree by the giving of the title. O. 0. 2612.

The transferree is only possessed, as regards third persons, after notice has been given to the debtor of the transfer having taken place. The transferree may, nevertheless, become possessed by the acceptance of the transfer by the debtor in an authentic act. C. 0. 2613.

'With respect to personal effects, although the consent to transfer vests the property in the obligee, yet this effect is strictly confined to the parties until the actual delivery of the object. If the vendor, being in possession, should by a second contract transfer the property to another person, who gets possession before the first obligee, the last transferree is considered as the proprietor, provided the contract be made on his part bona fide, and without notice of the former contract. 0. C. 1916.

In like manner, if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor to seizure and attachment, in behalf of his creditors. C. C. 1917.

As these bonds were seized before delivery to the assignees, the seizure is, therefore, valid against their claims.

The assignment by Tech is, however, conclusive against him and his legal representatives, notwithstanding there was no delivery; for a sale is perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object, and for the price thereof, although the object has not yet been delivered, nor the payment made. C. 0. 2431.

The assignment of the bonds by Tech, even without delivery to his assignee, divested him and his heirs of their ownership ; without, however, depriving his creditors of the right to seize them as his property, and acquire a lawful title thereto under the seizure.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that the plaintiff, John R. Marshall, recover of the defendant, the parish of Morehouse, two thousand three hundred and twenty dollars ($2320), with eight per cent, interest thereon from the 19th day of December, 1849, and that the interventions of the intervenors in this suit be dismissed, at their costs, as in case of nonsuit; that defendant pay the costs of the lower court, less those of the interventions which are to be paid by the intervenors, and that the appellants, Boatner, and the administrator of the estate of Tech, pay the costs of appeal.


text:
    James Boyd v. J. M. Frantom.
    Tho right of a minor emancipated by marriage, to contract debts within the amount of his annual revenues, is not affected by the fact that the minor ran away and contracted marriage without tho consent and against the will of the tutor.
    PPEAL from the District Court of the Parish of Ouachita, Richardson, J.
    JlX Todd c6 Brigham, for plaintiff. J. T. Budding, for defendant.
   Land, J.

This is a suit on a promissory note for three hundred dollars, and the interest thereon. The defence is minority, and is pleaded by the administrator of the succession of the minor, deceased.

Reuben Frantom, the maker of the note, was twenty years of age on the 13th of January, 185V, and was emancipated by marriage prior to the date of the note, to-wit, the 9 th of September, 1857, and his annual revenue was between three and four thousand dollars.

The only question in the case is, whether he had the legal capacity to bind himself by the promissory note in controversy.

A minor is emancipated of right by marriage, and has the full administration of his estate; he may pass all acts confined to such administration, grant leases, receive his revenues, and monies, and bind himself legally by promise or obligation, for any sum not exceeding the amount of one year of his revenues. O. 0., Arts. 367, 373, 374.

The emancipated minor is not only legally capable of binding himself, as above stated, but has no right to claim a restitution for a mere lesion against obligations or promises which do not exceed the amount of one year of his revenue. C. C., Art. 375.

It is, however, contended, that as the minor ran away, and contracted marriage without the consent and against the will of his tutor, his right to contract debts within the amount of his annual revenue did not attach or vest in him, and that the note did not impose on him any legal obligation to pay the same.

The authorities cited by defendant’s counsel do not go to the extent contended for, nor do we perceive any sufficient reason why they should; besides, the evidence does not show affirmatively, that the marriage was without the consent or against the will of the tutor, but is left to inference from the act of running away, which may or may not be correct, as opposition on the part of the wife’s family may have been the cause of it, as well as opposition on the part of the tutor.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed; and it is now ordered, adjudged and decreed, that the plaintiff do have and recover from the defendant in his representative capacity, the sum of three hundred dollars, with eight per cent, per annum interest thereon, from the 9th day of September, 1857, to be paid in due course of administration, with costs of both courts.


author: Vooriiies, J.

text:
    Henry Sheldon & Co. v. J. H. Reynolds.
    Where there has not been an active abandonment of a suit by the plaintiffs, prescription is interrupted, notwithstanding there bo a judgment of nonsuit.
    The stipulation by a surety on a promissory note, that the holder shall exhaust all the legal remedies against the drawer of the note, before having recourse upon such surety, amounts to a simple reservation of the right of discussion, and has no other effect. So that where it is shown that the drawer is and has been for a considerable time insolvent; that he has left the State without leaving any property, and that it is impossible, from the circumstances of the case, that the plaintiffs could make anything by proceeding against such drawer, an action by the holder against the surety will lie immediately.
    from the District Court of the Parish of Caddo, Creswell, J.

      G. A. & F. P. Austin, for plaintiffs. A. B. Levisee, for defendant.
   Vooriiies, J.

The plaintiffs’ demand is based upon the following instruments, to wit:

“ $288 67. Shreveport, May 26,1852.

“ Twelve months after date, I promise to pay to the order of 8. A. Robeson, two hundred and eighty-eight dollars and sixty-seven cents, value, received. Interest eight per cent after maturity.

(Signed) “J. H. White.

(Endorsed) S. A. Robeson, per Jonas Robeson, Agent.

(Endorsed) “ I do hereby guarantee payment of the within amount after the legal remedies against the drawer shall have been exhausted.

(Signed) “J. H. Reynolds.”

“ $288 67. Shreveport, May 26, 1852.

“ Nine months after date, I promise to pay to the order of S. A. Robeson, two hundred and eighty-eight dollars and sixty-seven cents, value received. Interest eight per cent, after maturity.

(Signed) “ J. II. White.

(Endorsed) “ S. A. Robeson, per Jonas Robeson, Agent.

(Endorsed) “ I hereby guarantee payment of the within amount, after the legal remedies against the drawer shall have been exhausted.

(Signed) 11 J. II. Reynolds.”

The defence is a failure to exhaust legal remedies against the principal debtor, want of consideration, and prescription.

As five years had not intervened between the dates of the institution of this suit and of the falling due of the second note, the plea of prescription was not maintainable. 0. 0. 3505.

As to the other note, prescription was interrupted by the institution of the first suit, in which, however, the plaintiffs were nonsuited. 0. 0. 3484, 3485.

There was not an active abandonment of the suit by the plaintiffs; consequently prescription was interrupted, notwithstanding the judgment of nonsuit. Norwood v. Duval, 7 An. 523.

It is contended, that the promissory note was executed without consideration ; the note itself purports to have been made for value received. It is no objection that the defendant, when binding himself as the drawer’s surety, should have participated in the consideration of the note. “ Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not/’ O. 0. 3004.

It is, therefore, no objection that the promissory note under consideration was executed some time previous to the assumption of the defendant. In fact, sure-tyship is a species of unilateral contract, as the person who binds himselt by such an agreement, does so without any corresponding obligation on the part of the creditor. O. O. 1758, 1766.

