text:
    New Orleans Canal and Banking Company v. Bry et al.
    Where a notary by whom a note was protested, states that he made diligent enquiry for the domicil and usual place of residence of the endorser, but does not state that he made any attempt to ascertain at what post office notice of protest should be addressed, the proof is insufficient to show due diligence.

      A PPEAL from the District Court of Carroll, Carry, J. This is a suit against the drawer and endorsers of a promissory note for $4,000, dated ut Munroe, La., March 15th, 1842, and payable at the office of plaintiffs, at Alexandria, twelve months after date. The defence of the appellant, O. J. Morgan, one of the endorsers, is want of legal notice of demand and non-payment. The evidence on the part of the plaintiffs consisted : 1st. Of the certificate of the notary attached to his protest, in which he states the manner in which he gave notice to the endorsers, as follows: “ Notices in writing of this protest were deposited by me in the post office, at Alexandria, on the 18th day of March, 1843; one addressed to Oliver J. Morgan, at his domicil, near Lake Providence, Parish of Carroll, La.; and one to Jonathan Morgan, at his domicil, near Lake Providence, Parish of Carroll, La.” 2d. Of the answers of the notary to interrogatories. In answer to the 2d interrogatory, he says : “ I did make diligent enquiry for the domicil of and usual place of residence of the endorsers, Jonathan, and Oliver J. Morgan, by enquiry of persons in the parish of Rapides, who were acquainted with them, and most likely to know; I enquired of Robert Chew and H. M. I-Iyams, who I knew to be acquainted with them.” In answerto the 3d interrogatory, he says : “ I was informed, on making such inquiry, that they resided in the parish of Carroll, near Lake Providence.” To the 4th interrogatory, he says: “ I did, on the 18th day of March, 1843, send the notices in conformity therewith, to said Oliver J. Morgan and Jonathan Morgan, addressed to them, at their domicil, near Lake Providence, parish of Carroll, La., and did deposit the same in the post office, at Alexandria, on the said 18th of March, 1843.”
    On the part of defendants, the following evidence was offered: 1st, The admission of parties, of record : That O. J. Morgan and J. Morgan live near the Pecan Grove post office, in the parish of Carroll; that O. J. Morgan lives 12 miles from the town of Providence, and within 4 or 5 miles of Pecan Grove. That O. J. Morgan wasnever known lo send to Providence for letters or papers ; ahoays mails his letters at Pecan Grove Post Office, Sfc. 2d, The testimony of J. C. Hollingsworth, deputy postmaster of Providence. He swears, that he was postmaster at Providence at the date of the protest of the note sued on; that letters coming to that office for O. J. Morgan always went to the General Post Office as dead 'lctters; and that O. J. M. has lived at his present residence since 1839, Judgment was given below in favor of the plaintiffs, from which the defendant, O. J. Morgan, has appealed.

      Thomas, for the plaintiffs.
    Notice was given in strict conformity to the second section of the act of the 13th of March, 1827, B. and C.’s Dig. 43. It is only when the residence of an endorser is unknown to the notary, and cannot be ascertained by diligent enquiry, that he is required to address notice lo the place where the note was drawn. His enquiries informed him truly of the residence of the endorser, and he addressed his notices to them properly. 10 Rob., 37.

      Prentiss and Finney, for the appellant.
    The notice was not sufficient to bind the appellant as endorser. 1st. It was not directed to any post office whatever. It was directed to “ Oliver J.Morgan at his domicil, near Lake Providence, Parish of Carroll, La.” There is no such post office as “ Lake Providence” in this State. There is a post office at “ Providence,” the seat of justice of the parish of Carroll. This court is bound to take judicial notice of the post offices established within the State. Nott's Fxecutor v. Beard. 16 La. 311.
    2d. If the direction amounted to anything, it was a direction to “ Providence,” or a general direction to the “ Parish of Carroll.” In the latter case the notice would have gone to “ Providence,” under the regulation of the Post Office Department, by which, letters addressed to a person in a certain county or parish, without further direction, go to the post office at the seat of justice. If then the notice in this case had any legal direction at all, it was to “Providence,” which this court knows officially to be the seat of justice for the “ parish of Carroll.”
    3d. Admitting, for the sake of argument, that the notice was directed to “ Providence,” in such a manner as to have insured its transmission by mail, w as such notice sufficient to bind the appellant ? It is admitted on the record that the Providence post office was not the nearest to O. J. Morgan’s residence, but that “ Pecan Grove post office” was eight miles nearer; that he always mailed his letters at the latter, and never received either letters or papers at the former; the postmaster himself testifying that such letters as came to Providence to his address were always sent to the General Post Office, as dead letters. The general rule of the commercial law is well settled, that notice to an endorser must be directed to him at the post office nearest his residence. There is an exception where a person is in the habit of receiving his letters and papers at a more remote office, and does not use the nearer one. The act of 13th March, 1827, has not changed the commercial law in this respect. Vide Preston v. ¡Dayson, 7 La. 11. Duncan v. Sparrow, 3 Rob. 164. The general principle has been repeatedly recognized by the Supreme Court of this State. In the case of The Mechanics’ Traders’ Bank v. Compton el al., 3 Rob. 4, and also in Nicholson v. Marclers, 3 Rob. 242, it was decided that, even when a party has been in the habit of receiving his letters at two post offices, notice of protest must be directed to him at the nearest, or it will be bad. Vide also 6 Rob. 73 — 90. The true rule is laid down again in Priestly v. Bisland, 9 Rob. 528, and still moreffiully defined in Follain v. Dupré, 11 Rob. 454. It was directly decided in the case of Bicnel v. Tournillion, 6 Rob. 500, that a notice of protest simply directed to an endorser, as in a particular parish, when there are soveral post offices in the parish, and the one at the seat of justice is not the nearest to his residence, is insufficient. It is clear, then, that notice to the appellant at Providence, was bad, because there was a nearer post office at “ Pecan Grove,” where he was in the habit of receiving his letters and papers, while he never used the other at all.
    4th. It will be urged that the notary was excused from sending notice to the defendant’s proper post office, on account of ignorance of his place of residence. We answer : 1st. The notary does not testify that he did not ascertain his true residence, nor tliathe did not know his nearest post office. 2d. By the notary’s own showing, he did not exercise the due diligence required by law, to ascertain the residence of defendant. Pie testifies that he enquired of Chew and Hyams. Neither of these was a party to the note. The general rule of the commercial law is, that enquiry should be made of the other parties to the bill or note. Story on Bills, §299, with authorities cited in note, &c. 3d. But even if the commercial law were otherwise, our own statute settles the question. The 3d section of the act of the 13th March, 1827, directs that when, after due diligence, the residence of an endorser or drawer cannot be ascertained, notice shall be sent to the place where the note or bill was drawn. Bullard and Curry’s Dig. 43. Now the note in this case was drawn, as appears upon its face, at Munroe, and it does not appear that any notice was sent to the defendant at that place. If, then, the notary did know the residence of defendant, the notice was bad, because it was not directed to his nearest or-usual post office. If he did not know it, then the notice was bad, because it was not sent to the place where the note was drawn, according to the requisition of the 3d section of the act of 17th March, 1827.
   The judgment of the court was delivered by

Slidell, J.

The appellant, Oliver J. Morgan, was sued as endorser of a promissory note, dated at Monroe, La., and payable at Alexandria. At the date of maturity, and during several years previous, the appellant was living in the parish of Carroll. In that parish there were two post offices, one at Pecan Grove, and one at the town of Providence, the seat of justice of the parish. Morgan’s residence was twelve miles from Providence and four miles from Pecan Grove, which lies on the mail route between Alexandria and Providence. It is proved that the appellant did not resort for his letters to the Providence office, but to that at Pecan Grove, and that letters addressed to him at Provi-f dence were not called for, and were sent, after the legal delay, by the postmaster t0 Washington, as dead letters.

The notice for the appellant was mailed by the notary at Alexandria, where the note was payable at bank, addressed to him 11 at his domicil, near Lake Providence, Parish of Carroll, La.”

Whether under all circumstances it is indispensable to address notice for the endorser to the post office nearest to his residence, or that to which he resorts, or whether under some circumstances a general address to the parish of the party’s domicil, there being more than one office in the parish, might not suffice, is a question which is not now necessary to consider. It is certain due diligence must be used to ascertain what is the proper office in the parish, to which to address the letter. That diligence has not been proved in the present case. The notary made enquiry of two persons about Morgan’s domicil; but he does not state that he enquh-ed, or attempted to ascertain, to what post office it was proper to address. The notice was addressed to no particular post office in the parish. The expression is, “ at his domicil, near Lake Providence.” There is no such town or village as Lake Providence. The town of Providence being near the lake of that name, and Providence being also the seat of justice of the parish, we must presume, under the address in question, that the letter went to the post office at that town, and consequently that the appellant did not receive it.

The evidence shows that Bry, after protest, executed a mortgage to secure his endorser, but there is no proof that the appellant was a party to the mortgage. It purports to be accepted in his behalf, by a person styling himself his agent, but the agency is not proved.

After the constant liligation with which the courts of this State have been crowded for years upon questions of notice to endorsers, it is strange that it has never occurred to the officers of banks, and others dealing in negotiable paper, to guard themselves against loss or difficulty by requiring endorsers, by memorandum over their signatures, or other agreement in writing, to state the mode in which they wish their notices to be addressed. A little diligence thus exercised, would save the time of the courts of justice, and preserve the rights of creditors, which are now so frequently sacrificed.

It is decreed that the judgment appealed from be reversed, and that there be judgment in favor of the appellant, as in case of non suit; the plaintiffs paying the costs in both courts incurred by the proceedings as to this appellant.


source: Caselaw Access Project

author: Eüstis, C. J.

license: Public Domain

text:
    Atchison et al. v. Parks, Administrator, et al.
    Plaintiffs executed their notes for part of the price of land purchased from tlie defendant. The latter bound himself to refund the price, in case of his failure to make a deed for the land prior to a period subsequent to the maturity of the notes. Plaintiffs took possession of the land, and continued to hold undisturbed possession. Defendant was neverputin default for failure to execute the deed within the time prescribed. Plaintiffs having enjoined an execution issued on a judgment attained on the notes: Held, that the injunction should he dissolved, with damages.

