text:
    Hewitt et al. v. Waterman et al.
    One who transfors by delivery, without endorsement, a bill, for a sufficient consideration knowing it to be of no value, where the assignee is not aware of its want of value, will be bound to repay the money received, though there was no representation of the solvency of the parties. C. C. 2619.
    A PPEAL from the Fourth District Court, of New Orleans, Strawbrid-ge, J.

      Molt, for the plaintiffs.

      Rawle, for the appellants.
    In this case, the contract is an exchange. C. C. 263Ü. Merchandize and a small sum of money were exchanged for a bill of exchange. In the case -of Shuff v. Cross, merchandize aud a small sum of money were exchanged for a note. The obligation proved to be of no value, and the defendant was sued for the price of the goods sold. The court said that it was an exchange, and that each party is considered as vendor and vendee. See also C, C, 2637. “ What then are the obligations of him,” says the court, “ who disposes of an incorporeal right ? Positive law has defined them. He who sells a debt or an incorporeal right, warrants its existence at the time of the transfer. But he does not warrant the solvency of the debtor, unless he has agreed to do so.” Code. Pothier, Vente, 560. Dig. 21, 2,74. No such agreement is proved here, and the evidence has failed to establish fraud.” 12 Mart. 89. The contract extends no further than the existence of the debt or obligation: “ parceque le vendeur céde la créance, .telle qu’elle est, bonne ou mauvaise.” Rogron. “ L’acheteur nc saurait se plaindre de ce que le débiteur n’est pas solvable, &c., de ce que los cautions sont en déconfiture. Le cédant a transféré la crénnce duns l'etat oú elle était; it ne s’est engage á rién de plus.” Troplong, Vente, no. 934. The law is, that he who transfers an obligation ora debt, warrants its existence only. This is settled in every country in which either roman or english law is in force, and in Louisiana it is established by legislative enactment and judicial construction.
    “ In regard to extrinsic circumstances, forming no part of the sale, but connected therewith and forming an inducement thereto, or enhancing the value of the thing sold, there is no obligation, on the part of the seller or buyer, to disclose his knowledge of them. Thus, a vendee is not bound to disclose the fact that the land, which he contracts to buy, contains a mine, although the vendor be ignorant of the fact, and although it would greatly enhance the value of the land. So, also, he is not bound to disclose the rise of the market, or any other knowledge which he may have from private sources, and unknown to the seller.” Story on Contracts, no. 84'3. “But, at the same time, each party must take care not to say or do any thing tending to impose on each other.” Laidlaw v. Organ, 2 Wheaton, 178. Misrepresentation or artifice will invalidate a contract, but-where both parties are in the same relative position, the contract is not destroyed by one failing to disclose the knowledge of extrinsic circumstances. Pothier, Vente, no. 298. 2 Kent, 491. *•
   The'judgment of the court was pronounced by

Slidell, J.

The object of this action is to recover from the defendants the value of a quantity of bagging, which the plaintiffs sold to the defendants for a draft of Rayburn, accepted-by Rayburn, Scott Sf Co. for $1,250, at ninety days, and a small sum in cash. The defendants’ counsel treats the contract as one of exchange; and it may be conceded, for the purpose of the present enquiry, that it does fall under that class of contracts. With certain exceptions, not relevant to the present controversy, an exchange is subject to tho principles which control the contract of sale; and each party is considered “ in the double light of vendor and vendee.” Civil Code, 2637.

It appears that Rayburn had bought, in June, 1846, some hardware from the defendants, who aro hardware dealers, for which he gave his note for $3.050 52, at four months. He also owed them upon an open account. In October, 1846, being unable to pay the plaintiffs, Rayburn gave them his note for the entire indebtedness, $4,182 41. payable one day after -date. On the* 24th October, 1846, Rayburn, at the request of the plaintiffs, and afler a conversation about his affairs,gave them acceptances of his own drafts by Rayburn, Scott Co., of which firm he was a member. One of them was the draft for $1,250 above mentioned. Rayburn, Scott Co. suspended payment on the 26th October, and subsequently proved to bo largely insolvent. On the same day on which the draft was drawn, the defendants employed a broker to trade it off for merchandize. The same broker had been employed by other parties to trade off acceptances of the same house. The broker applied to the plaintiffs’ clerk to buy bagging for the paper; but Hcivill not being present at the time, he was requested to call again. Hewitt appears to have made some enquiries about the character of the paper ; and, not learning aDy thing to the disadvantage of the acceptors, made the sale of bagging the next day. It is conceded that the bagging was sold at its fair market value, and that the acceptance was taken at the usual rate of good unmatured acceptances. All the circumstances of the case, which it is not necessary to detail at length, justify the conclusion, which must have been adopted by the district judge, that the defendants knew at the time that Rayburn, Scott Co. were insolvent. No representation of their solvency appears to have been made at the time to the plaintiffs by the broker. There is no reason to believe that the plaintiffs had any ground for suspicions. The embarrassment of Rayburn, Scott Sf Co. does not appear to have been publicly known. The district judge gave judgment forth© plaintiffs ; and the defendants have appealed.

The legal conclusion resulting from the case stated is free from difficulty. In ■the earliest edition we have found of Mr. Chitty’s work on Bills of Exchange, he lays down the law as follows : “When a transfer by delivery, without endorsement, is made merely by way of sale of the bill, as in the case of a discount, or where .the assignee expressly agrees to take it in payment, and to run all risks, he has in general no right of action whatever against the assignor, in case the bill turns out to be of no value.” “ But,” adds that author, “ there can be no doubt that, if a man were to assign a bill for a good consideration, knowing it to be of no value, he would, in all cases, be compellable to repay the money he had received.” More than thirty years afterwards, he reiterates (with a qualification,) the same .doctrine : “ There can be no doubt that if a man assign a bill for .any sufficient consideration, knowing it to be of no value, and the as. signee be not aware of the fact, the former would in all cases be compellable to repay the money he had received.”

Mr. Story recognizes the same doctrine as the commercial law of our own country. He who transfers a note by delivery, “ warrants that he has no knowledge of any facts which prove the instrument, if originally valid, to be worthless, either by the failure of the maker, or by its being already paid, or otherwise to have become void or defunct; for any concealment of this nature would be a manifest fraud. Thus, for example, if the instrument be a bank note, and, at the time of the transfer by delivery, the party knows the bank to have become insolvent, and conceals it from the other parly, it will be deemed a fraud, and the consideration for the transfer may be recovered back.” Story on Notes, § 118. See also Camedye v. ALlenby, 6 B. & C. 373.

This doctrine, which rests upon the firm basis of good faith and mercantile honor, must be taken as the settled rule of the commercial law. We are not aware that it has been disputed since the time of Lord Kenyon, who observed in v'ery strong language, in Fenn v. Harrison (3 Term Rep. 757) : “ If the holder of a bill of exchange sent it into market without endorsing his name upon it, neither morality, nor the laws of this country, would compel him to refund, the money for which he had sold it, if he did not know at the time that it was nota good bill; if he knew the bill to be bad, it would be like sending out a counter into circulation to impose upon the world, instead of the current coin.”

It is not improper to observe that this principle of the commercial law as to bills and notes, accords with the doctrine of the civil law, as we find it expounded by Pothler. In speaking of the obligations which spring from the good faith required in the contract of sale of a debt, he observes: “ La bonne foi oblige le vendeur, dans ce conlrat, de máme que dans le contrat de vente des dioses eorporelles, á ne rien dissimuler de tout ce qu’il sait, et de ce que Pacheteur á interct de savoir, concernant la créance qu’il vend. C’est pourquoi, s’il était ju&tifié que le veudeur d’une créance, lore du contrat, avait connaissance que le débiteur était entiérement insolvable; puta, si ce débiteur avait été discute dans lous ses biens meubles et immeubles, et que le créancier ebt fait opposition et n’eut rien touché; ce créancier, qui, depuis, vendrait sa créance, en dissimulant cette insolvabilité, qu’il ne pouvait ignorar, á l’acheteur qui n’en aurait pas eu connaissance, pecherait contre la bonne foi qui doit régner dans le contrat de vente, et serait obligé, envers l’acheteur, á reprendre la créance, et á lui restituer le prix, quoiqu’il n’y eut pas de clause dans le contrat, par laquelle il se fut obligé k la garantió de fait.”

To the like effect is our own Code. The seller does not warrant the solvency of the debtor, unless he has agreed to do so. Art. 2617. But if it be proved that the assignor, who has not warranted the solvency of the debtor, knew, or had strong reasons to suspect, that the debtor was insolvent at the time of the assignment, the contract may be rescinded, and the assignor compelled to restore the price. Art. 2619. Judgment affirmed.

Note. — The following cases, decided during the period embraced in this volume, presenting only questions of fact, have not been reported.

