text:
    No. 1,015.
    The State of Louisiana, ex rel. Logan & MacKinson, v. The Judge of the Fourth District Court of New Orleans.
    Where the District Judge renders judgment on a rule to show cause why execution should not issue, dismissing the rule, a MmuUt,nw will not lie to compel him to order an execution. The decision, on the rule, is a judgment of the Court, which can only bo inquired into on appeal.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.
    71. Ugan, for Logan & MacKinson.

      .Judge /\ TC. Thiard, in propria persona.
   Labauve, J.

The relators have applied to this Court for a writ of mandamus directing the said District Judge to show cause why a peremptory mandamus should not issue, compelling him to allow the relators a writ of fieri facias on their judgment against John E. Low, and others, No. 17,619 of the docket of the Fourth District Court of New Orleans.

They represent that they have obtained a judgment in the honorable the Fourth District Court of New Orleans, on the 13th November, and signed on the 17th of same month, 1806, against John F. Low and others, for §1471 12, with legal interest and costs of suit; that said judgment is now final, and no appeal has been taken thereupon. That on the 13th of December, 1866, they applied to the clerk of said District Court for a writ of fieri facias on said judgment, and that the said District Judge wrongfully refuses to permit the clerk of the said Court to issue a writ of fieri facias in favor of the relators, and against the said John F. Low and others, on said judgment, by reason of which the relators have sustained a denial of justice. They pray accordingly.

The rule issued as prayed for, and the said District Judge has answered that:

“ On the 30th day of October, 1866, the Foundrymen’s Cooperative Association filed a petition, and, for certain causes therein alleged, prayed for the dissolution and liquidation of said corporation, and further prayed for a judicial order decreeing that all proceedings against the said corporation be stayed.

On the 31st day of October, 1866, the said District Court of New Orleans granted said stay of proceedings, and appointed a receiver and liquidator as in cases of insolvencies, and this respondent, Judge of the said Court, signed the said order on the 31st day of October, 1866, which order, a copy of which is hereto annexed, is and still remains in force.

Logan & MacKinson instituted a suit in the Fourth District Court of New Orleans, in the month of August, 1866, against the Foundrymon’s Cooperative Association aforesaid, a copy of the petition and citation are hereto annexed, and made part of this answer.

On the 13th day of December, 1866, the plaintiffs in said suit, Logan & MacKinson, through their attorney, B. Egan, applied for a writ oi fieri facias, which was refused, and, at the suggestion of the Court, took a rule on D..A. Mullaue, the receiver appointed by this Court in the case of said corporation, to show cause why a writ of fieri facias should not issue.

The rule was tried eoutradietorily with the said receiver, and after hearing evidence and argument, the Court ordered, “that this suit of Logan & MacKinson be transferred to and consolidated with the case No. 17,789 of the docket of this Court, entitled the Foundrymen’s Cooperative Association, praying for a dissolution and liquidation, and that said rule be dismissed with costs, a copy of which order is hereto annexed, and is still in force.

The suit of Logan & MacKinson, was a suit against the said Foundry-men’s Cooperative Association, and at the time the order of stay of proceedings was granted and signed, the said Logan & MacKinson had not recovered judgment. All proceedings had, after such stay of proceedings had been granted, were absolute nullities. 1 M. 193, 207; 3 M. 39; 7 B. 162; 3 An. 582, and numerous others on the same point.

On the trial of the rule, these positions were taken, and the Court sustained the well-established jurisprudence of the State on that point.

' The judgment of the said Logan & MacKinson is a mere and absolute nullity.

The fact of the existence of the order of stay of proceedings, escaped the recollection of the Court, at the time that the judgment referred to in the petition praying for a mandamus was rendered, otherwise said judgment could not have been rendered and signed by the Court. A judgment is improperly signed after a slay of proceedings, and the suit should be cumulated with the concurso. 4 N. S. 625; 7 L. 62; 2 An. 634. And it was the duty of the plaintiffs to have respected said order.

It will be borne in mind that the rule to show cause why the writ of fieri facias should not issue, and of which a copy is hereto annexed, was taken at the suggestion of the Court by the attorney of the petitioners herein, and that the alleged judgment obtained by him, is considered as a judgment against the Foundrymen’s Cooperative Association, and not an individual judgment against any particular individual.

The citation hereto annexed, shows that it was addressed to said association in their corporate capacity.

Articles 418 to 422, inclusive, of the C. C. define what a corporation is, and Articles 423 and 428 provide the mode in which they may sue or be' sued.

John F. Low, against whom the judgment was rendered, was served with a citation as representing the company, and the said citation was not directed to him in his own individual capacity; therefore, the judgment rendered is one against the Foundrymen’s Cooperative Association, and not against an individual member. 3 An. 19,541. 'What purports to be a judgment is therefore a nullity.

Besides, even if the petitioners had obtained a judgment against the. association before the order of stay of proceedings, the injunction would apply as well, for the association being dissolved and in liquidation,. necessarily all the suits against it must have been cumulated and carried on in the insolvent proceedings. See cases already cited. 3 M. 39; 4 N. S. 625; 7 E. 162; 2 An. 634.

X apprehend- that the petitioners have mistaken their remedy, if any they have; that is to say, they should appeal from the interlocutory order or decision of this Court, in the matter of the rule to show cause why execution should not issue.

For these reasons it is humbly submitted that no writ of mandamus should issue as prayed for. Respectfully submitted,

(Signed) Paul E. Theard, Judge.”

It is perceived that our learned brother of the Fourth District Court of New Orleans, has given satisfactory reasons why the mandamus prayed for should not issue, and the said Judge 'has gone further than necessary; and has concluded right, in saying that the relators should have appealed from his decision in the matter of, the rule to show cause, why execution should not issue.

The question on the propriety or illegality of that decision, is not before us; it is on an appeal only that we could inquire into the proceedings of the rule and decision thereupon, which the said Judge has brought up and annexed to his answer, to show why he had refused to allow an execution to issue.

On the 13th December, 1866, on motion of B. Egan, attorney for plaintiffs in the case of Logan & MacKinson v. John F. Low, and others, etc., in the Fourth District Court of New Orleans, presided by the said Judge, it was ordered by the Court that D. A. Mullane, receiver in the case of the Foundrymen’s Cooperative Association, do show cause, on Friday, the 14th day of December, I860, at 11 o’clock, A. M., why a writ of fieri facias should not issue in the said cause.

On the said day, the said rule came on for trial, and the following decision was rendered by the Court:

“ It is ordered that this suit be transferred, and consolidated with the case No. 17,989 of the docket of this Court, entitled the Foundrymen’s Cooperative Association, praying for a dissolution and liquidation, and that said rule be dismissed, with costs.”

It seems, from the Judge’s answer herein, that no appeal has been taken from that order, and that the same is yet in full force.

It is the relators who called upon the Court to decide whether they were not entitled to an execution in the case alluded to, and, instead of taking an appeal from that decision, or submitting to it, they applied again, notwithstanding the said order refusing it, to the same Court for an execution, which the Court was bound to refuse as long as the said decision in the matter stood as a decree of the Court. Whether the decision was right or wrong, it made no difference; the Court and the parties were bound by it. This is no case for a mandamus; we cannot direct the said Judge to allow an execution to issue; it would be virtually annulling his decision refusing it, and upon which we have jurisdiction by appeal only.

The rule is dismissed and the mandamus refused, at the cost of tha' relators.


source: Caselaw Access Project

author: InSLEX, J.

license: Public Domain

text:
    No. 6,920.
    M. L. Rossvally v. The City of New Orleans.
    Where a party, contracting with the Oity of New Orleans to clean the streets, allows to be inserted in the contract a clause, that in case of failure to perform the work specified, at the proper time, the street commissioner shall cause tbe work to be done at whatever cost he may be able to obtain the labor and material, and to deduct the expenso thus incurred from the amount due by the city to the contractor, such clause is valid and binding upon said contractor.
    A . PPEAL from the Fifth District Gourt of New Orleans. Eggleston, J.
    . J. J. Lugcnbuhl and E. Planchará, for plaintiff and appellant.

      J. J. Michel, for defendant and appellee.
   InSLEX, J.

By a contract entered into on the 11th August, 1859, between the plaintiff, M. L. Rossvally, and the defendant, tho city of New Orleans, the latter undertook to do and perform certain works, such as cleaning the streets and keeping in repair the unpaved streets of tho Eleventh Ward, Fourth Distriet of the city, as particularized in the specifications, for and during the term of three years, and, in consideration therefor, the city was to pay the plaintiff the sum of four thousand four hundred dollars per annum, in monthly installments of three hundred and sixty-six dollars, sixty-six and two-tliirds cents'—of which ten per cent, was to be retained until the end of each year, and then paid, if the streets were found in good order and condition, otherwise to be forfeited to the use of the city.

To insure the diligent and faithful performance of the works undertaken by the plaintiff, the city caused to be inserted into the contract several other stringent clauses, among which is the following: “In all cases, if tho contractor fails to perform or neglects his work, the street commissioner is bound to do it, or cause it to be done, at whatever cost he may be able to obtain the necessary materials and labor, and the amount of the fines, the wages of tho workmen and the cost of the materials, are to be deducted out of the monthly payments to be made to the said contractor.”

The contract, by the mutual consent of the parties, was annulled on the 10th December, of the same year; and the plaintiff claims in this suit, under his contract, the balance of one thousand and six dollars and interest, for work performed by him up to its termination..

The city pleaded the general issue, and payment of the installment for September.

Judgment was rendered against the defendant in the District Court, and he has appealed.

The plaintiff contends that his part of the contract, up to the time of its annullment, was faithfully and diligently performed, whilst the city maintains that the work was neglected, and not performed in accordance with the stipulations of the contract; that the plaintiff’s work was totally abandoned for a whole month, out of the time for which he claims payment; that he did not personally supervise the work, and that he failed to carry out the orders of the street commissioner. Who was, therefore, by the terms of the contract, required to cause the work to be done; and that for the work so ordered to be done by the commissioner, large sums of money were paid by tho city: and, that under the clause to which wo have referred, the sums so paid must bo. deducted from the monthly installments.