      Appeal from the District Court of Carroll, Curry, J.

      Thomas, Prentiss and Finney, for the appellants. Stockton and Selby, for the defendants.
   The judgment of the court was pronounced by

Eüstis, C. J.

This suit grows out of a contract made by the appellants and others for the purchase of a tract of land in the parish of Carrol], oil which $1,000 was paid in cash, and the balance, $17,000, was payable on credit, to wit: $5000 on the 1st January, 1837, $6000 on the 1st January, 1838, and $6000 on the 1st January, 1839. Tompkins, the seller, was to return the purchase money, in the event of his failing to make the deed for the land to the appellant and his associates, at any time between the signing of the agreement, and the first of January, 1840.

Some of the partners in this purchase with the appellant executed their notes to the order of the vendor, Tompkins, which were accordingly delivered to him. The appellant and his partners took possession of the land, and their possession has never been disturbed, nor is there any eviction alleged, for which the vendor could be responsible under his ^ warranty. Nor has the purchase money been paid, nor was the defendant, Tompkins, in his life time, nor has his succession since (which is represented by the present defendant, Parks,) ever been put in default for not giving the parties the deed according to the agreement.

The plaintiffs have obtained an injunction against the execution of a judgment rendered on one of the notes given for the purchase money, in favor of the representatives of the succession of Tompkins against the parties to the notes, on the 16th July, 1840.

The District Court, on a hearing, dissolved the injunction, with ten per cent general damages against the plaintiffs and their sureties on the injunction bond, and $100 special damages, being the amount of the expense of defending the suit, incurred and paid by the defendants. Judgment affirmed.


author: King, J.

text:
    Edwards, Curator, v. Farrar.
    A case will not be continued in order to allow a party to procure the evidence of witnesses absent from the State, where no diligence has been used to obtain their testimony.
    A person having been objected to on account of his exemption as a school commissioner from liability to serve as a juror, waived his privilege, and was sworn. After the pannel had been formed, on being asked a question by defendant, he stated that he did not like to serve, as he felt interested in the case, and that he did not know the nature of the case when he was objected to. Held: That the juror was properly discharged, and another sworn in his place.
    Appeal from the District Court of Concordia, Curry, J.

      R. N., and A. N. Ogden, for the plaintiff. Stockton and Steele, for the appellant.
   The judgment of the court was pronounced by

King, J.

The defendant is sued, in this action, as one of the makers of a joint and several promissory note, on which partial payments have been made, and he sets up in defence a failure of consideration. The cause was tried by a jury, who gave a verdict in favor of the plaintiff, for the sum claimed, with interest from judicial demand, and the defendant has appealed.

Tlie only questions which arise in this case, are presented in a bill of exceptions taken to the opinion of the judge, refusing an application of the defendant’s to continue the cause, in order to procure the testimony of witnesses who were absent from the State, and to his permitting a juror to be withdrawn after he had been sworn, and another to be substituted in his place. The judge, in assigning his reasons, states that the continuance was refused mainly on the ground, that no diligence was shown in procuring the evidence stated in the affidavit, and that the continuance appeared to be asked for solely for delay, as a similar affidavit and motion had been made at a previous term of the court. The previous affidavit referred to by the judge is annexed to the bill of exceptions, from which it appears that nearly a year had elapsed after the continuance, granted for the purpose of procuring the testimony of the witnesses named in the last application, and the record shows no measures taken to procure then-depositions. We think that the continuance was properly refused.

As regards the withdrawal of the juror, it appears that a person was called to serve as a talesman, who was a school commissioner, and, in virtue of his office, exempt, by law, from serving on juries. He was objected to by the defendant, but, as he declined to avail himself of his privilege, tho judge ordered him to be sworn, which was accordingly done. After the pannel had been formed, the judge states that this juror, “ upon being asked a question by tho defendant, said he did not like to sit in the case, as he felt interested; that he did not know the nature of the case, when he was interrogated in relation to his right of exemption from serving as a juror and when he was sworn.” The judge thereupon discharged the juror and caused another to be sworn in his place, and we think that he was clearly right in doing so, when the juror declared that he felt he had an interest in the suit.

Upou the merits, the verdict of the jury is supported by the evidence.

Judgment affirmed.

      The defendant objected to him on the ground of his exemption.


author: Rost, J.

text:
    Miller v. Allison.
    Where the facts of the case leave it doubtful whether the court should interfere with a judgment, overruling a motion to set aside an order directing certain interrogatories to be taken for confessed, the party against whom they have been taken for confessed will be considered as entitled to the benefit of the doubt, and the case will be remanded to give him an opportunity of answering the interrogatories
    Appeal from the District Court of Concordia, Curry, J.

      Stacy and Sparrow, for the plaintiff. J. Dunlap, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

In this case the defendant was ordered to answer interrogatories in open court, but the court did not sit on the day fixed for that purpose, and another was subsequently designated. On that day and the succeeding days the defendant was in court, but was not called upon by the plaintiff to answer the interrogatories, and made no attempt to answer them. At one time he absented himself, with the promise of the plaintiff’s counsel that no advantage should be taken of his absence. He returned, but did not answer. Towards the close of the term, the defendant having again absented himself, the plaintiff’s counsel moved tliat the interrogatories be taken for confessed, for want of an answer. The motion was allowed, and the usual order made. On the same day the defendant returned, and his counsel moved to set aside the order. The motion was overruled, and he took a bill of exceptions. Judgment was rendered in favor of the plaintiff, and the defendant appealed.

We are not sure that this is a case in which we ought to interfere, but we consider the defendant as entitled to the benefit of our doubts, and we will remand the case to give him an opportunity to answer the interrogatories put to him. In doing so, we advise him to make his next appearance in court for that purpose, a matter of record.

It is ordered that the judgment be reversed, and the case remanded for further proceedings, with directions to the judge to set aside the order taking for confessed the interrogatories put to the defendant, and to receive his answers to those interrogatories in open court; the plaintiff and appellee paying the costs of this appeal.


text:
    Curtis, for the use &c. v. Woodman et al.
    A creditor for work dono in constructing a levée under an adjudication made in pursuance of the law on the subject of roads and levees, though entitled to proceed in rent against the laud, may recover, in an ordinary action, a judgment for his claim, with a privilege on the land. C. C. 3216.
    No notice will he taken on appeal of reservations of all legal exceptions, made in regard to testimony taken out of court, j
    Appeal from the District Court of Madison, Selby, J.

      Amonelt, for the appellant. A. Pierse, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff, suing for the use of Brown and Johnson, claims from the defendants $928,62, for 323 rods of levée by him made in front of their land, at the rate of $2,87 a rod, by virtue of an adjudication made to him under the law concerning roads and levées.

It is in evidence that the levée was made in conformity with the terms of the adjudication, as nearly as the nature of the ground permitted ; that it was accepted by the inspector of the district; and that it is in reality worth more than the price of adjudication. The contract appears to have been recorded in due time, and the plaintiff prays for a privilege upon the land, under art. 3216 of the Civil Code.

Woodman, one of the defendants, residing out of the State, the plaintiff caused a curator ad hoc to be appointed to represent him. Downes, the other defendant, did not answer, and a judgment by default was entered against him. The curator ad hoc appointed to Woodman, after making divers exceptions, which it is not necessary to notice, answered that Woodman could not be sued in this manner, denied all the allegations of the plaintiff’s petition, and alleged that, on account of various irregularities and an entire failure to comply with the law in the adjudication, the plaintiff could not recover.

The case was tried before a jury, who gave a verdict in favor of the defend-, ants, and the plaintiff has appealed from the judgment rendered thereon.

The plaintiff might, if he chose, have proceeded in rem, but nothing prevented Mm from resorting to an ordinary suit.

The ordinance of the police jury, appointing Groves inspector of roads and levées in the district where this land is situated, is in evidence ; he has also been examined as a witness, and has testified, that he was inspector at the time; that he caused the making of the levée in controversy to be advertised according to law, and that 223 rods of it were adjudicated to the plaintiff at $2,87 per rod; that the plaintiff complied with his contract, as well as the accidents of the land made it practicable to do : that the levée was accepted by him; and that it is worth more than the price of the adjudication. This evidence was taken out of court, and the defendants reserved all legal exceptions to its introduction. Such reservations we never notice on the appeal. It is contended that the plaintiff has not proved that the inspector had been sworn. Under the evidence that was suffered to go to the jury, it was not necessary to make that proof; moreover, after the verdict was rendered, the oath was found; it is annexed to the affidavit filed in support of the motion fora new trial, and appears to have been taken before one of the defendants, acting at the time as parish judge.

The plaintiff has transferred his claim to the men who executed the work, and law and good conscience alike forbid the defendants to enrich themselves by frustrating the rights of those laborers.

The plaintiff is entitled to a judgment, with interest from judicial demand, and to a privilege upon the land.

The judgment is therefore reversed, and it is ordered that the plaintiff, for the use of Brown and Johnson, recover of the defendants $928 62, with legal interest from 21st April, 1846, till paid, and a privilege on the land. '


author: Slidell, J.

text:
    Copley v. Fretwell.
    The right given by the 13fch section of the stat. of 20 March, 1839, to a plaintiff who has applied for a fa., to propound interrogatories to third persons, believed to have property or effects under their control belonging to the defendant, or to be indebted to him, can be exercised only while the writ remains, in the hands of the sheriff.
    Appeal by the plaintiff from a judgment of the District Court of Madison, in favor of certain garnishees, Curry, J.