At New Orleans: Moreno v. Welman; Cole v. Poole; Shaffer v. Green; Levy v. Forrest; Martin et al. v. Selleck et al; Brown v. Featherstonh’ et al; Jordy et al. v. Warfield; Curry et al. v. Freligh; Merle v. Bowman; Montfort v. Gontier; Meyer v. Speyer; McLorinan v. Williams; Yale v. Nolan; Chanslor v. Stetson; Talley v. Blanchard; Rich v. Valentine; Julien v. Chevet; Phillips v. Rousseau et al.; Woodruff v. Bailey; Drummond v. Akin; Guesnard v. Pier Husband; Oxley et al. v. Waters et al.; Oakey et al. v. Lewis et al; Castro v. Claiborne et al; Gorman v. Imboden; Taylor v. Fitzpatrick; Davis v. Bondurant; Anderson v. Peirce; Owen v. Barker; Sterry v. Bailey; Brander et al. v. Smith; Perkins v. Coons et al; Larche v. Hood; Martin v. Amis et al.; Copley et al. v. Miller; Watt v. Dunlap; McCallister v. Gant et al.; Avart v. Newcomb et al; Davidson v. Kinchen; Stephens v. Hackett; Same v. Same; Wilkins v. Parish of EastBaton Rouge; Union Bank v. Hardesty; Harrell v. Kneely et al.; Hyland v. Lambeth et al.; Riley v. Wilcox; Gresham v. Fonbené; Conrey et al. v. McKee et al; Hebrard v. Curtius et al.; Chiapella v. Lefebvre; Freeport v. Lacroix et al; Borgstede et al. v. Mooney; Ganucheau v. Bach; Pennock v. Sparrow, Curator; McKinney v. Steamer Yalla Busha; Commercial Bank of New Orleans v. Sexé; Kirwan v. Heath; Tucker v. Agricultural Bank of Mississippi; Commissioners of Merchants’ Bank v. Yorke; Succession of Church; Hardy v. Zacharie et al; State v. Atchafalaya Railroad and Banking Company; Ducongé v. Harker; Beguet v. Videau; Lee v. Hodge; Le Blanc v. Lallande; Bullard et al. v. Lewis et al; Same v. Same; Powell v. Kellar; Sutton v. Hines; Davezac v. Paulding; Mitchell et al. v. Mills; Byrne v. Fonbené et al.; Forman v. St. John; Frazier et al. v. Denton; Freeman v. His Creditors; Burbank et al. v. Lane, Tutor; Hays et al. v. Noonen; Randolph et al. v. Tourné; Vitta v. Brehier; Succession of Wurzschmitt; Davis v. McCargo; Succession of Argote y Villalobos; Gridley et al. v. Conner; Pargoud v. Weaver et al; Robertson et al. v. Thompson; Peterson et al. v. Hagan et al.; Hiestand v. Forsyth.

At Opelousas: Fanning v. McCaskell; Todd v. Saunders, Dartest v. Dungan; Walker v. Walker; Kemper v. Merriman; Fagot v. Briant; Broussard v. Duhon; Segura v. Segura; Deas et al. v. Pritchard et al; Moore v. Bowles.

At Alexandria: Esté, Executor v. Boyce; Lynch v. Cuny et al.; Same v. Same.

At Monroe: Copley v. Moore; Copley v. Dosson; Jones v. Holmes; Taylor v. Collins; Tutorship of Bonaventure; Copley v. Mullins et al; Atkinson v. Johnson; Floyd v. Gaster; Thompson et al. v. Martin; Gilmer v. Craig; Hailey v. Pitts et al.; Emsweller v. Holland; Jenkins v. De Graffenreid, Tutrix; Little v. Copley; Dosson v. Ward; Slater et al. v. Ward; Hill v. Head; Thompson v. McFarland; Cruger, Syndic v, Persons; Canfield v. Brice.

The Cases of Hartson v. Coleman; Murphy v. Wright; Roussel v. Wright; Welsh v. Barrow; New Orleans and Carrollton Railroad Company v. Hood et al.; Riddell v. Howard; and Donnell v. McMaster, decided at New Orleans, during the period embraced by this volume, are not reported, damages having been allowed in each for a frivolous appeal.


source: Caselaw Access Project

author: Mare, J. Spencer, J.

license: Public Domain

text:
    No. 6837.
    Succession of John Clark. Pamelia Clark et al. Appellants. Mrs. Reilly et al. Appellees.
    Where three separate questions, tending to one conclusion, arise in one and the same ease, as for example in the settlement of. a succession, and having been consolidated by consent of parties are passed on in three separate decrees, rendered simultaneously, these decrees may all be brought before this court in one single appeal.
    In such a case one appeal bond is sufficient; and as appellants were not condemned by the lower court to pay any sum of money, or deliver any property, the bond need only be for an amount to cover costs.
    Persons not parties to a suit have a right to appeal from the judgment rendered in it, if they intervene, and allege that they have been aggrieved by the judgment. And if it shall appear to this court that they have an interest in the suit, their appeal will be maintained.
    No such officer as “ provisional administrator,’’ is now known to our law. If however such an officer should be appointed by the court, pending a contest, he has only the functions of a keeper, and may be set aside at the discretion of the court.
    Where some of the heirs of a succession are beneficiary, and their debts, and the creditors of the succession, or the heirs of age demand an administration it should be ordered.
    Where there are debts of a succession, and other circumstances authorizing the demand for its administration, a partition of its property among the heirs will not be ordered until it has been duly administered.
    APPEAL from the Second District Court, parish of Orleans. Tissot, A J.

      T. Gilmore & Sons and J. L. Tissot for administratrix and appellant.

      McGloin & Nixon for opponents and appellees.
   On Motion to Dismiss.

The opinion of the court was delivered by

Mare, J.

John Olark died on the thirteenth of February, 1877, intestate, leaving a considerable estate. Mary, wife of Reilly, and Alice, wife of Woelper, children of his first marriage: Pamelia, Elizabeth, and William Edwards, children of the second marriage; and Mrs. Catherine Routh, widow of the third marriage, survived him.

On the fifteenth February, Pamelia Olark, who attained her majority in June of the preceding year, Mrs. Widow Olark, and Robert Meadow-croft, maternal uncle of the children of the second marriage, two of whom were minors, applied for administration of the succession.

Mrs. Reilly and Mrs. Woelper opposed this, on the grounds that Widow Clark and Meadowcroft were not entitled in preference to them; that Pamelia was young, and without sufficient experience; and that Mrs. Reilly, having equality o£ right with her, should be .preferred on account of her age.

The opposition was maintained, and judgment was rendered, on the twenty-eighth March, appointing Mrs. Reilly administratrix. A motion was made fora new trial, pending which, on the eleventh April, Meadoweroft qualified as tutor of his nephew and niece; and on the twelfth April Pamelia Clark filed a petition in which she alleged that the community which had .existed .between her father and mother had been dissolved by the death of the'latter: that'she, Elizabeth,'and William Edwards were the sole heirs of their mother: that the community had remained in indivisión under the management and control of her father, and that she desired to have a partition of their estates. She made Mary Reilly and her husband, Alice Woelper and her husband, Meadow-croft, in his capacity as tutor of the minors, and Mrs. Widow Clark, parties; and prayed for a partition of said successions.

The motion for a new trial was overruled, and the judgment appointing Mrs. Reilly administratrix was signed on the twenty-third April. She failed to-qualify; and, on the fourth May, Pamelia Clark, on motion, showing that Mrs. Reilly had neither qualified nor caused an inventory to be begun, obtained an order appointing her administratrix.

On the seventh May, Mrs. Reilly and Mrs. Woelper took a rule on Pamelia Clark to show cause why the order appointing her administratrix should not be revoked, on the grounds that it was ex parte, and not warranted by law; and that a demand for partition having been made by Pamelia Clark, which could not be denied, and there being few debts, no administration was necessary; and they moved that no letters of administration be granted her until the final determination of this rule; and on the same day Mrs. Reilly and Mrs. Woelper answered the petition for a partition, and prayed for a partition of the succession of their father among his heirs.

On the nineteenth May, Meadoweroft answered for his pupils that he could make no objection to a partition of the property held in indivisión, as set forth in the petition of Pamelia Clark.

On the twenty-fourth May the court rendered judgment rescinding the order appointing Pamelia Clark administratrix. The next day she applied to be appointed administratrix of the succession of her mother; and on the fifteenth June she prayed to be confirmed as administratrix of that succession, and provisional administratrix of the succession of her father. The court granted the order as prayed for, on her giving bond in the sum of twenty thousand dollars. She gave the bond; qualified in each of the capacities; and separate letters were issued to her as administratrix of the succession of her mother, and as provisional administratrix of the succession of her father.

Mrs. Widow Clark answered the petition for partition by plea of prematurity; and that partition can not be effected until all the debts are paid; and she prayed for the appointment of an administrator to settle the succession of her deceased husband..

Mrs. Reilly and Mrs. Woelper opposed the application of Pamelia Clark to be appointed administratrix of the succession of their father on the grounds that administration was not necessary, because of the pending demand for partition. In the event that administration should be deemed necessary, they alleged and claimed that Mrs. Woelper, the eldest of the heirs, was entitled to be appointed by preference.

The litigation had thus been reduced to the issues presented as follows:

1: On the rule to vacate the appointment of Pamelia Clark provisional administratrix.

2: On the opposition of Mrs. Reilly and Mrs. Woelper to the application of Pamelia Clark to be appointed administratrix.

3: On the' petition for a partition of .the successions of Clark and his second wife, as to the right to proceed to a partition among the heirs before the debts of the succession are paid.

The minutes show that “ by consent of counsel the above issues were consolidated, and the case proceeded to trial.”

Three separate judgments were rendered on the same day, September 24, and signed on the same day, October 12: .

1: Vacating the order appointing Pamelia Clark provisional administratrix:

2: Maintaining the opposition to the application of Pamelia Clark to be appointed administratrix on the ground that administration was not necessary:

3: Ordering a partition by licitation, and referring the parties to a notary to regulate the details.