The stipulation that the plaintiff's should exhaust the legal remedies against the drawer of the note, before having recourse upon the defendant, amounts to a reservation of the right of discussion; it has no other effect. N ow, it is shown that the drawer is, and has. been for a considerable time, an insolvent; that he has left the State without leaving any property; and that it is impossible, from the circumstances of the case, that the plaintiffs should make any thing by proceeding against this party. The court would then be requiring of plaintiffs a vain thing, by dismissing their action as premature.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed ; and that the plaintiffs do recover judgment against the defendant, for the sum of two hundred and eighty-eight dollars and sixty-seven cents, with eight per cent, per annum interest thereon, from the first day of June, A. D. eighteen hundred and fifty-three, and the further sum of two hundred and eighty-eight dollars and sixty-seven cents, with like date of interest from the first day of March, A. D. eighteen hundred and fifty-three ; the defendant and appellee paying the costs in both courts.

Land, J., recused himself, having been of counsel.


text:
    Taylor, Knapp & Co. v. W. J. Hancock & Co.

      A defendant named in the petition, but not cited, is not in reality a party to the suit, so as to render him incompetent as a witness.
    When there is a prayer in the petition for general relief, and the partnership sued is alleged to be a commercial one, a judgment rendered against the parties in solido, will not bo disturbed on the ground that a joint judgment was claimed m the petition.
    from the District Court of the Parish of Bossier, Eagan, J.

      A. B. Levisee, for plaintiffs. Looney & Fort, for defendants and appellants.
   Cole, J.

Plaintiffs instituted this suit against several persons as composing the commercial firm of W. J. Hancock & Co., and prayed that judgment might be rendered against them for their demand.

Two only of these persons were cited, and upon the trial R. J. Hancock, who had been named in the suit as a party defendant, but who had not been cited, testified that W. J. Hancock and Morgan. 0. Taliaferro, wore the only members of the firm of W. J. Hancock <& Co.

There was judgment in solido against W. J. Hancock and M. 0. Taliaferro ; they have appealed.

Appellants contend that the testimony of R. J. Hancock was improperly admitted, because he is a co-defendant, and it was his interest to release himself from responsibility by establishing himself not to have been a partner.

In answer to this objection, we would observe, that appellants did not file any answer, and the testimony was introduced without objection on the part of the court. If the testimony had been objected to and excluded, plaintiffs might have been able to have proved by other witnesses, that which was established by R. J. Hancock, and it does not appear to be just to nonsuit plaintiffs in this court, on account of the laches of appellants in not defending the suit in the lower court.

Besides, the witness, R. J. Hancock, was not cited, and was not, in reality, a party to the suit, and as no judgment could have been obligatory upon him, there does not seem to be any good reason why his testimony should be inadmissible. It is true, that by putting his name in the petition as one of the defendants, the plaintiffs, in fact, aver that he has an, interest in the suit, yet by not having him cited, they show they were mistaken in their allegation.

It is also contended, that the judgment ought to have been against them jointly, and not in solido, because the prayer was only for a joint judgment; but as there was a prayer for general relief, and as the partnership sued was alleged to be a commercial one, and as appellants, although cited, had thought proper to let the case go by default, we do not feel ourselves authorized, under the evidence and circumstances of this case, to disturb the judgment.

J udgment affirmed, with costs.


text:
    R. H. Drawn v. W. P. Cherry.
    When the obligation is conditional, the party to whom it is transferred by endorsement before maturity, is bound to prove the performance of the condition before be can recover on it.
    from the District Court of the Parish of Catahoula, Richardson, J.

      R. K. Hendry, for plaintiff. Smith & Spencer, for defendant and appellant.
   Cole, J.

This suit is instituted by plaintiff as third holder of the following note :

“ $500. Bayou Sara, May 31st, 1856.

“ Twelve months after date, I promise to pay James H. Muse, or order, five hundred dollars ; this note is given in consideration, that said Muse will assist in the prosecution of the State of Louisiana v. James R. and Leon D. Marks, and attend to the same, until brought to a final conclusion. Said note bears interest at the rate of eight per cent, per annum after due until paid.

(Signed) “ Wh. P. Cherry.

(Endorsed) “ James IT. Muse, D. P. Hardee.”

There was judgment for plaintiff, and defendant has appealed.

The obligation sued upon was a conditional one; the consideration is, that “ Muse will assist” in a certain prosecution.

Plaintiff has produced no proof of the execution of the consideration.

A part of the answer of ICernan to the second interrogatory, tending to prove the performance of the consideration, was properly ordered by the District Judge to be erased, because there was nothing in it responsive to the interrogatory, and the defendant had, therefore, no means of cross-examining the witness, upon this part of his answer. .

As the obligation was conditional, the endorsee, before maturity, is bound to prove the execution of the condition, the same as if he had received it after mar turity.

It is, therefore, orderded, adjudged arid decreed, that the judgment of the District Court be avoided and reversed; and that there be judgment against plaintiff, and in favor of defendant, as in case of nonsuit; and that plaintiff pay the costs of both courts.


author: Buchanan, J.

text:
    J. H. Boatner, Tutor, v. Daniel Wade.
    A sequestration obtained on tbe ground of the plaintiffs apprehension, that the slave sued for, will be removed out of the jurisdiction of the court, cannot be set aside by proof of the defendant’s long residence in the parish and possession of ample means.
    PPEAL from the District Court of the Parish of Caldwell, Mayo, J.
    _Cjl W. H. Hough, for plaintiff. T. L. Crawford, for defendant.
   Buchanan, J.

This is a suit in revendication of a slave, commenced by sequestration, upon oath made, according to law, that plaintiff feared the defendant would send the slave out of the jurisdiction of the court, or would conceal, part with, or dispose of the slave pending the suit.

Immediately upon the execution of the writ of sequestration, the defendant bonded the slave, under Article 279 of the Code of Practice; and a few days thereafter, took a rule upon plaintiff to dissolve the sequestration, on the ground, that the plaintiff was without reason to fear that the slave would be removed out of the jurisdiction of the court, concealed, or disposed of by the defendant, pending the suit.

On the trial of this rule, defendant proved by several witnesses, that he had been a resident of the parish for many years ; that he was generally considered solvent, and that he is assessed upon the parish assessmeut roll for $14,905.

The District Judge dissolved the sequestration upon this evidence. We think he erred.

The evidence did not touch the matter in controversy, which was the apprehension of plaintiff, that the slave would be removed pending the litigation. No fact was given in evidence, tending to show, either, that the plaintiff did not, in reality, entertain the apprehension by him declared on oath, as aforesaid ; or that it was impossible that such an apprehension could be realized.

The evidence that the defendant, and that his security for the forthcoming of the sequestered property, possess property in the parish, very far exceeding the value of that which is sequestered, sufficiently demonstrates that the plaintiff is amply secured by the bond which has been furnished to release the sequestration, but it is not seen how it tends to prove that the sequestration improperly issued. The defendant and appellee relies upon the case of Johnston v. Johnston, 13 An. 581, to sustain the judgment appealed from. But the language of the court in that decision, scarcely meets the case which this record presents.