      H. W. Dunlap, for the appellant. Snyder and Shannon, for the garnishees.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff having obtained judgment against J. G. Fretwell, issued a fieri facias. This writ bears date on the 1st day of January, 1844, and was returnable in seventy days ; so that the authority of the sheriff to make any seizure under it, expired on the 12th March, 1844. On this writ, as appears by the return thereof, made on the 24th August, 1844, the sheriff made no seizure whatever. On the 22d May, 1844, the plaintiff obtained leave of court to file a petition, the object of which was to make the present appellees garnishees, pursuant to the act of 1839. Interrogatories were annexed. The citations were served in the following June.

It is quite unnecessary to enquire into the alleged default of the garnishees, and the defectiveness of their answers. The proceedings against them were ab initio null and void. A fieri facias is the basis of this proceeding under the act of 1839; and by the express terms of the statute the property and effects in the hands of the garnishees, “ shall be decreed to be levied as by the sheriff, from the date of the service of the interrogatories on such persons.” There could be no levy after the time limited in the writ had expired, and the proceedings against the garnishees are consequently void. See the case of Raboteau v. Valeton, 11 Rob. 220. Simpson v. Allain, 7 Rob. 500. Dugat v. Babin, 8 Mart. N. S. 372. Judgment affirmed.


author: SninuLi,, J.

text:
    Murray v. Gibson et al.
    A note made a nd payable in another State must be governed by the laws of that State.
    A receipt sous sting privé has no dato as to third persons, without proof ofthe time of its execution.
    By the laws of Mississippi payment of a promissory note by the maker, before maturity, and prior to the acquisition of the note by a third person, who obtained it without notice of the payment, though the note be not delivered to the maker, is binding on such third person; hut a payment, after the acquisition of the note, would create no equity against him.
    Where the result of an action in favor of the party by whom a witness was offered, would render the witness liable to the opposite party for a _ certain sum, but if unfavorable would subject him to a much larger debt to the party by whom he was introduced, his interest is not equal, and his testimony should be disregarded.
    Rights acquired by third persons subsequently to an attachment, cannot affect the rights of, the attaching creditor.
    APPEAL from the District Court of Madison, Curry, J. This is a suit by attachment, instituted by the plaintiff on a promissory note for $5,159 27, executed by defendants on the 25th February, 1839, dated at Hall’s Ferry, and payable to the order of George Henderson, at the Union Bank of Mississippi, on the 1st of January, 1841, at Jackson.
    Defendants plead payment, and set up in protection of such payment the statute of Mississippi, of 25 Jan’y, 1822.
    Plaintiff acquired possession of the note and his interest therein, by a seizure and sale under an attachment sued out by him against Henderson, the payee, on the 23d December, 1840.
    Defendants relied, in proof of payment before attachment,
    1st. Upon the testimony of Henderson, the payee, who, in ansswer to the second interrogatory, said : “ I was the holder of the note drawn by defendants in my favor, for $5,159 27. The defendants made an agreement with me, in November, 1840, to pay certain debts which I owed to the amount of said note, which they did. I gave them a receipt for the same.” Henderson further stated that, in the early part of the winter of 1840, he handed the note to J. L. Kinnard, of Grand Gulf, with a request that he would exchange it for a draft held against him by Brander, McKenna & Wright, who declined the transaction. Subsequently it was attached by plaintiff
    2d. Upon the receipt of Henderson, which was offered in evidence, and is in the following words:
    “ Old Cayuga, Nov. 28,1840.
    “Received of Win. L., ñni John A. Gibson, five thousand one huudred and fifty-nine dollars and —cents, as a payment on a note drawn by Wm. L., and John A. Gibson, for the same amount, and dated at Hall’s Ferry, Feb’y 25, 1839, and due 1st January, 1841, which note I promise to give to Mr. L. Gibson, as soon as convenient. Geo. Henderson.

      3d. Upon the answers of Gihson to interrogatories propounded by plaintiff. In his answers he alleges ignorance, at the time of payment, of the disposition of the note, and states as reason why he did not receive the note at the time of settlement, to wit: that the receipt was given at defendant’s own house, and Henderson did not have it with him at the time. He does not state that the note was paid. -
    Exception is taken by plaintiff to the testimony of Henderson, as incompetent, on the ground of interest.
    The 9th section of the act of the legislature of Mississippi of 25th June, 1822, in relation to bills of exchange, promissory notes &c., which was introduced in evidence by defendants, provides that defendants shall have after assignment equally as before, “the benefit of all want of lawful consideration, failure of consideration, payments, discounts and setts off made, had or possessed against the same, previous to notice of assignment, in the same manner as if the same had been sued on, and prosecuted by the obligee or payee.”
    There was a judgment in favor of the plaintiff, from which the defendants appealed.

      J. Dunlap and Thomas, for the plaintiff.
    1. Henderson was incompetent on the ground of interest. The competent witness must not be interested, either directly or indirectly. C. C. art. 2260. A surety, novating the debt of his principal, is not a competent witness to prove the novation. It is said, that Henderson’s interest is equally balanced in the case, and that, as such, he is a competent witness between the parties. The facts do not support the position assumed. The note was attached, sold at sheriff’s sale, and bought by the plaintiff, for $100. If the plaintiff fails to recover on the note, Henderson is liable to him upon his legal warranty to return the purchase money, to the amount of $100. C. P. arts. 711, 712. 3 N. S, 221. On the other hand, if the plaintiff gains the suit, Henderson will be liable to the defendants to refund them the amount of the note, principal, interest, and costs of suit, upon his acknowledgement of payment, whether true or false. The difference of interest, then, felt by Henderson against plaintiff, and in favor of defendants, is as $100 is to over $7000. 3 StarkieEv. 1729. Greenl. Ev. pp. 391, 393, 394, 420.
    2. Henderson, by endorsing the note in blank, and sending it to the city, before maturity, to be negotiated in taking up a draft previously drawn by him, gave it a public commercial credit, which he will not be received as a witness to destroy, by showing that, at the time he endorsed, and sent it int o the commercial world, it was paid. Greenl. Ev. p. 428, 429, 430,431, nos. 383, 385, and notos. 10 M. 185. 5 Ibid. N. S. 130. On this point, there is some diversity of opinion. Some authors holding, that the objection should go rather to the credit than the competency of the witness. But it will be seen, by the references, that the weight of authority is decidedly in favor of exclusion. But, if admissible, under the circumstances, is his testimony entitled to the slightest credit? Can any faith be placed in the statements of one who swears, that, in November. 1840, “ he receipted the note to the defendants, who agreed to pay the amount to his creditors, which they did ; and that in the winter he sent the note to the city to take up a draftand that, too, when it is palpably his interest to sustain this view of the matter. The statement furnishes the most incontestible evidence of fraud, or perjury.
    3. The receipt of Henderson, as an act sous seingprivé, has no date against the plaintiff, unless its real date be proved dehors the instrument, but that on which it was offered in court. B. & S. Dig. p. 12, Act sous [seing privé, no. 6. The right of the plaintiff to an affirmance of the judgment, is unquestioned, except by defendants’ plea of payment to the payee, before notice of the plaintiff’s right having attached. The note was attached in the hands of Bogart, the garnishee, on the 23d of December, 1840; and from that day the plaintiff' dates his right to it. 8 Mart. 511.

      Snyder, Stacy, Sparrow, Prentiss and Finney, for the appellants,

      Henderson’s interest was in direct conflict with his testimony. It was for his interest to sustain the attachment, for he was bound to plaintiff, as warrantor, for the amount bid for said note, in case plaintiff’s title under his purchase should prove invalid. He was testifying, then, against his own interest, and his evidence was clearly competent. C. C. arts. 2598, 99. C. Practice, art. 711. Kennard v. Gustine, 9 Rob. 172. McMic/cen v. Fair, 4 N. S. 172. Shipman SfCo.v Archinard, 19 La. 471. Travis v. January, 3 Rob. 229. 12 La. 289. 4 Mart. 539. 5 Ib. T. S. 277. 2 La. 293. 4 La. 201. Even without the testimony of Henderson, the defence of payment is fully made out by the receipt itself, and the answers of the defendant, J. A. Gibson, to plaintiff’s interrogatories. But it may be objected, that this payment is not good, because made before the maturity of the note, and without its delivery to the maker. The payment must be tested by the laws of Mississippi, where the note is payable, and where the payment was made. It is clear the satisfaction is good, so far as Henderson was concerned. Were he the plaintiff, his receipt would be conclusive; and by the laws of Mississippi, the defence is equally good against the present holder.
    As to the non-delivery of the note, at the time of settlement, it cannot effect the defence. This has been expressly ruled. In the case of Allen v. The Agricultural Bank, 3 Smedes and Marshall, 48, the note was settled by the maker, without its production, and he took a bond of indemnity against it. It afterwards came into the hands of a bona fide assignee. Yet the court held the payment a good defence under the statute.
    If the defence is good against a bona fide assignee by contract, a fortiori, is it good against a mere legal assignee, under judicial sale ? Plaintiff acquired under his purchase only the rights of Henderson, and cannot, even under the laws of Louisiana, claim any greater. He is not an assignee of negotiable paper, received before maturity, in the ordinary course of trade, but the mere purchaser of the lights of Henderson, the defendant in the original attachment. v An attaching creditor takes no greater right than those belonging to his debtor. 8 Mart. N. S. 339. 18 La. 321. And it is the same with the purchaser at sheriff’s sale. 7 L. R. 318.
   The judgment of the court was pronounced by

SninuLi,, J.

This suit is brought upon a note made by the defendants, jointly and severally, to the order of George Henderson, dated and payable in Mississippi. The plaintiff acquired the note under execution and judicial sale, for the price of $100, in an attachment suit brought by him against Henderson, the payee. This is the only collection which Murray has been able to make upon his claim against Henderson for $10,000, due since I4th May, 1838.