Pamelia Clark, Meadoweroft, in his capacity as tutor of the minor heirs, Widow Clark, Mrs. Grace Batson, and Meadoweroft individually, the three last mentioned claiming as creditors, united in a motion for a suspensive appeal from these three judgments, alleging that they were aggrieved; and the appeal was granted on their giving bond in the sum of $500.

The appellees move to dismiss on the grounds:

1: That as there were three separate judgments, upon and in three separate matters and -proceedings, each decree and judgment should have been appealed from separately.

2: That there should have been three separate bonds “ to secure the rights of appellants from three separate and distinct causes of action.”

3: That appellants have not made a proper and sufficient showing to authorize or justify an appeal.

First. All the questions passed upon in these three judgments arose in one case, the succession of John Clark; and they all tend to one result, the settlement of the succession of John Clark, whether by an administration, or by partition among the heirs, which puts an end to the succession. Pending an application for administration there could be no partition among the heirs; and after a' decree ordering a partition there could be no- occasion for the appointment of an administrator, there would be nothing to administer.

There were not several cases which were consolidated; there were several questions which arose in one case, that is, in the succession of Clark; and these questions were all consolidated, by consent.

¥e can not conceive of any prejudice to the rights of the appellees by a single appeal in the succession of Clark, from these three judgments rendered simultaneously. The intimate connection of these questions would indicate the propriety of consolidating them, and of bringing them all before the court of original jurisdiction and before this court in one single proceeding. It seems to us the single trial of all these questions in the district court, and the single appeal including them all, consist perfectly with the interest and convenience of all the parties; and wo know of no authority, no law or principle which forbids this mode of proceeding.

Second. The appellants were not condemned to pay any sum of money, nor to deliver to the appellees any thing. No matter what might be the amount of the bond, or the number of bonds given by appellants, no decree could be rendered against them on the appeal, except for costs; and the costs are as fully secured by one bond with sufficient security for a sufficient amount as by any number of bonds.

Third. The appellants have brought themselves within the requirement of the Code of Practice. The parties to a suit have the right to appeal, of course; and third persons, not' parties, have this right, also, when they allege that they have been aggrieved. Article 571.

Mrs.-Clark, Meadowcroft, and Mrs. Batson all claimed to be creditors of the succession, and the record shows that they are creditors. There was a contest between the heirs on the application of one of them to be appointed administratrix; and that contest promised to be protracted’. The applicant was appointed provisional administratrix. The condition of' the succession was such as to require the exercise of conservatory powers, to prevent loss and injury. The creditors were 'directly and pecuniarily interested in the maintaining of the order appointing a provisional 'administrator to take care of the property pending the'contest for the appointment of an administrator; and in the .appointment of-sm administrator to whom they might look for payment. ■

The creditors were equally interested in opposing a partition, before the debts were paid. While the succession is under administration the creditors look to the administrator alone; when the property has passed out of the hands of the administrator, and has been partitioned among' the heirs, it is by no means convenient to the creditors to pursue each one of them for his virile share, particularly where they may have their domiciles in different parishes, or, some of them, beyond the limits of the State.

Counsel for appellees suggest that there may be difficulty in adjusting the costs in the event that one or more of the judgments appealed from should be affirmed, and one or more of them reversed. It is not new, nor is it very difficult, for judicial tribunals to apportion costs on .equitable principles; but no argument based on inconvenience would justify the dismissal of an appeal.

Without intending to express any opinion as to the correctness of any one of the j udgments appealed from, we think all the appellants have shown such an interest in the questions passed upon as entitles them to appeal.

The motion to dismiss is overruled with'costs.

On the Merits.

The opinion of the court was delivered by

Spencer, J.

.John Clark died intestate in February, 1877, leaving, first, Mrs. Reilly and Mrs. Woelper, children of his first marriage; second, Pamelia Clark, of age, and William and Elizabeth, minors, children, of his second marriage; third, Mrs. Catherine Clark, his third wife and widow surviving him. ' .

His estate was inventoried at $77,820 28, of which $7550 92 was cash in bank, and $8580 the appraised value of premium bonds.

There is evidence in the record tending to show that the debts of the estate amount to $10,047 64; but a large portion of these seem of doubtful legality. It seems to be established, if not admitted, that there are debts to the amount of near $5000.

After Clark’s death, the widow and one Meadowcroft, tutor of the minors, and Pamelia, applied jointly for administration.- Mrs. Reilly opposed on various grounds, and claimed the appointment herself. Her opposition was sustained, and she appointed by decree signed April 23, 1877. On April 12, 1877, Pamelia Clark filed a suit for partition, making all parties in interest defendants. Default was taken on this petition, and experts appointed, who reported for. a partition by licitation. The tutor of the minors answered, joining in the prayer for partition. The widow pleaded that it was premature until the estate had been administered.

’ On May 7,1877, Mrs. Reilly and Mrs. Woelper answered, and joined in' the prayer for partition. Mrs. Reilly seems to have abandoned her right to administer, and did not qualify under her appointment.

' On May 4,1877, Pamelia Clark, by ex parte motion, and on alleging that more than ten days had elapsed since Mrs. Reilly’s appointment, etc., caused herself to be appointed administratrix. Mrs. Reilly and Mrs. Woelper took rule to vacate this order, because Miss Clark had sued for partition, and because the debts were small, and an administration' unnecessary, and uselessly expensive. The court rescinded the order appointing Miss Clark, who seems not to have appealed.

■ On May 25, 1877, Pamelia again made application for letters of administration; was Opposed by Mrs. Reilly and Mrs. Woelper, on the ground that the estate was large, the debts small, and administration unnecessary; that the heirs demanding partition have accepted unconditionally the succession; that the above named order rescinding her previous appointment was res adjudicata on the question of administration, vel non. That, if there was necessity for administration, Mrs. Reilly should be appointed. The court sustained this opposition, and dismissed the application. From this order one branch of the appeal-before us is taken.

In the proceeding for partition there was judgment decreeing it, and from that decree appeal is taken by Pamelia, Mrs. Clark, and the tutor.

Pending her application for administration, Pamelia Clark- obtained an .ex parte order, without notice, appointing her provisional administratrix, on a bond of $20,000. Mrs. Reilly and Mrs. Woelper, on motion, caused this order of appointment to be set aside, and from that decree appeal is taken, also.

Í. We think the court properly revoked the appointment of Pamelia Clark as “provisional administratrix.” It is an office not now known to our law; and whilst it may be, and doubtless is true, that, in the discretion of the judge, some such appointment, for the preservation of the property of an estate, might be made, pending a contest before him, he certainly would have the right of revocation at his discretion, also. 'But under such an appointment the appointee would be rather a guardian or keeper than an administrator — who can not be appointed, in any form, without giving bond as required by law. When the,office of “ provisional administrator ” was known to our law, he could only be appointed on giving bond as any other administrator. Besides, the duration of the appointment of such a guardian would necessarily be short, for the law requires speedy and summary trial of such questions as contests for administration, aDd does not allow the decree to be suspended by appeal.

2. The rule is that where some of the heirs are beneficiary, and there are debts, and the creditors or heirs of. age demand an administration, it should be ordered. See Soye vs. Price (not yet reported); 4 L. 202; 4 R. 414; 14 A. 641; C. C. 1030, 1042; C. P. 974, 982; 2 A. 465; 3 A. 502; 29 A. 348.

As stated, there is proof in this record, and we do not understand that it is denied, that there are several thousand dollars of debts against this estate. There is in the record a petition, signed by numerous persons claiming to be creditors, demanding an administration. • True, this petition was filed after the trial of the issues herein above stated, but whilst a motion for a new trial was pending, and before judgment .signed. That petition is verified by oath that the parties thereto are creditors, and was, we presume, filed as basis for appeal. Some of these creditors are appellants from the judgments rendered in this case refusing an administration and ordering a partition. However much we may feel disposed to approve the decree of the judge below, we do not feel at liberty, under the facts of this case, to disregard the plain and positive texts of the Code, and the uniform adjudications of the courts. As' there are creditors of the estate demanding an administration, and as there areamong the heirs some minors, who can not be other than bene-. ficiary, we think a partition, if opposed, can not be made until the estate is administered and the debts paid. The proposition of appellee’s counsel, that the minors by consenting tó the decree of partition had unconditionally accepted, is not tenable. Neither the minor himself, nor. -any one for him, can accept in that way. No act of his, or of his tutor, can render him liable as heir pure and simple.

The evidence in this record does not enable us to decide to Which of , the heirs the administration should be confided. We think, as the judge a quo did not pass upon that question, .we should remand the ease as to that.

It is therefore ordered and decreed that the judgment decreeing the partition be reversed and set aside. That the judgment refusing .the appointment of an administrator be also reversed, and that this case be, as to that, remanded, with instructions to the judge a quo to proceed to the appointment of an administrator,- according to law. That the judg- • ment revoking the appointment of Pamelia Clark as provisional admin- •, istratrix be affirmed. That two thirds of the costs of appeal be borne . by appellees, and one third by appellants; those of the cour-t b.elow-to be borne .by the succession. . . ......


author: DeBlanc, J.

text:
    No. 6737.
    Aurore Neel vs. Pélagie Hibard.
    One who holds possession of real estate as an agent, can not acquire the property of such estate by prescription.
    An action to annul a judgment can only bo brought by one who has a real and actual interest impaired by such judgment.
    It is not necessary that the bastard child, born in this State of a slave mother, should have been legally “ acknowledged” by the mother, in .order to enable the emancipated mother to inherit from said child.
    j^PPEAL from the Second District Court, parish of Orleans. Tissot,

      W. E'. Murphy for plaintiff and appellee.

      Ed. Bermudez for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

In 1842, on the 7th of December defendant — then a slave — brought forth a child wlm — as herself — was a slave. With her consent and the permission of her mistress, that child was — on the 19th of February 1844 — baptized under the name of Philippe, and as being the illegitimate son of Fillette Lafontaine, a free person. He was then baptized, for the reason — as said by his mother on the trial of this cause —that, otherwise, he would not have been free.

