author: Preston, J,

text:
    W. N. Batson v. J. C. Ricks and J. L. Lewis, Sheriff.
    The plaintiffhad sold to Fields, a quantity of coal, which was tobe paid for on delivery. Fields failed to comply with his bargain, as to the payment. The defendant being a judgment creditor of his, caused the coal to be seized by the sheriff. The plaintiff demanded the rescisión of the sale to Fields, upon the ground of the non-payment of the price, which ■was assented to by all parties, and the coal restored to him. He then brought suit for the damages caused by the seizure Held.- That under the circumstances, he was not entitled to damages, more especially as he had suffered Fields to retail some of the coal, which may have misled the defendant.
    APPEAL from the Second District. Court of New Orleans, Lea, J.

      M. M. Cohen, for plaintiff.

      Hart and Reuse, for defendant.
   The judgment of the court (Euslis, C. J., absent,) was pronounced by

Preston, J,

The plaintiff sues the defendants for a quantity of coal and damages. He alleges that the coal belonged to him, and was seized as the property of one Fields.

It is fully proved that the plaintiff purchased the coal from Capt. Doane, at four dollars a ton. But he sold it to Fields for five dollars a ton, who advertised it for sale, and commenced retailing it. Fields proves, that he was to pay cash on the delivery. He did not pay the cash, and, therefore, the conditions of the sale were not complied with, still it was a sale, and Fields could have been forced to comply with the conditions. His judgment creditors had a right to seize the coal, for it might have sold for an advance. Fields did not comply with the sale, because the coal was seized, and would have complied but for the seizure. Then the plaintiff sold his coal to a man, who refused to comply with his contract, because the property was seized for his debts. That was his misfortune, and entitled him to a rescisión of the sale for non-payment of the price by his vendee, and damages from him. He was entitled to obtain the rescisión by suit, but all parties appear to have consented, in effect, to an amicable rescisión. The plaintiff preferred it to allowing the property to be sold, judicially, and claiming the vendor’s privilege. He, no doubt, acted wisely, but thereby waived all claim for damages for non-compliance with the terms of his sale.

It is not shown that the defendants offered any obstacle to the plaintiff, when he claimed the coal, having learned that he received nothing, on account of the price, from his vendee. The coal was seized the- 12th, and released, by bond, the 16th of December. It is difficult to believe, that the plaintiff suffered two hundred dollars damages by that short detention. The defendant, by his answer, in effect, yielded to the release of the seizure. The evidence also justifies the inference that Batson allowed Field, without objection, to make partial sales and delivery of the coal, and Ricks may thus have been mislead, when he made the seizure.

If he suffered any damages, they were not immediate, but only consequential from the seizure. The damages arose from selling to a vendee, liable to an execution, and the failure of thatvendee to pay the price of the purchase. If he had paid the price according to his purchase, the plaintiff would have suffered

The judgment of the district court, so far as it decrees the restoration of the coal, be affirmed, with costs. It is further ordered and decreed, that said judgment be reversed as to the damages allowed, and the appellee condemned to pay the costs of appeal.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Michael O’Leary, Administrator, v. Thomas Sloo, Executor.
    Extracts from books required to be kept by the comptroller of a municipality of the city of New Orleans, although not conclusive of the facts shown by them, are admissible in evidence.
    A municipality of the city of New Orleans has the power to order side-walks and gutters, and the proprietors of property in front of which such improvements are made, are liable for two-thirds of the cost of the improvements.
    APPEAL from the Fourth District Court of New Orleans, Strawlridge, J.

      Race and Foster, for plaintiff.

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

Preston, J.

The plaintiff sues the defendant for two-thirds of the cost of side-walks, of curb stones and wooden gutters, made and laid in front of his property on Dryades, Terpsichore and Euterpe streets, in the Second Municipality.

By an ordinance of the Council of Municipality Number Two of the city of New Orleans, passed on the 10th of July, 1847, the surveyor of the municipality was authorized to enter into a contract with Dennis O'Leary, of whose succession the plaintiff is the administrator, for laying the curb and gutter stones, and brick work of the unfinished side-walks of the municipality, within certain .limits between Felicity Road and Triton Walk, in which the property of the defendant is situated, at the rate of one dollar and fifly cents the running foot for the twelve feet banquettes, and one dollar and forty cents for the remainder; two-thirds of the cost thereof to be paid by the proprietors before whose property the side-walks should be laid; and that the contractor should be subrogated to the rights and privileges of the municipality, with power to enforce payment. ¡

On the 6th of August following, a contract was made by the surveyor with O'Leary, to perform the work in pursuance of the ordinance.

In pursuance of the contract, the side-walks and curb stones were laid in front and around the properly of the defendant. Wooden gutters were also made. A witness, who was clerk of the surveyor and saw the work, proves that it was done, and that it appeared to be well done, and was accepted by the surveyor.

This evidence would be sufficient as to the execution of the work, without the extracts from the surveyor’s books, and the bills made out by the comptroller of the municipality, which were offered and received in evidence, notwithstanding the objection and exception of the defendant’s counsel. Nevertheless, as the surveyor is required by the ordinances to keep books and make entries embracing the subjects under consideration, and as the comptroller is likewise required to keep books, in which claims against and in favor of the municipality are recorded, there is no violation of the rules of evidence in receiving extracts and copies from those books in evidence, and also bills accurately made from those books, although they may not be conclusive of the facts intended to be proved by them. We consider, therefore, the execution of the work for which payment is claimed, satisfactorily proved. Still many objections are made to-the payment.

It is said, the municipality had no power to order side-walks and gutters to be made at the expense of the defendant. As early as 1805, the Legislative Council of the Territory of Orleans, gave to the corporation of New Orleans the power of opening, regulating and improving streets, (B. & C. 96,) and to cause pavements to be constructed in every part of the city. In 1816, this power was more definitely given as to side-walks by the Legislature, by authorizing the corporation to determine the completion and dimensions, the maintenance and repair of the side pavements in the streets, at the cost of the proprietors of houses, lands and neighboring lots. B. & C. 101. Ever since, the making of side-walks with brick and a stone curb and gutter has been regarded as paving, in the law and ordinances. By common consent, it is considered that the term pavement embraces the brick side-walks, of which the curb and gutters form a part. The corporation, therefore, to which the municipality has succeeded, had the legislative power to order these improvements and to impose two-thirds of the expense thereof upon the adjacent proprietors.

It is said, the ordinance requires stone gutters. There is no doubt that the municipality, under both the ordinance and contract, might require stone gutters, but, being satisfied, from some cause through their surveyor who has accepted the work, with wooden gutters, we do not see in the record any good reason for the defendant to complain.

It is strenuously urged, that the defendant is liable for only one-third of the cost of the improvements. The ordinance of 1827 is referred to, which is certainly obscure, but has ever been construed by the municipal authorities to impose two-thirds of the cost of such improvements on the proprietor in front of whom they are made. But however that may be, the ordinance under which the work, which is the subject of this controversy, was done, is very-explicit, that two-thirds of the cost of the work was to be paid by the proprietors before whose property the side-walks should be laid.

There is nothing in the seventh section of the act of the 20th of March, 1840, with which this ordinance conflicts. The section refers to the existing laws as to the payments for pavements in the city. The true and, until lately, general interpretation of these laws is, that the proprietor on each side of the street is to pay one-third of the cost of the banquettes and pavement of the street, and the icity the remaining third. The proprietor on each side is, therefore, to pay ¡two-thirds of the half of the work on his side of the street, or one-third ■of the whole work, and the city the other third of the cost of the whole work.

It is urged, that the contract should have been adjudicated by the mayor to the lowest bidder. That is required by the act of 1850, but it was passed subsequent to this contract. It was also required by a general ordinance in 1836, hut that is superseded in this particular case by the special ordinance under which the contract was made. So, also, the general provision authorizing the mayor of the city to make and sign municipal contracts, must yield to the particular ordinance requiring.that duty to be performed by the surveyor in this case.

The ordinance and contract are somewhat indefinite as to location, but not se muchco as to require, as contended, another ordinance to embrace the defendant’s property. Both are more indefinite as to the price of the work. It is agreed .that it is to be .done “ at the rate of one dollar and fifty cents per running foot for the twelve feet banquette, and one dollar and forty cents for the remainder.” It appears that .the banquette on Dry ades street was twelve feet wide, and those on Terpsichore and Euterpe streets, eight feet wide. The defendant contends, that the whole work on Dryades street was to be done for one dollar and fifty cents the running foot, and that on the other two streets at the rate of one dollar and forty cents the running foot. The plaintiff insists that those .sums were to be allowed for the banquettes alone, and fifty cents a running foot for the gutters, sixty-five cents a foot for part of the curb, and fifty-five cents a foot for the balance. It is possible that the municipality so intended by their ordinance and contract, and that they may receive such an interpretation against the municipality, as they made both, and are liable to a liberal interpretation in .favor of others, in consequence of making the ordinance and contract so loosely. But we cannot enlarge the price of the contract in this manner, by interpretation against the defendant, who was no party to it.

The defendant is liable for two-thirds of the price of two hundred and fifty-five feet nine and two-eighth inches of banquettes, at one dollar and fifty cents the running foot, and two hundred and fifty-five feet nine and two-eighth inches at one dollar and forty cents the running foot, or for four hundred and ninety-six dollars and forty-nine and one-third cents, with legal interest from the judicial ■demand.