The defence is payment, and to establish it the defendants rely upon a receipt, under private signature, purporting to bear date at a time anterior to the levy of the attachment, and also to the maturity of the note, by which Henderson acknowledged to have received its amount from the makers, and promised to deliver the note to L. Gibson, one of them, “as soon as convenient.” The statute of Mississippi concerning bills and notes, was offered in evidence.

The law of that State must control the contract, it being made and payable there. That State places promissory notes and bills upon a very different footing from that which they have under the law merchant and statutes of England, and of most of the States of the Union; and we shall assume, for the purposes of our present inquiry, that, under the statute of Mississippi, a payment made to Henderson by the Gibsons, prior to the acquisition of the note by the plaintiff, even though unaccompanied by a delivery of the note to the makers, would be an effectual bar against the plaintiff, or any other innocent holder, withou notice. The proof of payment rests mainly upon the receipt, the testimony of Henderson, and the answers of one of the makers to interrogatoiles.

The receipt, being under private signature, has, per se, no date against third persons. To give it effect, it was necessary to prove the time of its execution. Under the laws of Mississippi, a payment made prior to the acquisition of the note by the plaintiff, would bind him; but a payment subsequently made, would create no equity. Non constat, by the mere writing under private signature, that it was not subsequently given to defraud the plaintiff. We must look, then, to the proofs aliunde; and here the first inquiry is, what weight is to be given to the testimony of the payee of the note.

It is urged by the defendants that the interest of that witness was equally balanced. That if the plaintiff failed in his action on the note, by reason of the alleged payment, the credit of $100 (the price of the note at the judicial sale in the attachment suit), acquired by the defendant in execution would be rescinded, and that this was a counterpoise of his liability to the present defendants, under his covenant in the receipt, if they should be condemned in the action to pay the note a second time. But it is obvious that there was not an equal balance. In the one case the witness would lose $100; in the other, he would become liable for $5,159 27, with eight per cent interest from maturity, and costs and charges incuwed in the defence of this action. The difference is at least as one to seventy. The witness was interested to the amount of this great excess. The judge of the court below appeals to have disregarded his testimony, and we are not prepared to say that in this there was error.

The answers of Gibson to interrogatories do not establish the time of the execution of the receipt, nor the fact of payment, and the character of the answers is not, in other respects, such as to aid the defendants’ cause.

It is urged that before Murray purchased the note, at the judicial sale in the attachment suit of Murray v. Henderson, he was warned, by the intervention of the Gibsons in that suit, of the defence now set up, and was a purchaser with notice. If payment be not proved, notice that the makers would resist a future action upon the note on that ground, appears to us immaterial. But, besides this, it is not to be said that the rights of Murray rest on the judicial purchase alone; they rest upon the antecedent attachment, of which the judicial sale was the complement, and an equity acquired after the attachment could not operate retroactively upon rights acquired by the attachment.

Upon a careful consideration of the evidence, we are of opinion that the payment has not been proved ; there is, on the contrary, just reason to believe what has been so forcibly urged by the counsel, that the receipt was an after thought and contrivance to defeat the plaintiff’s recovery.

We concur with the judge below that no valid defence has been established, and consider his decree as having done justice in the cause.

Judgment affirmed.


author: SniDEM., J.

text:
    Erwin v. Lowry, Curator.
    The la\v of the forum governs questions of prescription.
    The acknowledgment of a debt will interrupt prescription, though such acknowledgment be not made to the debtor.
    Tiy the laws of Mississippi, an agreement to postpone the payment of a balance due on a note for a certain period, on tbe payment of interest on each balance at the rate of ten per cent a year, is usurious, and subjects the party to a forfeiture of all the interest which may have accrued.

      Appeal from tlio Court of Probates of Madison, Downes, J.

      Snyder and Amonett, for the plaintiff. Stacy and Sparrow, for the appellant.
   The judgment of the court was pronouced by

SniDEM., J.

The plaintiff claims a balance of principal and interest from maturity, due on two promissory notes given by McNeil, the drawer, in 1835, for tho price, in part, of certain real proporty situated in this Shite, and secured by mortgage thereon. The notes matured in January, 1839, and this suit was brought in April, 1844. The first matter to be considered, is a plea of prescription.

It appears that, in the year 1840, this plaintiff obtained in the United States Circuit Court for Louisiana, an order of seizure and sale upon these notes; the plantation was sold under this process; James Erwin became the purchaser, and the writ of seizure and sale was credited with $15,683 28, as the nett proceeds of the judicial sale. Subsequently, Lowry, as curator of MeNeil’s succession, brought suit against James Erwin, to have the nullity of the judicial sale adjudged, and the property restored to the succession, with the fruits and revenues received by the alleged illegal possessor. This suit was sustained, the property was restored to the succession, and James Erwin was made liable for the fruits and revenues; upon the amount thereof he was credited, however, with the nett price he had paid at the judicial sale, as having extinguished, pro tanto, the mortgage debt of the succession; and there being thus a small balance in his favor, the decree was that a writ of possession should not issue in favor of the curator till he had paid James Erwin the amount of the balance. See report of the case, 6 Rob. p. 192. This decree Lowry executed, and received possession of the mortgaged property.

The law of the forum governs the question of prescription, and, under our Code, an acknowledgment of the debt int errupts prescription, even though such an acknowledgment be not made to the creditor. Here there was something higher than an ordinary acknowledgment of the existence of the debt in 1840. The credit which James Erwin was allowed in that suit, as for money paid for the benefit of the succession, and the judgment rendered in his favor for the balance of account, necessarily involved the existence of the debt at the time of payment. If the debt had not existed as a binding and legal obligation of the succession, James Erwin could not have been entitled to a credit for a part payment of it, and therefore the allowance of the credit is a judicial declaration that the debt then existed, and that a payment was made upon it. This judgment in Lowry v. Erwin, which Lowry has executed, coupled with the proceedings by order of seizure and sale in the United States Court, by which the mortgaged lands and slaves were actually seized and sold, and passed into the possession of James Erwin, establishes an ample interruption of prescription within five years prior to the institution of the present suit. The case of Harrod v. Voorhies, 16 La. 254, is not analogous. There the order of seizure and sale was invoked, not as a mere interruption of the prescription of five years, but as a judgment barring the prescription of five years, and subjecting the claim to such prescription only, if any, as applies to judgments. The attempt in that case was to enforce by suit, in 1839, a note upon which an order of seizure and sale had been obtained in 1825. The court held that the note did not merge in the judgment, and that the prescription of five years was still applicable ; but the court did not hold that the prescription of five years was not interrupted by the order of seizure and sale, nor was that question at all necessary to be considered. The date of the institution of suit in that case is stated by the reporter as 1829, but that is obviously a misprint, as may be seen by the oontext.

The next enquiry concerns a defence of usury, set up against the claim of interest as to one of the notes. This note was payable in Mississippi. On the day on which it would have matured, by agreement of the parties, a partial payment was received, and the payment of the balance of the note was postponed for nine months, the balance to bear an interest of ten per cent per annum. The cashier of the bank in Mississippi made an endorsement accordingly upon the note, of the partial payment and agreement for extension. By the laws of Mississippi, which are offered in evidence, this agreement was usurious, and a forfeiture of all interest accrued. See the case of Richards v. Presler, ante p. 264, recently decided. This makes a reduction of the judgment necessary.

" It is therefore decreed that the judgment of the court below be reversed ; and it is further decreed that the plaintiff recover of the succession of Alexander McNeil, deceased, the sum of $,3007 86, with interest on the sum of $1,800 92, part thereof, from the 6th da.y of July, 1840, till paid, at the rate of eight per cent per annum, and costs incurred in the court below, with mortgage, for the said principal sum and interest and costs, on the property described in the act of sale, whereof a copy is on file, executed before Felix Bosworth, parish judge, on the 28th day of January, 1835, by Henry T. Dawson & Conway B. Nutt, to Alexander McNeil; the costs of this appeal to be paid by the plaintiff.


author: Eustis, C. J.

text:
    Kemp, Tutrix, v. Rowly et al.
    Where a tutor acknowledges, in an authentic act, the receipt of the amount of notes due to his minor, which were secured by mortgage, and releases the mortgage, the acknowledgment is evidence, so far as third persons are concerned, of the extinguishment of the debt and, as to them, the release of the mortgage will be valid, though the amount of the notes was never paid, or paid only in part, to the tutor. But parties or privies to the pacts in which the release originated, cannot take advantage of their own wrong, to the injury of tbe minors.
    Where a'tutor releases a mortgage held by minors on a plantation and slaves, in a case where the annual interest of the debt was more than sufficient for their wants, and there were no debts to pay, the release being made fraudulently to enable tbe debtor to effect a loan on the property, and the tutor receives in payment of the minors' claims depreciated bank notes, the debtor will not be allowed, in the absence of proof that the notes or their proceeds actually enured to the benefit of the minors, credit even for the actual value of the notes paid to the tutor. The release of the mortgage is a fraud on the rights' of the minors, which nono of the parties or privies thereto will be permitted to take advantage of.
    Knowledge by an agent of the fraudulent character of a transaction, acquired in the course of his employment, is binding upon his principal.
    In an action by a tutor to annul tbe release of a mortgage in favor of his minors, made in fraud of their rights by a former tutor, the latter is a competent witness for the plaintiff, to prove that no money was received by him in discharge of the debt due to the minors, although its receipt has been acknowledged by him in an authentic act. Per Curiam: The necessity of the case which admits agents as witnesses for their principals, is equally applicable to tutors, when called to establish facts, the knowledge of which rests with them alone.
    Actions on behalf of minors for restitution against acts committed in fraud of their rights, are not prescribed by five years.

      Appeal from tlie District Court of Concordia, Curry, J.

      Thomas and O. N. Ogden, for plaintiff. Frost, T. P., dp F. H. Farrar, H. A. Bullard, Stacy and Sparrow, for the appelants.
   The judgment of the court was pronounced by

Eustis, C. J.