The city thus states its account with tho plaintiff:

Allowing the full amount for the three months and ten days, without the deduction of the ten per cent., it would be......$1,222 12

Deduct tho amount paid to the plaintiff, which is admitted....................................... 216 00

Work done by tho city in September, and paid for.. Ill 00

Work done by the city in October, and paid for..... 861 18

Work done by the city in December, and paid for... 323 00 $1517 18

Amount overpaid.............................$292 96

That these several amounts were paid by the city on account of the work undertaken by the plaintiff, cannot be questioned; but, they are not chargeable to tho plaintiff, if he has done his work faithfully, and in accordance with the specifications of his contract.

To ascertain this, we have carefully examined all the evidence in tho record, and it fails to establish the plaintiff’s pretensions.

The Ward in which the plaintiff’s work was to be performed, was a largo one, containing some twenty-five squares, making some thirty or forty streets; and it would have required, says the street commissioner, not five (about the average number employed by the plaintiff on the work) but from fifteen to eighteen men, to do all that was required by the specifications.

Tho plaintiff’s witnesses concur in saying that tho number of laborers employed by the plaintiff would have sufficed for the work, had sufficient time been given them to do it. Brit none of those witnesses knew what work was required by the specifications.

The only witness who had seen the specifications published was Patrick Irwin ; but he says that he did not inspect tho work close enough to say if the plaintiff had earned his money.

The street commissioner, who knew what was required by tho specifications, although he did not recollect having read tho contract itself, says that the plaintiff did not, at any time, perform his obligations under his contract (meaning thereby under the specifications of the contract which he had read); that he failed to cut grass from the banquettes, clear tho gutters, grade tho streets and pile the dirt—a work which required prompt and efficient performance, and which needed two-thirds more labor than the plaintiff had at any time engaged upon it.

We are satisfied that, although the plaintiff did make some progress in his work, that he failed to perform what was called for by the specifications of the contract; and as he was legally put in default (see Art. O. C. 1905; 17 La. p. 310), the city was authorized, under the clause transcribed herein, to do the work neglected or left undone, at whatever cost the commissioner could obtain the necessary labor.

It was the plaintiff’s misfortune to undertake the extensive works required by his contract with the city, for one-half their value; hut, having accepted the stipulated consideration therefor, and subscribed to all the stringent clauses which the city, in view of the public interest, deemed necessary to peovu'e the performance, of the, contractor’s obligations, he. must abide by them (see Art. 1895 C. 0.), as Courts are bound to give legal effect to all legal contracts, according to the true intent of the parties. Art. 1U40, $ 2.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, at’ the costs of the appellant.


author: Hyman, C. J.

text:
    No. 6,956.
    Farley, Jury & Co. v. J. C. Vanwickle & Co.
    Where defendant shows that cotton was damaged before he was authorized to take possession of it. it is incumbent on plaintiff to show that other damages were sustained, and the extant bherool beforo he can recover.
    A PPEAL from the Fourth District Court of New Orleans, Price, J.

      T. J. <£ A. G. Femmes, for plaintiffs and appellants.

      Col/nnsd; Wooldridge, for defendants and appellees.
   Hyman, C. J.

In this case the plaintiffs are appellants from a judgment of nonsuit.

The suit is for damages alleged to have been done to cotton, while in charge of defendants, under an agreement that they should take charge of, haul, store and protect it from injury.

The evidence is, that the cotton was damaged before defendants were authorized to take charge of it, and this fact being established, it is our opinion that it devolvfed on the plaintiffs to show, by evidence, that the cotton received other damage, and the extent thereof, while it was in the charge of the defendants. This was not so done as to enable the District Judge to give a judgment for any amount in favor of plaintiffs.

In examining the evidence, we have not come to a conclusion different from that of the judge.

Lét'the judgment be affirmed.


author: Tadtaeeebo, J.

text:
    No. 138.
    R. Marsh Denman & Co. v. M. H. Dosson, J. P. Todd and W. D. L. McRae.
    A retiring partner oía commercial firm is not exonerated from responsibility for subsequent engage mentis made in Ifie name of the partnership with persons previously in the habit of dealing with ’ Jt. unless special notice of the withdrawal be given them.
    A PPEAL from the Second District Court of New Orleans, Morgan, J.

      Clarke t& Bayne, for plaintiffs and appellees.

      T. W. Collens, for defendants and appellants.
   Tadtaeeebo, J.

The commercial firm of M. H. Dosson & Co., composed of M. H. Dosson and W. D. L. McRae, having business transactions with the firm of R. Marsh Denman & Co.j during the years 1856-57, to the amount of §1,871 with interest, there was a balance due the latter, on the 4th of November, 1857, of §421 56. In liquidation of this sum, R. Marsh Denman to, Co. received a promissory note, payable on the 10th clay of February, 1858, drawn by M. H. Dosson & Co., payable to the order of, and endorsed by, J. E. Todd & Go. As owners and holders of this noto, R. Marsh Denmau & Co. caused it to be duly protested at maturity, and notices to be given to the several parties entitled to notice. They subsequently brought suit against the drawers and J. E. Todd, one of the endorsers. On the 2d March, 1860, judgment was rendered against Dosson, McRae and Todd, in solido, for the amount of the note, with eight per cent, interest from the 13th of February, 1858, costs of protest and costs of suit.

From this judgment McRae appealed.

The defense sot up by the appellant.is, that ho was not, at the*time of the institution of the suit, nor at tlio time the note was given, a member of the firm of M. H. Dosson & Co. Ho further denies that he, or any firm with which ho was connected, has ever received any consideration for said note.

The evidence shows that the following notice appeared in the Commercial Bulletin, 'on the 10th of December, 1856 :

“Notice.—The undersigned this day retires from tlio firm of M. H. Dosson & Co., by mutual consent. (Signed) ‘VV. D. L. McRae.

New Orleans, December 10, 1856.”

The appellant propounded a number of interrogatories to the plaintiffs, tending to show his withdrawal from the firm of M. II. Dosson & Co., but he entirely failed to elicit by their answers any knowledge whatever of' that fact. Their answers déelare that they were not subscribers to the Commercial Bulletin, and that they never saw the appellant’s advertisement in the paper, nor ever knew of its being there; that they never-learned from any other source that the appellant had withdrawn from the firm. They aver, moreover, that they took the note upon the credit of all the parties to it, supjDosing McRae to be a member of the firm of M. H. Dosson & Co., as they'had had previous dealings with that firm.

It appears clearly that business relations existed between the two firms-from July, 1856, until November, 1857. It seems to be the Settled ruléthat, in a case like the present, a retiring partner is not exonerated from responsibility for subsequent engagements, made in the name of the partnership, with persons previously in the habit of dealing with it, unless special notice of the withdrawal be given them. A general notice in the newspapers does not suffice. 6 L. R. 683. 12 An. 773. Story on Eartnership, 160, 334, 335, 336.

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


author: HowEim, J.

text:
    No. 6,838.
    Hall, Kemp & Co. v. S. Plassan.
    The seller is bound to explain himself dearly, as to the extent of his obligations.
    The exhibition of a sample implies a warranty that the thing sold by itshall be, in some measure, in conformity to it.
    The sample is a tacit representation of the quality of the merchandise sold, and except where the warranty is clearly and explicitly excepted by the vendor, he must deliver the article in a condition equal to that of the sample.
    Where merchandise is sold by a sample, the extent of the warranty is limited to the condition of the artiole sold at the time of the sale.
    Where the commodity is by its nature, subject to change or deterioration, and no fraud or concealment is shown, the buyer must show that the defect or deterioration existed at the date of the sale, or show that it was discovered as early as it was practicable to make an examination
    A PPEAL from the Fourth District Court of New Orleans, Pric/:, J.

      R. & H. Man', for plaintiffs and appellants.

      Hunt. & Denegre, for defendant and appellee.
   HowEim, J.

Plaintiffs allege that on the 30th January, 1858, they purchased of defendant, by sample, 1,016 cases of wine of superior common claret, then stored in a bonded warehouse; that on 28th of April following they discovered that said wine was sour, wholly unmerchantable, and altogether different in quality and condition from the sample exhibited to them, of which they gave immediate notice, and tendered the wine to defendant, who refused to accept the same, and thereupon they caused 999 cases (the number not disposed of by them) to be sold at auction, the net proceeds of which they credited on the cost price thereof, and they aslc for judgment against defendant for the balance, and the storage paid by them.

The defense is a general denial. Judgment was rendered in favor of defendant, and plaintiffs appealed.

It is shown that a broker informed defendant that he had a purchaser for the wine, whereupon defendant sent his clerk to tlie warehouse for a sample; the clerk opened two or three boxes, took out sample bottles aud carried them to defendant’s store, whence the broker carried them to plaintiffs, who, with him, tried them and found the wine to be good “ cargo wine,” with an “ artificial flavor;” plaintiffs were then informed that the wine was au entire shipment of a particular brand by one vessel. About two months thereafter plaintiffs withdrew from the warehouse 400 boxes of the wine, and a month later (say 27th April, being about three months after their purchase) they withdrew and sold 400 boxes more, when they, for the first time, discovered that the wine was sour, and different from the sample; the remainder was not taken from the warehouse until ¿n July following, when 999 boxes were sold at auction. Wine of this grade, known as “cargo wine,” in a very short time, say within three months after, becomes unmerchantable in this climate. In sales of such wines vendors guarantee the wine the length of time necessary for the purchaser to examine the lot purchased, and in this instance no particular guaranty was given. The defendant was unacquainted with the condition or character of the wine, having sold without examining it.' It also appears that plaintiffs received the lot or shipment from which the sample was taken.