The court say: “ This (the affidavit) constitutes prima facie evidence of the cause which entitled her to the issuance of the writ. It then behooves the defendant to rebut this presumption, by showing that it was not his intention to part with these slaves and immovables.”

Besides, it may be observed, that the case of Johnston v. Johnston, was one of very peculiar circumstances — a sequestration, by a wife suing for the administration of lier paraphernal effects, and not only of those effects, but of all the separr ate property of her husband. As to the effects of the husband, the claim of the wife was merely that of a privilege ; and a comparatively feeble showing would suffice to quash the harsh process by which the husband was stripped at once of all the property confessedly his own, and part of it, real estate, which it was impossible for him to recover. The present plaintiff presents a very different case. He claims to be the owner of a slave, and that his slave is wrongfully detained from his possession.

The slave is a kind of property which may be removed from place to place, with the utmost facility; and a very strong case, indeed, would be required to enable us to pronounce that the remedy of sequestration did not apply to such a case.

It is proper that we should add, that there is no danger that, by maintaining this sequestration, we will consign the slave to an imprisonment in the parish prison of Caldwell, until the termination of this suit; for, as already observed, the defendant has the slave in possession under his bond.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed ; that the writ of sequestration herein issued be reinstated, without prejudice to the rights acquired by the defendant, by his bond given, as mentioned in the Sheriff’s return of the writ; that the cause be remanded to be proceeded in according to law ; and that defendant and appellee pay the costs of this appeal.


text:
    Henry Cheatham v. Joanna T. Carrington.
    An attachment will not lie against the property of a succession in this State ; the creditor is hound to provoke an administration of the estate in pursuance of law, to collect his debt.
    from the District Court of the Parish of Ouachita, Richardson, J.

      Baker <& Harris, for plaintiff. Slack & Benton, for defendant and appellant.
   Land, J.

This suit was commenced by attachment against the succession of Robert Carrington, deceased. A curator ad hoc was appointed to represent the absent heirs. There was judgment dismissing the suit at.plaintiff’s cost.

This judgment is correct. An attachment will not lie against the property of a succession in this State; the creditor is bound to provoke an administration of the estate in pursuance of law. Debuys v. Yerby, 1 N. S. 381.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


author: Voorhies, J.

text:
    B. Price, Guardian, v. John Ray, Executor.
    It is no objection to a slave’s right to manumission by act inter vivos or mortis causa, that she was the concubine of her owner at the time the act was passed.
    An acknowledgment by the father of natural children by his own slave, has no legal or binding effect.
    Where a will was made prior to the passage of the Act of 1857, prohibiting the emancipation of slaves, in which a slave was manumitted by his master — Held: That under the will the slave acquired only an inchoate right to his freedom, to be perfected in accordance with the existing laws and regulations upon the subject ; and that when the slave, who had acquired this right under the will, did not perfect it under the existing laws, he cannot be a party to the suit, nor have his rights under the will enquired into, since the passage of the Act of 1857.
    PPEAL from the District Court of the Parish of Ouachita, Richardson, J.
    XI Morrison & Purvis, for plaintiff. J. T. Ludeling and John McEncry, for defendant and appellant.
   Voorhies, J.

Simeon S. Hyde, deceased, left two wills, directing the manumission of his slave Minnie and of her eight children, making them his universal legatees.

The plaintiffs, as heirs-at-law of the deceased, claim at the hands of the executor, the delivery of the estate, notwithstanding the provisions of the will, which they allege to be null and void, on the ground that the legatees cannot be manumitted under our laws, and on the farther ground, that the testator lived in concubinage with the slave Minnie.

The defendants set up the plea of three and five years’ prescription to the plaintiff’s demand.

It is no objection to the slave’s right to manumission by act inter vivos or mortis causa, that she was the concubine of her owner. “ The law has declared what causes shall be sufficient to render the enfranchisement of a slave null and void, and this is not one of them.” Célésie v. Himel, 10 An. 188 ; C. C.184 et seq.

With regard to the children of the woman Minnie, the petition does not allege that they were the natural children of the deceased ; and the only thing we find in the record, on that subject, is, that the deceased had stated, in conversation, that such was the case, a declaration then of no legal or binding effect. Turner v. Smith et als., 12 An. 417.

There is no allegation that the wills under consideration, are in violation of the provisions of the Civil Code, establishing the disposable quantum which a natural father may give to his natural child, and the conditions attached thereto. C. C. 1496. This question, although adverted to in the brief, is not legitimately raised by the pleadings.

At the time of the death of Simeon L. Hyde, it was lawful for him to manumit his slaves by last will and testament; but the rights acquired by them were inchoate, subject or conditioned to be perfected according to the existing regulations and laws upon this subject-matter. In the meantime the status of these parties was that of slavery ; and their inchoate right of freedom was subject to be defeated by subsequent legislation, rendering impossible its consummation. Such is the effect of the legislation of the year 1857, by which it is provided, “ that from and after the passage of this Act,- no slave shall be emancipated in this State.” See Acts of 1857, p. 55.

Unless this law be repealed, and provision made by which the last wills and testaments of Simeon L. Hyde, deceased, might be carried into effect, it is evident that the slaves he directed should be manumitted, cannot stand in court for any purpose. They could not, before the Act of 1857, be heard, except with reference to their freedom and emancipation ; and now this very privilege is withdrawn from them by legal enactment. Henriette, alias Mary, v. Heirs of Charles Barnes, 11 An. 453 ; Maranthe, Genie et als. v. C. G. Hunter et als., 11 An. 734 ; Jamison v. Bridge et al., ante 31.

It does not follow, however, that these slaves forfeit absolutely, the inchoate right, acquired by them under the will; for if the law should happen to be changed, their remedy might be revived. At the time the will took effect, the right of owners to emancipate their slaves was recognized. The slaves of the deceased have not acquired a vested right to become free at a future period ; nevertheless, they have acquired an inchoate right, which may yet be perfected, should a change of legislation permit. Delphine v. Guillet, 13 An. 248.

But, in the meantime, their status is neither that of freemen, nor that of statu liberi ; it is inevitably that of slavery. Pelagie Brown, f. w. c., v. Ursin Raby, ante 41 ; Pauline, f. w. c., v. Hubert et al., ante 161.

The prescription of five years, applicable to the action in nullity of a will, cannot avail in this instance, as the record does not show that five years have elapsed before the institution of this suit, since the probate of the wills of the deceased. Calais v. Semére, 8 An. 462.

Besides, the question involved is one of State policy; and the mere lapse of five years since the probate of the will, could not have the effect to defeat the intervening provisions of the Act of 1857, forbidding all manumissions in this State. Heirs of Provost v. Wm. Provost, 13 An. 574.