This is an action instituted by the tutrix of the two minor children of the late James Kemp, for the restitution of certain hypothecary rights, which had been released by their former tutor, Thomas B. Kemp. James Kemp, who resided in the State of Kentucky, was, with his two sisters, Mrs. Rowly and Mrs. Sprague, the joint owners of the Marengo plantation, situated in the parish of Concordia, and slaves. To effect a partition, the plantation and slaves, after the death of James Kemp, were sold at probate sale, the price payable two-thirds in cash, and one-third, the portion belonging to the minors, in five equal annual instalments, bearing ten per cent interest from date, with special mortgage on the property sold. Rowly, the defendant, husband of one of the proprietors, was the purchaser for $112,500, and gave his five notes for $7500 each, with special mortgage in favor of the tutor, Thomas B. Kemp, according to the conditions of the sale. The date of the notes is the 15th of June, 1835. ■ There was an additional personal security, on the three first notes, but they were all payable to the order of the tutor.

It is alleged that, on the 8th October, 1838, the tutor fraud ulently, illegally, and without having received payment of the amount, delivered up to Rowly, the purchaser of the plantation and slaves, and the debtor, four of said notes ,and released and cancelled the mortgage given to secure them; that afterwards the tutor resigned his trust, and the plaintiff was appointed tutrix of the minors; that, with the exception of the first note, which was duly paid to the former tutor, and several smaller sums which will be admitted, the amount of the four last notes and interest is still due by the said Rowly, for which they still of right have the first mortgage on said plantation and slaves. It is charged in the petition, that the release of the mortgage and the cancelling of the notes was effected, at the instance of the debtor and tutor, for the pmpose of defi-auding the minors, without any payment in lawful money, or its equivalent, being made; and that, on the day of the release, the 8th October, 1838, Rowly and his wife mortgaged to Daniel W. Coze, residing in Philadelphia, the whole of the Marengo plantation and slaves, for the consideration stated in the act; that the release of the minors’ mortgage was to give greater security to said Coze for the loan made by him to Roivly, the illegality of which Coze was aware of, the said Coze well knowing that the release of the mortgage was made for the purpose of enabling Rowly to borrow from him depreciated bank notes and sinking bank stocks, for which said mortgage to Coze was given. The intendment of the petition is to effect the mortgage of Coze, by notice of the alleged fraud in the release of the mortgage of the minors by the tutor. The object of the suit is to reinstate the minors in their rights of mortgage adversely to Coze, and he is accordingly made a party, together with Rowly and Lansing, a third purchaser of the Marengo plantation and slaves, who, so far as this litigation relates, has no interest, being bound to pay only the amount of his bid at sheriff’s sale, which will not be affected by any change in the order of mortgages, and no decree being asked against him. There are creditors of the hypothecated property by judicial mortgages, originating after the release of the minors’ mortgage, who have also been made parties (the rights of these will be noticed in their proper place), and who are affected by the decree to be rendered. Mrs. Rowly is also a party, by reason of a tacit mortgage which exists in her favor on the property of her husband. There was a judgment in favor of the plaintiffs, against the principal debtor, Rowly, for $30,000, with interest according to the tenor of the notes, subject to a credit of $1000, to take effect from the 11th March, 1841; and the rights of the minoi-s, as mortgage creditors, with the vendor’s privilege on the plantation, slaves, etc., are restored and reintegrated, to take effect against all parties from the date of tho original adjudication, made by the Court of Probates of Concordia, on the 15th June, 1835. The defendants have all appealed.

The points of attack and defence have been various. Those which the court consider material and requiring any notice, will be considered ns they have been presented in argument.

I. The power of the tutor to grant the discharge of the debtor, and to release the mortgage, except on payment, is denied; and it has been urged that, in the view of the law, the mortgage must be held as still existing in favor of the minors. Tho tutor is authorized to receive payment, and, whatever may be the relations between him and the debtor, resulting from their private agreements, the receipt and discharge of the debt, by reason of payment given by the debtor, in an authentic act, so far as third pex-sons are concerned, ax-e evidence of the extinguishment of the debt, and the release of the mortgage consequent thereto is valid to all intents and purposes. By our Code, art. 327, the tutor has care of the person of the minor, and represents him in all civil acts. He is bound to administer the estate of his ward as a prudent administx’atox’, and is responsible for damages resulting from a bad administration. These provisions are identical with the two first principles of art. 450 of the Napoléon Code, and Mei’lin thus gives his opinion on the power of tutors to raise mortgages, given as securities for debts due to minor's. After stating, in general tex-ms, that 'the tutor, on receiving payment, may release a mortgage without recurring to the authority of justice or of a family meeting, inasmuch as no form is required to attend a payment, which he has the power and it is his bounden duty to receive, he adds: “ II le pourrait encore, lors méme qu'il ne recevrait pas le montant de la dette, et qu’ainsi l’affranchissement de l’hypothéque accordé par lui, représenterait une espéce de remise, sinon de la dette, du moins des suretés, qui la guax-antissaient. Qui peut le plus, peut le moins. Le tuteur peut recevoir les somrnes mobiliéres dues au mineur et les dissiper. La liberation n’en est pas moins acquise au débiteur, la responsibilité du tuteur reste seul engagée. Art. 450 duCode Napoléon. Si la radiation oula remise tde l’hypothéque vientá compromettre le í'ecouvx'ementde la dette, il en demeurei'a pareillement responsable, mais la radiation de l’hypothéque n’on opérera pas moins son effet.” The tutor having the right to raise the mortgage, it must yield to the rights of subsequent mortgagees. The reason of Judge Simon, in the case of Delavigne, Syndic. v. Gaiennié, 11th Rob. 171, has a direct application to the facts of this case, and were a contrary doctrine established, the pui’poses of the laws concerning the recording of mortgages would be completely frustrated.

II. It becomes necessary to examine the validity of the x-elease, so far as relates to the parties to the act, and those who, by reason of their privity to it, are affected by notice, and stand in no better situaiion as to their hypothecaiy rights, than the parties themselves. The capital of the first note, due in June, 1836, was paid, and when the release was given, the last note was not due. The debt of the minors was well secured, and bore interest at ten per cent. The plantation was in cultivation, and the adequacy of the security has not been questioned. If the interests of the minors were to be consulted, what reason can be offered for changing an investment lawfully made, and so well calculated to subserve their wants and conveniences. No debts required the raising of money, and the conversion of this security, particularly at the time it was made, during the suspension of specie payments by the banks of this State, must have originated from some other views than those which a prudent administrator would have taken, in relation to the interests of those whose persons and property were confided to his charge. The minors did not want the money; the interest alone was more than sufficient for their support; and no reason has been given, approaching to a justification oí this act, on behalf of the tutor; and when we look at the facts connected with it, we can find nothing in them which can exonerate him from the responsibility which the law attaches to his administration. The release was granted by the tutor, to enable Rowly, the debtor, to effect a loan from Coxe. The pretended equivalent received by the tutor was $15,000, in Rail Road money, and $10,000 in Agricultural Bank stock. The notes and the stock were of banks in Mississippi, which had suspended specie payments. The stock was transferred directly from Coxe to the tutor, and the notes were delivered after the release and mortgage to Coxe were completed, the mortgage bearing the same date and being executed before the same officer, the parish judge of Concordia. The mortgago was given by Rowly and wife, who gave joint and several notes for the amount.

In relation to the stock, the counsel for Roioly do not claim to take advantage of it as a payment, even for its value, but urge that the debt of the minors ought to be credited with that of the Rail Road bank notes, which they allege were worth at the time of the transaction ninety per cent, making $13,500. Conceding that the $15,000 of bank notos were really worth that sum, it is not easy to find a sound reason for which the minors should be charged with it. That the tutor was justified, under the circumstances, in roceiving for this well secured debt, the sole patrimony of his wards, the depreciated bank notes of another State, is a proposition repugnant to the first and elementary principles of the law of mandate. Mr. Rowly well knew tho law, and that, between the tutor and the minors, the receipt of tho banknotes by the former had no binding force in law as to the rights of tho minors, and that they could only be bound by the soi disant payment, on its being established that its value enured to their benefit. Nor has the allowance of this credit any foundation in the equity which this case presents. When Rowly was sued on this loan by Coxe, he urged in defence that this very bank stock, when received, was worth but $50 per share, and that the bank notes were nob worth more than 60 per cent, and obtained a diminution of the amount due on account of the depreciation of these very notes. 12 Robinson’s Reports, 278. The attempt to pay the minors at par, with notes at a discount of ten per cent., and with stock of a bank which had ceased to pay its obligations, can receive no countenance from a court of justice. The law considers the release of the mortgage by the tutor, under such circumstances, as a fraud on the rights of the minors, and we cannot permit any of the parties to take advantage of it. The agent of Coxe was a party to the act of the mortgage, executed before tho same officer and at the same time with the release, and knowledge in him of the whole transaction is proved beyond question, which binds his principal. Mrs. Rowly also stands affected with notice. As to the law concerning notice to agents as binding principals, vide Sugden on Vendors, chap. 17, p. 534 etseq. Story on Agency, § 451.

III. A bill of exceptions was taken to the admission of the former tutor, who was offered as a witness by the plaintiff, to prove the non payment of money in discharge of the minors’ debt, and the fact of the receipt of notes and stock by him, as charged in the petition. We think he was a competent witness, and that the court did not err in receiving his testimony. The necessity of the case which admits agents ns witnesses for their principals, is equally applicable to tutors, when called to establish facts, the knowledge of which rests with them alone. It is contended by the counsel for Roioly, that thq note due in 1837 is prescribed by lapse of time, and that the minors cannot recover the amount. We think that this action, which is for the restitution of minors against acts committed in fraud of their rights, is not prescribed by the term fixed for the prescription of promissory notes.