The judgment of the district court is reversed, and judgment rendered in favor of the plaintiff against the defendant, for four hundred and ninety-six dollars and forty-nine and one-third cents, with five per cent interest from the 30th of September, 1850, till paid, and costs in the district court; the .costs of the appeal to be paid by the plaintiff.


author: Rost, J.

text:
    Bark Tennessee et al. v. J. and J. Tardos. J. and J. Tardos v. Bark Tennessee et al.
    The hark Tennessee on her arrival in New Orleans from Marseilles, delivered a number of casks of wine which had been damaged by grease and water. She had previously carried a cargo of lard to Marseilles, and after discharging, was scraped and limed. On her voyage to New Orleans, she encountered stormy weather, which caused her to leak. Held: That the vessel was liable for the damage caused by the lard, but not for that caused by the water.
    APPEAL from the First District Court of New Orleans, Lame, 3. The two suits of the above title were tried together.
    The first was brought against J. and J. Tardos to recover freight and primage amounting to four hundred and eighty-eight dollars and seven cents. The second was instituted by J. and J. Tardos v. The Bark Tennessee and Owners, to recover one thousand one hundred and seventy-nine dollars eighty-three cents, amount of damage done to certain wines which defendants undertook to carry from Marseilles to New Orleans, being the same for which freight and primage is claimed in the first suit.
    The petition in the suit of J. and J. Tardos v. The Bark Tennessee and Owners, sets forth the following facts : that six hundred quarter pipes of red wine, known as port wine or burgundy, were shipped at Marseilles on board the Tennessee in good condition, to be delivered to the plaintiffs as consignees in New Orleans ; that the master and owners failed to fulfill their contract in this ; that when her cargo was discharged in New Orleans, two hundred and thirty-three quarter pipes of the wine were found to be discolored and soiled, by grease and sea water, to such an extent as to be unmerchantable.

      Miles Taylor and H. H. Taylor, for appellants.

      W. S. Upton, for appellees
   The judgment of the court (Eustis, C. J., absent, j was pronounced by

Rost, J.

The defendants were the consignees of certain casks of wine brought in the Tennessee, the plaintiffs’ vessel, from Marseilles to New Orleans. There were cross suits by the vessel for her freight, and by the consignees for damage to the goods, which suits were consolidated.

Upon the arrival of the casks, they were examined by the port-wardens, who reported a portion of them “ to be badly stained, discolored and soiled by grease and sea water, ” so much so, in their opinion, as to render them “ unmerchantable. ” This condition of the casks is also shown by other testimony. A witness offered by the plaintiffs, on his cross-examination, states that “the casks were very greasy — the grease was running on them. ” It also appears that such a condition of casks, though it does not injure the wine, affects the sale.

The vessel on previous voyages had carried lard. This article leaks ; the flooring and timbers became saturated with it, and it is very difficult to clear the vessel of it entirely. Before the Tennessee took in her cargo, her hold was scraped and limed; but it is obvious from the result, she could not have been entirely cleaned.

Immediately after leaving the port of Marseilles, the vessel encountered very stormy weather, which caused her to leak; and being obliged to carry sail to keep off the land, she laid over a good deal, so that the pumps could not reach tbe water she made. The water and grease washed upon the casks, and they became damaged in the manner above stated.

It is said, that this was an injury by perils of the sea, for which the vessel should not be charged. So far as the sea water stained the casks, we think the ship should not answer for it. But there was another cooperating cause of damage. The lard in the ship’s hold, being washed up with the water, attached itself to the casks and put them in the greasy condition described by the witnesses. The injury of the casks was directly promoted by the greasy condition of the ship. If the ship had been clean, the injury would have been different in its character, and as we may fairly infer from the evidence, less in its pecuniary amount. We are forbidden, therefore, to attribute the whole damage to perils of the sea; on the contrary, we must set a portion of it down to the defective condition of the vessel, and the vessel must answer for such damage as was occasioned by that defect.

Let us take a parallel case by way of illustration. The vessel is undoubtedly answerable for the damage attributable to bad stowage. Suppose a vessel so' stowed that the goods would be safe in ordinary weather, but for want of proper dunnage, would suffer in a gale of wind. A gale occurs, causing the vessel, which before was tight and strong, to spring a leak, and the goods are injured by contact with salt water. But in addition thereto, they get knocked about in the vessel’s hold and broken, and this damage, under the evidence, is clearly attributable to bad stowage, and would not have occurred if the stowage had been good. The ship would not be liable for the damage by salt water; but it would be clearly unjust to exempt her from the damage arising from bad stowage.

We consider an allowance of two dollars per cask as sufficient to cover the proportion of damage occasioned by grease, which deducted from the freight, will leave a balance of twenty-two dollars and seven cents in favor of the ship.

It is therefore decreed, that the judgment of the district court be reversed, and that the said Horatio Eagles, William N. Hazard and Albert Cook, receive from the defendants, J. and J. Tardos, the sum of twenty-two dollars and seven cents, the plaintiffs to pay the costs of the appeal; the costs of the proceedings in the court beiow, hitherto incurred, to be borne equally by the parties, and the costs of executing this decree to be paid by the defendants.


author: Slidell, J.

text:
    Kellar v. Merchants’ Insurance Company.
    A mortgagee "has unquestionably an insurable interest in tbe property mortgaged.
    Where a mortgagee upon a bouse and lot insures tbe building against fire, in case of the destruction of the building, quere, 1st. Whether the Insurance Company have not the right to insist upon the lot contributing to the satisfaction of the mortgagee’s debt 1 2d. Whether the Insurance Company upon paying the amount of the insurance, have not the right to insist upon a subrogation to the mortgagee’s rights ?
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Hoffman and Ogden, for plaintiff.

      Lem Pierce, for defendants.
   The judgment of the court (Preston, J., absent,) was pronounced by

Slidell, J.

This is an action upon a policy of insurance, by which the defendant did “ insure John Kellar against loss or damage by fire, to the amount of fifteen hundred dollars, on a two story frame house, situate on lot No. 138, fronting on Pensacola landing, New Basin, amount of nine hundred dollars— on a two story old house in the rear thereof, and on a stable and shed on lots Nos. 137 and 138, amount of six hundred dollars and the company did thereby “promise and agree to make good unto the said insured, his executors, administrators and assigns, all such loss or damage not exceeding in amount the sums hereby insured as shall happen by fire to the property as above specified, during six months, to wit, from the 15th November, 1849, at 12 o’clock at noon, unto the 15th May, 1850, at 12 o’clock at noon, the said loss or damage to be estimated according to the true and, actual value of the said property at the time the same shall happen,” &c. The buildings were destroyed by fire within the time covered by the renewal of the policy.

It appears from the evidence, that the plaintiff was not the owner of the property. His interest, if any, was that of a mortgagee, by virtue of a conventional mortgage, and a judicial mortgage which he alleges he held upon the property assured. That a mortgagee of a house has an insurable interest in the property mortgaged, is unquestionable. Whether such interest is covered by the naked terms of the policy in question, is a question not raised in argument here, and as it seems to be waived by the defendants, we express no opinion upon it. We shall coniine our inquiries to the points presented by the counsel for the defendants.

The district judge gave the plaintiff judgment for a total sum of $1400, based upon two items, to wit: one-half of a judicial mortgage claimed in favor of the succession of Sarah Baum v. Martin, the owner of the property insured, which claim was aftei’wards secured by a conventional mortgage — $493 65; one-half of a judicial mortgage claim in favor of the succession of Mann v. Martin, $903 50 — $1407 15. He considered the value of the buildings insured, as proved, to be $1400.

The defendants do not contest here the right of the plaintiff to recover under the policy, so far as the one-half of the Baum’s j udgment is concerned. But they oppose the allowance of the second item as unsupported by sufficient evidence. This item rests principally upon the testimony of a witness whose credibility is disputed. The district judge believed him, and there is no evidence before us which would authorize us to say that the witness was unworthy of belief. We are not able to say upon the evidence, that the interest acquired by Kellar in the Mann judgment, was even so divested as to affect his insurable interest. The last point made by the defendant’s counsel is thus presented in the written argument : “ But supposing he has legal mortgages on the two lots and the buildings to the amount of $1400, shall he be allowed the whole $1400 because the buildings are destroyed, and shall the two lots be freed from contribution and the mortgages on them be raised, or should there not be a fair division, or, at least a transfer of Kellar’s interest in these two mortgages be required to be made to the company, before they are compelled to pay anything at all.”

If this point had been properly presented in the court below, and it had appeared by evidence that Kellar had collected anything from the debtor who owed the mortgage debt, or from the ground mortgaged, or if the company had tendered payment of the $1400 and demanded a transfer or subrogation pro tanto, it would have been proper for the court below to consider the question now raised here. But as the case stands, we do not think the question should be raised here for the purpose of a reversal or amendment of the judgment.

If there is, in a ease of this sort, a right of subrogation, or, if not a right of subrogation technically speaking, an equitable right to have Kcllar's interest in the claims enforced against the debtor and against the land mortgaged for the benefit of the Insurance Company, that right is not impaired by the present decree. Take the case of an underwriter on a missing ship, who is sued for a total loss and has judgment against him accordingly, enpays. If the ship reappears, he gets the benefit of it, although the decree gave no express subrogation to the rights of the assured.

Whether there is any such subrogation or equity as is claimed in this case, we do not consider ourselves now called upon to decide. But it is not improper to remark, that the pretensions of the defendants are by no means unworthy of consideration. We have not met with any decided case expressly in point, but there are decisions which, by analogy, give countenance to those pretensions. See Randal v. Cochran, 1 Vesey, 98, cited. Park, 190. Babes v. White, 4 Bingham, N. C. 272. Goodsal v. Baldero, 9 East, 71.