Judgment affirmed.


text:
    R. B. Jones v. Caperton & Weeks.
    Where the citation of appeal has been improperly served on the appellee’s counsel, the appellee being a resident of the State, it is not a fault imputable to the appellant, for which the appeal may bo dismissed.
    Where the order of appeal has been obtained, the appeal bond given, and the transcript filed in due time, a defective service of citation maybe remedied by a new service, although more than twelve months have elapsed since the judgment of the lower court was rendered.
    from the District Court of the Parish of Morehouse, Richardson, J.

      Newton & Hall, for plaintiff. J. T. Ludeling, for defendant and appellant.
   Voorhies, J.

The appellee moves the dismissal of this appeal. The citation of appeal was served upon his counsel, the order having been granted at chambers. As the plaintiff was a resident of the State, the citation of appeal should have been served upon him in person, or by leaving it at the place of his usual domicil. C. P. 582 ; Sears, Administrator, v. Wilson, 4 An. 525 ; Ludeling v. Frellsen, ib. 534.

. But this defect is not, however, imputable to the appellants; and, under the. ruling in the case of Lewis v. Hennen, the only order which we could. render would be one for a continuance. At the same time, it is proper to notice that two of the appellees, James C. Weeks and E. B. Pittis, have not been cited on this appeal, although their names are inserted in the bond furnished by the appellants. Although more than one year has elapsed since the rendition of the judgment of the District Oourt, it is not too late to graut relief to the appellant. This point is expressly ruled in the case of Lewis v. Hennen, 13 An. 260.

It is, therefore, ordered and decreed, that this cause be continued until the first day of the next regular term of this court, in order that the appellees be cited to answer the appeal taken in this case.


text:
    W. R. Lassiter v. J. Bussy.
    A promissory noto not transferred by endorsement and delivery in the usual mercantile mode, is subject to seizure, under the rule which governs the sale of movables not accompanied with delivery. The doctrine of notice is not applicable to the sales of personal or movable property, and the creditors may seize and sell when there is no delivery of possession, although informed of an agreement to sell.
    from the District Oourt of the Parish of Morehouse, Richardson, J.

      W. A. Carpenter, for plaintiff and appellant. Todd <& Brigham, for defendant.
   Land, J.

A promissory note made by James Bell, for the sum of §1,060 83, payable to the order of Hansford Dean, and by him, endorsed in blank, was placed in the hands of defendant, to indemnify the maker, Bell, as surety of Dean, on an injunction bond, and further, to indemnify him against a judicial mortgage for §500, on a tract of land purchased by Bell from Dean.

After the decision of the injunction suit, which was in favor of Dean, and which released the surety on the bond, Dean gave an order on defendant, for the note, to plaintiff, which defendant refused to act on, by a delivery of the note, and this suit was brought for its recovery.

E. P. & J. H. Overby and Miltenberger & Co., after the date of the order, caused the note to be attached in the hands of defendant, by process of garnishment, founded on executions in the Sheriff’s hands against Dean, and the question for decision is, whether the plaintiff, or these judgment creditors of Dean, are entitled to the note or its proceeds.

The note was in defendant’s possession for the benefit of the surety, and Dean had no right to withdraw the note before the full performance of the contract of indemnity, and transfer it to a third person, without the consent of Bell; and if defendant had delivered the note to plaintiff, he would have remained liable for it to Bell, for whose security he held it under a special agreement.

Although Bell was released on the injunction bond, it does not appear that the judicial mortgage on the land had been cancelled, and it cannot, therefore, be affirmed that defendant acted improperly in refusing to make delivery of the note to plaintiff.

A sale of personal or movable property not accompanied with delivery, but still in the possession of the seller, has no effect as to creditors, and the property may be seized and sold for their debts. O. O., Arts. 1917, 2241, 2457. And a promissoiy note, not transferred by endorsement and delivery in the usual mercantile mode, but by a collateral agreement, as in this case, is subject to the same rule;. aud delivery of possession to the buyer is necessary to perfect the sale, and to defeat the pursuit of creditors. The possession of Bussy was the possession of Dean, subject to the claims of the surety, Bell, and the note was, therefore, seized by the judgment creditors before a delivery to plaintiff.

We do not understand that the doctrine of notice is applicable to sales of personal or movable property, but that the creditor may seize and sell, when there is no delivery of possession, although informed of the agreement to sell. Notice of transfer given to the debtor does not affect the creditor’s right to seize, when there is no delivery of the note.

The judgment is in favor of the creditors, and is correct.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


author: Yoorhies, J.

text:
    Samuel Lee v. Mary J. Cameron.
    The wife, although separated ill property from her husband, cannot be made liable on anote signed by her with her husband, which did not enure to her separate benefit.
    from the District Court of the Parish of Morehouse, Richardson, J.

      Newton <& Hall, for plaintiff and appellant. S. G. Parsons, for defendant.
   Yoorhies, J.

The defendant is sued upon two promissory notes, which she signed with her husband, John D. Cameron, since deceased. The notes purport on their face to be an obligation in solido, the husband and wife promising to pay jointly and severally. At the time of the execution of these notes, the parties were separated in property.

The defence set up is : 1st, a want of consideration ; 2dly, that the consideration did not enure to the benefit of the defendant, but was the husband’s contract; and 3dly, that this was a security debt on the part of the defendant, for the benefit of her husband.

It appears that these notes were given in consideration of a deed of sale, by which the plaintiff’s transferror purported to convey to the defendant his improvements on a tract of land belonging to the U. S. Government, and the rights which he had acquired to the laud, so as to enable the vendee to complete the title so conveyed by a subsequent entry. The deed stipulates :

And it is hereby further agreed, and especially understood by and between the same parties, that, in case it should be, from any cause, impracticable for the vendor to execute this agreement- so fully as to secure to the said purchaser the possession of the above described North-East quarter of Section No. thirty-four, which is intended to be embraced in the agreement, then, in that case, the amount or sum of eight dollars per acre, for each and every one of said quarter sections, is to be deducted from the amount above recited as the consideration ; and the amount due is to be calculated with reference to this provision, the vendor re-strving the vendor’s privilege upon all the land herein actually conveyed.”

The deed is signed by the vendor and 1ns wife, and also by two subscribing witnesses.

The. evidence shows, that the sale was, in reality made to the defendant’s hug-band, or at least to both of these parties; for suit was instituted against the husband on the first note, and judgment rendered against him, after deducting certain claims of which he was the owner, and which he plead in compensation. This judgment, it is proper to notice, reserves the right of the transferree of the notes to proceed against the present defendant. On execution, part of the property in question was sold by the Sheriff in satisfaction of this judgment, and adjudicated to her. That is the property upon which she was living then, and continued to live afterwards. It is evident, that this contract has not enured to her benefit, and that the contract of sale was entered in reality between her husband and the vendor. In answer to interrogatories propounded to her, she answers that she signed the notes sued on through the influence of her husband. The course pursued by the opposite party in suing the husband for the whole amount, and levying upon the property sold, indicates that he was the contracting party, and that in reality the sale was made to him. "We have no hesitation in saying that the defendant signed these notes as her husband’s surety, although the sale purports to have been made to her : the deed of sale was not executed at the same time and place that the wife was prevailed upon to sign the notes; nor does her signature appear in the deed of sale. It is a matter of no moment, that the parties were at the time separated in property. “ The wife, whether separated in property by contract, or by judgment, or not separated, cannot bind herself for her husband, nor conjointly with him, for debts contracted by him before or during marriage. 0. 0. 2412.