It has been contended that the mortgage rights of the minors have been lost, in consequence of the non-inscription of the mortgage within ten years from its date. The mortgage, as we have seen, was dated on the 15th of June, 1835, and was duly recorded, and it was not reinscribed until the 19th of June, 1845, some days after the judgment was rendered in the court below. More than ten years had elapsed since the date of the mortgage; but the grounds on which we base this decision takes the case out of the rules relating to the peremption of mortgages after the lapse of ten years. We have said that the mortgage was in fact released, but hold that the parties and privies to the pacts in which that release originated, cannot take advantage of what we conceive to have been their own wrong, to the detriment of the minors.

The recorder of mortgages was not bound to reinscribe the mortgage after its release by the tutor, and it may be considered as not within the power of the minors to have a reinscription effected until reintegrated in their rights by the decree of a court. We do not think the rules established in the case of Shepherd v. The Orleans Cotton Press, ante p. 100, concerning the peremption of mortgages by reason of the non-renewal of their inscription, applicable to this case.

Having come to the conclusion that the release of the mortgage by the tutor was valid, third persons cannot be prejudiced by the causes which rest exclusively with those who were parties and privies to the transaction, and which we are bound to declare, so far as the minors are concerned, as of no effect and void.

IV. We give precedence to the hypothecary rights of the minors over the Coxe mortgage, which takes rank before the judicial mortgage of the Mechanics’ and Traders’ Bank, and that of the Union Bank of Mississippi. The former was based on a conventional, mortgage, given by Roioly and wife to the bank subsequently to the release, and therefore we hold it to have effect adversely to the mortgage of the minors. The mortgage of the Union Bank also takes precedence of it, and the effect of our decree will be to give the minors the benefit of the Coxe mortgage, to which the minors stand of right substituted to the amount of their debt, to the extent of one-third interest in the plantation and slaves, as mentioned in the original act of mortgage in favor of the tutors. The effect of the several mortgages on the other two-thirds of the plantation and slaves, will not be touched by this decree. The rights of the minors will also take precedence of the tacit mortgage of Mrs. Rowly.

We allow two credits, not allowed in the judgment of the District Court, one of $300, the other of $1000, to date from the 1st August, 1842..

It is therefore ordered that the plaintiff recover from the defendant, Charles N. Roiuly, the sum of $27,700 00 principal, and ten per cent interest from this day on said amount, until paid; and the further sum of $34,047 43$, being arrears of interest, and costs of court, with right of mortgage and vendor’s privilege on the individual third part of the Marengo plantation, lands, slaves, &c.j bought by said Rowly at a probate sale thereof, on the 15th June, 1835, and mortgaged by him to Thomas B. Kemp, as tutor of the minors, James and David B. Kemp, by authentic act, passed on the 17th June, 1835, as mentioned and described in the plaintiffs petition and said authentic act. Audit is further decreed, that the said mortgage and privilege established by this decree, take precedence of the mortgage in favor of Daniel W. Coxe, and of the tacit mortgage of Mrs. Jane Roiuly, so far as relates to the said orid-third interest in said plantation and slaves; and to that effect the said mortgage in favor of said Thomas B. Kemp, tutor, is revived and reintegrated adversely to the said hypothecary rights of the said D. W. Coxe and Jane Rowly, and substituted in the place and stead thereof; and, for the amount of said mortgage in favor of said Coxe, the said mortgage in favor of said Thomas B. ICemp, tutor, is declared to take precedence of the mortgage and judgment of the Mechanics’ and Traders’ Bank and of the Union Bank of Mississippi, and for no more. And it is further ordered that the said one-third interest in said Marengo plantation and slaves be seized and sold to satisfy the plaintiff’s debt, interest, and costs; that there be judgment against said Lansing; and that the costs of this appeal be paid jointly by the plaintiff, D. W. Coxe, and the said defendants, Rowly and Lansing.

       The testimony of this witness was excepted to on the grounds: 1, that he was inter" ested in having the mortgage reinstated, which would release him from liability to the ml" nors; 2, that he could not be heard to establish the illegality of his acts and his own turpitude; 3, that his parol evidence could not be received against his own written acts

        H. A. Bullard and Frost prayed for a ro-liearing, on the ground that, though the opinion of the court declares that tho release of the mortgage by the first tutor was valid, as to third persons without notice, and that, especially as to tho Mechanics’ and Tradors’ Bank, effect ought to bo given to their mortgage adversely to that of the minors on one-third of the Marengo estate, yet the decree givos tho mortgage of the minors full effect as to that bank.


author: SiiiDEm, J.

text:
    Jure v. First Municipality of New Orleans.
    No appeal will lie from an order dissolving an injunction on the execution of a bond by de> fendants in compliance with art. 307 of the Code of Practice, where the facts of the case sIiqw that the dissolution can work no irreparable injury to the plaintiff.
    APPLICATION for a mandamus to Buchanan, Judge of the Fifth District Court of New Orleans, directing him to allow the plaintiff a suspensive appeal.

      Schmidt, for the petitioner.

      Roseliws, contrá.
    To grant an injunction would defeat the objects of art. 307 of the Code of Practice. The judgment being interlocutory, and affecting no irreparable injury, no appeal will lie. Code Pract. art. 566.
   The judgment of the court was pronounced by

SiiiDEm, J.

This case comes before us on an application for a mandamus. The petitioner represents that having leased the meat market of the First Municipality of the city of New Orleans, and being in peaceful possession and punctually paying his rent, the municipality, pretending that the petitioner had no right to the occupancy of two certain stalls in said market, ordered the police officer to destroy or remove the same, to prevent which your petitioner addressed a petition to the Fifth District Court of New Orleans, praying for an injunction to restrain the municipality, which was granted on giving bond. That the defendants having taken a rule upon petitioner to show cause why the injunction should not be set aside,upon furnishing security according to the provisions of the 307th article of the Code of Practice, the judge made the rule absolute, and ordered the injunction to be set aside, upon the execution of a bond, with surety, in the sum of $1,100. That from the order thus rendered he desired a suspensive appeal, and accoi'dingly presented a petition indue form, and with the offer of such security as the judge might require, which was refused, although the petitioner alleged that the order would work an irreparable injuiy to him. The petition concludes with a prayer for a mandamus, and is accompanied by an affidavit of the truth of the allegations of the petition.

The provisions of article 307 are as follows: “ Whenever the act prohibited by the injunction is not such as may wox'k an inseparable injury to the plaintiff, the court may, in their discretion, dissolve the same; provided the defendant execute his obligation in favor of the plaintiff, with the surety of one good and solvent person, residing within the jurisdiction of the court, for such sum as the court may determine according to the nature of the case, as security that he will deliver the property in dispute in the same state in which it was at the moment of issuing the injunction, and that he will pay besides to the plaintiff all damages he mn.y have sustained by his act, if a definitive judgment be rendered against him in the suit pending.” •.

Now, it will be observed in the present case, that the petitioner, who was lessee for a term of twelve months, had himself estimated the value pf the two tables in question at $3 per diem, making an amount for the term of his lease of $1,095, so that the bond required to be given is ample in pecuniary amount to cover any loss; and thei’e is no suggestion, nor can we presume in advance, that an insolvent surety will bo accepted by the court.

The power given by article 307, is one highly conducive to the administration of justice. We are at a loss to see how an irreparable injury can be sustained in this case by its exei’cise, and it is obvious then, the practical object of this grant of power to the court below would be defeated in this case, if the plaintiff were permitted immediately to suspend its operation by an appeal.

It must also be observed that, if the suspensive appeal had been granted, the isolated question of the dissolution of the injunction would be presented in this court, the case, on its merits, being still untried. Now the Code permits an appeal from an interlocutary order only in cases where the order may work an irreparable injury, an hypothesis which the facts already noticed preclude.

We decide this case upon its own peculiar circumstances. When a case is presented in which the power of an inferior court may be reasonably supposed, upon the showing of the applicant, and an inspection of the record, to have been unduly exercised, and an equitable case is presented for our interference, it will be time enough to consider whether article 307 absolutely precludes the summary relief of an appeal suspending the interlocutory order to bond.

Mandamus refused.


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    Hobgood v. Brown et al.
    A sheriff, though made defendant, with the parties by whoip a Ji.fa. had been taken out, in an action to enjoin the execution, need not be made a party to an appeal taken by the plaintiffs in execution from a judgment dissolving the execution, where ihe judgment is not attempted to be amended to his prejudice.
    Where aji.fa. issued from a District Court is levied on land and slaves, within the jurisdiction of the court of another district, an injunction may be obtained from the latter.
    A simulated sale vests no title whatever in the pretended purchaser, and may bo disregarded by a judgment creditor in executing a fi. fa. It is not subject to the rules governingreal contracts which operate injuriously to creditors, and which can only be avoided by a direct action.
    APPEAL Appeal from the District Court of East Feliciana, Johnson, J. The defendants, Lockhart and Arrott, appealed from a judgment perpetuating an injunction obtained by the plaintiff against a fi. fa. issued from the District Court of the First Judicial District.

      Lawson and Merrick, for the plaintiff.
    The court a qua correctly overruled the motion of the defendants, objecting to the jurisdiction of the court. See La-wes et al. v. Chinn, 4 Mart. N. S. 388. Barbarin v. Saucier, 5 Ib. N. S. 361 and 500. Oger v. Daunoy, 7 Ib. N. S. 658. Dunn and Wife v. Vail, 7 Mart. 416. Where a purchaser is in possession under a conveyance, or where the act of sale is in due form and authentic, the question of fraud cannot be inquired into collaterally, in a case commencing with a seizure. The party claiming rights upon the property, must bring a direct revocatory action. Weeksv. Flower etal.9 La. 37.9. Burlandv. Carrollton Bank, 14 La. 189.

      Muse, on the same side.

      Z. S. Lyons, for the appellants.
    The motion to dismiss is based on an evident clerical error, and cannot prevail. Act of 1839. 3 La. 281. The court was without jurisdiction to arrest an execution issued from another tribunal. C. P. 617. 4 Mart. N. S. 390. 7 Ib. N. S. 656. A simulated sale may be entirely disregarded. Cammack v. Watson, 1 Ann. Rep. 132. Wright v. Chambliss, lb. 262.
   The judgment of the court was pronounced by

King, J.