He grew near his mother and lived with her until he was about sixteen years of age. She sent him to school, and being remarkably intelligent, as shown by his letters, he progressed rapidly in his studies, attracted the attention of one Alexander Marionneau, who became intensely attached to him, and determined — after consulting with and obtaining the assent of his mother and of his mistress — to remove him from this State, where he was exposed to pass from the possession of a friendly owner under the control of less tolerant masters. When about to return to France, Marionneau, whose intention was — not jnerely to secure the freedom of Philippe — but to conceal the irregularity of his birth, the -misfortune of his condition, concluded that bis name and status should be changed. It was then that he and one Cam-panel — deceiving a priest and the Recorder of births — caused two false entries to be made; in and by which the pretended son of Fillette Lafontaine was represented as the legitimate issue of the marriage of Banks Dunbar with Anna Philippe.

■ This done, Marionneau — who had some property in this City— appointed as his agent and to take charge of it, one Louis Neel, the husband of plaintiff; and — in 1858 — with legalized certificates of the false entries already referred to — left for France, accompanied by William Dunbar, the son of Pélagie.

That Marionneau, Campanel and defendant were guilty of a fraud. we do not deny; but that fraud was perpetrated with the aid and sanction of those who alone could have complained of it, and it is too late to denounce it.

Marionneau died in France, on the 13th of April 1861, and — by his last will — the inconsiderable property which he owned here passed to William Dunbar, who retained Louis Neel as his agent. He was — by that agent and by plaintiff herself — recognized as the son of Pélagie and the owner of the property which had belonged to Marionneau. Shortly after the death of the latter, Dunbar was penniless, and — as he had ever done — he worked incessantly to get a livelihood. Overtaken by sickness, he wrote the most imploring letters to obtain the revenues •which — he thought — and which, in all probability, his agent had derived from the lease of his property in New Orleans; but he wrote in vain. Prostrated by an accidental' consumption, he entered an hospital in Paris, and there he died on the 12th of March 1867, possessed of naught but his clothes and ten cents.

More than eight years after — on the 17th of April 1875 — Pélagie Hibard was, by a decree of the second district Court, recognized as the sole heir of William Dunbar, and ordered to be put in possession of his estate. Two days after the rendition of that decree, Joseph Flores called on plaintiff, with a copy of said judgment, and demanded, in Pélagie’s name, possession of the property which had been left in charge of Louis Neel — at first by Alexander Marionneau, and — at his death — by William Dunbar.

Nearly thirteen months after that demand, the widow of Louis Neel filed an action in the second district Court, in which she alleges that the decree which recognizes Pélagie as the sole heir of William Dunbar was improvidently rendered, without any evidence to sustain it and through the misrepresentations of Pélagie: that she is aggrieved by said decree, has an interest in attacking it and prays that it be rescinded and annulled.

How is she aggrieved ? Pélagie is disturbing her in what she terms “ the legal and peaceable possession of a lot of ground and improvements thereon.” That lot and those improvements are the same which —from 1858 to 1861 — Louis Neel held in no other capacity than as agent of Marionneau, thereafter as the agent of William Dunbar, and his widow’s pretension is as extravagant as unjust.

Those who possess as she does, can not acquire a legal possession, because it can not be presumed that they had the intention of possessing for .themselves, and even if they did entertain that dishonest intention,‘their possession continues to be that of the person for whom they originally took it.

R. C. C. 943, 3441, 3446, 3489, 3490, 3433.

An action can be brought by only those who have a real and actual interest which they pursue, and plaintiff has completely failed to show how-she was or can be aggrieved by the effects or the execution of the judgment which she seeks to annul.

C. P. 15.

Mrs. Neel’s counsel contends that — not only Pélagie has not acknowledged William Dunbar as her son, but — on the contrary — has denied that fact from his birth. To justify that reproach, he refers to the misrepresentations resorted to, for the purpose of securing the freedom of her child and concealing his origin. Her participation in that fraud did —in no way — deprive her of any right to which she may be entitled as the mother of the deceased.

To sustain her action in nullity, plaintiff relies on articles 203, 922 and 929 of the Revised Code, which provide — the first, “that the acknowledgment of an illegitimate child shall be made by a declaration, executed before a notary public, in presence of two witnesses, by the father and mother or either of them, whenever it shall not have been made in the registering of the birth or baptism of such child — the others, that the estate of a natural child deceased without posterity belongs to the father and mother who have acknowledged him, and — in default of acknowledged relations — to the State.

William Dunbar died in 1867. The Code of 1825 was then in force, and not a single provision of that Code, concerning the acknowledgment of illegitimate children and their successions, can be justly invoked against those of our slaves who were emancipated after the war. At the birth of her son, Pélagie was a slave and she would not have been allowed to make such an acknowledgment. When slavery was abolished, her absolute incapacity fell, and — as all free persons, even minors, lunatics, persons of insane mind and the like, she became invested with the right of inheriting.

Code of 1825, article 945.

The deceased’s mother was not married and he was a bastard. Is that any concern of plaintiff? That mother’s concubinage, the illegitimacy of her son, were the almost inevitable results of their condition, and as that condition was not of their choice, but one imposed by the laws of the State, the maternity of the slave — though hatched in a not prohibited concubinage, can not be invoked as a crime against the emancipated-mother, and can assuredly not authorize the widow of her son’s agent to despoil the concubine, and to keep as her own the property of the bastard.

We do not hesitate to hold that a female slave, whose child was born before the general emancipation which followed the war, who has acknowledged that child in the only mariner in which she could have done so, by nursing him, by treating him as such, and who — by him— has always been recognized as his mother, is certainly entitled to his succession to the exclusion of at least the State; unless, perhaps, the succession thus claimed would have been opened after the revision of the Code of 1825. . .

Were plaintiff to succeed in her attempt, what would she gain? The harsh and barren satisfaction to dispossess a mother, and-for whose benefit? Not her own, but that of the State. Thus, the very authority on which the party relies, clearly demonstrates that she has — not only no real or actual interest, but not even a prospective or eventual interest in the matter, unless it be to retain — and forever — in disregard of law and justice — the property entrusted to their care, and which she and her husband have enjoyed, without the form of a title or shadow of a right, for more than ten years.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be and it is hereby annulled, avoided and reversed, and plaintiff’s demand rejected at her costs in both courts.


author: Spencer, J.

text:
    No. 6897.
    Mary Stuffler vs. Eliza J. Puckett.
    A parish judge has no power to authorize a married woman to contract a debt for more than $500.
    Where the wife has not been judicially authorized to give a mortgage on her separate property, a note and mortgage executed by her are not legal proof of her obligation, and evidence aliunde showing that it was her separate debt, must be produced, in order to bind her. ,
    Unless the wife accepts the community expressly, or tacitly, she stands in relation to its debts as she does toward the debts of third persons.
    A PPEAL from the Fifth Judicial District Court, parish of East Baton xjl Rouge. McVea, J.

      Herron. Bird & Beale for plaintiff and appellee.

      Sami. P. Ch'eeves for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

The plaintiff, owning as her paraphernal property a lot of ground in Baton Rouge, borrowed from the defendant $2000, on April 24, 1872, and executed solidarity with her husband a promissory note therefor, to the order of Eliza- J. Puckett, payable in one year. In the act it is declared that the improvements upon said lot were made after marriage, and belong to the community; and that, therefore, the husband joins in the act. The act also declares that- the wife had been authorized by the parish judge; and there is annexed to it a petition of Mrs. Stuffier, addressed to the parish judge, asking- his authorization, and a very informal certificate of that functionary to the effect that “ after examination of the petitioner, being satisfied, that it is necessary and proper that the said sum of two thousand dollars should be procured for the purpose therein set forth,” he orders that she be authorized to grant the mortgage. • In her petition for authorization she sets forth that she owns the lot, but that the improvements thereon belong to the community; that the lot is encumbered with a-mortgage past due, and there are other claims, not specified, which she desires to pay.

James Stuffier died in 1873, and soon after plaintiff qualified as administratrix of his estate.

Defendant sued out executory process on this mortgage in 1877, making Mrs. Stuffier individually, and as administratrix, defendant.' Thereupon, Mrs. Stuffier enjoined the sale, alleging in substance that the debt was contracted during marriage and was a debt of the community, for which neither she nor her property was liable;, that the interest of the community in said property was a mere money claim against her for the improvements put on it, and could only be ascertained and enforced in a settlement between herself and the community; that the pretended authorization of the parish judge was without effect for want of legal form, and because the parish judge was without jurisdiction to grant it. She further alleges that the sale was not advertised for the time required by law.