It is a well-settled principle of law that a seller is bound to explain himself clearly as to the extent of his obligations; and the exhibition of a sample implies a warranty that the thing sold by it shall be in some measure in conformity to it. The sample is a tacit representation of the quality of the merchandise sold, and except where the warranty is clearly and explicitly excepted by the vendor, he must deliver the article in a condition equal to that of the sample. O. C. 2449; 1 N. S. 312; 4 R. 316; 10 R. 5.

The extent of this warranty is limited, however, to the condition of the article sold at the time of the sale; and where the commodity is by its nature liable to change or deterioration, and no fraud or concealment is shown, the buyer must prove that the defect or difference existed at the date of the sale, or must show that it was discovered as early as it was practicable to make an examination, or under such circumstances as to raise the. presumption that it must have existed at the time of the sale.

Applying these principles to this case, we think plaintiffs have failed to shew that the wine was unmerchantable or different from the sample at the date of the sale. On the contrary, the evidence raises the presumption that a change in its condition occurred after the delivery.

It was a low, cheap grade of claret, called “ prepared ” or “cargo wine," of which experienced dealers say, “ you cannot depend with any certainty that it will keep for any length of time.” There was no effort nor design to practice a deception in selecting the sample bottles, which were taken from different boxes indiscriminately. The sample was exhibited, and agreement made on 12th January—the note for the price given on 30th same month. On 24th March the plaintiffs removed 400 boxes from the warehouse, and on the 27th April following 400 boxes more, the purchaser of which examined the wine on the next day and found it sour, and complaint was then first made. We think the warranty did not continue such a length of time, under such circumstances, and the District Judge did not err in giving judgment for defendant.

Judgment affirmed.


author: 'Howell, J.

text:
    No. 751.
    D. Sullivan v. E. Goldman.
    Where plaintiff has established his ownership up to a particular dale, the burden is on defendant, or those through whom ho holds, to show a legal divestiture of plaintiff's title.
    Tho warrantor cannot be condemned to pay move than the price recovered by h im, no damages being proved. ^
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      A. Raucier, for plaintiff.

      Durant <B Eornor, for defendant.

      O. Red■mond, for P. Dopf, called in warranty.
   'Howell, J.

This is an action to recover a horse, or his value, found in the possession of defendant, and alleged to have been stolen from plaintiff. The' defendant pleads a general denial, and calls in warranty his vendor. Judgment was rendered against defendant for the horse or his value, fixed at $350, and the same judgment was rendered in his favor against the warrantor, and both have appealed.

Plaintiff has shown that he was the owner of the horse in question, for several years prior and up to about the 10th or 12th day of May, 1864, when he disappeared from plaintiff’s stable at night, and was not heard of until in April, 1865, when sequestered iu the possession of defendant in this city, who shows that he purchased him in the latter part of February, 1SG5, for a valuable consideration, from one Phillip Dopf, a dealer iu horses in this city, who bought him on lGth February, 1865, from one P. D. Byrne. From whom the latter purchased him is not shown. It seems that the horse disappeared from the premises of plaintiff, in Alexandria, in this State, when the army under command of Gen. Banks evacuated that place ; and it is contended in' argument that the horse must be presumed to have been impressed for the use of the army or an army officer. There is nothing in the record to support such a presumption, and as plaintiff has established his ownership up to a particular date, the burden is on defendant, or those through whom he holds, to show alega] divestiture of plaintiff’s title. Under the circumstances presented by the evidence, the presumption of ownership arising from tire possession of a movable does not avail defendant or his authors.

We think, however, the proof does not sustain the value fixed by the lower Court. The weight of evidence fixes $300 as the value ; and we do not think the warrantor should be condemned to pay more than the price recovered by him, no damages being proven. C. P. 385. We ascertain this price from the allegations in the call and answer in warranty, which, taken together, will authorize, a judgment for $200 only against the warrantor.

It is therefore ordered that the judgment appealed from be reversed ; and it is now ordered that plaintiff recover of defendant the bay horse sequestered herein, or his value, $300, with privilege on the same and costs of suit in the lower Court; and it is further ordered, that defendant have judgment against Phillip Dopf, called in warranty, for the sum of $200, with all costs in the lou'or Court, costs of appeal to be paid by plaintiff and defendant jointly.


author: InsnEV, J.

text:
    No. 244.
    Julius Willis v. David Melville.
    Iii an action, on a (ju-j.iU/di, uvimit, the defendant may show that there was a verbal or written contract between the* parties: and if a contract really existed, the plaintiff, wlio sues on a (lurmium Meruit, cannot recover.
    A PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Hace (6 Foster, for plaintiff and appellant.
    TF. ft. fttansbury, for defendant and appellee.
   InsnEV, J.

The plaintiff claims on a quantum meruit, for services rendered by him to the defendant, as his traveling agent and salesman, during twenty months—betweeii the 27th February, 1855, and the 27th October, 1856, at the rate of one hundred and twenty-five dollars per month, the sum of twenty-five hundred dollars.

Also, the sum of one hundred and thirty dollars, the price of a gold watch, belonging to the plaintiff, and deposited for him with the defendant.

The general issue is pleaded,- and a special contract, in regard to the plaintiff’s services, is set up and relied on to defeat his claims.

That such a contract existed between these parties, is proved by the plaintiff’s own witnesses; and it is shown that previous to the institution of this suit, the plaintiff always insisted on a settlement in accordance with his contract with the defendant.

The plaintiff’s present action cannot therefore be maintained, as it would force judicially upon the defendant a liability different from that which he specially assumed by his agreement with the plaintiff, and which has the effect of law on both the contracting parties (O. O. 1895), and to which legal effect must be given. 1940 C!. O.

The true rule of pleading is enunciated, in this particular, in the case of Hogan v. Gibson, 12 La. 459, and we adopt it as applicable to the present case.

There is, however, no connection between the contract and the sum of one hundred and thirty dollars claimed by the plaintiff; and for this sum he is entitled to a judgment.

The claim of seventy-five dollars, set up by the defendant as a reconven tional demand, is connected with the agreement above alluded to, and cannot therefore be now allowed.

It is therefore ordered, adjudged and decreed that the judgment of the District Court bo annulled, avoided and reversed. It is further ordered that the plaintiff’s claim for personal services be dismissed, as in case of nonsuit; and that he have judgment against the defendant for the sum of one hundred and thirty dollars, with legal interest from the 9th May, 1855, and the costs of suit in both Courts to be paid by the appellee; and it is further ordered, that the defendant’s claim in reconvention for seventy-five dollars be dismissed, as in case of nonsuit, at his costs.


author: Taliaferro, <T.

text:
    No. 832.
    Succession of Angelo Costa—On Petition of Clara Cordeno and Others, for the Annulment of Usufruct.
    The marital portion given by Article 2359 of the Civil Code comes from the separate property of the deceased spouse.
    The community property springs from the joint labor, economy and care of the husband and wife.
    'Pile statute of 1844, § 2, gives to the surviving spouse the usufruct of the shave of the community pro - perty of the deceased during the natural life of the usufructuary, without giving security. It is subject to the sole condition, that the survivor does not contract a second marriage.
    A PPEAL from the Second-District Court of New Orleans, Thomas, J.

      G. Dufour, for plaintiff and appellant.

      Hunt & Denegre, for defendant and appellee.
   Taliaferro, <T.

Angelo Costa died in New Orleans, in the year-1858, intestate, leaving a widow and six children, five of whom, at that time, were minors. He left a considerable estate, consisting of real and personal prpperfcy. His widow, Marie Costa, had the usual legal proceedings taken in regard to the succession, which consisted entirely of community property. She was confirmed as natural tutrix of her minor children, and an under tutor was appointed. Availing herself of the provisions of the act of the Legislature, entitled ‘: an act relative to community property,” approved March 25th, 18-14, she took possession of the entire estate, holding the undivided half in usufruct. >She administered the property as tutrix, sold a part of it under the advice of a family meeting and an order of Court, and filed an account, which was duly homologated, in July, 1859.

In 1865, several of the heirs, then of the ago of majority, instituted this proceeding, praying that the usufruct of the mother be annulled, or that she be required to give security for the faithful and proper administration of the property, setting forth that her administration of the estate has been improvident, wasteful, and greatly injurious to the petitioners.

The defendant, Madame Costa, by her counsel, filed an exception to the proceeding taken against her, averring that the petition set forth no cause of action; that no specific allegation of waste of the property, or of illegal or wrongful management of it, is made, and that she is not required by law to give the security demanded by the plaintiffs.

The case was decided in the lower Court on the exception. Judgment was rendered against the plaintiffs, and they have appealed.

It is contended, on the authority of the case of Conner v. the Heirs of Conner, 13 An. 157, that the legal usufruct treated of in Art. 553 of the Civil Code, is. that referred to in the Arts. 239, 240 and 241 of the Code, and hence the deduction, that the only usufruct of children’s property free from the obligation of security, is that which is accorded to the parents during marriage ; aud that the usufructuary of the marital portion, decided by that case to be bound to give security, is in a. condition analogous to that of the defendant in this case. The reason on which the distinction drawn, in the case of Conner v. the Heirs of Conner, seems to rest, does not, in our opinion, apply to the case before us. The marital portion, given by Article 2359 of the Civil Code, comes necessarily from the separate property of the deceased spouse. It is conceded to the survivor left in destitution, from the estate of the partner dying in opulence. It is a concession to the needy recipient, who never contributed by labor and industry to the acquisition of the means from which the bounty is derived. The community property, on the contrary, proceeds from the joint labor, economy and care of the husband and wife; and the survivor in community, therefore, to whom the usufruct is granted, would appear to have an equitable right to enjoy the privilege free from onerous conditions. A fair construction of the several Articles of the Code, brought into view in the argument of this case, hardly sustains the position, that it is only during marriage that parents can hold the usufruct of their children’s property, without furnishing security. Article 241 directs that “ the usufruct, in case of separation from bed and board, shall take place in toto in favor of either father or mother, who shall have obtained such separation, and shall bo subject to the conditions prescribed in tho preceding article.”