It is, therefore, ordered and decreed, that the judgment of the District Court be affirmed, with costs.


text:
    Andrew J. Dyke v. D. H. Dyer et als.
    Article 2417 of the Civil Corle, which provides that a sale of immovables or slaves by act under private signature, has effect against creditors only from the day of its registry, awl the actual delivery of the thing sold, controls Article 2242, which declares such sales to bo valid from the date of their registry or from the time of the actual delivery of the thing sold.
    Property cannot be seized by a judgment creditor of the vendor, when the privato act has been recorded previous to the issuance of execution.
    If the property remains in the hands of the vendor, the legal cousequence resulting therefrom would be a presumption of simulation, which it is incumbent on the vendee to rebut.
    The plaintiff in an injunction suit cannot claim from the defendant the amount of fees paid his counsel.
    PPEAL from the District Court of the Parish of Claiborne, Eagan, J.
    XJL Vaughan & Thomasson, for plaintiff. J. Young, for defendants and appellants.
   Voorhies, J.

The appellee moves the dismissal of this appeal on the grounds, 1st, That the amount in controversy does not give jurisdiction to this court; and 2dly, That the appellants have not signed the appeal bond.

The record shows that the amount in controversy exceeds the sum of three hundred dollars, and that the appeal bond is signed by the surety. The motion to dismiss must, therefore, be discharged. 11th An. 113, Williams v. Hood, and cases there quoted.

This is an injunction suit. The plaintiff, a third person, enjoined the seizure and sale of certain, property levied upon by the Sheriff, by virtue of an execution issued on a judgment in the case of W. H. Nations v. S. Butler and E. P. Jones, Ad’r. The plaintiff had purchased from the seized debtor the property in question, by a private deed, which he caused to be recorded prior to execution. There is no doubt of the reality of this sale, as shown by abundant evidence in the record; but it is contended by the appellants, that their rights accrued before the recordation of the private deed of sale, the vendor being yet in possession of the property sold.

The Civil Code provides :

Art. 2417. The sale of any immovable, or slaves, made under private signature, shall have effect against the creditors of the parties, and against third persons in general, only from the day such sale was registered in the office of a notary and the actual delivery of the things sold took place. But this defect of registering shall not be pleaded between the parties who shall have contracted in such act, their heirs or assigns, who are as effectually bound by a sale made under private signature, as if it were by an authentic act.”

There is a conflict between this Article and the 2242d Article, the latter of which gives effect to sales or exchanges of real property and slaves, by instruments made under private signature, against bona fide purchasers and creditors, only from the date of registry in the office of a notary, or from the time of actual delivery. We have, however, already decided that, in this respect, the 2242d Article must yield to the 2417th Article. Lindeman et als. v. Theobalds et als., 2 An. 912; Stephens v. Wellington, 1 An. 72 ; Thompson v. Mylne, 11 R. 349.

Such being the law on this point, the sincerity of the sale from Nations to the plaintiff could not protect the latter against the execution of the judgment against the former, had the property been levied upon, or the judgment recorded, prior to the recordation of the private act of sale in the Recorder’s Office. From that moment, the private deed became an authentic instrument, and gave notice to creditors and third persons; and, if the property continued to remain in the possession of ttie vendor, in compliance with peculiar arrangements between the parties, the only legal consequence resulting therefrom, would be a presumption of simulation, which it were incumbent on the vendee to rebut. C. C. 2456, 1915 ; Lindeman et als. v. Theobalds et als., 2 An. 913.

But, as we have stated in the outset, the plaintiff has proven the sincerity and good faith of this purchase. The appellants not having, in the mean time, acquired any rights over the property in question, either by having their judgment recorded, so as to acquire a judicial mortgage, or by levying upon the property in time, the verdict of the jury, relieving the plaintiff in this respect, should not be disturbed.

The judgment must, however, be amended as regards the allowance of counsel fees. Besides the absence of proof that they have been paid, it is proper to state that there is no law authorizing the plaintiff in injunction to recover from the defendant the amount paid for counsel fees. Vide the case of Bienvenu v. Deblanc, Sh’ff, in the list of unreported cases, in 12th An., from the Opelousas District.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended, by striking out the item of fifty dollars, allowed to the plaintiff's by the verdict; and that the judgment so amended be affirmed, with ■costs, 'the appellee paying the costs of appeal.


text:
    Madison M. Denson v. H. T. Stewart et al.
    "When an interlocutory order is made, that a motion to dissolve an injunction should stand as part of the answer, it cannot cause an irreparable injury, and consequently cannot be appealod from — Held: That when the motion puts at issue the truth of the allegations of the petition for injunction, it is proper that such, an order should bo made.
    PPEAL from the District Court of the Parish of Caddo, Creswell, J.

      JlX A. B. Levisee, for plaintiff. Landrum & Williamson, for defendants and appellants.
   Land, J.

The plaintiff sues the defendant, Stewart, for the sum of four hundred and twenty dollars, with interest, for the alleged balance of the price of a slave sold by him, as agent for plaintiff; and enjoins John Walters, a merchant of Shreveport, from paying said sum of money over to said Stewart, on the allegations of ownership in himself, deposit by defendant with Walters, the insolvency of Stewart, and of his fear and belief that if the money is paid to defendant, that he will convert the same to his own use, and thereby defraud him, plaintiff, of his just rights.

The defendant filed a motion to dissolve the injunction on the following grounds :

First. Because the bond is not signed by the plaintiff or any duly authorized agent or attorney at law.

Secondly. That the affidavit is not made by the plaintiff or any duly authorized agent or attorney-at-law.

Thirdly. Because the plaintiff does not make any averments or allegations, that entitle him to the writ of injunction, and if he does make such allegations, then are untrue.

Fourthly. That a final judgment has been rendered by your honorable court, dissolving plaintiffs injunction upon the same issues presented by the present pleadings; which last ground defendant pleads as a peremptory exception.

Defendants further aver, they have sustained seventy-five dollars general damages by the loss of the use of the money enjoined, and the trouble and vexation Of this suit, and fifty dollars special damages for counsel fees. Whereupon they pray the injunction may be dissolved at plaintiff’s costs, and that they have judgment against plaintiff and his security in solido, for the said sums of seventy-five and fifty dollars, general and special damages, &c.

The District Judge ordered this motion to stand as a part of the defendant’s answer, and from this order formally signed by the Judge, the defendant, Stewart, has appealed.