Judgment affirmed, with costs.


text:
    Samuel Packwood v. J. L. White et al.
    Where the parties had agreed upon a compromise, a stipulation of which was, that the defendant should pay the plaintiff ten thousand dollars in cash, and the defendant having complied with the other stipulations, expressed his inability to pay that sum in cash, but offered five thousand dollars in lieu thereof, which amount was placed in the hands of an attorney to be paid if the offer was accepted, the plaintiff having taken the same under the circumstances without any objection, will be considered as having accepted the offer.
    Parties are at liberty to admit parol evidence of a contract for land, and if they do so, the court will give effect to the same.
    When, as a part of a compromise, a judgment is confessed, the conditions of the compromise may be shown by any legal evidence; and such evidence will not be considered as controlling or limiting the effect of the judgment.
    APPEAL from the First District Court of New Orleans, Lame, J.

      A. Hennen, for plaintiff.

      L. Janin, for defendants.
   The judgment of the court, (Preston, J., absent,) was pronounced by

Rost, J.

On the 23d of December, 1850, the defendants confessed judgment in favor of the plaintiff, for fifty-one thousand eight hundred and four dollars and ten cents, besides interest, on certain promissory notes given for Ihe first installments of the price of the Myrtle Grove Plantation, which they had purchased from him. On the same day a writ of fi. fa. issued, under which the crop of sugar was seized, day by day, as it was gathered, and shipped by the sheriff, for sale, to Messrs. W. and J. Montgomery, the firm agreed upon for that purpose, between the plaintiff and defendants. This writ was returned after the crop had been secured, and on the 11th of February following, an alias fi. fa. issued, on which the plantation and slaves were seized.

To arrest the sale under this writ, the plaintiff being a non-resident of the State, the defendants filed a bill in chancery in the Circuit Court of the United States, alleging an agreement of the plaintiff to give them three years time to pay the debt, on certain conditions, with which they have strictly complied; and further, that the judgment confessed by them, was confessed for the only purpose of securing the execution of this agreement, by preventing the seizure of the crops under execution, at the suit of other judgment creditors.

The plaintiff then applied to the State court from which the writ had issued, to arrest the proceedings in chancery, and after much litigation, the parties entered into an agreement, under which the bill in chancery was dismissed, and all the issues made in the Federal Court were brought before the State court for adjudication. Those issues form the subject of the present controversy.

The district judge recognized the existence of the agreement set up by the defendants, and after crediting the execution with the net proceeds of the last crop shown to have been received by the plaintiff, he enjoined the sale of the plantation and slaves. The case is before us ou the appeal of the plaintiff.

It is clearly proved, that the plaintiff originally agreed to stay proceedings for three years, from the 7th of March, 1850, on the following conditions: 1st. That the defendants should give him satisfactory security for the delivery of the crops during those three yeai's. 2d. That said crops should be consigned for sale to Messrs. W. and J. Montgomery, or such other factor as he might select, and that the proceeds, after paying expenses, should be exclusively applied to the payment of his debt. 3d. That the defendants should pay him the sum of ten thousand dollars.

It is further shown, that the plaintiff had entire confidence in the management of the defendants, and that as long as he received the crops, he preferred to leave the plantation under their control, than to sell it for the payment of his claim.

The defendants furnished satisfactory security for the forthcoming of the ci'ops, and made arrangements with Messrs. W. and J. Montgomery, who agreed to act as their factors; but they were unable to comply with their promise to pay ten thousand dollars, and placed five thousand dollars in the hands of Mr. Benjamin, the common friend of the parties, to be offered to Mr. Packwood, in lieu of the ten thousand dollai's promised ; this being the largest amount they could raise. When this sum was offered to the plaintiff, he first objected to the change in the terms; appeared to think himself unsafe with so small a payment ; and expressed regret at having subrogated Mr. Milbank, a creditor of the defendants, to a part of the vendor’s privilege and mortgage, because it exposed him to have the plantation seized and sold during his absence at the north. To obviate this difficulty, at the suggestion of Mr. Benjamin, an agreement was procured from Mr. Milbank, by which he bound himself not to procede on his mortgage for one year, and for such further time as would be necessary to give the plaintiff reasonable notice that he meant to enforce it. After this agreement had been obtained and delivered to the plaintiff, he and the defendants met together at Mr. Benjamin’s office, and Mr. Benjamin paid over to the plaintiff the five thousand dollars in his hands. The plaintiff then considering the arrangement completed, told the defendants, “ we must settle with Mr. Benjamin for his fee, and we must divide it.” Mr. Benjamin declined receiving any fee. Had this witness not declined to testify, so far as he had been consulted as counsel, his testimony would have been much more explicit; but what he has stated, is too transparent to conceal the facts which he was in duty bound to withhold.

It was said in argument, that the receipt given by the plaintiff was simply on account of the amount due him for the price of the plantation, and had no refer- , enee to any agreement. Such a reference was unnecessary. Mr. Benjamin was instructed to offer the five thousand dollars to him, in place of the ten thousand dollars originally promised, and as he received it without any reservation, after obtaining a stay of proceedings from MilbanJc, lie must be held to have ratified the change in the original agreement proposed by the defendants through Mr. Benjamin.

, The testimony of Mr. Milbank is conclusive, that the only consideration moving him to grant a stay of proceedings, was the agreement of Mr. Pack-wood not to procede under his mortgage for three years, and it is clear that the pretensions of the plaintiff, if sustained, would operate a surprise and perhaps a serious injury to him.

It is urged by the plaintiff’s counsel, that the agreement relied on, should be shown by at least one witness and corroborating circumstances. We think it is proved by the concurrent testimony of many witnesses, by the acts and declarations of the plaintiff himsolf, and by the fact, that as long as it suited him to do so, he availed himself to the utmost of every stipulation which it contained in his favor. His offer to divide the fee, which he considered due to Mr. Benjamin., for having completed the arrangement; his statement to Mr. Staunton, the security for the forthcoming of the crops, that he was satisfied he would now get them; and his expressions of unmingled satisfaction, to this witness and others, for the amicable arrangement he had made with the defendants, can leave no doubt of its existence in unprejudiced minds.

It is equally clear from the evidence, that the judgment under which the plantation and slaves have been seized, was confessed by the defendants, for the sole purpose of securing the execution of this agreement, by enabling the plaintiff to keep in the hands of the sheriff, an execution which would give him a privilege upon the crop as it was gradually separated from the soil, and thus protect him from seizure by other judgment creditors of the defendants. The impressions of Mr. Bradford are clear, distinct and unequivocal, that this was the only object the parties had in view, and the circumstance that he consented to act as the legal adviser of both in obtaining the judgment, would alone satisfy us, that there was no contest between them, and that the judgment was not intended to change their previous position towards each other.

The defendants would never have suffered execution to issue, as it did on the day the judgment was rendered, if the object of it had been to enforce the sale of the plantation and slaves. Nothing of the kind was attempted. The sheriff seized the crop under it, daily as it was made, but instead of selling it, he was directed by the plaintiff to send it to Messrs. W. and J. Montgomery for sale, under the agreement, and it was so sent and sold; nay, the plaintiff executed the agreement beyond his promise, by becoming the surety of the defendants for the reimbursement of the advances which Messrs. W. and J. Montgomery agreed to make to them.

The plaintiff having had the full benefit of the agreement, cannot now be permitted to repudiate it. Whether it be advantageous to the defendants, or the reverse, is a matter for their consideration. It is said that they are insolvent, and that the agreement is no longer binding on that ground. But, as the plaintiff told one of the witnesses that he never expected they would be able to comply with their contract, it was the purchase of the plantation which made them insolvent, and their situation at the time the agreement was entered into, was the same as it is now.

It is urged in the supplemental brief of the plaintiff’s counsel, that the agreement alleged is a variation of the original contract of sale; that it should, as the sale itself, be in writing, and that no parol evidence of it ought to be received. This question has been fully considered in the case of Lockett v. Mrs. Toby, 7th Ann., on the application for a re-hearing, and after mature deliberation, we have adhered to the settled jurisprudence of the State, that the parties are at liberty to admit parol evidence of a contract for land, and that, if they do, we will, give it effect.

We have been warned of the danger of attempting to control or limit the effect of a judgment by parol evidence ; but this is nothing more than a judgment confessed, forming part of a compromise, the conditions of which má^ber shown by any legal evidence to which the parties do not object. Union Bank v. Marin, 3d Ann. 34. Delabigarre v. Municipality Number Two, 3d Ann. 237. We are of opinion that the judgment must be affirmed.