If the entire usufruct may be enjoyed by one of tlio parties to the marriage, without the condition of security, when separation from bed and board occurs, why may it not be, after a final dissolution of the marriage by death or divorce? It is true that, by Art. 239 of tho Code, the duration of tho usufruct is limited to tho timo at which the minors attain tho age of majority, or are emancipated. But, as regards the legal usufruct, established long afterwards by the statute of 1844, second section, the lawgiver has seen proper to extend its duration during the life of tho usufructuary. It is subject to tho sole condition that the survivor holding tho -usufruct, loses the right by contracting a second marriage. No security is required; nor do we consider, in view of the humane and liberal spirit in which the law was enacted, that it ivas intended to be required. Being a legal usufruct established for the benefit of the surviving parent, we think tlie provisions of Articé 553 of the Civil Code apply as wrell to it as to tho previous Articles of the Codo ; and that tho usufructuary, under tho law of 1844, is not required to give security for the usufruct.

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


author: Taliaferro, J.

text:
    508.
    Alfred Kearney v. J. O. Nixon—Thomas P. May & Co., Garnishees.
    A simulated or fraudulent title cannot be attacked by the process of garnishment.
    A PPEAL from the Second District Court of New Orleans, Hoiuell, J.

      G. L. Bright, for plaintiff and appellant..

      J. Ad. Jiozier, for defendant and appellee.
   Taliaferro, J.

The plaintiff, setting himself out as the creditor of defendant (an absentee) in the sum of ten thousand four hundred dollars, with interest, as evidenced by four several promissory notes described in his petition, took out an attachment against his debtor, and cited Thomas P. May &Co., as garnishees, to whom ho propounded the following-interrogatories, vík:

1. Who compose the firm of Thomas P. May & Oo. ? What is the interest of each member of the firm? Is the agreement of partnership in writing-? If yea, annex it to your answers.

2. Are yon in possession of the establishment situated on Camp street, and formerly known as the Crescent newspaper, and now known as tho New Orleans Times?

3. What does the establishment consist of ? Btate the amount of type, presses, engines, and all other materials now used in the establishment, known as the New Orleans Times newspaper, that formerly belonged to, or was used in, the Orescent newspaper establishment, before it became the New Orleans Times. Does not the value of the property exceed, §15,000; if nay, what is its value ?

4. Did you ever acquire, by purchase or otherwise, from auy person, any of the property, type, materials, presses, engines or furniture, that belonged to J. O. Nixon, or were used by him in publishing the Crescent newspaper ? From whom did you acquire them ? Did you receive any hill of sale or receipt therefor ?

5. To whom did Jacob Barker sell the aforesaid establishment ? Have you the bill of sale or receipt given by him ? If yea, annex it to your answers. From whom did Jacob Barker acquire, and from whom did his vendor acquire, the property in'said establishment ?

The garnishees filed an exception, assigning various reasons why they should not he required to answer the interrogatories, the more weighty of which reasons are, that the interrogatories are not pertinent, and that they are covertly intended to attack the title of garnishees to certain property—a mode of proceeding which is irregular and illegal.

The exception was sustained, and the garnishees dispensed from answering the interrogatories. The plaintiff has appealed. ® _

The Articles ’246 and 247, of the Code of Practice, define the rights of the creditor, in regard to third persons having, or supposed to have, in their possession property of, or who may be owing, the debtor against whom the creditor is proceeding. The third party or garnishee may be made a party to the suit, and cited to declare on oath what property belonging to the defendant he has in his possession, or in what sum he is indebted to such defendant, and whether the debt which he owes the defendant is due or not.

The plaintiff, by his interrogatories, does not inquire of the garnishees if they have property belonging to the defendant in their possession, nor if they owe the defendant anything. The pertinency of the interrogatories is not apparent. If, as their tenor would seem to indicate, the plaintiff suspected the garnishees held, under simulated or fraudulent titles, property really belonging to tho defendant, he could uot reach it by garnishment.

The judgment of the lower Court, sustaining the exception, we think correct.

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

Howell, J. recused.


author: Ldsley, J.

text:
    No. 803.
    E. J. Foltier v. Schroder & Schreiber.
    A forged endorsement on a negotiable bill of exchange’passes no title to it, even to an innocent endorser, and the holder can recover the amount from the drawer, without alleging and pmvmg the payee's endorsement.
    It i-, a well-settled principle of law, that an action can only be maintained on notes or obligations by those in whom the legal title is vested.
    When a bill of exehmge is mide payable to plaintiff, or order, the title to it is in. him; and, to divest him of it, a tranu’er from him or his endorsement is necessary.
    Delivery is of tae essence of the contract of pledge or pawn, as u collateral or security.
    A . FPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      A. JRobeñ and J. L. Tissot, for plaintiff and appellant.

      Durant & Hjrnor, for defendants and appellees,
   Ldsley, J.

The plaintiff, who is the payee and holder of the first of the set oí a foreign bill of exchange, duly protested for non-acceptance, with notice to the drawers, the defendants in this suit, claims from them the amount of it, 'with damages and interest.

The answer is a general denial, and there is also a special defense.

The action was dismissed by the Court below, because the third bill of the set was not produced or accounted for by the plaintiff.

The doctrine upon which the decision was rendered is, when applied to a state of facts, such as that presented in the case of Wells v. Whitehead, 15 Wend. 527, the correct one on principle ; and, if in this case it could bo properly applied, it would bo unnecessary to examine the other issues raised.

The plaintiff produces the first bill of the set -of oxchange, duly protested for non-acceptance by the drawee, with notice to the drawers ; and this, upon the authority of Downes v. Church, 13 Peters, 205, establishes a prima facie title in him as the payee, which, however, may be displaced by the defendants, if they can show that the holder of any other of tlio set may recover on it.

This is a matter of defense, as the law will not presume that the other bills of the set have been negotiated to other persons, and the defendants, therefore, on the trial of the case in the lower Court, showed that the third bill of the set (a copy of which, with the protest annexed, is ip tho record) was the first one protested for non-acceptance.

As the third bill is out, and purports to bear the endorsement of the payee, the plaintiff in this suit, he cannot maintain his action without producing or accounting for this third part, or making satisfactory proof that the payment to him of the bill declared upon-will, in accordance with its tenor, exonerate the defendant from all legal .liability hereafter to any holder of the other bill.

It is proved, and admitted by the defendants, that the plaintiff never saw the third bill, and that his name endorsed on it ig a forgery. Now, as a forged endorsement of a negotiable bill passes no title to it, even to an innocent endorsee (see Jackson v. The Commercial Bank of New Orleans. 2 Rob. 129, and Dick v. Leverich, 11 Rob. 173), and no holder of this third bill could recover the amount of it from the drawers, without alleging and proving the payee’s endorsement, the defendants, therefore, can have nothing to apprehend from any claim which a holder of it might hereafter assert; particulary, as they allege in their answer that the bill was overdue as soon as the first protest was made.

It is a well-established principle of law, that an action can only be maintained on notes or obligations, by those in whom the legal title is vested ; but, in the prreseut case, with proof in the record that there is no endorsement on it by the payee, the plaintiff has a standing in Court, and his action upon the first bill of the sot should not, for the reasons assigned by the Court, have been di-missed.

The question to be determined in this case is, whethe the plaintiff, who is the payee, for value, of the bill of exchange in suit, duly protested for non-acceptance, with notice, can be affected by an agreement in regard to the bill between the drawers of it, the defendants, and a third person, who held the mere possession of it, without any transfer or endorsement from or under the payee ?

To solve this question, as it is here presented, it is necessary to advert' to the principal facts which give rise to it. The plaintiff, -the Abbé Fol-tier, received tli efirsl and second bills of the set from one Eugene Darolles, who purchased it from the drawers, and caused it to be made payable to the order of the Abbé Foltier, whose funds were invested in it, under the following circumstances : Darolles was to forward from New Iberia to New Orleans, and there to sell sixty bales of cotton for the Abbé, and to transmit the proceeds of sale to the Abbé’s brother in France. Being, however, unable, from an uncontrollable cause, to attend to it, Dr. Darolles, his son, undertook the business, and effected a sale of the cotton ; but, deeming his father, who was in the city of New Orleans, tho chosen friendly agent of tho Abbé, and the proper person to terminate the transaction, he placed the proceeds of the sale in his hands, instead of depositing them with some designated person in the city, according to the Abbé’s request. At the earliest practicable moment, the doctor informed the Abbé of the disposition ho had made of the fund, and that his father had invested the Abbé’s money for his account in a* bill of exchange. Owing to the difficulty of passing through the military lines, it was only some time afterwards that tho Abbé obtained an interview with Darolles, who confirmed the statement of his.son, as to the receipt by him of the Abbé’s money, and the purchasing for him and in his name, from the defendants, the bill of exchange now in suit; and, as corroborative thereof, Darolles exhibited to the Abbé his memorandum book, wherein the whole transaction was noted, and placed in his hands tho first and second bills of die set, tho third being, as Darolles said, in his trunk, to be delivered afterwards.

The plaintiff and defendants being, as drawers and payee of a bill of exchange, the original parties to it, the consideration of it would, under the commercial law, bo a fair subject of inquiry; but the defense does not rest upon that, as the drawers received full.value for the bill.

It grows out of an agreement in relation to it between them and Darolles, who had received from them seven thousand dollars, to be invested by him in the-purchase, at Attakapas, of cotton and sugar, on joint account.

The defendants having but a casual acquaintance with Darolles, it was agreed between him and them that they should retain the bill in their possession, by way of collateral security; but upon Darolle’s representation, that the bill would be useful to him in his operations in the interior, the defendants permitted him to hold it, with the understanding, however, that he was not to part with it till they received sufficient produce to cover it.

The defendants have sued Darolles, to compel him to refund their money received by him, and in their petition in that suit, which is still pending in tnis Court, they aver that Darolles entirely failed to invest the fund placed by them in his hands; and they now, as a defense in this suit, say that the bill of exchange in controversy is the property of Darolles, and not that of the Abbé, and that it is subject to their claim, of which, previous to the Abbé’s receiving it, he was well aware, and also that they had ordered it to" be protested.