The plaintiff’s counsel has filed a motion to dismiss the appeal, on the grounds that the judgment appealed from is not a final one ; and, secondly, because it will not work an irreparable injury to defendant.

The judgment is interlocutory, and could have caused no injury to defendants, and was, besides very proper in itself, because the third ground taken in the motion to dissolve, puts at issue the truth of all the allegations in the petition, as well as the law arising upon them, and was in itself the general issue or denial, for under our system of pleading, the general denial puts at issue both the law and facts of the plaintiff’s case.

It is, therefore, ordered and decreed, that the motion be sustained, and the appeal be dismissed at costs of appellant.


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    James F. Newton v. John Ker.
    When the jury find for the plaintiff “ the full amount claimed,” the amount must be ascertained from the allegations and prayer of the petition.
    from the District Court of the Parish of Catahoula, Mayo, J.

      Smith & Spencer, for plaintiff. Crawford <& Hawkins, for defendant and appellant.
   Land, J.

The plaintiff, a practising physician, sues to recover the amount of his medical bill against the defendant.

On the prayer of the defendant, the cause was tried by a jury, who found the following verdict: “We, the jury, find for the plaintiff the full amount claimed.” The court rendered a judgment on this verdict for the sum of $639 75, with interest at the rate of five per cent, per annum, from the 1st day of January, A. D. 1857.

The defendant seeks a reversal of the judgment on two grounds, to-wit:

1st. Because the verdict of the jury is not sustained by the evidence.

2d. Because the judgment does not follow the verdict.

I. The evidence on which the verdict was found is general, and perhaps vague; but in cases of this kind, wherein it is impossible to procure, in a large majority of instances, specific and certain evidence of the correctness of each item of the account; and wherein the plaintiff must recover, if at all, upon testimony of a general and somewhat indefinite character, the verdict of a jury, (who had a formal knowledge of the witnesses and parties), is justly of great weight with the court, and will not be lightly disturbed. In this case, we are not satisfied that the verdict of the jury is unsustained by, or contrary to the evidence.

II. The amount claimed in the petition is the sum of $639 75, with interest at the rate of five per cent, per annum, from the 1st of January, 1857. The verdict of the jury is for the full amount claimed. The judgment condemns the defendant to pay the full amount of plaintiff’s demand, which includes the interest as well as the principal, and is, therefore, responsive to, and follows the verdict.

No greater certainty is required in a verdict than in a judgment; and when the judgment does not mention the sum adjudged, it is sufficient, if the precise amount due appear in the pleadings. Malancon v. Duhamel 3 N. S., p. 7; Decker v. Bradford, 4 M. 312.

The verdict, in this case, is made certain by the allegations and prayer of the petition.

It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed, with costs.


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    Andrew & Sierau v. Hugh Keenan.
    Prescription does not run on a merchant’s account for advances made in the shape of acceptances of drafts, and disbursements for necessary supplies, insurances, freights, &c., upon each separate item of the account, but the account as a whole is prescribed in three years.
    In regard to an account for goods sold, by the terms of the law, each item of the account is subject to its own prescription.
    The evidence of one witness, without corroborating circumstances, is not sufficient to establish an item in account of over $500, for amount of a draft paid by the merchant, which is alleged to be lost or mislaid'.
    Articles 2258 and 2259 C. C., in regard to lost instruments, do not apply to an action for reimbursement of money paid by a merchant upon an accommodation acceptance, when the draft is lost or mislaid.
    PPEAL from the District Court of the Parish of Catahoula, Mayo, J.
    JOl Smith & Spencer, for plaintiffs. Curvy & Hawkins, for defendant and appellant.
   Buchanan, J.

This is a suit for balance of a factor’s accounteurrent with a planter.

The defence is, a general denial; a special denial of certain items of the account ; prescription of three years; and compensation.

Plaintiffs had a verdict for the full balance by them claimed, with interest at eight per cent, from the date of the verdict. The jury also allowed defendant a portion of his claim in compensation, with eight per cent, interest. Plaintiffs entered a remittitur of one hundred and fifty dollars upon this verdict, for charges of commission and interest in their account; they also remitted three per cent, of the interest, as allowed by the verdict, thus reducing it to five per cent.

Defendant appealed, and plaintiffs answer the appeal, praying that the judgment be amended by rejecting (he claims of defendant in toto.

The first point made by appellant in this court concerns the plea of prescription. It is contended by the counsel of defendant, that the prescription of this account, under the statute of 1852, p. 90, should run upon each item of the account separately, from the date of the item. But we do not thus construe the Act of the Legislature in question. Its first section evidently refers to accounts for goods sold. As to such accounts, it is apparent that each item, by the terms of the section, is subject to its own prescription. But this is not such an account. The charges, here, are for advances made, in the shape of acceptances of drafts, and disbursements for necessary supplies, insurances, freights, &c., upon the proceeds of crops consigned, and to be consigned, by a farmer to a merchant. This account is included in the class contained in the second section of the Act of 1852, p. 90, in relation to which the expression of the Article is, that the account, as a whole, is prescribed in three years; and the doctrine of Toledano v. Gardi-ner, 2 An. T79, in relation to the prescription of factors’ accounts, is thus confirmed by subsequent legislative enactment.

There is a charge in plaintiffs’ account, under date of 20th December, 1854, for bills payable due December 19th, 1854, of $540 84. The answer specially denies the execution and existence of such bill or draft. The proof adduced by plaintiffs in support of this item, is insufficient. It consists in the evidence of one witness, who declares that the draft is mislaid or lost; that it was in the possession of the plaintiff;?, and was signed by defendant. Being above, five hundred dollars in amount, this evidence of one witness required corroboration to give it effect. 0. 0. 2257.

There is another item similar in character, being for a draft of $67, of which defendant disputes the existence, and which is also mislaid or lost; and which is proved by the same witness. The evidence, as to this draft, is sufficient. The Articles 2258 and 2259 do not apply.

This is not an action upon a lost note; but for reimbursement of money paid upon an accommodation acceptance. Succession of Guillemin, 2 An. 634; Toledano v. Gardiner, 2 An. 779.

Upon the subject of the reconventional demand of defendant, we are of opinion, that the verdict of the jury has done justice, according to the evidence. The interest upon this portion of the verdict must, however, be reduced to five per cent. from judicial demand.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be amended; that plaintiffs recover of defendant eighteen hundred and sixty-nine dollars and nineteen cents, with legal interest from the 10th No-cember, 1858, subject to a credit of two hundred and fifty dollars, with legal interest from judicial demand; that defendant pay costs of the District Court, and plaintiffs pay costs of appeal. ¡j


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    W. W. Ford et al. v. Jacob Newcomer et al.
    The misnomer iu the petition for administration of a succession, by calling it a vacant one, will not affect the proceedings which have been regularly conducted as in a succession not vacant, and administered with the benefit of inventory.
    Although a judgment of homologation, recognizing the verity of claims set up against the succession, may not bo technically, as to the heirs, res ju&icala-, yet it constitutes prima facie proof, and imposes upon the heirs the burden of establishing fraud and deception in obtaining it.
    from the District Court of the Parish of Franklin, Richardson, J.