Affirmed, with costs.


author: Eüstis, C. J.

text:
    Succession of Mrs. E. H. Dorsey.
    Where tte endorser paya a judgment, which has been rendered both against himself and' the drawer, he is- subrogated by law to the rights of the judgment creditor. C. C. 21, 5?.
    Where an endorser has been legally subrogated, by payment of a judgment to the rights of the creditor against the drawer, the note is merged in the judgment, and is not barred by the prescription applicable to promissory notes.
    Where the endorser has been subrogated to the rights of a judgment creditor, against s married woman who was She drawer, she will not be permitted to set up the defence against the endorser, that the note was given for the benefit of her husband. This defence' should have been urged against the suit in which judgment was rendered against her. If she Has a good defence against the endorser, which could not have been urged against' the holder, it is her duty to allege and establish that defence by evidence.
    APPEAL from the Second District Court of New Orleans, Lea, J. The-judgment of the district court was as follows :
    “This case comes up on the oppositions made to the account filed by the exe-' eutor, by H. Lockett and J. L. Gaiennié. The claim of H. Lockett, for one-hundred dollars, is sustained by the evidence.- The only question to be determined, is whether L. R. Gaiennié is subrogated to the rights of J. L. Florance,as a judgment creditor of the deceased. It appears, from the evidence, that L. R. Gaiennié was endorser upon a note drawn by the deceased, duly autho-' rized. On this note judgment was obtained by J. L. Florance, the holder,against the deceased, Mrs. Dorsey, and L. R. Gaiennié. Execution was issued against L. R. Gaiennié, who paid the judgment.
    “ I shall not consider the question of conventional subrogation, as this ground has been abandoned in the argument, but shall confine my opinion to that of legalsubrogation.
    “ Gaiennié, the endorser, paid the debt for which he was bound with Mrs. Dorsey, and, so far as the evidence shows,- for Mrs. Dorsey, and which he not only had an interest in discharging, but which he was compelled to discharge under process of execution. See Civil Code, 2157, sec. 3. It is urged in argument that this payment does not, under the circumstances, constitute a subrogation. First, because the maker might have a defence against the endorser which could not be set up against the- holder, such as Shat the note was-made for the payee’s accommodation, as is frequently the case. -This undoubtedly might be the case, but it is neither alleged nor proved in the present case; it is merely suggested as possible, but this is not sufficient; such a defence may possibly exist against any payee or endorser of a note who has been compelled to take it up, but, to be available, it should be alleged as matter of defence, or, at least, it should be disclosed by the evidence. An endorser who pays a note, is prima facie subrogated to all the lights of the holder.'
    “ The second point urged, is that the opponent’s right is an action on the note which he has paid; that he is not subrogated to judgment; that, as holder of the note, the right of action is barred by the prescription of five years, which is specially pleaded. If the subrogation was complete, the endorser had a right to stand in the shoes of the holder to whom he paid, without prejudice, however, to the defendant’s right to urge matter of defence, strictly personal as against the ■endorser, which has not been done. ■
    “Lastly, it is urged that it should appear affirmatively that the consideration ■of the note inured to Mrs. Dorsey's benefit. This should have been urged on the trial of the case, before judgment rendered, or after judgment, upon appeal. It is not competent for this court to inquire into the validity of a judgment rendered nearly ten years ago by the city court.
    “It is ordered, adjudged and decreed, that the tableau filed herein be so amended as to place the name of Henry Lockett thereon, as a creditor in the sum of one hundred dollars, and that of L. R. Gaiennié, in the sum of eight hundred and fifty-three dollars and fifty cents, with interest thereon at the i;ate of ten per cent per annum, from the 4th November, 1841, till paid, with five dollars cost of protest, and forty dollars and thirty-seven and a half cents costs of suit.”
    The following statement of facts was agreed upon by the parties:

      J. L. Florance instituted suit against Mrs. Dorsey andL. R. Gaiennié, in the City Court of New Orleans, on the 12th November, 1841, on a promissory note for $853 50, bearing ten per cent per annum interest from maturity till paid. The note was made by Mrs-. Dorsey, with the consent of her husband, to the order of, and endorsed by L. R. Gaiennié, in blank. The note matured on the first November, 1841. Mrs. Dorsey filed her answer on the 26th November, 3841. There is nothing in the record to show that this answer was filed with the consent of her husband, or that he authorized her to appear and defend the suit.
    Judgment by default was taken against Gaiennié, and confirmed on the 3d December, 1841.
    On the 8th December, 1841, judgment was rendered against Mrs. Dorsey for the amount of the note.
    Separate judgments were given against Mrs. Dorsey and Gaiennié, and separate fi. fas. issued against them.
    On the 25th April, 1842, a Ji. fa. issuéd against Gaiennié, and was returned on the 24th May, 1842, “ satisfied.”
    L. R. Gaiennié assigned all his rights in the judgment to O’ Grady, subrogating him thereto, and O' Grady made a similar assignment to Mrs. Gaiennié.

    The answer filed by Mrs. Dorsey is in the following words: “ that said note was given by her without consideration.” She received, but for the benefit of her husband, which was the amount of a judgment obtained by said Florance against her husband, and prays to be dismissed.
    The case was regularly set for trial. On the trial, Mrs. Dorsey did not aPPeal’> ehher ha person or by counsel. Her answer was filed by an attorney at law.

      H. LocJcetl, for the opposition, contended as follows
    :
    Tlae counsel have agreed on a statement of facts, filed in the record of the case, and is printed by the appellee in this his brief.
    In November, 1841, J. L. Florance instituted suit against Mrs. E. H. Dorsey, upon a promissory note signed by her, with the consent of her husband, jaayable to L. F,. Gaiennié, who endorsed it to Florance. Judgment was obtained against Gaiennié, and Mrs. Dorsey. Separate judgments. In April, 1842, a fi. fa. was issued, separately, against Gaiennié, and was returned satisfied. The record of the suit against Gaiennié and Mrs. Dorsey, in the late city court, was introduced, without objection, to show the quality in which Gaiennié paid the money, now in controversy, to wit, as endorser. The payment of Gaiennié of the fi. fa. under the judgment, was a payment of the judgment, and by that payment he became, at the date of the payment, subi-ogated to Florance in all his legal rights as a judgment creditor against Mrs. Dorsey. Civil Code, art. 2157.
    In the statement of facts, the court will find the answer of Mrs. Dorsey to the suit brought by Florance against her, in which she pleaded that the debt was contracted for the benefit of her husband, and not for her own, and it did not inure to her benefit. The suit was tried, and a judgment was rendered against Mrs. Dorsey under this issue ; a separate judgment.

      Mrs. Dorsey died in 1846, and left G. Dorsey, her husband, executor. He, in his capacity as executor, filed an account of his administration, which is in the record, and omitted to place Gaiennié, on the account, as a creditor. Gaiennié filed an opposition, and prayed to be placed on the account, as a ci'editor, on the ground that he, as endorser, had paid the judgment, and was thereby subrogated to all the rights, &c. of Florance. At the trial of opposition, the judge below-decided, that Gaiennié was, by the fact of this payment, subrogated to the rights 'of Florance, and decreed that he should be placed on the account as a creditor of the estate, for the amount of the judgment, to wit, eight hundred and fifty-three dollai's and fifty cents, with ten per cent per annum from the 4th Novembei', 1841, the date the note fell due, till paid. From this decision the executor has taken this appeal.
    The Civil Code, art. 2157, is clear in favor of the opponent. The decisions of this court, on the point of subrogation, are equally cleai', and are so numerous as to dispense me with referring to more than one or two of them. Howe v. Fraser, 2 R. R. 424.
    The appellant filed no answer to the opposition; perhaps he was not bound so to do. But in his argument below, and in liis brief, printed aud filed in this case, he says that if Gaiennié was subrogated, he was subi-ogated to this note, which is barred by prescription. This is hardly worth noticing. If there be a subrogation, it is to the judgment, or nothing. The note was merged in the judgment. I do not suppose that there is any pi-escription against the judgment.
    The appellant next says, that it does not appear from the record, that Mrs. Dorsey was authorized by her husband to file tlie answer she made to the suit of Florance ; that she did not appear personally, or by counsel, at the trial of the case, although her answer was filed by an attorney at law, and therefore she is not bound to pay Gaiennié ; and pretends to set up the same plea she did against Florance.

    Now the appellee contends, that if he be subrogated, he stands in the shoes of Florance. In one word, he is, in law, Florance. Tlaat if Florance had filed this opposition, Mrs. Dorsey could not again set up the plea she made in the suit of Florance against hei'self in the late city court. It is res judicata. The pi-esumption is, that all the proceedings were legally conducted, and that the judgment was properly rendered, and she is now debarred from again contesting the validity of that judgment. She should have instituted her action of nullity, within the time allowed by law, which is now long past. If this plea could not be set up against Florance, it cannot be against Gaiennié.

    This is the view taken by the judge below, and on that ground he decided against the executor. I refer the court to his opinion, which is quite minute and in detail. The record is a vei-y short one.
    In the statement of facts, the coui-t will find an admission, that Mrs. Gaiennié is subrogated to all the rights which Florance had against Mrs. Dorsey, and
      G. R. Gaiennié in prosecuting this claim, as tutor to his minor children, and as administrator to his wife’s estate.
    The executor makes a strange argument: He contends that Gaiennié’s claim is upon the note, and not on the judgment. It has always been supposed that a judgment rendered on a claim, merges the claim, and extinguishes it at once.
    There is but little probability that your honors will change the rule on that subject, for the benefit of the executor, in this case.
    But, says he, J. L. Florance was a bond fide holder for a valuable consideration, and no defence could be set up by Mrs. Dorsey against him. A defence could be set up though, he says, against Gaiennie.

    Both these propositions are erroneous. If Mrs. Dorsey had a defence based upon the fact, that the consideration did not inure to her separate advantage, she could have urged it against all the world. The note, under these circumstances, being originally void, no number of transfers could give it validity. Again, Gaiennié being endorser, in which capacity he paid the judgment'rendered against him on her note, became, prima facie, her creditor. If she had any defence against Gaiennié, it should have been established, when the opposition was tried. The question as to whose benefit the note was given, was closed by the judgment for ever.

      P. E. Bonford, in behalf of the executor, contended :
    The executor’s account in this case, is opposed by L. R. Gaiennié, ns administrator of his wife’s succession, on the ground that he is, in that character, a creditor of the succession of Mrs. Dorsey, and should have been placed as such upon the tableau of distribution.
    The circumstances upon which this claim is founded are these : The decedent, with the consent of her husband, made a promissory note to the order of the opponent for the sum of $853 50, with interest at the rate of ten per cent per annum, from maturity until payment. The note matured on the 4th of November, 1841, and was not paid.