A careful examination of the evidence in the record has convinced us that the bill was bought by Darolles, with the Abbé’s money and for his use.

Nothing shows that he was conusant of any agreement, in regard to it, made with the defendants by Darolles, and as the Abbé was no partj' thereto, his right to claim the contents of the bill is incontrovertible.

Had the defendants a valid, defense to oppose to the plaintiff’s action, the intimation or notice by them, given to him, that they had ordered it to bo protested, might be properly considered; but, satisfied, as the plaintiff was, that the defendants had received his money as the consideration of the bill, and that they had, by making him the payee of it, put the title to it in him, ho may well have supposed that, if the drawees would not accept it, tho drawers, who were solvent, would be bound, after protest and notice to them, to pay it.

But, what is the nature of tho defendant’s claim to, or upon the bill? Is it one of ownership, or a lien by way of privilege? The bill being payable to the plaintiff’s order the title to it is in him, and, to divest him of it. a transfer from him or his endorsement would be necessary.

As a lien, by way of collateral security or a pawn, the bill 'endorsed by the payee should have been delivered to the pledgee, as delivery is of the essence of that species of contract. See act of 1855, No. 287, $ 1; 8 M. E. 57; 17 La. 185, 428; 2 E. 277; 2 A. 338.

It was certainly in the power of the drawers of the bill, -when confiding their money to Darolles, to impose upon him their own terms and conditions. Why then was the Abbé, and not Darolles, made the payee of the bill, and why did they not insist on the delivery of it to them?

It is very apparent, from this incautiousness on the part of the defendants, that they attached but little importance to the bill as collateral security for their money advanced to Darolles to invest, on joint account, in staple products. In their suit against Darolles, for the recovery of their fund, no allusion is made in their pleadings to this collateral security, and the remittitur for the amount of the bill in the body of the judgment, is so evidently an afterthought, as to render it unworthy of notice; and no greater weight can be attached to tho entries in their books, which were improperly received as evidence for the defendants. See Article O. O. 2244.

The main reliance of tho defendants to defeat the plaintiff’s action is placing the title to the bill, not in the Abbé, but in Darolles, and to this end they direct our attention to the evidence given by the plaintiff in their suit against Darolles. Our interpretation of this evidence, which we reach, not from isolated phrases, but from its whole tenor, differs altogether from that put upon it by the defendants. It appears that the proceeds of the Abbé’s cotton, exceeded in amount the sum paid for the bill, and to obviate all difficulty in a settlement with the Darolles, tho Abbé was willing, if the bill was paid, to grant a full acquittance for the whole. The case of Cannon, v. Calhoun, 10 An. 460, referred to by tho defendants, is very different from this one in which the jffaintiff’s title to the bill is patent upon its face, whilst in the case cited, the note sued on was specially endorsed, not to the plaintiff, but to another person, and. tliis would have been the position of Darolles, had ho instituted a suit against the defendants.

The plaintiff is the legal holder for value of the bill drawn by the defendants, and his equity is greater than theirs, and their defense to his action cannot therefore prevail. “Where the loss has fallen there itmust be,” is an axiom of the law, its. application, however, by the defendants, should have been made to their own condition, and not to that of the plaintiff.

The plaintiff is entitled to a judgment for the amount of the bill, twenty thousand francs, or the admitted equivalent in dollars therefor, (3.50 francs per dollar) say five thousand seven hundred and fourteen dollars and twenty-five cents, with damages, interest and costs.

It is therefore, ordered, adjudged and decreed, that the judgment of the District Court be ahnulled, avoided and reversed.

It is further ordered, adjudged and decreed, that the plaintiff, Eugene Jules Foltier, do recover from, and have judgment against the defendants, the commercial firm of Schroder & Schrieber, and against the individual members of the said firm, Antony Schroder and Christian . Schrieber in solido, for the sum. of twenty thousand francs (20,000f.) or the admitted equivalent therefor in United States money, (viz: 3.50 francs per dollar) say five thousand -seven hundred and fourteen dollars and twenty-five cents, and as damages ten dollars upon the hundred dollars, upon the principal sum, above stated, with five per cent, interest upon the aggregate amount of the principal sum, and the damages thereon, from the seventh day of September, eighteen hundred and sixty-four, until paid. It is further ordered, that the defendants and appellees pay all costs in both Courts.


author: Howeed, J.

text:
    No. 6,955.
    George G. Ealer v. McAllister & Co.—Thos. H. Jones. Third Opponent.
    Where an attorney-at-law brings a suit in his own name, as principal and owner : Held—-That he cannot recover counsel fees as tho agent of another. He cannot, in the same proceeding, claim to be the owner and the agent of the owner of the same thing.
    A PPEAL from the Third District Court of New Orleans, Duvicjneaud, J.

      R. & H. Marr, for plaintiff and appellant.

      Simonds <& Fenner, for defendants and appellees.
   Howeed, J.

This is an appeal by plaintiff from a judgment of the Third District Court of New Orleans, maintaining the third opposition of Thos. H. Jones, and ordering the sheriff to pay to the latter the amounts collected, or to be collected, under the original judgment herein rendered in favor of the plaintiff.

The main question is the ownership of the written obligation on which the suit is brought—a receipt given by McAllister & Co. in the name of George G. Ealer, for a sum of money on deposit. Our attention is called to several bills of exception, taken by plaintiff, to the ruling of the lower Court; but we think it necessary to notice only the one to the admission of the testimony of R. C. McAllister, the defendant, on the ground of a direct interest in the result of the suit. His interest is not a disqualifying interest. The contest is for a sum of money owed by him, and it is immaterial to him which of the contestants is successful, or to whom he has to pay. He is therefore a competent witness in this controversy. Other objections are urged to particular portions of his testimony; but, without them and similar testimony objected to, there is sufficient legal proof to establish, beyond any reasonable 'doubt, that Henry A. Ealer, the judgment debtor of Jones, is the real owner of the sum deposited with defendants. -He is the party who made the deposit, took the receipt, at his own suggestion, in the name of his brother, received the two payments credited thereon himself, and always claimed and controlled the debt, until Jones, by a proceeding in a court in St. Louis, where the parties reside, attempted to attach it.

As the levying of the fieri facias, in the case of Jones v. Henry A. Ealer, .in the Fourth District Court of New Orleans, was effectual in seizing the funds realized in this suit, it is unnecessary to inquire into the legality and effect of the other two modes adopted by the third opponent.

The claim or right urged in this Court, by George G. Ealer, to recover counsel fees for obtaining judgment and realizing the money in this suit, as the agent of Henry A. Ealer, is inconsistent with his pleadings and the jiosition he occupies as against Jones. He sued, and has contested throughout the litigation, as principal and owner ; has denied that Henry A. Ealer has any interest, and persistently resisted the efforts of Jones to obtain the money as belonging to Henry A. Ealer. He cannot, in the same proceeding, claim to be the owner and the agent of the owner of the same thing.

Judgment affirmed.


author: Howell, J.

text:
    No. 805.
    Succession of Thos. B. Poindexter.
    A curator by refusing to talco the oath of allegiance, and going beyond the jurisdiction ot the proper authorities became functus offi-io, and lost all right to administer the property of the succession any further, and all claims to any commissions, except on sums recovered by him prior to the abandonment of his trust.
    A PPEAL from the Second District Court of blew Orleans, Thomas, J.

      lioselius <& Philips, for curator and appellant.

      Alex. T. Steele, for opponent and appellee.

      JD. Augustin, for absent heirs.
   Howell, J.

This appeal is taken by the curator of this succession from a judgment on his and other oppositions to an account, filed by Shepherd Brown, his predecessor in office.

The items opposed are:

1. Curator’s commissions, $13,9’89 48.

2. Notary’s charge for inventory, $500.

8. Fee of attorney for curator, $3,000.

4. Fee of attorney for absent heirs, $1,400,

I. Commissions are claimed on the value of the land, slaves, cotton and plantation movables, as appraised in the inventory made in the parish of Tensas, and a large quantity of com not inventoried; the appraised value of vacant lots and other property not sold, and the proceeds of real and personal property sold in Now Orleans, and the amount of several notes delivered to appellant.

The Court below allowed commissions to the amount of $6,464, oil the appraised value of the slaves, cotton, com and mules in Tensas parish, and of the property in the city; and Brown, the appellee, aslcs that the judgment be amended so as to allow the first commissions charged.

The property of the succession was inventoried in September and October, 1861, upon the application of the attorney for absent heirs. Brown obtained letters of curatorship on 31st day of October, 1861, and, upon his petitions, real and personal property in New Orleans, was sold in November, 1861, and March, 1862, to the amount of $54,713 55, and $2,500, not inventoried, collected by him. After the 4th February, 1862, he does not appear in any proceedings in this record, until the 2d day of September, 1865, when being called on by the appellant, he rendered the account now opposed, with several statements and receipts for money paid without authorization from the Court.

In March, 1865, R. II. Bayley, the appellant, was appointed curator, and entered upon the administration of the succession. Brown does not question the regularity or legality of this appointment, but acquiesces by rendering the account, and obtaining an order of Court thereafter to turn over certain property and notes in his j>ossession to Bayley, as the curator. ■

The slaves were emancipated in January, 1863; the cotton, inventoried in 1861, with that produced in 1862, was burned, and the com raised in 1863, taken by hostile forces, and a large portion of the plantation movables taken off by the emancipated negroes, and other parties. The plantation seems to have been under the control of vigilance committees for two or three years.

The question presented by Brown for onr solution, is: “If, after a curator has given bond for property, and has advanced large sums of money to protect it, the property is destroyed by a force superior to him and every person whom ho represents, shall he be allowed commissions on the amount intrusted to him, and for which he gave his bond?”