Under article 127 C. C. the application for authorization is to be made to the district or parish judge, “according to the amount involved.” This refers, of course, to the constitutional amounts determining the jurisdiction of said judges. By express provision the Civil Code governs where its enactments are at variance with those of the revised statutes of 1870; sections 3982 and 3983 of the statutes must therefore be controlled by article 127 C. C. Besides, the article of the Code is more in harmony with the constitutional limitations upon the jurisdiction of said courts. It is not necessary to decide whether, upon - oath of the absence of the district judge, a petition for authorization addressed to him can be granted by the parish judge, since there is no such question raised by.the facts or pleadings in this case. We think the authorization in this case was invalid, and without effect, and that the case stands, therefore, upon the effects of the acts of a married woman not acting- under judicial sanction.

It is unnecessary to cite authority to show that, in such case, the simple denial of the wife put the onus of proof upon the creditor; that her note and mortgage are not legal proof of her obligation, and that evidence aliunde must be produced to bind her.

In this case it is shown, that there was, as stated by her, a pre-existing mortgage granted by her to one Payne, in 1870; but that mortgage was in all respects similar to the one in controversy, except that its amount was only $1000, and there was no pretense of judicial authority for giving it. It is rendered probable- that this pre-existing mortgage was taken up with money obtained from Mrs. Puckett on the second mortgage, but there is not only no proof, that this debt to Payne was a separate debt of the wife, but, on the contrary, a presumption of law that it was a debt of the community. In fine, the defendant wholly failed to prove the plaintiff’s separate liability. There is no analogy between this case and. that of “Jordan vs. Anderson,” 29 A. 749. That was a case where the wife entered into a contract with a builder to construct, with his own labor and material, a house on her paraphernal property. We held that she and her property were liable to him. Here, the wife borrows a round sum of money, and gives her note and mortgage. The very act of mortgage shows that the improvements upon her property were already there, and put there by the Community.

An attempt Was made to show that the wife had ratified this act of mortgage by paying interest on it after the husband’s death. She was administratrix of her husband’s estate, and nothing shows in what capacity she made the payments. It might well be doubted whether anything short of a written promise to pay would render her liable, if this was in fact a community debt, since the law prohibits her, during marriage, from binding herself for such debts. It strikes such obligations with absolute nullity. “Toute ratification est done impossible pour une obligation proprement nulle'; sans doute, on peut creer une obligation nouvelle et efficaee pour la substituer a celle qui n’avait qu’une existence apparente, mais on ne peut pas plus valider celle-ci, car Ie néant ne peut pas plus étre confirmé qu’il ne peut étre detruit; quod nullum est confirman nequit.” Marcadé, vol. 5, p. 344.

Unless a wife accepts expressly or tacitly the community, she stands in relation to its debts very much in the position which she would to the debts of any other third person. A promise to pay the debt of a third person must be express, and' in writing, signed by the party to be charged. C. C. 2278, number 3.

The judge a quo perpetuated the injunction, but gave, in effect, a judgment of nonsuit as to defendant’s claim. The appellee has not asked that the judgment be amended, and appellant has no just reason for complaint, as the judgment is, perhaps, more favorable to her than it should have been.

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


author: Egan, J.

text:
    No. 6772.
    The State vs. S. W. Curtis.
    When the motion for a wnv trial, on the «round of newly discovered evidence, does not disclose the evidence, or the source from which it is derived, the motion is defective, and should be overruled.
    An information charging defendant with breaking and entering a store at night, with intent to steal, which fails to charge that defendiint/nloreious??/ entered, and failáto charge that he did break, and enter with burglarious, or felonious intent to steal, etc., is fatally defective.
    APPEAL from the Superior Criminal Court, parish of’ Orleans. Whitaker, J.

      H. N. Ogden, -Attorney General, for plaintiff.
    P. P. Carroll and.J! AT. Uealy for defendant and appellant.
   The opinion of the court was delivered by

Egan, J.

The defendant was charged as follows :

The State of Louisiana, First Judicial District, Parish of Orleans, ss. Superior Criminal Court for the Parish of Orleans :

John J. Finney,’ District Attorney, of the First Judicial District of the State of Louisiana, who, in the name and by the authority of the said State, prosecutes in this behalf, in proper person comes into the Superior Criminal Court for the parish of Orleans, in the parish of Orleans, and gives the said court here to understand and be informed that one S. W. Ourtis, late of the parish of Orleans, on the twenty-seventh day of September, in the year of our Lord one thousand eight hundred and seventy-six, with force and arms, in-the parish of -Orleans, aforesaid, and within the jurisdiction of the Superior Criminal Court for the parish of Orleans, did in the night time, and with intent to steal, break and enter the store of. M. Andrieu & Co., contrary to the form of the statute of the State of Louisiana in such case made and provided, and against the peace and dignity of the same.

John J. Finney,

District Attorney of the First Judicial District.

Upon this information he was tried and convicted, and after an ineffectual motion for new trial, was sentenced to ten years hard labor in the State Penitentiary. Our attention has been called to the action of the court in annulling the motion for new trial, of which it is only necessary to say that we can not consider the question as to the sufficiency or insufficiency of the evidence to convict, were it before us, as it is not; and that the precise nature of the newly discovered evidence, or the source from which to be derived, is not disclosed in the motion, which is, therefore, defective, and need not be considered. A’ motion in arrest of judgment was filed in the court a qua, the grounds of which are assigned as error in this court. They are: “That the information does not charge that said defendant, on the twenty-seventh day of September, 1876, did feloniously enter,” etc. “Nor that the said defendant, on the same day and date, did then and there, with felonious intent to steal, break and enter the store aforesaid.” ' “ Nor that the said defendant, with burglarious intent, did then and there break and enter the said store.” It will be seen from the information already read that it is liable to the objections taken in point of fact. We have, therefore, only to consider whether it is therefore defective in point of law. If the information were at common law it would be clearly bad, and so, also, if the statute referred to a common-law offense. See State vs. Thomas, 29 A. 601, and authorities there cited. It has been very properly held in this State, under the statute against breaking and entering with intent to commit a crime, that the indictment would be bad if it only charged the intent to commit a misdemeanor. . The general rule unquestionably is that, where the offense was not one at common law, it is in general good to charge substantially in the language of the statute. That under which this information was filed reads as follows: “ Whoever, with intent to kill, rob, steal, commit a rape, or any other crime, shall in the night time break and enter into any shop, store, courthouse, church, barn, rice or sugar house, cotton house/plantation, or any vessel, err having with such felonious intent entered, shall in the night time break any such house, building, or vessel, and every person present aiding, assisting, or consenting to such burglary, or accessory thereto before the fact, by counseling, hiring, or procuring such burglary to be committed, on conviction shall suffer imprisonment at hard labor, not exceeding ten years.” R. S 1870, section 852. The use of the words, “ with such felonious intent,” and the words “ such burglary,” in the statute can not be without mean- ' ing, and we think necessarily refer to and characterize both clauses of the statute, and indicate the legislative intent that though the breaking and entering charged be not of a dwelling-house, it was and is intended to be classed and considered and charged as “ burglary,” under our law. The statute of 1855, which has been reproduced in substance, and almost in language, has been often held as not intended to make a radical change in the system of criminal pleadings, but to simplify it, and correct some supposed deficiencies, and not to dispense with the substantial averments of a bill of indictment at common law, of which the absence of the word “feloniously,” or “ burglariously,” or with “ burglarious intent,” would be fatal to an indictment; so we think the absence of those essential averments in an information for what is termed and considered by our law “ burglary,” is equally bad; while the statute under which this information was filed would seem to enlarge the definition of burglary at common law so as to embrace another class of cases, neither that nor any other statute has changed “ the mode, of prosecution,” the substantial requisites to a good indictment or information for that crime, however defined, which are, therefore, the same as at common law; and we think, under the terms of the statute in question, that if the term “ burglary ” had been altogether omitted from it, the use of the word “feloniously ” in the information under it is essential. See, again, State vs. Thomas, 29 A. Wharton’s Am. Crim. Law, sections 1607, 1612, and 1613; see, also, same, section 272; 8 R. 590; 10 A. 195; same, 698; and State vs. Stiles, 5 A. 324.

It is therefore ordered, adjudged, and decreed that the verdict and sentence appealed from be set aside, and the information quashed, as not good in law, and that the defendant remain in custody subject to the orders of the Superior Criminal Court of the parish of Orleans for further prosecution, according to law.


author: Mare, J.

text:
    No. 7073.
    State ex rel. Board of Supervisors, etc., vs. Board of Liquidators.
    The Board, of Liquidators appointed to 'carry into effect the provisions of the Bunding Act of 1874, can not refuse to fund any legal warrants, or bonds of the State, when required to do so by the owners, or tho legal custodians of such bonds.
    REPEAL 'from the Fifth District Court, parish of Orleans. Rogers,

      J. S. Brent and JS. H. Farrar for plaintiffs and appellees.

      H. N. Ogden, Attorney General, for the defendants.
   The opinion of the court was delivered by

Mare, J.

The Relators obtained a peremptory mandamus, ordering the State Treasurer and the Secretary of State, joint depositaries of certain bonds known as the Seminary Bonds, to present them to the Board of Liquidation, to be exchanged for Consolidated Bonds, under the Funding Act of January 24,1874.

In obedience to this order the Depositaries.presented the bonds for funding, and the Board of Liquidation refused to fund them. Thereupon the Relators proceeded by mandamus against the Board, to compel the funding. The Board made no written answer; and the mandamus having been made peremptory, the Board appealed.