      Florance, the holder, sued the decedent and L. R. Gaiennié in the City Court of New Orleans. The defendants severed in their answers. Judgment was rendered against Gaiennié on the 30th November, 1841, and against Mrs. Dorsey on the 8th of December following.
    An execution was issued against Gaiennié, which was returned by the sheriff on the 25th of April, 1842, satisfied, the amount thereof having been paid by Gaiennié. On the 19th of December, 1842, Florance made a conventional transfer of all his rights against Mrs. Dorsey to L. R. Gaiennié, who subsequently conveyed the same interest to John C. O’Grady. O’Grady sold the claim thus acquired to Mrs. L. R. Gaiennié.

    Upon these facts, it is insisted by Gaiennié that he was both legally and conventionally subrogated to the judgment of Florance against the decedent; conventionally, by the contract of the 19th of December, 1842; legally, because he was endorser on the note, of which Mr. Dorsey was the maker, having as endorser taken the note up, he thereby became entitled in law, and was invested with all the rights, actions and securities which the holder possessed at the time of the payment.
    So far as the claim is based upon the conventional subrogation, it is very easily disposed of. Florance had been paid in April, 1842. From the day the payment was made, he ceased to have any rights upon the note, or upon the judgment he had obtained against the several parties to it. For though a party may have two or more judgments against different persons on the same obligation, he can hav#but one satisfaction.
    On the 19th of December, 1842, therefore, he attempted to convey what he did not own. He had not then any claim against Mrs. Dorsey. He could not have issued execution against her upon his judgment, because his rights as holder, had been extinguished in the April preceding by the payment made by Gaiennie, the endorser. Consequently, it is evident, as there was no subrogation at the time of the payment, there could have been none afterward. See Civil Code, art. 2156,
    Was Gaiennie legally subrogated in April, 1842, to Florance’s judgment against Mrs. Dorsey, by satisfying the judgment which Florance had obtained against him ? It is said he was, and his case is alleged to be embraced in the third paragraph of article 2157 of the Civil Code, and that being bound jointly with Mrs, Dorsey, and for her, and having an interest in discharging the debt, he became subrogated of right to the creditor’s rights, actions, privileges and mortgages. See article 2157.

      To sustain this position, Gaiennié must prove the debt he paid was a debt which he had incurred for, or on which he was bound jointly with Mrs. Dorsey.

    How has he undertaken to prove this ? By the production of the note itself, which shows on its face it was made by Mrs. Dorsey, payable to Gaiennié's order. If Mrs. Dorsey had not been a married woman at tho time this note was made, we freely admit a presumption would arise on the note itself, that she was ultimately bound for its payment. But what we insist upon is, that in the case of a note made by a married woman, not only is there no such presumption that she is bound to the payee, but in fact the presumption is tho other way, that is, that she is not so bound. For the signature of the wife to an obligation is an evidence of indebtedness, not by her, but by the community, as all acquisitions which are made by her, or in her name, during the marriage, are considered not to inure to her benefit, but are held to belong to the community; so all obligations which are entered into by her, are held to be not her own personal obligations, but the obligations of the community.
    In order to hold her separate estate liable, the creditor must prove, affirmatively, that the consideration of the obligation inured to her separate advantage. The presumption on the face of the obligation itself is, that it did not; for the presumption is, that what was acquired as the consideration of the obligation belongs not to her, but to the community.
    This principle has been recognized by repeated decisions, and is now too firmly fixed in the jurisprudence of the State to be shaken. See the following eases : Pascal v. Sauvinet, 1st Ann. 48. Erwin v. McCalop, 6th Ann. 173. Exchange Company v. Bein, 12 R. R. 579.
    The endeavor is made to draw a distinction between the present case and those cited in this ; that in those cases, it is affirmed there was a special denial on the part of the married woman of her indebtedness, and that here, there is no such special denial.
    To this we answer, that those cases do not go upon the fact, that there was a special defence. If an attempt were to be made to confirm a judgment by default against a married woman, simply upon the proof of her signature to an obligation, we hold the law to be, that such proof would be insufficient, as clearly as if the attempt were made to hold an endorser, without proof of demand, or notice of non-payment. It is a constituent part of the plaintiff’s demand, without which his proof is incomplete, to show that the consideration inured to the separate advantage of the wife. When he has proved her signature, all he has proved is a debt of the community. He must go further in order to fix her liability.
    But a little attention to the form in which the present controversy arises, will show that the objection, even if well founded, does not apply to the present case. Here the executor has filed his account. A person claiming to be a creditor opposes it. Now the settled rule of practice is, that the executor is considered as the plaintiff in the issue. He is not required, nor is it the practice •for him to file an answer to the opposition: so that this case is wholly unlike that of an action instituted against a married woman, in which it might be necessary for her, in order to raise her defences, to plead regularly to the petition.
    The judge of the court below decided in favor of the opponent. He held, that the representative of Mrs. Dorsey was precluded, by the judgment in the suit of Florance against her, from denying that she was personally bound upon the note, or that its consideration inured to her separate benefit.
    It is submitted (hat this view of the effect of the Florance judgment in the issue between Gaiennié and Mrs. Dorsey’s succession, assumes the very point in controversy ; for it must first be determined that Gaiennié is subrogated to Florance on that judgment, before it can have the effect of res judicata, in any issue between him and the decedent. Otherwise, a cardinal element is wanting in the case to give such an effect to the judgment, that is, an identity of the parties in the two issues. It is obvious that, as between herself and Florance, Mrs. Dorsey may have had no defence upon the note, while she might have had a perfect one as against Gaiennié. Suppose, in point of fact, she had made the note for Gaiennié’s accommodation, could Gaiennié have maintained with any show of success, that on the payment by him to Florance, he had become subrogated to Florance's judgment against her? And yet, such seems the necessary consequence of the views expressed by the judge of the inferior court. Mrs. Dorsey may very well have had a defence to Florance’s a'ction, •which, as against him, he may not have thought it proper to raise. He was an innocent third party, a bond fide holder for a valuable consideration ; but the effect of a failure to set up a defence to Florence could not go beyond that suit or conclude her, except ns to the plaintiff in it. As to all other parties, and in all other issues, the question would always be an open one ; one which it would be perfectly competent for her to raise, notwithstanding the judgment; as between liersolf and Gaiennié, tho latter, before he can claim the right of subrogation, must first establish that he paid the debt for her. This is matter enpais, to be made out by the production of the proper proof. The judgment against Mrs. Dorsey is not the proper evidence of it. That judgment, in so far as this controversy is concerned, is res inter alios acta. Besides, that judgment decides nothing, as between Gaiennié and Mrs. Dorsey; it leaves their rights and relations to be settled in a future controversy.
    The true position in which we conceive Gaiennié to stand in this matter, ia this: If this be, as ho alleges, a case in which the decedent was bound to reimburse him on his payment of the note, hg became entitled, by such payment, to an action upon the note. In this view, we insist his action is barred by the prescription of five years.
    "We have conceded thus far, that if the opponent were actually entitled to be subrogated in law to Florance’s rights, he would thereby have become subrogated to the judgment; but there is very strong reason to suppose that such is not the necessary result of the legal subrogation. Mr. Burge puts a case identical with the present, in which such a pretension was raised without success.
    See Burge on Suretyship, 353; and to the same effect is the decision of this court, in the case of M’Kee v. Amonett, 6th Ann, 209.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Eüstis, C. J.

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


author: Puestos, J.

text:
    Collins and Bruff v. Hugh Duffy.
    An attachment creates no privilege against the succession, where the debtor subsequently dies in this State, and his estate is administered upon here, as the place of his residence.
    APPEAL from the District Court of Lafourche, Randall, J.

      J. L. Cole, for plaintiffs.

      J. C. and A. Beatty, for defendant.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Puestos, J.

This suit is commenced by attachment, and is brought on a store account and promissory note. A motion was made to dissolve the attachment, but did not prevail. The defendant died during the pendency of the suit, and an administrator was-appointed to his succession. He answered by a general denial of the allegations in the plaintiffs’ petition. Judgment Was rendered in favor of the plaintiffs, also decreeing to them a privilege upon the property attached, and ordering it to be sold to satisfy their judgment. ■ The administrator of the succession has appealed. He contends, that the law gives the plaintiffs no privilege by virtue of their attachment alone, and that the property should not be sold exclusively for the satisfaction of their judgment.

We take it for granted, that the original defendant died in this State, and that the administrator was appointed to his succession by our courts, because that is to be presumed until the contrary appears. How, in such a case, our codes direct that all the creditors of the succession shall be ascertained (art. 1126); that a classification of their claims shall be made by the court after public notice, and between the creditors contradictorily with each other (arts 1167, 1168, 1169; Code of Practice, arts. 988, 993); until which time no payment of ordinary claims shall be made.

The attachment gives no privilege upon the property attached, and in case of the death of the debtor and the appointment of an administrator in this State, the law directs it to be administered as we have stated, ~tye do not deem it necessary to decide what would have been the effect of the attachment, if the defendant had actually been a non-resident and had died out of the State.

It has indeed been often held, that process of attachment subjects the property attached to the payment of the attaching creditor. But the principle supposes that the debtor has the possession of his other property for his other creditors. If he has made a cession of all his property to all his creditors, it has been always held, that the property attached follows the cession, that the attaching creditor has no preference, but the syndic must distribute its proceeds equally among the creditors, if there be no lawful cause of preference. So, in the case of the death of the debtor and the appointment of an administrator, he is entitled to the possession and administration of all the property of the deceased. He sells and reduces it to money. If there is enough to pay all the creditors, no contest between them can arise. If there are not funds sufficient to pay all, the estate is insolvent; the attachment gives no privilege. The codes direct the administrator to have a classification of the debts made by the court, and judgment of distribution among the creditors contradictorily with each other. And in rendering the judgment, the law does not allow the attaching creditor a preference merely on account,of the attachment, but directs an equal distribution among all the creditors who have no preference growing out of the nature of their debts.