We have to remark that their is no evidence in the record, that he advanced any money to protect the property, or that he gave any care or attention to that in the country. On the contrary, the record presents evidence of official delinquency, which, we trust, is unusual. A few months after his appointment lie voluntarily abandoned his functions, left the city without appointing an agent or attorney to represent him, and without t iking the oath of allegiance mcissarg for the performance af his duties, went into the Confederate lines, carryi ¡g with him the fuuds of the succession, and did not return until August, 1865.

By refusing to take the oath of allegiance, and going beyond the jurisdiction of the proper authority, he became fundus officio, and lost all right to control or administer the property any further, and all claim to any commissions, except on sums received or recovered by him prior to his abandonment of his trust.

Wo consider that he was out of office before the alleged destruction of the property, and as ho does not show any acts of special administration thereon while in office, the solution of the question, propounded by him in the affirmative, will not benefit him. Articles 1187 and 1188 C. C. give the curator of a vacant succession, who has only partially administered, and whose term of office is to be extended, or who is to be replaced by another, commissions only on the amount he has received. See 3 A. 624, Succession of Bat/.

The only commission to which a succession can bo subjected for its compílete administration, is 2J pier cent, on the amount of the inventory, after deducting bad debts; and if, under the above principle, the appelIc-e, Brown, had turned over the property to his successor, he would not be entitled to commissions thereon, his condition certainly would not bo bettered by the destruction of the property, especially when it was destroyed and lost to the succession, after he abandoned his trust.

The corn, not inventoried, on which commissions are claimed, was raised in the year 1863, and of course not under his authority.'

The cases cited by his counsel do not sustain his piretensions.

We think the District Judge erred in allowing commissions on the value of the slaves, cotton and plantation movables; and wo are informed by counsel the commissions on the amount of the inventory in New Orleans have been paid by the heirs, who it appears have been put in possession of the estate, and are parties to this appeal. The sum thus paid should be increased by the commission on the §2,500 not mentioned, but included in the account.

II. As regards the notary’s charge there is now no controversy, -as it has been reduced to §100 by consent of all piartics.

III. We are informed by counsel for the heirs, and it is admitted by counsel for Brown, that the fee of the latter has been paid with the assent of the heirs.

IV. In regard to the fee of the attorney for absentheirs, who, by opposition and by answer to the appeal demand its increase, we think the sum placed on the account for services during Brown’s administration, far too high; but evidence is admitted of services rendered since, and considering the question of his full compensation, as attorney for absent heirs, now before us, we will not reduce the amount, remarking, however, that such fees should be graduated by the value of the services'rendered for the benefit of the absent heirs, and that Courts cannot bo too careful to avoid the reproach of making extravagant allowances to counso-1, in the administration of estates. Sec 9 L. 284, Stein v. Bowman.

It is therefore ordered that the judgment appealed from bo amended by reducing the curator’s commissions from §6,464 to §1,210 50, and as thus amended it be affirmed. Costs of appeal to be paid by S. Brown, the appellee.


author: • TaxiIAEEBBO, J.

text:
    No. 680.
    M. Gernon v. W. W. Handlin.
    Evidence is admissible to prove that an attorney is in the building in which, the Court sits—it being the custom of the Court to send the crier to notify the attorney, if he is not in the court-room when the case is taken up.
    In proceedings for sale of land for taxes, the act of 1858 does not authorize the appointment of a cura - tor ad hoc to represent the unknown owner, where the owner had died and a curator to his estate had been appointed.
    A party having purchased a lot of ground at tax sale, and afterwards ejected on account of irregularity in the proceedings, is entitled to recover the value of the improvements made by him.
    A PPEAL from the Second District Court of New Orleans, Whitaker, J.

      G. L. Bright, for plaintiff and appellee.

      W. W. Handlin, for defendant and appellant.
   • TaxiIAEEBBO, J.

The plaintiff brings a petitory action against the .defendant, to recover a certain lot of ground in the city of New Orleans. He avers that he acquired title to the property sued for, by virtue of a probate sale of the property of the succession of Henry A. Renneberg. deceased, made by the sheriff of the parish of Orleans, on the 16th day of February, 1860, at which sale he became the purchaser of the lot in controversy. He asks to be decreed the owner of the said lot; to he put in possession of it, and that he have judgment against defendant for rents, etc. The defendant opposes a prior title, derived from a tax sale, made on the 13th of December, 1859, under the provisions of .statute No. 285, enacted by the Legislature in 1858, which statute provides for the sale of lands for taxes within the parish of Orleans. He prays to be adjuged owner of the lot of ground, or that he recover from plaintiff $650, the value of improvements made by him on the premises, and to be reimbursed the amount he paid for taxes against the property. He pleads, also, the prescription of five years.

The plaintiff had judgment for the lot of ground, and the defendant appealed.

During the progress of this suit in the lower Court, the plaintiff’s attorney being absent when the case was called, a judgment of nonsuit was rendered. Subsequently, on a rule taken by plaintiff, the cause was reinstated and a new trial granted. On the trial of the rule, plaintiff offered evidence to prove that, at the time the case was called, his attorney was engaged in the trial of a case in the Third District Court. The evidence was objected to,- but the objection was overruled and the testimony admitted, to which the defendant reserved a hill of exceptions. The Judge below ruled that the presence of an attorney within the building in which the Court sits is an appearance, within the meaning of Article 536 of the Code of Practice. It further appears that it is the custom in that Court-for a crier to be sent to notify the attorney, when he is not in the courtroom at the time the cause is to be taken np. This, it seems, was done in the present case, hut without effect, as the crier did not find the attorney, although he was in one of the court-rooms of the building at the' time, and, consequently, he did not receive notice, as he had a right to expect, according to the established usage. We think the Court did not err in admitting the evidence.

In tlie proceedings had for the sale of the lot of ground for taxes, a curator ad hoc was appointed to represent Renneberg. The act of 1858 requires, in such proceedings, that a curator ad hoc shall be appointed to represent the absent or unknown owner. This sale took place, as we have seen, in December, 1859. Prom the mortuary proceedings in regard to-his estate, it appears that Renneberg died in 1856, and his name is given in the executory proceeding taken to have the lot of ground sold for. arrearages of taxes-. A curator to his estate had been appointed a few days before the tax sale took place. The provisions of the act of 1858 would not, in our view of the state of facts, authorize the appointment of a curator ad hoc. As the essential requisites of proper parties and notice are wanting, all the subsequent proceedings are without effect, and the defendant without a valid title.

The plea of prescription is not tenable.

The act of 1855, invoked in this case, applies to informalities in auction and judicial sales, and not to radical defects inherent in the proceedings.

We think the defendant entitled to the value of the improvements made-by him on the lot of ground. These are shown to be worth five hundred and fifty dollars.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided a. d reversed; and it is further ordered, adjudged and decreed, that plaintiff have judgment decreeing him to be the owner of the property described in his petition, and entitled, as against the defendant, to the possession of the same; and that he be put in possession of the lot of ground and premises in controversy, upon paying the defendant five hundred and fifty dollars, the value of the improvements made by him on the lc t; that no writ of possession issue in this case until said sum shall have been paid or tendered, and that, if not paid or tendered within sixty days after the filing of this decree in the Court, of the first instance, the defendant may issue execution for the same.


author: Labatjve, J.

text:
    No. 1,007.
    Edward Kunemann v. Olympe Boisse and Husband.
    The placing by a tonant of a partition across the hall of a building rented, so as to be readily removed without injury to the building, is a change that the lessee may make, as being of the nature of contract of lease.
    The lessor has the right to restriot the use aud enjoyment of his property in the hands of tho-lessee.
    When the lessor subjects alterations in the article of lease to his written consent, he is presumed, to» liave had in view those changes which tho lessee may make without the consent of the owner.
    A PPEAL from the Sixth District Court of New Orleans, Duplantier, J.

      Roselius & Philips, for plaintiff and appellee.

      Hunt <& Denegre, for defendants and appellants.
   Labatjve, J.

On the 17th May, 18G5, tho plaintiff leased to the defendant, Olympe Boisse, authorized by her husband, tho property No. 15G on Canal street, with alL the buildings, for a term of years, commencing on the 16th December, 1863, and ending on the 1st October, .1870, for tho annual rent of 3,500, payable monthly.

The contract of lease contains an express clause, that “ the lessee shall make no-alterations without the written consent of the lessor. ” This suit is now brought to rescind the contract of lease, on the ground that the defendant has made alterations in the premises, by erecting a petition in the hall of the ground floor, without plaintiff’s consent and in violation of the contract of lease.

The defendant pleaded the general issue.

The District Court, after hearing the evidence, gave judgment for plaintiff.

The defendant took this appeal.

The substance of the testimony is as follows :

A. Castaing.—-I examined the house and saw the alterations (changements) made in the hall, lower floor. The hall, between one of the sides and the stairs, was closed with boards. A large portion of the stairs was closed from the floor to the ceiling, so as to divide the hall into two departments. This partition is nailed to the floor and stairs. Before these alterations were made, it was a hall from the front door to the yard ; it now forms two small apartments. This alteration prevents the current of air in the lower portion of the hall. This partition has not affected the dampness of the yard, but does affect the humidity of the hall.

This partition is “une petite nuisance pour le corridore pour le plancher”—the floor is not so well ventilated as heretofore.

Leon Oppermcmn.—I have examined the corridor of that house several times, and found a change in that corridor, consisting of a partition (clesion) made of tongued and grooved planks, and with a door, which forms a division making two apartments. This partition begins at the foot of the staircase and runs up to the ceiling. This partition has been sharped (taillé) so as to fit well into the cornice. This partition intercepts the current of air ; it makes it damper, and the floor will rot more rapidly. Before this partition was put there, it was a simple hall running from the street to the rear. With this partition there, the hall is formed into two small apartments—one used as a workshop of shoemaker. Before this partition was put there, there -was a small Venetian door at about three or four feet distant from the front door, which did not reach the ceiling, and did not intercept the circulation of the air.

There is a door to this passage way, which opens into the yard. If this door, leading into the yard, were kept constantly closed, it would not have the same effect of rotting the floor, as the partition; the air passes under the door.