The motion to dismiss this appeal cannot prevail. The appeal was taken in open court. No bond of the appellants in favor ofthe sheriff was necessary, in order to enable the former to have their case heard as against the plaintiff in the cause. The judgment is not sought to be amended to the prejudice of the sheriff.

The statement in the motion for the appeal, that it was made by the counsej of the plaintiff', instead of the counsel of the defendants, is evidently a clerical error in transcribing the record.

Lockhart and Ami held a twelve months’ bond, executed by Eckley, Harrell and Nettles, under which they caused a fieri facias to issue from the District Court of the First Judicial District, directed to the sheriff of East Feliciana. The sheriff proceeded to execute the wrifon a tract of land and a number of slaves, in the possession of Harrell. Hobgood, the plaintiff in the present action, enjoinep the proceeding, alleging that he was the owner of the property seized, by purchase from Harrell and wife. A motion was made in the court below to dissolve the injunction, on the ground that the judgment of Lockhart and Arrot was rendered in the First District Court, and that the District Court of East Feliciana was without authority to arrest its execution. The motion was overruled, and, we think, correctly, under the authority of the case of Lawes et al. v. Chinn. 4 Mart. N. S. 388.

The defendant, Lockhart, alleges in his answer, that the sale from Harrell and wife to Hobgood, is simulated and void; that it was made by the parties collusively and fraudulently, for the express purpose of defeating the defendant’s claim ; and he offered witnesses, on the trial below, to prove these allegations, and, as one of the badges of fraud, that the sale was accompanied by no change of possession. The testimony was rejected, on the ground that the validity of the gale could not be collaterally questioned, and that the party claiming rights upon the property which it conveys, must, before exercising them, cause the act to be annulled in a direct revocatory action. The judge, in our opinion, erred.

A simulated sale wants the essential requisites of a contract. It vests no title whatever in the ostensible purchaser, and may be disregarded by the judgment creditor in the execution of his fieri facias. It is not subj ect to the rules governing real contracts which operate injuriously to creditors, aud which can only be avoided by a direct action. When a plaintiffin execution, finds himself opposed by such a pretended and unreal transfer, he must be permitted to prove its falsity. Cammack v. Watson, 1 Ann. Rep. 132. Wright v. Chambliss, 1 Ann. Rep. 262. The court below, in our opinion, erred in perpetuating the injunction.

It is therefore ordered, that the judgment of the District Court be reversed. It is further decreed, that this cause be remanded for a new trial, with instructions to the district judge to receive testimony to show that the sale from Harrell and wife to Hobgood was simulated, and that the sale was not accompanied by a change of possession; the appellee paying the costs of the appeal.


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    Cook v. Bank of Louisiana.
    A principal who avails himself of a purchase made hy an agent by selling the property, will be bound to comply with stipulations made by the agent with the owner at the time of the purchase.
    Appeal from the District Court of West Feliciana, Johnson, J.

      Patterson, for the appellant. Bowman, for the defendants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiff mortgaged four tracts of land to the defendants to secure a loan of $3,600, which was subsequently reduced to $3,000. He after-wards sold two of those tracts to Barrett, who assumed the payment of the balance due the defendants. Barrett died without paying this sum, and, at the probate sale of his succession, the defendants purchased the two tracts of land, for $2,400. The price was paid by the plaintiff, and the defendants obtained a clear title. They subsequently sold that land for $4,000, part cash, and the remainder in notes bearing nine per cent interest. After this sale, the defendants sued out an order of seizure against the plaintiff for the sum of $3,000 and interest, and caused the two other tracts of land mortgaged to be seized. The plaintiff enjoined the sale on the following grounds: 1st. That he was entitled to a credit of $2,400, paid by him, for the defendants, to the succession of Barreii. 2d. That he suffered the bank to purchase the property for that sum, and paid the price, on the express agreement between him and their cashier, that whenever the land was sold by them, the profits of the re-sale were to be applied to the payment of his debt. 3d. That the land has since been sold for an amount more than sufficient to discharge his indebtedness, and that he has a just claim in reconvention for the difference. The defendants allowed the credit of $2,400; and the court below having given judgment in their favor for the balance and interest, the plaintiff appealed.

The person who was cashier of the defendants at the time of the purchase has been interrogated, on oath, by the plaintiff, in relation to the agreement alleged by him, and has answered as follows:

1st. I did agree with Mr. Cook to purchase in the land, to prevent its being sacrificed, and to give him an opportunity to dispose of it again, on better terms, if possible, the proceeds then to be applied to the payment of his bond; and it was understood that Mr. CWcwas to pay the whole amount of this bond, whether this land produced the amount it was bid in at, or less.

2d. I do not recollect whether there was a resolution of the board authorizing me to act in this matter, or not; but I had the verbal authority of such of the directors as I could see at the time, to attend at the sale, and act as I thought most advisable. If I had no authority to purchase, could the bank sell the property so purchased ?

The defendants having since sold the land cannot be permitted to evade the stipulation on which it was acquired, unless they show that those stipulations have been expressly renounced by the plaintiff. The present cashier says, that, after the first seizure, the plaintiff came to him, and insisted upon his taking the land and giving him a credit for $2,400; that he remonstrated with the plaintiff as to the bank’s giving that credit, and urged him to keep the land, and pay the bank a reasonable amount on the bond; but that he finally consented to allow it, and to give the plaintiff further time to pay the balance ; that the delay given having expired, a second order of seizure was issued, on which, through error, that credit was not allowed.

We do not understand what this witness means. He seems to think that the legal effects of the purchase by the defendants, depended upon its being entered on their books, in the order of its date. The land belonged to the bank from the day of the adjudication. The mortgage upon it was extinguished by confusion, and the price paid by the plaintiff was compensated against an equal amount of his bond by operation of law, the defendants being entitled to the fruits of the land, instead of interest on the price.

The testimony of Sims, who purchased from the defendants, shows that the plaintiff considered his original agreement as still binding upon them, after the stay of execution. He had a clear legal right to require a credit of $2,400, after the purchase by the bank, and his doing so cannot be construed into a renunciation of his previous agreement. Hall, the first cashier, says that the proceeds of the re-sale were to be applied to the payment of the bond, but is silent in relation to the application of the price paid by the plaintiff for the benefit of the defendants. The imputation must, therefore, be made in the manner provided by law.

The land has since been sold by the bank for a price more than sufficient to pay their claim. But as the whole price is not shown to have been paid, the accounts between the parties cannot, at this time, be finally settled.

It is therefore ordered, that the judgment in this case be reversed, and the injunction perpetuated, with costs in both courts; reserving to both parties their rights on the final settlement of their accounts.


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    New Orleans Canal and Banking Company v. Barrow.
    Where tho endorser of a note resided, at the time of protest, about nine miles from the town in which tho note was payable, and was in tho habit of receiving his letters and papers at the post office in that place, notice of protest deposited in that post-office, on the day of protest, and addressed to him at that place, is sufficient.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Phillips, for the plaintiff,
    cited Bullard & Curry’s Dig. p. 43, no. 14. Fol-lain v. Bupr'e, 11 Rob. 454.

      Winter, on the same side. Ivor, Lyons, and Bowman, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

Barrow was sued as endorser of a promissiory note, payable at Bayou Sara. There was judgment against him, and he appealed. ’The case turns on the sufficiency of notice of protest. It appears that, at the time of protest, Barrow resided in the parish of West Feliciana; his dwelling house was about nine miles distant from the town of Bayou Sara. The letter notifying him of protest was deposited in the Bayou Sara post office, on the day of protest, addressed to him at Bayou Sara. It is proved that he usually got his newspapers and letters at the Bayou Sara post office.

We consider the evidence of notice sufficient. This subject has been very much discussed, and there is some conflict of authority. But we think it ought to have ,been put at rest by the opinions of the Supreme Court of the United States, which were elaborately given, in the cases of the Bank of Columbia v. Lawrence, 1 Peters, 583, and the Bank of the United States v. Carneal, 2 Peters, 551. The reasoning in both these cases covers the present; but the former case is more nearly identical in its facts with that now under consideration. There the note was payable and protested at Georgetown, the notice was put into the post office of that place, addressed to the endorser at Georgetown; the endorser lived in the county of Alexandria, on a farm about two or three miles from Georgetown, and that was the nearest post office to his place of residence, and the one at which he usually received his letters. Judgment affirmed.


author: SiiiDELi, 3.

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    Davis v. Larguier et al.
    Country merchants acting as mere forwarding agents for the neighbouring planters, charging no commission for their services, but getting an indirect compensation in the patronage and good will of the planters in the business of their country store, by whom cotton has been shipped to a merchant for sale, are liable only for reasonable prudence in the selection of the merchant, and for the payment of the proceeds when received; they cannot he made responsible for any loss resulting from the dishonesty of the person to Whom the cotton was shipped, if reputed at the time to he honest and solvent.
    Appeal from the District Court of East Baton Rouge, Johnson, J.
    (?. S. Laeey, for the plaintiff. Brunot, for the appellants,
    cited Story on Agency, §84 (notes), 87, 89, 90, 96, 97, 106,110, 111. Civil Code, arts, 2969, 2975, 2977, 2987. 6 Mart. N. S. 259. 8 Ib. N. S. 115 — 464. 8 La. 536, 11 La. 286. 4 Robinson, 109.
   The judgment of the court was pronounced by

SiiiDELi, 3.