Judgment should have been rendered for the amount due to the plaintiffs, to be paid in the due course of administration of the estate of the deceased, but without privilege, as none grew out of the nature of the debt, or was conferred by the proceedings in the case.

The judgment of the district court is reversed, and' judgment rendered in favor of the plaintiffs against Eméle Leonval, administrator of Hugh Huffy’s estate, for the sum of fifteen hundred and fifty-two dollars forty-six cents, with five per cent interest from the 1.7th day of May, 1851, and costs of suit, to be paid in the due course of administration of the estate. The appellees to pay the costs of appeal.


text:
    The State v. Thomas C. Cheevers.
    A person cannot be twice tried for the same acts ; and where there were two indictments against a prisoner for the same acts, one charging him with having committed a grievous assault, and the other for putting out an eye of another person, a trial and conviction for the first offence is a bar to a trial for the second.
    APPEAL from the District Court of Assumption, Randall, J.

      G. C. Rahy, District Attorney, for the State.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Preston, J.

On the 18th of March, 1851, the grand jury of the Parish of Assumption found two bills of indictment against the defendant, one for striking, beating, wounding and bruising James Hailey, and one for putting out the eye of Dailey. Both acts were charged to have been done on the 21st of December, 1850.

The accused was tried and found guilty of the assault and battery, and, in fact, the court, in passing sentence upon him, gave as a reason for inflicting a severe punishment, that the evidence showed a grievous injury to the person of Dailey, in depriving him of the sight of his right eye.

The district attorney, however, between the conviction and sentence for the assault and battery, caused the accused to be arraigned on the indictment for putting out the eye. The accused, by his counsel, plead in bar to this prosecution, his trial and conviction for the assault and battery, and set out, minutely, the acts charged in the first indictment, to show that they were the same with those charged in the second, and averred that, in point of fact, they were the same, and that the evidence which might be given to support this indictment, would be sufficient to convict him of the assault and battery. He offered, further, to prove that the acts and facts proved on the trial of the first indictment, were the same charged in the second.

The district attorney demurred to the plea; the court overruled the demurrer, sustained the plea, and the State has appealed.

The demurrer admitted that the accused, having been tried and convicted of a lesser offence, was prosecuted, on the same facts, for a greater offence.

^The Constitution of the United States provides, that no person shall be twice put in jeopardy, of life or limb, for the same offence. This is not, pjrhaps, applicable, as a constitutional principle, to offences against a State; yet, it is but the enunciation of a well established common law principle, and, as such, is expressly adopted by our statute of 1805. The term limb, in this part of our constitution and laws, is a typical expression for punishment, and offence, in the connection, means not the technical name of the crime, but a criminal act; and the principle is, that no man shall be punished twice for the same criminal act. The attempt of the State, to prosecute the accused a second time for the same criminal act, is clearly a violation of this principle.^

There is authority to this effect: In the case of The State of Connecticut v. Shepherd, the prisoner was prosecuted and convicted of an attempt to commit a rape. It appeared, on trial, that he had actually committed a rape, and it was urged by his counsel, in support of an application for a new trial, that he should not have been convicted of the attempt, as the lesser was merged in the greater crime. The new trial was refused, Judge Daggett, a distinguished jurist, laying down as the basis of the opinion, in which the Supreme Court concurred, that a conviction or acquittal, in a prosecution for an attempt to commit a rape, Would be a bar toa prosecution for the rape, (and said that it was repugnant to the well settled principles'of law, that a prisoner should be tried twice for the same facts.}

An acquittal of a servant, charged with murder in killing his master, at common law, bars a prosecution for petit treason for the same act. 2 Hale’s Pleas of the Crown, 246.

A conviction of manslaughter, is a good plea against a prosecution for murder, (4 Coke’s Rep., 466,) because, says Coke, the prisoner cannot be tried again for the same death.

It is evident, the district attorney tried the accused for an assault and battery, from an apprehension that he might not be able to convict him of the maiming, on account of the difficulty of showing the malice essential, by the statute, to constitute the last offence. We think he might have accomplished his object, by insisting in the prosecution for the maiming; that if the the jury were unable to find the malice, they should convict for the assault and battery, necessarily implied in the greater charge. Even if the prisoner was actuated by the malice supposed, it is better he should escape punishment, than to violate principles which have a strong hold upon the affections of a humane and free people.

The judgment of the district court is affirmed, with costs.


author: Eustis, C. J.

text:
    A. R. Knox v. John Buhler.
    Where notice of protest is sent to a post office, in the parish in which the endorser lives, in the absence of proof of a nearer post office, the notice will be deemed sufficient.
    APPEAL the District Court of West Baton Rouge, Burle, J.

      J. M. Elam, for plaintiff.

      G. S. Lacey, for defendant.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Eustis, C. J.

This appeal is taken by the defendant, from a judgment rendered against him on the endorsement of a promissory note.

The only point which we deem it material to notice, is one presented by the counsel for the defendant, relating, to notice of the protest of the note. It is urged, that it was incumbent on the plaintiff to show, that the post office to which the notice was directed, was the office at which the defendant was accustomed to receive his letters, or the nearest one to his residence; and the case of the Bank of Louisiana v. Carl, was referred to as supporting this argument. The rule in that case does not apply to this. It is not shown, that there is any other post office near the defendant’s residence. The address was to the defendant, at West Baton Rouge, Lobdell’s post office. The residence of the defendant is in that parish, and in the absence of any evidence, as to any other post office, we consider the notice good.

The judgment of the district court is therefore affirmed, with costs.


text:
    Zenon Demoruelle v. P. P. Sugg et al.
    Dirt eating is not a disease, but merely the cause of a disease. It is not, therefore, necessarily a redhibitory vice, which should annul the sale of a slave.
    APPEAL from the District Court of Iberville, Burk, J.

      Deblieux and Taylor, for plaintiff.

      Zenon Labauve, for defendant.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Preston, J.

The defendants, being sued for the amount of a promissory note, plead that the same, with two others, amounting in the aggregate to nine hundred and thirty dollars, were given for the price of a slave named Elie, purchased at the sale of the effects of Francois Lebeau, deceased; alleging that the consideration of the notes failed, because the slave was affected, at the time of the sale, with redhibitory diseases, to wit, the habit of dirt eating and the dropsy, of which he died. For which reason, they pray that the sale may ber rescinded, and the three notes cancelled, with damages.

The sale took place on the 18th of March, 1848, and the slave died on the 1st of July, 1849, more than fifteen months afterwards. In the meantime, he was not tendered back; no suit was brought to rescind the sale, nor does it appear that the plaintiff was ever notified of any complaint on account of the health of the slave. No physician was employed to attend on the slave until five months after the sale. Such facts, raise a strong presumption that the slave was not seriously affected with disease, at the time of the sale. The habit of dirt eating is not necessarily a redhibitory vice. It is the cause of disease, but not the disease itself.

The disease caused by the habit, is dropsy. The mind naturally inclines to the belief, that when this disease has become incurable, it would run its course in less than fifteen months, and would exhibit symptoms, which required medical aid, in less than five months after arriving at the incurable stage.

The evidence in the case strongly confirms these impressions. Dr. Mann, a physician of forty years’ standing, says that the state and condition of the health of the slave was good; that, at the time of the sale, he was sound in health and body; that he was not affected with the dropsy, and does not know that he ever ate dirt; that he formed his opinion of the health of the slave by the frequent opportunities he had to see him, being, for a long time previous to the sale, the physician of the plantation where he was, and the family physician of Mr. Lebeau, whose slaves he attended, and continued to attend, from his death until the time of the sale.

Valevier Bergeron knew the slave ; saw him at the time of the sale, and he appeared in good health. He considered him one of the best working hands on the plantation of the late Mr. Lebeau.

Four other witnesses, living close to the plantation, knew the slave well; knew nothing of his being addicted to dirt eating, and to them he appeared healthy.

In opposition to this testimony, the defendants offer that of Dr. Hornsby, who saw the slave about a month after the sale, and Dr. Garrett, who was called to attend him professionally about five months after the sale. They express the opinion that he must have been in the habit of eating dirt for years ; that he had the dropsy, of which disease he died, in July, 1849. The first thinks the disease could not have developed itself in a month, to the extent which was exhibited when he saw the slave; that he had an approaching dropsy of the feet, which is an advanced stage of the disease. It seems strange, then, that he should have lived fourteen months afterwards.

The other physician attended the slave a month or six weeks, in August or September, 1848, and is of opinion, that the disease was in an advanced stage then, but could not tell how long it had existed before. He, like Dr. Hornsby, considered him incurable, and sent him back to his master; and yet he lived nine orten months afterwards. On this,.as well as on the occasion of the examination by Dr. Hornsby, it would have been much more satisfactory, if the defendants had tendered back the slave, and afforded the plaintiff the chance of saving his life, by care and medical skill.

The note was given for value received, and raises a presumption against the defendants, since they could have had an examination contradictorily with the plaintiff, and settled the difficulty before giving it. Though defendants in the case, they are plaintiffs in the redhibitory claim, and, as such, it was incumbent on them to produce, by evidence, reasonable certainly that the disease existed to such a degree as rendred the slave useless at the time of the sale. C. C. 2496, 2508. They have offered nothing but the opinions of physicians, formed by an inspection a length of time subsequent to the sale. We have frequently had occasion to express our opinion of the unsatisfactory character of such testimony, not from a doubt of the opinion, but from the intrinsic nature of the evidence. This case is remarkably similar as to the disease and its cause, and all the details, to that of The Executors of Dupré v. Desmaret, in which we were obliged to set aside the verdict of a jury. 5th Ann 591. See also the case, Seaton v. Municipality Number Two. 3d Ann. 44. Also, 5th Ann. 592.