      Morrison & Purvis, for plaintiffs. M. A. Jones and Smith & Spencer, for defendants.
   Buchanan, J.

Certain children and heirs of Mrs. Penelope Ford, sue (in 1854,) to set aside a sale of slaves belonging to their mother’s succession, made by order of court, to pay debts, in 1848, by their brother and co-heir, now deceased, the administrator or curator of Penelope Ford’s estate.

The petition also prays for a partition of Penelope Ford’s estate, and for general relief.

The grounds of nullity alleged in the petition are :

1st. That the succession of Mrs. Ford had been administered as a vacant estate, when in fact it was not vacant, but a succession of which all the heirs were known, and which none of them had renounced.

2d. That the pretended debts, to pay which the property of Mrs. Ford was sold, were not due by said estate, but were fictitious, and the sale a fraudulent contrivance of the curator, George W. Ford, to appropriate to himself the estate, and defraud his co-heirs.

There are two defendants : one, the administrator of George W. Ford’s estate and tlie other, the tutor of G. W. Ford’s minor child. They both plead the general issue, res judicata, and prescription.

The tutor moreover pleads, that this suit is prosecuted, in reality, for the interest of the other defendant, the administrator, who is alleged to have purchased the shares of plaintiffs in the inheritance of Fenolope Ford; to establish which fact, interrogatories were propounded by the former to the latter.

The District Judge sustained the plea of res judicata, as to the verity of the alleged debts of the succession of Penelope Ford, upon the authority of Article 105*7 of the Civil Code, and the cases reported in 6th La. 225, and 3d An. 383.

The evidence shows, that a statement of the debts of the estate of Penelope Ford was filed by the administrator, George W. Ford, on the 22d August, 1846, and that the same was homologated by two judgments of court of the 12th December, 1846, and the 10th September, 1847.

This appears to have been in conformity to the Articles 1056, 1057 and 1058 of the Code.

But it is objected by counsel of plaintiff's, that the judgments of homologation and orders of sale were null, because not preceded by a notice to the counsel of absent heirs, as required by Article 1157 of the Code.

This Article applies to the case of a vacant succession ; and although the succession of Mrs. Penelope Ford was styled vaeant in the petition of G. W. Ford for letters, yet, this was evidently a misnomer, not intended, nor having the effect, to deceive any person. For in the same petition, it is declared, that the deceased was the mother of petitioner, and that he is one of her heirs. There was, therefore, no advertisement during ten days, of the petitioner’s application, neither was there any appointment of an attorney to represent absent heirs, as would have been the ease, had this been really a vacant succession, according to the definition contained in. Article 1088 of the Civil Code. But the Judge proceeded at once to appoint the petitioner to the administration, as a beneficiary heir of age, according to the Articles 1034 and following.

The plaintiffs were at the time, and have been since, residents of the parish where those proceedings took place.

"We are, therefore, of opinion, that neither of the grounds of nullity alleged by plaintiffs should prevail. For, as to the first, the misnomer in the petition for administration, of calling the succession a vacant one, will not avoid proceedings which have been regularly conducted as in a succession not vacant, administered with benefit of inventory ; and as to the second, although the judgments of ho-mologation, recognizing the verity of the claims set up against the succession, may not be technically, as to these plaintiffs, res judicata, which excludes all proof to the contrary, yet they constitute, especially at this distance of time, pri-ma facie proof, which imposes upon plaintiffs the burden of establishing the fraud and deception by them alleged. But they have offered no proof whatever upon this subject.

Under the prayer for general relief, the District Judge has allowed plaintiffs five hundred and sixty-eight dollars, being for one year and five months hire of slaves belonging to the succession of Penelope Ford, while they remained in George W. Ford’s possession previous to the judicial sale.

The defendants and appellees have filed answer to the appeal, praying an amendment of this part of the judgment. And we think they are entitled to relief in this respect. The hire allowed is the whole value, as proved, of the services of the slaves. But Mrs. Penelope Ford had six children, of whom G. W. Ford was one. He, therefore, represented in his own right, one-sixth of the succession ; and his administrator has acquired the interest of two others, William and Róben Ford, as proved by answers to interrogatories, given in evidence against plaintiffs, without objection. The interest of these two heirs, who are two of the plaintiffs in the present suit, was thus acquired by George Ford’s administrator for account of the estate by him administered, as is alleged by him.

It is, therefore, adjudged and decreed, that the judgment of the District Court be amended, and that plaintiffs recover of defendants, in their capacity of tutor and administrator, the sum of two hundred and eighty-four dollars and thirty-seven cents, with interest from judicial demand, and costs of the court below ; those of appeal to be paid by plaintiffs.


author: Buchanan, J. Land, J.

text:
    Crawford v. Alexander et al.
    The appellant will not be allowed to amend the appeal bond in the Supreme Court.
    He is not entitled to relief even when it is shown that the omissions in the bond were attributable to the Cleric of the court who filled up the blanks in the bond : in doing this, the Clerk will be regarded as not acting in his official capacity, but as the mere agent or scribe of the appellant.
    Where the judgment appealed from was rendered against the defendant, both personally and inare-presentative character, and the appeal bond is given in the representative capacity exclusively, the appeal will be dismissed.
    from the District Court of the Parish of Bossier, Creswett, J.

      Terrell Hodge, for plaintiff. Crain <& Nutt and A. £. Levisee, for de- and appellant.
   On motion of appellant to amend :

Buchanan, J.

The counsel of appellant has moved this court to allow him to alter the record, by inserting another obligor in the appeal bonds.

The order for ajjpeal is in the following words :

Crawford and Husband v. M. D. C. Cain et al., No. 5165 — M. D. C. Cain v. Crawford et al., No. 5300 — Cumulated with the above.

“ In District Court, parish of Caddo, comes M. D. C. Alexander, in her own right, and as administratrix and executrix, &c., and prays the court for an order granting a suspensive and devolutive appeal in these two cases, returnable to the next term of the Supreme Court, to be holden at Monroe, on the 2d Monday of July next. She prays the court to fix the bond required for devolutive appeal, and that for the suspensive, it be fixed according to law.”

Two appeal bonds follow this entry in the transcript; one purporting to be furnished in suit No. 5165, and the other in suit No. 5300.

They both commence as follows :

“ Know all men by these presents, that we, H. B. C. Alexander, executrix, as principal, and W. M. Fulsom, as security, are held and firmly bound,” &c.

This application cannot be entertained. It is very clear that the copy of these bonds in the transcript, here in Monroe, cannot be changed, while the original, on file in the Clerk’s office of the District Court in Caddo, are unchanged. It is equally clear, that the liability of the surety for appeal is to be determined by the bond which he has signed, and cannot be extended and increased without his consent. It may be, that he was willing to become bound as surety for an executrix, with a recourse over against the succession administered by the executrix; but would be unwilling to bind himself for the same person in her individual capacity.