There is no question about the legality of these bonds. They were issued under act No. 182, of 1857, in liquidation of the indebtedness of the State to the Seminary fund; and the interest was paid on them, semi-annually, until 1873. We understand the refusal of the Board tobe on the ground that these Bonds represent a trust fund; and that it would be bad faith on the part of the State to diminish them by forty per cent.

The funding act authorizes the funding of all valid outstanding bonds of the State, and valid warrants, etc., drawn previous to the passage of the Act; and if the owners, beneficiaries of the bonds, or those having the legal custody and control of them, choose to avail themselves of the privileges of the Act, the Board of Liquidation has no right .or authority to discriminate between one valid bond and another, as to the merit of the original consideration. Such distinctions might influence the future action of the State.

We can not, in this proceeding, review the judgment requiring the Depositaries to present these Bonds for funding; nor can we deny to the Relators the privileges to which they are entitled under the funding Act.

The judgment appealed from is, therefore, affirmed with costs.


author: Marr, J.

text:
    No. 7029.
    State vs. Israel Morrison.
    No indictment is valid wliieli does not, contain an indorsement of the special crime charged, followed by the words “ a true bill,” and signed by the foreman of the grand jury in his official capacity, in the presence of the grand jury.
    APPEAL from the Seventh Judicial District Court, parish of Pointe Coupee. Toist, J.

      S. N. Ogden, Attorney General, for plaintiff.

      Selves & Parlange for defendant.
   The opinion of the court was delivered by

Marr, J.

Appellant, the accused, was' tried and convicted on a charge of murder; and, after ineffectual motions, first for new trial, and then in arrest of judgment, he was sentenced to death.

The paper called an indictment states that the accused did * * ■* kill and murder one Robert Noland ; and the indorsement on this paper is: “ No. 266, State vs. Israel Morrison, 'Murder.' Oscar Joffrion, Foreman ; L. H. Ducote, District Attorney.”

The minutes show that Joffrion was appointed Foreman; that the Grand Jurors were sworn; and that, after having received the charge of the Judge, they retired to enter upon the discharge of their duties ; but there is no entry to show that they ever again made their appearance in court.

It was admitted on the trial of the motion in arrest that the only indorsement on the indictment is that copied above; “ and that the words ‘ a true bill ’ or words equivalent thereto do not appear in any part of the indictment.” 1 .

It would be a waste of time to consider any of the other objections raised by the motion in arrest and the bills of exception. Eor all that appears, this indictment may have been the work of the District Attorney and the Foreman alone, without ever having been submitted to or acted upon by the Grand Jury. The finding of the Grand Jury is expressed in one way alone ; and that is by the indorsement of the crime, for instance, “ Murder,” followed by the words “ a true bill,” signed by the Foreman, in his official capacity, in the presence of the Grand Jury, in attestation of their official action; and no other evidence can be received to show that they have acted upon the charge and found the bill, than that afforded by the indorsement of the crime, and the finding, a true bill,” verified by the signature of the Foreman.

When a bill has thus been found, it is the business and the duty of the Grand Jury to go into court and through their Foreman, in open court, to present the bill, which is done, usually, by handing it to the Judge. It is the business of the Clerk, when the bill is delivered to him by the Judge, to state in his minutes the coming of the Grand Jury into court, and presenting the bill in open court, and to record the finding as it is indorsed on the bill, with the signature of the Foreman.

Israel Morrison has not been legally charged with the crime of murder ; and the verdict and sentence are mere nullities.

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside ; that the judgment and sentence of the court be annulled, avoided, and reversed; and that Israel Morrison be detained in custody,, to await the further action of the District Attorney and the Grand Jury of the parish of Pointe Coupée, and until discharged in due course of law.


text:
    No. 7021.
    Marcellite Martinez et al. vs. Succession of Adolphe Vives.
    Service of citation, and a certified copy of the petition in a suit, before the proper court to revive a judgment, made on the administrator of the judgment debtor within ten years of the date of the judgment, will interrupt prescription, even though the number of days within which the defendant was called on to answer was not specifically set forth in the citation.
    ÁPPEAL from the Fifth Judicial District Court, parish of Iberville. McVea, J.

      JE. B. Talbot for plaintiff and appellant.

      Barrow & Pope for defendant and appellee.
   The opinion of the court was delivered by

Egan, J.

This suit is to revive a judgment rendered by the district court of Iberville on the eleventh of May, 186&. It was filed on the ninth of May, 1876, and citation and copy of petition served personally upon the administrator of the deceased judgment debtor on the next day, the tenth of May, 1876, within less than ten years from the date of the original judgment.

On motion of the defendant’s counsel a default taken upon this service was set aside on the ground that the citation did not, as required by the Code of Practice, specify the number of days within which the defendant was called on to appear and comply with the demand or file his answer. Thereupon a new citatioq was issued and regularly served, though meanwhile more than ten years had- elapsed from the rendition of the judgment sought to be revived.

The defendant pleaded the prescription of ten years and other matters of defense not necessary to be considered, as this appeal is from a. judgment dismissing the suit on the exception of prescription only.

We have been invited by counsel on-both sides to consider the effect of the act of 1858 “ to require written proof in certain cases” in connection with that of 1853 providing for the first time a prescription for judgments. Both are now embodied in the late revision of the Civil Code. We do not, however, consider it necessary to embark in that field of inquiry in the present case, to which we do not consider the former act as having any application. The sole question here is whether or not. the citation issued on the ninth of May, 1876, and served together with a copy of the petition setting forth the nature and character of the-demand upon the administrator personally on the tenth of the same month, interrupted prescription. There is no pretense that the representative of the succession was not fully informed by that service of the-nature of the demand and cause of action; none that the copy of petition' served was not a true copy, or that it was not properly certified as such,, but only that the number of days within which he was called upon to-answer was not specifically set forth in the citation.

It must be remembered that this citation was issued in the present suit, and that there is here no question of the .effect of citation in another and different suit or proceeding to interrupt the prescription pleaded.

Neither can it be now contended in the face of the frequent adjudications of this court to the contrary that citation issued and served within ten years from the date of the original judgment does not stop prescription even though the judgment of revival be not rendered till after the lapse of ten years. This is but the recognition and application to suits for the revival of judgments of the principle of legal interruption of prescription operated by citing the defendant before a court ofi' justice, whether it be a court of competent 'jurisdiction or not, recognized in articles 3516 (formerly 3482) and 3518 (formerly 3484) of the Civil Code. Indeed, that mode of interruption is specially provided by the very terms of the law which provides for the prescription of judgments. See R. C. C. article 3547.

The only inquiry remaining then is whether the service of the copy of the petition in this case upon the administrator personally, not constructively, together with a citation defective only in not stating the number of days within which he was called on to answer operated such legal interruption of prescription in the present case. The copy of petition served informed the administrator fully of the nature of the suit; even the citation itself gave not only the title of the cause and of the court but also the names of the parties and nature of the action, and was properly addressed to the defendant in his capacity of administrator of the succession of Adolphe Vives, the deceased judgment debtor. Indeed, it was in all respects regular except as to the time for answering the demand, and the service seems to have been so far effective that the defendant appeared by counsel in time to prevent the ripening into final judgment of the default taken upon that service.

The reasons givcD by the district judge for setting aside the default are solely the defect as to time for answering in the original citation.

In the case of Pratt vs. Peets, curator, 3 La. 281, where prescription was pleaded against a revocatory action after the dismissal of an intervention by the same plaintiff in another suit in which he set up the same fraud relied upon in that case, Judge Matthews, as the organ of the court, said: “A mistake in the tribunal it seems will not destroy the effect of a suit in the interruption of prescription; and by analogy it ought not when the error occurs in the manner of prosecuting such suit in consequence of which it is dismissed.” And the court overruled the plea of prescription.

In White vs. McQuillan, 12 L. 533, prescription was pleaded against promissory notes and it was urged that a previous imperfect service of citation did not interrupt prescription. There the service as in this case was personal, and the defect was that the copy of petition was not certified by the clerk under seal of his office. Judge Bullard, as the organ of the court said: “ We are of opinion that the service of the citation together with a copy of the petition, although it may not appear that the copy was duly certified by the clerk, is a sufficient judicial demand to interrupt prescription.” In Flower et al. vs. O’Connor, prescription was pleaded against a promissory note payable and belonging to a commercial firm dissolved by death of one of the partners. Suit had been previously brought before prescription had run upon the same note by the surviving partner as such, but without authority to represent the heirs or representatives of the deceased partner, and was for that reason dismissed as of nonsuit. It was claimed that prescription was thereby interrupted, and the court said : “ It is a well-settled doctrine in our jurisprudence that one of the modes of interrupting prescription is by citing the possessor or debtor before a court of justice; that it matters not whether the suit is brought before a court of competent jurisdiction or not; that prescription is interrupted by suit, although the plaintiff therein be nonsuited ; that, a mistake ought not to destroy the effect of such suit when the error occurs in the manner of prosecuting it in consequence of which it may be dismissed;” and cites a number of authorities in support of the views expressed. The court then proceeds to review the whole question, and, after an apt quotation from Pothier, says: “It is clear from this doctrine of Pothier that in order to determine the effect and extent of a legal interruption we must inquire more particularly into the object and cause of the action than into the right of the plaintiff, the manner in which it is prosecuted, and the competency of the court in which it is instituted, and endeavor to ascertain how far the knowledge of the titles on which it is founded has been brought home to the defendant by the judicial demand; and wo do not hesitate to conclude that if it be established that the defendant has been judicially notified of the titles which are the foundation of the demand for the whole property or of the debt so as to acquire a sufficient knowledge of the rights which are sought to be enforced against him by suit, there results from said suit a legal interruption in favor of those to whom such rights may belong; and such the court says seems also to be the true spirit of our own law, citing C. C. 3484, now 3518, to the effect that “ a legal interruption takes place when the possessor has been cited to appear before a court of justice on account either of the ownership or of the possession; and the prescription is interrupted by such demand, whether the suit has been brought before a court of competent jurisdiction or not.”