Reluctant as we are to reverse a judgment on a question of fact, we are compelled to say, that the evidence in this case, clearly preponderates in favor of the plaintiff.

The judgment of the district court is reversed; and it is decreed, that the plaintiff recover from the defendants in solido, the sum of three hundred and ten dollars, with eight per cent interest, from the 4th day of April, 1849, until paid, and oosts in both courts.


text:
    Honore Leonard v. Joseph Kleinpetre et. al.
    The plaintiff brought an action for the removal of obstructions to the natural drainage which the defendant has made, and also for damages. Held: That the plaintiff, after dismissing his claim ior damages, still had the right to insist upon a judgment for the removal of the obstructions.
    APPEAL from the District Court of Iberville, Burk, J.

      W. E. Edwards, for plaintiff.

      H. F. Deblieu, for defendants.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Rost, J.

This is a suit for the removal of levees and embankments erected by the defendants, on their land, which it is alleged obstruct the natural flow of the waters falling upon or passing through the land of the plaintiff. The petition contains also a claim for damages.

The defendants having failed to answer, the plaintiff took a judgment by default, and there being no jury in attendance at the time, he waived the damages, in order to try his case, and adduced evidence in support of his allegations, after having dismissed the suit as to Nerault, one of the defendants.

The district judge dismissed the petition on the ground that this was purely an action of damages, and that as the damages had been waived, there was nothing before the court. The plaintiff has appealed, and the defendants have appeared in this court.

The judgment is manifestly wrong; the prayer for the removal of the obstructions, is as distinct as language can make it, and the testimony clearly establishes that the defendants have erected, on their upper line, (which is the lower line of the plaintiff,) a levee which completely closes his natural drains and renders his land unfit for cultivation.

As the case is before us, he is entitled to have those drains opened. If it be true, that the defendants had a good defence to make, they should have appeared and made it. We are not called upon to take better care of them, than they phoose to take of themselveg.

It is ordered, that the judgment in this case be reversed. It is further ordered, that the defendants be directed to remove the obstruction which arrests the natural flow of the waters, falling upon or passing through the land of the plaintiff, described in the petition, and to restore his natural drains to their original depth. It is further ordered, that a writ of distringas issue, if necessary to enforce this decree, and that the costs in both courts, except those made against the defendant, Neraull, be paid by the defendants ; the excepted costs to be paid by the plaintiff.


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    Succession of Samuel Martin.
    Where a wife has obtained judgment against her husband for having sold slaves belonging to her, and having converted the proceeds of the sale to his own use, her property in the slaves must be considered as merged in the judgment.
    APPEAL from the District Court of Ascension, Duffel, J. Mrs. Martin intermarried with her deceased husband, in the year 1823. The slave Else was given to her by her father. In 1846, Martin, her husband, having parted with the possession of the negroes, and representing that he had sold them, his wife instituted a suit against him, and claimed a judgment for their value, which she obtained to the amount of $1,600, with a mortgage from the time when it was supposed they had been sold. This judgment was executed, ns far as the means of her husband would then allow, by a sale of property, which brought $700; bid in by Mrs. Martin, and sold, subject to St. Pé’s judicial mortgage previously registered. Sale made in 1847. In 1848, Martin died, and the negroes, Else and children, were found in his succession, were sold and purchased by Mrs. Martin.

      A. M. Dunn, for appellant.

      Dellieu and Taylor, for appellee.
   The judgment of the court (Slidell, J., absent, J was pronounced by

Eustis, C. J.

The appellant, who is the widow of the deceased, asks for a reversal of a judgment for the homologation of a tableau of distribution of the effects of her husband’s succession, and a decree in her favor, allowing to her the proceeds of the slave Else and her children, which had been adjudicated to St. Pé, a mortgage creditor, by virtue of a judicial mortgage.

It appears, that she had previously obtained a judgment against her husband for the value of these slaves, which, it was alleged, the husband had sold, and had converted the proceeds of the sale, $1,500, to his own benefit. This judgment was partially satisfied, under an execution, against the husband. Her property in the slaves, must be considered as merged in the judgment thus obtained.

The judgment of St. Pé, is older than her judgment. It was recorded on the 25th October, 1840, and was reinscribed in September, 1850. It takes precedence of it as a privilege on the property of the succession, according to the evidence before us. By her judgment, her tacit mortgage relates back to January, 1846, only.

The judgment of tlje district courtis therefore affirmed, with costs.


text:
    Richard Terrell et al. v. James J. Allen.
    The father held certain slaves under a deed of trust executed in Mississippi, binding him to hold them for the use and benefit of a son and daughter, and upon the majority or marriage of the children, to execute a conveyance to them. He removed to Louisiana, and by some means, parted with the possession of the slaves. They were subsequently transferred several times; suit was instituted by one of the children, and the heirs of the other, for the slaves, against the person who, at the time, had them in possession. The defendant and his warrantor, proved more than ten years’ possession in good faith, and under a just title. IlelH: The legal title to the slaves was vested in the father by the deed of trust. When brought by him to this State, they became subject to our laws, which recognize no such right of property as that claimed by the plaintiffs.
    APPEAL from the District Court of Lafourche, Randall, J.

      C. A. Johnson, for plaintiffs.

      J. C. and A. B, Beatty, for defendant.

      Winchester Hall, for warrantor.
   The judgment of the court (Slidell, J., absent,J was pronounced by

Eustis, C. J.

This appeal is taken by the plaintiffs from a judgment rendered against them in favor of the defendant, in the court of the fifth district. The plaintiffs brought their action for the recovery of the slavo China, and her issue, together with her wages for a series of years. Richard Terrell claims one undivided half interest in the slaves, in his own right; the other plaintiffs claim in the right of Louisa Terrell, deceased. Richard Terrell and Louisa Terrell were children of Richard Terrell. Their father, it seems, held the slave China, and certain other slaves, under a deed of trust, as it is called, executed in Adams county, in the State of Mississippi, on the 24th of March, 1822, where Terrell and his wife resided. They afterwards removed to this State with their household and slaves, and resided in New Orleans. The deed purported to sell and convey, for and in consideration of the sum of twenty-two hundred dollars, paid in hand, eight certain slaves, of whom the said China was one, to Rickard Terrell, with a covenant on his part, that he is to hold the slaves for the use and benefit of his, the said Terrrell’s daughter and son, Louisa and Richard, until they shall become of lawful age or be married : that is, until either should be of age, or the said Louisa should be married; in which event, the said Terrell binds himself to make to each, a full title to one undivided half interest on the slaves. In the event of the death of either, before their majority or marriage, the right to the slaves was to vest in Richard Terrell.

The slave China, it appears, was sold at sheriff’s sale in the parish of Lafourche Interior, on the 18th of April, 1831, under an execution issued on the judgment in favor of James Porter v. Stephen and Rezin Bowie, and Alexander Thomassmi became the purchaser, for the sum of six hundred dollars. Thom.asson sold her to James A. Scudclay, and Scudday sold her to the defendant, Alien.

We find nothing in the evidence, impugning the good faith of the defendant or his vendors, in relation to the title of the slave, and we consider the possession in them to have been uninterrupted from the date of the sheriff’s sale, April 18, 1831. It does not appear that Terrell, the father, ever made any title for the slaves to either of his children, and so far as any right by inheritance from Mm is relied upon, it is obvious that his claim to the slaves were extinguished by the prescription of five years during his life time. Art. 3444, C. C.

The legal title to the slaves was vested in Richard Terrell by the deed of trust. He brought them to this State, and they became subject to our laws, which recognize no such right of property as that claimed by the plaintiffs. Our views on this subject are fully expressed in the case of Harper v. Stanbrough, 2d Ann. 380. We have constantly before us the danger of deviating from the principles established in that case, and of introducing modifications of the right of property, established'by a system of jurisprudence, to which our code is directly opposed.

The judgment of the district court is therefore affirmed, with costs.


text:
    The State v. Harman B. Benjamin.
    An indictment, couched in the very terms of the statute, charging that the accused did inveigle, steal and carry away a slave, so that the owner was deprived of her services, necessarily implies that the acts were criminal; and it is not essential that it should charge that the acts were done feloniously, maliciously or unlawfully.
    Where it does not appear from the record that the accused, before trial, was served with a list of the jury, it will he presumed he was served, or waived his right, unless there be evidence that he objected to going to trial upon that ground.
    APPEAL from the District Court of Pointe Coupée, Farrar, J.

      C. Ratliff and J. R. Grymes, for appellant.
   The judgment of the court (Slidell, J., absent,) was pronounced by

Preston, J.

The defendant is indicted for inveigling, stealing and carrying away a slave, named Maria, the property of Mrs. Hamilton, so that the owner was deprived of the use and benefit of her services. There is a further count, for aiding the slave in running away from the service of her mistress. It is charged, that the acts were done at the parish of West Feliciana, on the 4th of July, 1849. The accused was tried in the parish of Pointe Coupee, having obtained a change of venue, was found guilty, sentenced to two years’ imprisonment in the penitentiary, and has appealed.

His counsel contends, that the indictment is insufficient, because it is not charged that the acts were done feloniously, or maliciously, or unlawfully, or with any qualification showing that they were criminal.