James Qallier.—The partition is made of tongued and grooved ceiling, about seven-eighth or inch stuff; it follows, I think, the line of the steps ; it is made fast to the string of the stairs by nails. I observed that boarding where it joins the cornice has been carefully scribed to it so as not to break the plaster. I suppose that partition could be removed in two hours. I do not esteem that that partition is an injury to that house. I think that air will pass as well under the door of the partition as under the other leading into the yard. But the floor of the house is so close to the ground, in consequence of the elevation of the banquette since the house was built, that I do not think that the want of circulation would cause the floor to rot any faster.

I suppose that a ground floor which is damp on the bottom and on the top, will sot quicker than one which is damp on the bottom and dry oc the top. If these inclosures do produce dampness above, then would the flooring rot at a quicker rate than if dry ; but it must be first proved that the dampness has beeu caused by the partition ; in this case the air will circulate under two doors as well as under one. This partition has the effect of shutting off a great quantity of air; it does on one side. That partition impedes the ventilation of the back part of the corridor. I think there are so many small outlets and cracks for air and ventilation, that complete stagnation of air under the stairs could not take place. The stagnation of air, with the partition there, is greater than it would be without the partition: the air has not the same circulation it would have were the partition removed. The effect of stagnation- of áir on flooring is to rot it, i£ the air is damp. Besides the door in the partition, there is a clear passage of air up the stairs into the yard. I should say that the ventilation, as it is now,-is sufficient.

B. M Hnrrod.—I saw the partition in the lower floor and examined it; its removal would be no injury to the building ; it might be removed without any injury. Ido not think that its presence there is any injury to the owner of the building or-materially affects the process of rotting the floor. This partition has a tendency to impede the circulation of the air; it shuts off a part of the light. If the passage of air and light depended upon that partition, I think the partition would have a tendency to create dampness; but I think there is sufficient air and light to prevent rot, with that partition there. This partition affects the appearance of the staircase ; it runs to the ceiling.

W. Witsel.—There is a good deal of circulation of air there, and I have not observed any dampness, and never had the partition door opened ; there is sufficient current of air without it; as the stairway turns to the second floor, there is a large door which allows plenty of light and air.

Jos. BvJdman.—I am the agent of Madame Olympe during her absence. That partition was put up on the lower floor somewhere between the latter part of February and beginning of March. I remember the fact of its being put up, and seeing plaintiff going into the house before the workmen finished the partition; he made no objection to it at tho time, that J know of. When I received a letter from plaintiff’s attorney, that was the first time I heard of his objections to the partition.- As far as my knowledge goes, that partition can be removed without auy damage to the house or the stairs. The work has been put up very lightly. Plaintiff came there one morning, when we had the cistern repaired, and it was at the same time this work or partition was in progress.

Auguste Garrón.—.T know this partition on the lower floor. Plaintiff' came there whilst it was being put up, and afterwards, and after it was put up; he never notified Madame Boisse to remove that partition.

Geo. Ghevallier.—I made that partition; it makes no injury to the building ; the only damage it would do to remove it, would be to buy a dime’s worth of putty to close the nail holes along the staircase. I, alone, could remove it in an hour.

The above testimony satisfies us, that the partition and alteration complained of belong to that class of changes and modifications that a lessee has the right to make, as being- of the nature of the contract of lease, when there is no stipulation to the contrary ; for we are of opinion that the exercise of that right may be restricted and modified, even entirely interdicted, in the lease. Duranton, vol. 17, Art. 97, says : “ that nothing prevents the lessee from making these light changes in the interior distribution of the house, if this right has not been interdicted in the lease. ”

Troplong, du Lounge, Art. 310, and Duvergier, Continuation de lordlier, vol. 18, Art. 398, are of the same opinion, and they both refer to Lepage, Lois des bátiments 2de partie, page 186, who says:

“Dy a dans une maison qui m’est louér, une grande chambre qui me serait plus comniode, si elle était divisée en deux par une cloison; quoique le bail me un donne pas le droit de faire cette nonvelle distribution, il suflit qu’il ne me le défende pas pour que j’y sois antorisé. Je pourrai done former une cloison en planches on en hriques posées sur leur champ on de toute autre maniere, qui ne charge pas les planehers. Pareillement il existe dans une autre chambre une alcove qui me gene, et le bail n’en parle ni pour m’obliger a la laisser subsister, ni pour m’autoriser á la déplacer. Le propriétaire serait mal fondé á m’empéeher de me satisfaire, si je peur enlever 1’alcove et la replacer en quittant, sans l’endommager et sans dégrader l’apparfcement. * *

There can be no doubt that the parties to a contract of lease may stipulate that the lessee shall make no change or alteration belonging to the nature of this contract, or without the consent of the lessor, who has the right to restrict the use and enjoyment of his property in the hands of the lessee.

This stipulation would become the law of the parties. Civil Code, Arts. 11, 1895.

We now come to the legal effect of the clause in the lease : “The said lessee agrees to make no alterations, without the written consent of the lessor, who reserves to himself the right of annulling this lease in case the said lessee should fail to pay the rent stipulated, or otherwise violate her contract.” On the trial of the case below, the defendant offered to prove by witnesses that, at the time the partition complained of was being erected, the plaintiff verbally consented to the same, and expressed his satisfaction with the manner in which the same was being made. But the Court refused to hear such proof, upon the ground that parol evidence was inadmissible under the written lease.

We are of opinion that the District Court decided correctly. The parties having stipulated that this consent should he expressed in writing, and no new agreement being alleged by defendant, virtually agreed that no other kind of proof should be received, otherwise the term “written” would have had no legal effect; and we must presume that the parties have used the expression for the purpose of restricting the evidence of consent to literal proof alone, as they had the right to do. Civil Code, Art. 1895.

The lessor, in subjecting the alterations to his written consent, is presumed to have had in view those changes and modifications belonging to the nature of the contract of lease, and which the lessee may make without the consent of the owner, and not those that the lessee is not authorized to make by law.- Duvergier, Continuation de Toullier, vol. 18,.Arts.-398, 399. Troplong, du Louage, Arts. 310, 311. This clause is clear, and leaves no room for interpretation, and must apply to the partition and changes complained of, and such like, otherwise it would he nugatory. Civil Code, Art. 1946.

The defendant has failed to produce a written consent to authorize the alteration complained of, and parol evidence offered to that effect having been rejected, there is no proof that this change was authorized ; hut two witnesses having testified that the plaintiff was at the house several times while this partition ivas being put up, and made no objection to it, defendant’s counsel contends that the plaintiff, by his silence and tacit approbation, gave his implied consent to the work, and he cannot now object to the same. We are of opinion that parol evidence having been offered to prove an express verbal assent, and rejected as inadmissible under the lease, we cannot now presume an implied consent. Were we to do so, we would contravene the text of Art. 2267 of the Civil Code, which refuses to the judge the discretion of presuming when parol evidence is not admissible; besides, the circumstance that the plaintiff was at the house several times while this partition was being put up, and made no objection to it, does not necessarily authorize the inference that he did not, at other times and elsewhere, make his objections to the defendant, who, nothing shows in the record, was present when the plaintiff went to the house; it is not, as commonly called, a negative pregnant with an affirmative, that he did give his consent. The presumption is not weighty, precise and consistent. O. O. Art. 2267. Presumptions are consequences which the law or the judge draws from a known fact to a fact unknown. O. O. Art. 2263. The fact known is that he was present at times when the defendant was not present; can we draw the consequence that he did not object at other times ? We cannot.

Upon the whole, wre are of opinion that the plaintiff has made out his case, and that our learned brother of the District Court has decided the contest correctly, and that his judgment must be affirmed.

It is therefore ordered and decreed, that the judgment appealed from be affirmed, at the cost of the defendant and appellant.


author: Taliaegbbo, J.

text:
    No. 520.
    Clemence Jacquinet v. Sophie Boutron.
    Wlien an obligor, from inevitable accident or irresistible forco, cannot perform one of two tilings eitlier of which at the time of his engagement ho had the option to do, he is not relieved from the obligation to perform the othor.
    A PPEAL from the Fifth District Court of New Orleans, Whiiálcer, J.
    . L. Costera, for plaintiff and appellant.

      J. L. Tissot, for defendan and appellee.
   Taliaegbbo, J.

Mademoiselle Sophie Boutron, the defendant, carrying on the millinery business in New Orleans, engaged at the city of Paris, in France, in October, 1860, for three years, the services in that line of business of the plaintiff, Miss Olemenee Jacquinet. The services were to commence on the arrival of the parties at New Orleans. The employe was to receive a certain fixed salary, and her board and lodging. The defendant contracted to pay the plaintiff’s traveling expenses from Paris to New Orleans; to be repaid, however, if plaintiff left defendant’s service within the first year of the engagement. It was further stipulated that in the event the plaintiff should withdraw from the defendant’s service, or the defendant should discharge the plaintiff before the expiration of the three years, the defendant should be bound to pay the plaintiff’s traveling expenses on her return from New Orleans to Paris, on the condition that the plaintiff should not remain in New Orleans. It seems it was optional with defendant to furnish money for this purpose, or to secure and pay for a passage to Prance for plaintiff, on board a first-class sailing-vessel. Some dissatisfaction having arisen between the parties, the plaintiff, a short time after the termination of the first year’s service, withdrew from the defendant’s employ; and on the 31st of December, 1861, and also on the 6th of January, 1862, she wrote to the defendant, requiring her in accordance with their contract to furnish her money to return home. This was refused, and on the áth of February following, this suit was instituted in which plaintiff demands two hundred and fifty dollars as traveling expenses, necessary to enable her to return to Paris, with interest thereon from judicial demand, and forty dollars per month as damages for the time she would be compelled to remain in New Orleans by the refusal of defendant to pay her. The answer avers that the defendant was only bound by the contract sued upon, to pay plaintiff’s passage to France on a sailing-vessel, if any such passage had been engaged by plaintiff, which defendant avers was never done. She prays that the suit bo dismissed at plaintiff’s cost. Judgment was first rendered on the 11th of February, 1863, in favor of plaintiff for two hundred and fifty dollars, and costs of suit. The defendant obtained.a new trial, which resulted, on the 21st of April succeeding, in a judgment in favor of the plaintiff, decreeing defendant “to pay the plaintiff two hundred and thirty dollars, with judicial interest from the 1st of June, 1862, or secure for plaintiff a passage from New Orleans to Havre and Paris, either by the direct route, in a sailing-vessel of the first class, or by way of New York, on or before the first of May proximo, at the charge and cost of the said defendant; and it is further ordered, adjudged and decreed, that the said plaiutiff have ju Igmenfc against the said defendant, in the sum of forty dollars per month from 1st of Juno, 1862, to date of this judgment, as damages—say four hundred and seventeen dollars and thirty-three cents, and costs of suit. ”

From this judgment defendant has appealed.