In the case of Driggs vs. Morgan, 10 R. 120, there were two citations, one of which, issued and served before prescription had run, was excepted to as insufficient, whereupon the plaintiff, as in this ease, caused a new citation to issue, and the defendant pleaded prescription to the action which was to recover damages ex delicto. The court below overruled the plea and the Supreme Court affirmed the ruling, and in so doing said the defendant could not have been mistaken as to the court before which he was called on to answer; that the citation was headed and issued from the district court of the Fourth Judicial District for the parish of Pointe Coupée, where the suit was stated to be pending, and was signed by the clerk with the attestation of the name of the judge of that court. The exception was that the citation required the defendant to file his answer “ in the office of the clerk of the court of the parish aforesaid at the court-house, at Pointe Coupee.”

This suit was prior to the constitution-of 1845, and parish courts were still in existence; there was therefore more substantial ground of error or objection than in the present case, although it is proper to add that the court thought the original citation good.

in Barrow vs. Shields, 13 An. 58, Judge Buchanan, as the organ of the court, said: “It is immaterial for the purpose of interruption of prescription whether the debtor be cited before a court of competent jurisdiction or not. Neither does any error in the form of the action nor the rejection of the creditor’s demand by the final judgment thereupon have the effect of avoiding the interruption of prescription resulting from citation; for these clauses of the 2247th article of the Code Napoleon which declare that the interruption of prescription is considered as “ non avenue” if the suit be informal or if the demand be rejected, have not been copied into our Code. The only portion of that article adopted by our legislature is the clause “Si le demandeur se desiste de sa demande,” citing C. C..3485, now 3519. In the same case Judge Merrick says, citation eo nomine is not essential to interrupt prescription; that a subpcena in chancery is equivalent to citation, citing 15 La. 485; so, also, where citation is waived, C. P. 177; that a reconventional demand has like effect, citing Morgan vs. Briggs, before quoted. 10 R. 119. Judge Spofford in the same case, p. 70, says: “It would seem that the interruption takes place whenever the debtor is brought into court, no matter how irregularly or improperly, to answer on account of the debt in a suit to which the creditor is a party,” and further •“ under a similar textual provision it has been held in Prance that the •appearance of a warrantor in a cause, cited only at the instance of the defendant, if he sets up a defense to the plaintiff’s demand, will interrupt the prescription pleadable by the warrantor against the plaintiff,” •and cites Dalloz, 32,1,164. In Morton vs. Valentine, 15 A. 150, the plaintiff recovered a judgment in Mississippi, where there was a statute providing that judgments shall not be revived by scire facias, nor shall any •action of debt be instituted thereon after the expiration of seven years from the date of that judgment. The defendant removed to Louisiana andwas sued upon the judgment which was revived by scire facias in Mississippi, after it had become barred by the statute. He pleaded the prescription of seven years under the Mississippi statute,' and his plea was overruled. We only allude to this with the other cases to show the tendency of our jurisprudence. But we now come to other decisions more directly apposite to the case at bar. In Smith vs. Taylor, 10 R. 133, Bullard, judge, as organ of the court, held that where the petition was deposited in the clerk’s office by the plaintiff’s attorney before the time necessary to prescribe the action had elapsed, but in consequence :Of the absence of the clerk and deputy clerk from the parish it could not be filed nor citation issued until the time had elapsed, the action will not be prescribed. “ The court said the plaintiff had until the last day of the year to commence proceedings, and was not obliged to procure process before. If at that time there was an impossibility to procure the necessary process the prescription was suspended.” Citing 7 N. S. 471, 3 La. 221. In N. O. Canal and Banking Company vs. Tanner, 26 An. 273, our immediate predecessors held that prescription was interrupted by a citation issued by a person cle facto in possession of the clerk’s office in 1873, although he was so under authority of a government they did not recognize.

In Leon vs. Bouillet, 21 An. 651, it was held that citation served upon one whose native language is French when the petition is written only in English will interrupt prescription, and yet the law was at that time, 1865, even more positive on this subject, and the reasons for requiring service in the native tongue of the defendant much stronger than those which require the number of days for answer to be stated in the citation. No one will question that exception to the service made in the case just quoted should have been sustained in limine, and new service ordered, and such was the ruling of the court, but it also said that though the words “must be” were used in the article of the Code of Practice, 172, it was no more than was done in relation to' all the other forms of a petition, such as names, surnames, etc. But the Code does not pronounce the absolute nullity of a petition defective in these particulars. It held the nullity only a relative one, and that while the defendant had a right to require service in his native tongue it did not' follow that the suit must be dismissed, and cited 7 La. 413, Thomas vs. Baillio, where the precise point was ruled in the same way. In the last-named case the court cited as analogous the case of Lowery vs. Kline, 6 La. 380, where the exception was that the petition did not set forth the residence of the plaintiff. In the 21 An. case the court held that the exception was one required to be made in limine litis, and say: “We must conclude therefore that the defendants had been cited to appear before a court of justice, and that prescription was thus interrupted,” citing the cases of White vs. McQuillan and Flower vs. O’Connor already reviewed in this opinion, and also 4 La. 418, and 4 R. 258, of which we will only remark that they sustain the ruling in.question. If, however, we were to consider alone the authority of Smith vs. Taylor, 10 R., where the petition was merely deposited in the clerk’s office the day before prescription was complete, and the later case of Canal Bank vs. Tanner, 26 An., is it not manifest that the plaintiffs have brought themselves within the rule in both cases, and that they had done more than was done in 4 R. and 21 An. cases, by procuring the service upon the defendant of a citation and copy of petition from which he could not fail to understand the nature and object of the demand? The plaintiffs were not responsible or in fault for the omission of the clerk, whose duty it was to state the number of days in the citation. So far from abandoning, or discontinuing, or not making their demand, they -were pressing it by all means in their power; and we think that the administrator, the representative of the succession, “had been cited to appear before a court of justice” to answer the demand, and that the objection to the citation was of such character that it should have been made before the default, which the court erred in setting aside. That, however, is unimportant, as we are only now concerned with the first service and citation as affecting the question of prescription, which we think was interrupted by it.

It is therefore ordered, adjudged, and decreed that the judgment of the court below sustaining the defendant’s plea of prescription be and it is avoided and reversed; and it is now ordered and adjudged that the plea of prescription be and it is overruled, and the case remanded to be proceeded with according to law, the defendant and appellee paying costs of appeal.


text:
    No. 6809.
    Wm. Reed Mills vs. J. Q. A. Fellows.
    A resident of the Sixth Municipal District of the city of New Orleans sued in one of the district courts for the parish of Orleans, and served with citation prior to the seventh of November, 1876. remains, as to that suit, subject to the jurisdiction of said court.
    After a case has been fixed for trial the court is without authority to order it to be tried by jury.
    Under our practice nothing prevents the cumulation of demands for the double purpose of proving the existence of a partnership, when the defendant has denied it, and for its liquidation, when proved.
    To entitle a party to the continuance of a ease, on the ground of absent witnesses, it is necessary not merely to allege but to prove, that he had been diligent, that he was surprised, that he could not prove the facts by other available witnesses, and that they were not absent by his consent or procurement.
    When the court'orders the defendant to produce in court certain books, which plaintiff swears will prove certain facts, and defendant files, in response to the order, an evasive answer, and fails to produce the books, on the day fixed in the order [no matter whether the case came up for trial that day or not] the court will be authorized to order that the specific facts (but only the specific facts) sworn to by the plaintiff, be taken as confessed by the defendant.
    When one partner sues the other for a liquidation and balance due on partnership account, the defendant can not set up in reconvention, damages to the business of the partnership caused by the bad habits of the plaintiff.
    In the absence of express agreement a charge by one member of an ordinary partnership against the other, for keeping the hooks of the firm is inadmissible.

      PPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      Gus. A. Breaux for plaintiff and appellee.

      J. A7. Hagins for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

This suit is for settlement of an alleged law partnership between plaintiff and defendant, carried on under the firm name of Fellows & Mills.

The suit is brought in Fifth District Court of Orleans.

I. Defendant excepted to the jurisdiction for the reason that he is, and has been for many years, a resident of the Sixth Municipal District of New Orleans; and that, by act number forty-five of 1876, said municipal district from and after November 7,1876, became part of the Second Judicial District of the State. See Lafayette Insurance Company vs. Remmers, 29 A. p. 419, and State vs. Williams, idem, p. 779.

This suit was instituted in Fifth District Court of Orleans, May 24. 1876, at which time there can be no doubt that court had jurisdiction. See same cases.

The exception to jurisdiction was filed June 8, 1876, and overruled June 28,1876. On July 1,1876, the defendant, reserving the benefit of his said exception, filed an answer to the merits.

In the cases above cited we held that the act, number forty-five of 1876, was inoperative until the date of election of judges, on November 7, 1876, and that the Sixth Municipal District was up to that date within the jurisdiction of the courts of Orleans, but afterward under that of the Second Judicial District Court.