It appears that Larguier Sf Son were merchants or country storekeepers, at Baton Rouge, and that the plaintiff, a planter, placed fifteon bales-of cotton in their hands. This cotton Larguier Son, shipped, under bills of lading in their own name, to one Laudumiez, a merchant in good repute at New Orleans. Laudmniez sold this cotton, and suddenly, and to the surprise of his mercantile friends atNew Orleans, among whom he had been up to that time considered a solvent and upright man, absconded, and never accounted to the defendants for the proceeds. It appears also, that Laudumiez and Larguier Sf Son had been in like business relations for some time previously, and this was the first occasion on which any want of punctuality or dishonesty had b'een shewn. The plaintiff seeks to make Larguier Sf Son liable for the value of the cotton.

The allegations of the plaintiff’s petition, which was not filed until four years after Laudmniez absconded, are very vague and general. After stating that the defendants are commercial partners, doing business at Baton Rouge, he charges that they are indebted to him in the sum of $480, “ for this, to wit: that the said Larguier SfSon, in the latter part of 1839, or the beginning of 1840, received from your petitioner fifteen bales of cotton, the average weight of which was about four hundred pounds per bale, that the same has been disposed of by the said Larguier SfSon, for and on their account, whereby they have become liable to your petitioner for the value of the same,” as per account annexed. The account debits the defendants “ with the proceeds of 15 bales cotton delivered to you, and for the amount of which you are responsible, weight averaging, &c., $480.”

To these loose averments the defendants answered in substance, that they received the cotton as agents, to effect a sale in New Orleans; that they consigned it to Laudumiez, a merchant at that place in good credit at that time, who soon after absconded, and never accounted for the proceeds.

The evidence offered by the plaintiff has failed to satisfy our minds of the liability of the defendants. Two dr three witnesses have been examined by the plaintiff, who seem to have had a like interest to make the defendants liable ; their testimony in itself is not very coherent, and they do not depose as to the relations of this plaintiff with the defendants, but their own. The only witness who pretends to state the relations of the parties before us, gives an account of the matter which is not such, in our opinion, as to fix a clear liability on the defendants. He states that his own cotton and the plaintiff’s, were delivered to the defendants at the same time. On his direct examination the only explanation he gives, tending to exhibit the nature of the business is, that, the defendants were merchants, plaintiff’s cotton was delivered to them on account of plaintiff, and left with defendants to he accounted for. On his cross examination he states, that he left his own cotton with them, “ to be done with as they thought proper, and looked to them for the proceeds. That they were in the habit of selling witness’s cotton, and accounting to him for the proceeds. That Davis’s cotton was to be sold in the same manner with his. That he was in the habit of taking his cotton to Mr. Larguier, who he believes was in the habit of sending it to New Orleans for sale ; and that after witness delivered his cotton to defendants, he looked to them alone for the proceeds.” Neither this witness, nor any of the others, say that the defendants ever charged any commission for their services, nor does it appear that the defendants divided commissions with the New Orleans consignee. It also appears that the planters did not expect, in former transactions, to receive any thing from the defendants till their cotton was sold in New Orleans, and would call from time to time to make enquiries, and when the proceeds came to the defendants, they wore paid over. It is obvious that the intention of all the parties must have been, not that the cotton should be disposed of in the village, but that it should be shipped for sale to the great mart at New Orleans. That the defendants should have made themselves the guarantors of sales and safe returns, not only without a del credere commission, but without any commission at all, is a proposition too strange to be adopted upon the loose evidence submitted to us.

There is much reason to believe, from a consideration of the whole case, that the defendants were mere forwarding and intermediary agents, transacting this business for the neighbouring planters, without commission, for their accommodation, and getting an indirect return in the patronage and good will of the planters, in the business of their country store ; that, as such agents, they were liable for reasonable prudence in the selection of the New Orleans mer chant, and for the payment of proceeds when received; that in the present case they have acted with good faith, and, under the evidence presented, ought not to suffer for Laudumiez’s dishonesty.

It is therefore decreed that the judgment of the court below be reversed, and that there be judgment for the defendants, with costs in both courts.


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    Perkins v. Grant et al.
    Witbout the express authority of his client, an attorney at law Can receive nothing hut money in satisfaction of a judgment belonging to the former.
    Appeal from the District Court of West Feliciana, Boyle, J.

      Ratliff and Cowgill, for the appellant. Ivor, for the defendants,
    cited 3 Robinson, 278.
   The judgment of the court was pronounced by

King, J.

Grdnt and Barton, two of the defendants in this action, obtained a judgment against Row and others, and, in virtue of an execution issued under it, a twelve months’ bond was taken, which was seized by the present plaintiff. At the maturity of the bond, the property originally sold was seized, and adjudicated, for $125, to Dalton, the attorney of the present defendants, who were the plaintiffs in execution, under the agreement that Dalton should convey the land to one Fisher, that the latter should assume the payment of the judgment, and that the parties to the bond should be discharged. Dalton subsequently died. After the lapse of about a year, an alias fi.fa. was issued on the bond* against the present plaintiff, who enjoined the writ, alleging that the judgment had been extinguished by the agreement of Dalton, which it is contended the present defendants acquiesced in and ratified, by their silence and inaction for more than twelve months. It is farther urged that the defendants are bound in good faith, to place the plaintiff in his original position in regard to the land. The injunction was dissolved in the court below, with damages, and the plaintiff has appealed.

The defendants disavow the act of Dalton., and it has not been shown that the latter was authorized to enter into the agreement to receive the land, or to take the responsibility of Fisher in satisfaction oi the judgment, nor that they ever, in any manner, assented to it. It does not appear that they were aware of the agreement, nor is any other circumstance shown from which a ratification of the attorney’s act can be inferred. Without such authority, or a subsequent ratification, it is clear that the defendants are not bound by his act. An attorney can receive nothing but money in satisfaction of his client’s judgment, without the express assent of the latter. If the plaintiff has a remedy, it is not against the defendants in this suit, but against other parties. Judgment affirmed.


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    Pierce et al. v. Pierce et al.
    Courts of Probate as they existedbefore the reorganization of the judiciary under the constitution of 1845, had jurisdiction of actions for the partition of the property of successions, and power to determine questions of title to real estate arising in such actions, either directly or indirectly. C. P. 1022. C. C. 1250, 1304. Stat. 27 March, 1843, s. 3.,
    from the Court of Probates of Washington, Richardson, J.

      A. Hennen, for the appellants. No counsel appeared for the defendants.
   The judgment of the court was pronounced by

King, J.

The plaintiffs instituted this action in the Probate Court praying for a partition of their ancestor’s succession, and that their co-heirs should be decreed to collate certain property which they had received. The defendants excepted to the jurisdiction of the court, alleging that the suit was not for a partition, but an action in revendication. The exception was sustained in the court below, and from the judgment dismissing the action, the plaintiffs have appealed.

The judge, in our opinion, erred. The Court of Probates, as it lately existed, had jurisdiction of partitions of succession property, and whenever, in suits for partition, the title to real estate was brought in question, either directly or collaterally, authority was conferred on these courts by statute, to decide upon such questions of title. Code of Practice, art. 1022. Civil Code, arts. 1250, 1304. Acts of 27th March, 1843, p. 45, § 3.

It is therefore decreed that the judgment of the court below be reversed, and that the cause be remanded to be proceeded with according to law.


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    Crowley et al. v. Copley.
    Ülie laws requiring levóos to be made on lands lying on tbe Mississippi river, are not laws imposing a tax within tbe meaning of the third section of the act of Congress of 20 February, 1811, exempting lands sold by Congress from any tax imposed under the authority of the State government, for five years from the date of the sale.

      The 6th section of the statute of 16 February, 1842, autkoriziiigparish judges to discharge the duties of district judges in certain cases, declaring that its provisions shallnot apply to districts in which the circuit system exists, and the statute of 26 March of the same year having established that system from the 1January, 1843, in the district embracing the parish of Concordia, an order of seizure and sale issued since that date by the parish judge of that parish, acting instead of the district judge, is a mere nullity.
    Appeal from the Distinct Court of Concordia, Curry, J.

      Rowley, Frost and Sanders, for the appellants. Shannon and Dunlap, for the defendant,
   The judgment of the court was pronounced by

Rost, J.

The making of a levée on the defendant’s land was adjudicated to the plaintiffs, under the act of 1842. The inspector of the district testifies that the levée was made in conformity with the conditions of the adjudication, and that he accepted it ;• that it was 165¿ rods in length; and that the plaintiffs were to receive $2 62¡ per rod, making the total sum of $434 43!. The defendant having failed to pay this sum the plaintiffs proceeded in rem against the land, and obtained an order of seizure, under which it was ultimately sold and adjudicated to the plaintiffs. These parties then applied for a monition, and the defendant appeared on that application and made opposition to the sale on many grounds, two of which only deserve to be noticed.

1st. He calls the regulation by which owners of land on the banks of the Mississippi are compelled to make and keep up levées a law imposing a tax, and maintains that this land, having been purchased by him from the United States, within the five years that preceded the making of the levée, neither the police jury, nor the legislature, had power to impose that tax upon the land.

2d. It is proved that, in the absence of the district judge, the judge of the parish in which the land is situated granted the order of seizure, under the provisions of an act approved Feb. 16, 1842. The defendant contends that so far as that parish was concerned, that power was taken away from the parish judge after the 1st day of January, 1843, by an act of the 26th March, passed during the same session of the Legislature (1842).

The firstground is untenable. The laws requiring levées to be made along the Mississippi river, are not laws imposing taxes within the intent, and meaning of the act of Congress relied on by the defendant.

The second ground, we consider, well taken. After the 1st January, 1843, the parish judge of the parish of Concordia had no authority to represent the district judge in any case, and the order of seizure, under which the land in controversy was sold, was an absolute nullity.

The court below gave judgment in favor of the defendant, and the only modification required is, to reserve the rights of the plaintiffs for the sum due them for making the levée in front of the land.

It is therefore ordered that the judgment be so amended as to reserve the right of the plaintiffs to recover from the defendant, or against the land in ccfntroversy, the sum of $434 43!, with interest from the judicial demand, and privilege upon said land; and that the judgment as amended be affirmed, with costs.