Again, supposing the surety to be willing that the proposed alteration should be made, it cannot be done without the consent of the appellee; and we have the strongest presumption against such consent, in the fact that a motion to dismiss the appeal, for the want of proper parties, among other grounds, was filed before this application was made. Percy v. Millaudon, 6 La. 586.

It is alleged by the mover, and the allegation is supported by affidavit, that the omission of Mrs. Alexander, in her individual capacity, as obligor in the appeal bonds, is attributable to the Olerk of the District Court, to whom the filling up of the blanks in the printed bonds, was entrusted by appellant’s counsel.

In this, the Clerk must be regarded as not acting in his official capacity, but as the mere agent or scribe of the appellant. 2 An. 452 ; ib. 902.

Motion refused.

On the merits:

Land, J.

This suit was commenced in July, 1851, by the wife of J. B. Crawford, against the defendant, in her individual capacity, for the recovery of certain slaves claimed by the plaintiff, Catherine Crawford, in her own separate right. Afterwards, in December, 1851, the defendant, M. B. C. Alexander, as administratrix of the successions of James H. Cain and of John R. Cain, instituted a suit of attachment against J. B. Crawford, plaintiff’s husband, on certain promissory notes made by him, and caused the-slaves claimed by plaintiff, to be seized as the husband’s property.

These suits were consolidated and tried together, and judgment rendered against defendant, Mrs. Alexander, in both cases. She has appealed, and the plaintiff moves to dismiss the appeal on the grounds, among others, that she, as plaintiff in the petitory action against Mrs. Alexander, in her personal capacity, can have no right of action on the appeal bond, for the reason that the bond is given by defendant exclusively in her representative capacity, and is only applicable to the attachment suit in which her husband was sued by defendant, as the administra-trix of the successions of J. H. and J. R. Cain.

Can the plaintiff sue on this bond ? She has no judgment against the successions of Cain, nor was she a party to the suit in which the judgment on the notes was rendered against the successions. There is no priority of judgment between plaintiff and defendant as the administratrix of these successicms, and there cannot be, therefore, any priority of contract created by the appeal bond signed by her as administratrix, and consequently no right of action in favor of plaintiff. If the plaintiff has a right of action on the appeal bond, the consequence of a judgment on it against defendant, as administratrix, would be to make the successions of Cain liable for the individual obligations of defendant, when the plaintiff had no claim, nor pretended to have any against them.

It cannot be said that the addition “ administratrix” to her name, is a mere description of the person, and is, therefore, surplusage, for the reason that there is a judgment in this case against the successions of Cain, in the attachment suit consolidated with this action, from which the defendant, as administratrix, has appealed.

The bond is made payable to J. B. Crawford, the defendant in the attachment suit, and to plaintiff in this the petitory action.

it has already been decided, that the error or omission in the bond cannot be cured.

It is, therefore, ordered, adjudged and decreed, that the motion be sustained, and the appeal dismissed, at costs of appellant.


text:
    J. M. Tillman v. Clement Mosely.
    party is not concluded by his declaration of residence in an act of conveyance, and evidence is admissible to contradict the recital, when the domicil is not one of the causes of the contract.
    It is necessary to give validity to a deed of gift mado in another State, hut designed to have effect in Louisiana, that it should be clothed with the formalities required by our law, and its effect will also be governed by the laws of Louisiana.

      A donation under our laws is not valid, when the usufruct of the property donated is reserved to the
    from the District Ooui-t of the Parish of Claiborne, Eagan, J.

      W. C. Copes, for plaintiff and appellant. J. Young, for defendant.
   Buchanan, J.

The first question to be decided in this case is, whether the District Court erred in admitting testimony tó prove that defendant was a resident of Louisiana at the date of the conveyance ti) plaintiff, which is the basis of this action ; the said deed of conveyance reciting that defendant was “ of said county and State above named,” Perry county, State of Alabama.

The evidence was properly admissible under the doctrine in Davis v. Binion, 5 An. 248. The recital in question, in the deed of conveyance, was not one of the causes of the contract.

The present case differs from those of Holloman v. Holloman, 12 An. 607, and McCall v. White, 10 An. 577, in this, that the contract between the present parties, although made in Alabama, was intended to have effect in Louisiana. Its effeet must, therefore, be governed by the laws of Louisiana. Civil Code, Article 10.

It is a donation of negroes and their increase by defendant to plaintiff, and is revoked, up to the disposible portion, by the subsequent birth of three legitimate children to the dono!-. C. 0.1556.

The evidence shows, that the slaves in question constitute the greater part of the estate of the defendant.

Neither is this donation clothed with the formalities required by Articles 1523 and 1629 of the Civil Code, to give it validity, and to make it binding upon the donor, in Louisiana.

Lastly, it is bad, under the Article 1520 of the Code, because the usufruct of the property donated, is' reserved to the donor. 12 An. 721; 5 An. 433 ; 4 An. .36.

Judgment affirmed, with costs.


text:
    R. C. Cummings & Co. v. Henry Harsabrauch.
    Where the knowledge of the failure of the consideration of a note is brought home to the agent of the party to whom the note is transferred in settlement of a debt due the principal by the payee, at the time of the transfer, it will be considered notice to the principal.
    PPEAL from the District Court of the Parish of Caddo, Creswell, J.
    A Landrum, & Witliamson, for plaintiffs and appellants. Wells <& Winans, for defendant.
   Buchanan, J.

Plaintiffs sue as endorsers, upon a promissory note made by defendant, payable to the order of W. A. Lacy.

The defence is, that the consideration of the note has failed: that it was given for the price of a slave woman, who is affected with a redhibitory malady; and that plaintiffs, when they became holders of the note, were notified of the want of consideration of the same.

The evidence is, that the note in question was transferred by endorsement and delivery to an agent of plaintiffs, for their account, in settlement of a debt due plaintiffs by the payee of the note; that the agent was informed by payee, at the time of the transfer of the note, that its consideration was the sale of a slave, and that the agent was fully cognizant of the fact of the slave being unsound.

These facts are established by the testimony of the agent himself. He declares, that he enquired of the payee of the note, in the conversation which took place at the time of the transfer, whether he had sold Martha as a sound negro ; and he answered that he had. The witness thereupon expressed some astonishment, because he did not regard her as sound. And from other parts of this witness’s testimony it is seen that he had peculiar opportunities of knowing the condition of the slave in question.

We are of opinion, that the notice thus brought home to the agent, of the failure of consideration of the note, was notice to the principals, plaintiffs herein. Story on Agency, 140, 451; Kemp v. Rowley, 2 An. 319. See also Lupin v. Clifton, 17 La. 158, and Maurin v. Chambers, 16 La. 210.

Judgment affirmed, with costs.

Land, J., recused himself in this case, having been of counsel.