The defendant complains of the judgment, because it was determined by events that transpired after the contestedio litis,” instead of being decided exclusively upon the state of facts that existed in February, 1862, when the parties joined issue. At that time, it is contended that it was impossible for defendant to comply with her part of the contract. It was shown on her part, that at that time tbo port of New Orleans was blockaded by a squadron of United States vessels of war, and that'tho port was opened outlie 1st of June, 1862, fads which are matters of history. It is contended that the blockade of the port constituted the vis major or irresistible force, which dispensed the defendant from the obligation to secure for tho plaintiff a passage to Prance; and, further, that it also deprived the plaintiff of the power to fulfill her engagement to defendant, not to remain in New Orleans after the annulment by either party of their contract. It is held, therefore, that this suit was premature, and should be dismissed.

Tho judgment of the Court a quo, was predicated upon the reason that defendant having been put m mora by the demand made before the instition of the suit, and the vis major alleged, being removed by the opening of the port on the 1st of June, 1862, sometime before tho decision of the suit, she could no longer refuse to comply with the contract.

A bill of exceptions was taken on the part of defendant, to the introduction of evidence to show the amount necessary to defray the traveling-expenses of plaintiff from New Orleans to Paris by way of New York, as defendant by her contract, was under no obligation to pay plaintiff’s passage across the sea, except on board a sailing-vessel direct from New Orleans. Wo think the testimony was properly admitted. No route is expressed in the contract. It is simply that the traveling expenses shall be paid by defendant, or a passage secured at her cost, on board a first-class sailing-vessel.

There might be force in the objections urged against tho judgment, if the facts justified the inferences which seem to have been drawn from them on tho part of the defendant. But we see no evidence in the record showing that the impediment of the blockade, formed in this case the “ irresistible force,” contemplated by law to exonerate a party from complying with a contract. The defendant had the option to pay the money necessary to discharge the traveling expenses of the plaintiff from New Orleans to Paris, or to secure for her (free of cost to plaintiff) a passage to Havre on board a first-class sailing-vessel.’ She might have paid the money, if she could not, on account of tho blockade, have engaged a passage on board a vessel going to Prance. The latter being impossible, did- not release her from doing the former—the very thing required by the plaintiff. Where an obligor, from inevitable accident or irresistible force, cannot perform one of two things, cither of which ho had at the time of his engagement the option to do, he is notrelieved from the obligation to perform the other. Neither, on the other hand, do we see the vis major which deprived the plaintiff of the power to perform the condition upon which she had the right to demand her traveling expenses, viz: that of returning from New Orleans to Paris. If, at the time of the institution of this suit, and for a month or two afterwards, it were impossible for the plaintiff to sail for Prance from Now Orleans, it by no moans follows that she could not have gone by land to Now York, or some other port not blockaded, and from thence set sail for her native land. Being, -what the record authorizes to suppose, a subject of Prance, no serious difficulty would have been encountered by her in passing through the two sections of this country, then warring against each other, France being a neutral power. The mere dictum of counsel in tlieir brief, that it was impossible for the plaintiff to comply with her obligation to return to Paris, in the absence of any evidence establishing that fact, must be taken with some grains of allowance. We do not think the evidence justifies the claim set up for damages.

It is therefore ordered, adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. And it is further ordered, adjudged and decreed, that the plaintiff recover from the defendant the sum of two hundred and thirty dollars, with judicial interest thereon from judicial demand, with all costs incurred in the Court below, the plaintiff and appellee paying costs of this appeal.


text:
    No. 1200.
    Wm. McCracken v. B. B. Simms.
    Where the return s-hows that defendant was cited by service “ on Mias B. B. Simms, a whito person, about the age of fourteen, residing in defendant’s house: JL-hl—Not to be a legal citation.
    A PPEAL from the District Court, Parish of Pointe Coupée, Cooley, J.

      Smith c6 Halsey, for plaintiff and appellee.

      Edward Phillips, for defendant and appellant.
   Hyman, C. J.

In this case the plaintiff took-a judgment by default against the defendant.

The defendant did not appear nor file an answer, and the plaintiff obtained a final judgment against him.

■ The defendant has appealed, and urges in this Court a renewal of the judgment, because he was not legally cited.

The sheriff’s return shows that he received, on the 12th of June, 1866, copies of the citation and petition, and served them on 24th July, 1866, on Miss B. B. Simms, a white person, about the age of fourteen, residing in defendant’s house.

The service of citation and petition, as shown, by the return, is defective in several respects. •

It is only'necessary to notice one of the defects.

The return does not show that the service of copies of citation and petition, was made at the usual place of domicile or residence of the defendant. See Code Practice, 189; 12 La. 550; 14La. 212; 5 An. 147 and 217.

The defendant was not legally cited.

The plaintiff contends that, as the note of evidence shows that the signature of the note sued on was admitted, we are to conclude that the defendant made appearance, either in person or by attorney.

By whom this admission was made, the note of evidence does not inform us, and we cannot draw a conclusion from the admission that contradicts the record.

It is ordered, adjudged and decreed that the judgment of the lower Court be annulled, avoided and reversed.

And it is further decreed, that the case be remanded to the lower Court to be proceeded in according to law.


author: Hxman, C. J.

text:
    No.413.
    W. W. Easterling v. James P. Thompson.
    An '.r } míe order oi' seizure and sale of mortgaged property, under a title importing a conie&sion of judgment, must not contain any otlior or superior right over the property than that given by the mortgage. The law will not allow the mortgagor to incorporate a privilege on the property mor(gaged, in the decree rendering the mortgage executory. The order must follow strictly the specifications in the act of mortgage.
    A PPEAL from the District Court, Parish of Carroll, Farrar, J,

      Sparrow S Montgomery, for plaintiff and appellee.

      W. (7. Wyly, for defendant and appellant.
   Hxman, C. J.

The appellee has placed on file in this Court the transcript of appeal. He has also filed an answer praying for damages, as in case of a frivolous appeal. •

The answer compels an examination of the record, in order to ascertain whether the defendant had any £>robabls grounds for his appeal. Indeed, the practice of the Court is to examine the record, in cases which are brought up by the appellee, in the same manner as if the transcript had been filed by the appellant, and to render judgment in accordance with right upon the merits of the appeal.

On looking into the record, we find that the plaintiff obtained an order of seizure and sale upon a simple authentic act of mortgage. The instrument does not accord to him any privilege upon the property hypothecated.

Yet, the petition for an order of seizure and sale prays “ for a privilege and priority of payment on the proceeds of said sale” of the property hypothecated, and the decree recognizes such priority and privilege, for the sum claimed, and awards “a writ of sale” accordingly.

The distinction between a mortgage and a privilege is clearly defined by the Code. A mortgage is a right granted to the creditor over the property of his debtor, for the security of his debt, and gives him the power of having the property seized and sold in default of payment. C. C. 3245. A privilege is a right which the nature of the debt gives to a creditor, and which entitles him to be preferred before the other creditors, even those who have mortgages. C. C. 3153. “And privileges can be claimed only for those debts to which it is expressly granted by the Code. ” C. C. 3152. See also Harned v. Churchman, 4 An. 313 ; Bachus v. Moreau, ib. 314 ; Citizens' Bank v. Cary, 12 R. 279; Cleveland v. Sproul, 12 Rob. 172, and Boner v. Muhle, 3 An. 603.

As the creditor in this case only holds a mortgage against his debtor, the decree which grants him the superior security of a privilege is erroneous. The party who obtains the ex parte order of seizure and sale must take care that he does not exact more than is just, or a different thing-from that vhic-h he is entitled to.

It wifi not do for the creditor to say that the ex parte order cannot prejudice the rights of third persons, and that it must be a matter of indifference to the debtor, whether his property is sold under an act importing a mortgage or one importing a priyilege, since the same property is to be sold in both instances.

The reply is, the right which the creditor seeks to enforce grows out of a contract in an authentic form. The creditor cannot take any more, or any other thing, than that which is granted by the act; and, if the Court were to award him a different thing, it would make a new contract for the debtor. Moreover, there may be cases where good faith would require the mortgagor to do nothing to impair the vendor’s privilege, or the privilege of the builder or material man.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the lower Court be avoided and reversed ; and now proceeding to pronounce such judgment as ought to have been pronounced, it is ordered, adjudged and decreed, that an order of seizure and sale issue in favor of the plaintiff, directed to the sheriff of the parish of Carroll, commanding him to seize the following described tract of land, of the defendant, situated in said parish, viz : the north half of section No. 11, in township No. 19, range No. 11 east, containing three hundred and twenty-three and 50-100 acres, and sell the same in conformity to the law regulating seizures and sale, to pay the plaintiff the sum of seven hundred and forty dollars, with interest thereon, at the rate of eight per cent, from the 1th day of January, A. D. 1861 until paid, said debt and interest being secured to the plaintiff by the conventional mortgage executed by the. defendant, and bearing date the 30th day of October, A. D. 1860 ; and it is further ordered that the costs of the proceedings, in the order of seizure and sale in the lower Court, be paid by the defendant, and that the costs of the appeal be paid by the plaintiff and appellee.