The indictment is couched in the very terms of the statute, that the accused did inveigle, steal and carry away the slave, so that the owner was deprived of her services. These terms imply, that the acts were criminal. The last count is, for aiding the slave to run away from her mistress, so that the owner was deprived of her services. This describes, as clearly as possible, an act made unlawful by statute, and is equal to an express charge, that the act was unlawful. The case is different from that of The State v. Reed, where the words uttered by the accused might have been perfectly innocent; and there was no charge that the uttering of them was unlawful, wicked, malicious or felonious, nor any circumstances stated in the indictment which necessarily gave the words such a character. 6th Ann. 228.

The opinion of the court, in the case of The State v. Ritchie, prosecuted for the offence now under consideration, seems to indicate, that if the special verdiet had been in the words of the statute, without any qualification, it would have been sufficient; and if so, an indictment containing the words of the statute is sufficient to support a judgment, on a general verdict.

It is assumed, in a bill of exceptions, also in a charge to the jury required from the court, and in an application for a new trial, that the slave ran away from her mistress, in Pointe Coupée, in July, 1849, and was arrested in the quarter of the accused, in February, 1850. It is contended by his counsel, in support of the bill of exceptions^ charge applied for, and application for new trial, that proof of the slave’s arrest in the defendant’s quarter, or that he harbored' her, tends to establish another and distinct statutory offence, subject to a different punishment, and not to establish the crime charged against the accused. It undoubtedly tends to establish the offence of harboring the slave, but it by no means follows, that it does not equally tend to prove, inveigling and stealing the slave, and aiding her to run away. The same evidence that tends to prove one crime, often tends to prove another. The firing a gun may tend to prove an attempt to kill, or manslaughter, by an actual killing; so the felonious taking of goods may be offered to prove a burglary as well as larceny.

The evidence offered was admissible, and the court properly refused to charge the jury, that it did not tend to support the charge of inveigling and stealing, and aiding the slave to run away. The fact, that she was in defendant’s quarter, the same day that he purchased her, as a runaway, raised a strong presumption of those charges, as the possession of property recently stolen, raises a presumption, that the possessor is the thief, until the possession is otherwise explained.

And certainly, in this case, the judge, at the request of the counsel of the accused, guarded his charge sufficiently against any unreasonable effect of the presumption. For he instructed the jury, that the facts and circumstances proved, should be consistent with the hypothesis of the guilt of the accused ; that they should not only be conclusive of his guilt, but actually exclude every other hypothesis except those affirmed by the prosecuting attorney ; and that if they entertained a reasonable doubt, that the accused committed the offence charged in the indictment, in the manner and form charged, they were bound to acquit him.

It is urged, that there is error in the proceedings, because they do not show that a list of the jury, which was to pass upon his trial, was served upon the prisoner two days before the trial. An order of court was made, directing it. We find no objection made to going to trial; none by way of challenge; no application for a new trial, or motion in arrest of judgment on this ground ; and are bound to presume, therefore, that the list was served upon the prisoner, or that he waived that formality, and was content with the jury that tried him. In this respect, the case is entirely different from that of The State v. Howell, in which the objection was made when the prisoner was put upon trial. There must be an essential defect in the prosecution, and which could not be waived in the district court, to induce this court to notice it, where the district court did not pass upon it, because no objection was made at the proper time and place.

When the case was called for trial, the accused asked for an attachment against one of his witnesses, Mrs. Lyons. It was shown, that she was so far advanced in pregnancy as to be unable to attend court. The attachment was properly refused, and the only relief of the prisoner was to obtain a continuanee of the cause, for which he did not ask, and therefore is entitled to no relief on this account.

In the progress of the trial, the following question was propounded by the counsel of the prisoner, in cross-examination, to Mr. and Mrs. Hamilton, witnesses on behalf of the State: “Were you, or were you not, informed by a gentleman residing in Pointe Coupée, as testified by you in your testimony in chief, he had caught the said slave in the parish of Pointe Coupée, and that she had escaped from his custody before he could convey her to you ?”

The question was objected to by the district attorney, and rejected by the court, on the ground that the answer would only furnish hearsay evidence.

It is true, as argued by the defendant’s counsel, that the fact to be elicited by a catagorical answer to the question, that a person did give such information, was original evidence; but the information itself, was hearsay evidence. The information was objectionable on this ground, and the original evidence immaterial to the issue. The mere fact, that a person made the statement supposed in the question, had no tendency to disprove the charge that the accused inveigled or stole this slave in West Feliciana, or aided her in running away.

In cross-examination, much latitude is always allowed. For the good order and dispatch of public business, it must be limited by the discretion of the judge. Much must be left to that discretion, to govern which, no precise rule can be laid down. Greenleaf on Evidence, 3449.

We think it would save time and trouble, and perhaps be more satisfactory to the court, jury and parties, to permit such immaterial statements, having some connection with the matter in issue, to be made when desired by a prisoner, if not inconsistent with the time and order of the court. The judge could always, in his charge, separate the legal and material testimony from the irrelevant, without infringing on the exclusive province of the jury to consider the material facts; and the Constitution and laws, in confiding trials involving life, liberty and property to juries, presupposes capacity to make the distinction, when pointed out to them by the court, and integrity to render their verdict according to law, and on legal evidence. But we cannot say that the discretion of the court was improperly exercised in this case, or the rules of evidence violated.

There are other matters pressed upon this court, in support of the application of the accused for a new trial, which was refused by the district court. They fall within the railing of this court in the cases of The State v. Hunt, Bret at al., that we had no constitutional power to afford relief.

The judgment of the district court is affirmed, with costs.


author: Sudell, J.

text:
    Consolidated Bank v. Nolan Stewart.
    The fact that the certificate of a notice of protest follows immediately the protest, so as to appear to be a part of the same instrument, does not invalidate the certificate.
    APPEAL from the District Court of West Baton Rouge, Burk, J.

      C. A. Johnson, for plaintiff.

      J. M. Elam, for defendant.
   The judgment of the court (Rost, J., having declined sitting in the case,) was pronounced by

Sudell, J.

The defendant resists the payment of two promissory notes, endorsed by the testator, upon the alleged ground of want of legal notice p1,0j.est> ¶1161-6 was judgment against him, and he has appealed. A certified copy of the protest and of the certificate of notice were offered in evidence. The certificate appears to be a continuation of the act of protest, and to have been made in conformity with the act of 1847, which authorizes notaries, in their protests of bills of exchange and promissory notes, to make mention of the demand made upon the drawer, &c.; and of the manner and circumstances of such demand, “ and by certificates added to such protest, to state the manner in which any notices of protest to drawers, endorsers, or other persons interested, were served or forwarded ; and whenever they shall have so done, a certified copy of such protest and certificate shall be evidence of all the matters therein stated.” The copy of the protest and the copy of the notice, seems to be given by the notary upon one sheet, as far as we are enabled to judge from the transcript. The certificate thus following the protest, (which embodies a copy of the note,) is in these words : “ and again, on the same day of samo month, notice of this protest was given to the endorser on said note, by three separate letters to that purpose, addressed to him at ‘Baton Rouge,’ ‘West Baton Rouge,’ and ‘East Baton Rouge,’ and delivered by mo, notary, at the post office in this city.” It is signed by the same notary and witnesses who sign tho protest. Thus, as is correctly argued by the appellee, the protest and certificate appears to be part of a continuous record, having one date, which is set forth in the opening of the instrument.

The time mentioned in the certificate may be fairly interpreted as applying both to the writing and mailing, which are spoken of conjunctively. The certificate in this case differs from the certificate in Menard v. Winthrop, 2d Ann. 333, which was without a specific date, and was not connected, as in this case, with the antecedent annunciation of the protest.

Judgment affirmed, with costs.


text:
    Miles A. McLeod v. Frost and Springer et al.
    Where an agent has purchased property for his principal, which has been seized by a creditor of the agent as his own property, in a contest between the principal and the seizing creditor, the agent is a competent witness to prove his agency, and that the property belongs to the principal.
    APPEAL from the District Court of Lafourche, Randall, J.

      Winchester Hall, for plaintiff.

      J. C. and A. Beatty, for defendants.
   The judgment of the court was pronounced by

Slidell, J.

This is an action for the recovery of a horse, of which the plaintiff alleges himself to be the owner, and which had been seized on an execution against Jordan.

It appears, that on the 16th December, 1850, Jordan bought the horse at Donaldsonville, for, and by the directions of McLeod; took a reeceipt for the price, $265, in McLeod's name, and brought the horse to Thibodeuxville, ih the parish of Lafourche, where the plaintiff lives, the next day being the day preceding the seizure. Before the seizure was made, Jordan stated, in the presence of the seizing creditor and others, at the livery stable where the horse was put up, that the horse belonged to McLeod. McLeod had advanced one hundred and sixty-five dollars, and the residue Jordan paid out of money belonging to his wife, who was indebted to McLeod.

A portion of the evidence going to show that the horse was bought for, and by the direction of the plaintiff, is undisputed on the score of competency. But it is said, one of the witnesses, Jordan, was incompetent, on the ground of interest as a witness for the plaintiff, to prove the purchase for his account, by his authority and with his funds. Ye think the witness was properly admitted. His agency to purchase the horse at the price given was established aliunde ; and he was safely admitted to prove, that he acted according to the directions of his principal, and within the scope of his duty. An agent is admissible in such case, on the ground of necessity, and from considerations of public convenience; and moreover, his principal can never maintain an action against him for any act done according to his own directions, whatever maybe the result of the suit in which he is called as a witness. See Greenleaf, 417.

It would seem that Jordan is embarrassed, as here was an execution out against him; but we see no fair ground to suspect, that the plaintiff let Jordan use his name for the purpose of protecting Jordan’s property, nor is he presented in the attitude of a party who has stood by, and let his property remain in the possession and control of another, under circumstances which might reasonably mislead the public.

Jkdgment affirmed, with costs.