In the act forty-five above referred to, no provision is made for transferring any pending causes from the courts of Orleans to the Second Judicial District Court. But the defendant insists that on the seventh November, 1876, the Fifth District Court was by said act divested of jurisdiction over him, since he was a resident of the Sixth Municipal District; and that, therefore, the case should have been transferred or dismissed. The answer to this proposition is that there was no provision of law authorizing the transfer; that'the record of the suit belonged to the Fifth District Court, and could not be taken from the custody of its officers, without such authority. The, suit, as we have seen, was rightly brought in the Fifth District Court, where it had been put at issue before the act in question took effect. It would be carrying a technicality very far to dismiss the suit under the circumstances of this case. We have seen it could not be transferred; and, as the court had rightful jurisdiction at its inception, we hold that that jurisdiction continues to final judgment, in the absence of express law to the contrary.

II. After this cause was fixed for trial, and, not being reached, was under the rules continued by preference to another day for trial, defendant filed a prayer for jury, which was allowed. Plaintiff moved to vacate this order allowing the jury, and the court so ordered, considering that it had been improvidently granted, after the case was fixed for trial. The court did not err. O. P. 494.

III. Plaintiff, having filed a supplemental petition reiterating in substance his previous allegations of the existence of the partnership, and charging that defendant was making way with partnership -assets, obtained a sequestration.

Defendant excepted, “ that until the issue of partnership or no partnership, which is raised in his answer, shall be finally heard and determined, there can be no examination into the accounts and affairs of the alleged partnership.” This exception was properly overruled. Under our practice nothing prevents the cumulation of demands for the double purpose of establishing the existence of a partnership, if denied, and for its liquidation when established.

- IY. Whilst the ease was being tried, the defendant made affidavit for a continuance, on account of the unexpected absence of three wit-' nesses, J. H. Oglesby, J. S. Whitaker, and E. W. Burbank; setting forth what he expected to prove by them; alleging diligence, and, also, ignorance of their departure from the city.

The court refused the continuance, on the grounds that the affidavit was insufficient, and that two of the witnesses, Oglesby and Burbank, had never been served with subpoenas. That three of them stated defendant had told them they would not be needed, etc. We think that the court properly refused to continue. The case had been on trial for some days. Under such circumstances the defendant should have brought himself within the strictest rules. He should have not only alleged but shown diligence and surprise ; that he could not prove the facts by other available witnesses; that they were not absent by his consent or procurement, etc.

Y. Plaintiff obtained an order requiring the defendant to produce in court, on the day fixed for trial, the docket-book and the account-books of the business of Fellows & Mills, swearing that he expected to establish by them “ the existence of the partnership, and the entire allegations of the petition.”

The defendant filed a sworn answer to this rule to produce, in which he refers to and adopts the allegations of his original and supplemental answers in the case; reiterating that he denies that there is an unsettled partnership between him and plaintiff; that the books are his private property, etc.

The court, considering this answer as manifestly evasive, on motion of the plaintiff, ordered that the facts stated in the affidavit of plaintiff be taken as confessed by the defendant. .-.Of this the defendant complains :

First, because he contends that his answer was sufficient, and denied the existence of the books called for.' We do not agree with him. We have gone carefully over his answer and supplemental answer, which he adopts. They are not sufficiently direct and responsive.

Second, because the order pro confesso was prematurely taken. This ground rests upon the fact that the Oode of Practice, article 473, provides that the books shall be “ produced on the day fixed for trial.” That, although this order was taken on the day fixed for trial, the case was not, in fact, tried on that day, because not reached, and, therefore, continued, with preference, to another day.

We think the order was not prematurely taken, being taken on the day fixed for trial. Besides, it comes with bad grace from the defendant to complain of prematurity when he had positively refused to produce the books, even under the coercion of imprisonment for contempt.

Third, because plaintiff’s allegation of facts to be proved by the books was too vague to be entered up as proving any thing. If plaintiff alleged no facts with sufficient certainty to serve as proof, then the order could do defendant no harm. But we think there was one fact alleged with sufficient certainty, at least, to wit: that said books would prove the existence of the alleged partnership. We agree with defendant that the other averment that they would prove “ the entire allegations of the petition,” is too general. By article 140, C. P., the party in such case must “ declare in writing, and on oath, what are the facts he intends to establish by such books,” etc. In analogous cases, such as are provided for in articles 466, 561 of C. P., the courts uniformly hold that the affidavit must be specific as to the facts. This swearing by reference to voluminous records, and, as it were, by wholesale, is inadmissible; and this objection is quite as forcible against defendant’s answer to the rule, as to plaintiff’s affidavit for it.

We hold, therefore, that the fact of the existence of the partnership was confessed by the defendant.

Having thus reviewed the preliminary questions raised by defendant, necessarily with brevity, for he has argued at great length in support of them, and their number precludes more extended discussion without transcending reasonable limits,, we come to the merits of the controversy.

The defendant in his answer charges that the plaintiff, by debauchery and dissipation injured the business ánd reputation of the firm, and claims $30,000 damages therefor. The judge a quo properly disallowed proof of such a charge. . It was foreign to the purposes and objects of the suit. The judge well says that such conduct by plaintiff would have been excellent reason why defendant should have dissolved the partnership sooner; but, by his own showing, he not only did not do so, but continued it without remonstrance, hardly, for years, with full knowledge of all the facts. Indeed, he never seems to have thought of dissolution until long after his partner had reclaimed himself from his alleged bad habits. We prefer, for the good name of both parties that the veil of oblivion be drawn over such disclosures — especially as the plaintiff is the brother of the defendant’s wife, and himself now the head of a family.

It would bo impracticable within the limits of this opinion to review all the facts relating to each item in contest in this case. The. partnership did a large business for more than ten years, and the items disputed are numerous, and many of thém hotly contested. We have examined with care all the evidence in the caiise, and have endeavored to weigh it dispassionately. The judge a quo gave plaintiff judgment against defendant for $8000 65, with lien on the assets of the partnership. We have not been able to agree entirely with him in regard to several items in the account. We will state briefly our conclusions: ■

The balance due plaintiff per statement “ A,” is not disputed, and is..................................................$3,047 46

It appears that defendant collected from January 1 to July 27,1875, date of dissolution................$7,082 42

The court below allowed deductions from this sum, as follows: Amounts from Reynolds, Dubuclet, Southern Express, Swazey & Strauss, aggregating $1000. To this we think should be added expenses of trip to Monroe, on business, $60, making.. 1,060 00

Leaving for division................................$6,022 42

One half of this to credit of plaintiff is.............. 3,011 21

To this add half fees from Edwards and Clark vs. Puig, $85....................................... 42 50

The amount of the G-aines judgment in favor Fellows & Mills was....................................29,552 00

From this should be deducted 71 cents on 'the $100 ordered by the circuit judge.................... 209 82

Also, amount paid W. E. Todd...................... 1,206 52

Also, allowance to defendant on account of expenses Emmott seizure................................ 2,000 00

And its share of interest........................... 395 91

Also, two and one half per cent included in the judgment vs. Gaines, for account of defendant as her bondsman in certain cases, and interest $2186 27, $5998 52. Net balance of Gaines’s, judgment... .23,553 48

Of which one half to credit of plaintiff is................... 11,776 74

Making plaintiff’s total credit $17,877 91

The court below credited plaintiff with one half of the fees in certain suits known as the Morgan tax suits. The evidence satisfies us that these suits were begun and settled after the dissolution of Fellows & Mills, and are distinct and different from certain similar suits in which plaintiff was concerned as counsel. We,-, therefore, leave this matter entirely out of the account.

We find, as above, plaintiff’s credit to be....................$17,877 91

From this must be deducted the following debits, to wit:

His orders on account Gaines judgment........$10,308 00

Amount due for board..........¡............... 500 00

Amount for furniture.......................... 175 00

Amount for office expenses.....■............... 199 03

Amount for office rent to October 1,1875....... 127 50

Amount for office rent to December 31,1875.... 127 50

Half amounts collected, as per December 1,0..... 269 56

Half amount fee of Burbank.................. 50 00

'Half amount fee of Burbank.................. 50 00

Half amount fee in Semmes case.........‘.---- 100 00

Half amount fee received by plaintiff from sheriff in Morgan tax case . •....................... 153 00

Half amount expenses to Washington in Morgan tax case .'................................. 100 00

Half amount fee from Ivens .. ......■......... 15 00

Half amount from Swan...................... 105 00

Half amount balance due by Burbank......... 238 29

Half amount balance due by Beebe.....'....... Ill 87

Total debits..........................$12,629 76 $12,629 76

Which, deducted from credits, leaves as balance due plaintiff $ 5248 15

The other amounts claimed by defendant as chargeable to plaintiff are, we think, unsupported. We think the claim of defendant against plaintiff for $3000 for keeping the books of- the concern is wholly inadmissible in the absence of an express agreement. The partnership is by law, and in the absence of agreement, presumed to be equal. O. G.

We have charged the Gaines judgment in favor of defendant with the amount allowed therein for becoming surety on her bonds. This liability of defendant was personal to himself, and the compensation therefor was not an asset of the partnership.

The defendant complains that the judgment allows interest against him on its amount from judicial demand; whereas, the Gaines judgment or order was not collected till May, 1877, and constitutes a large cash item in the account. We have credited plaintiff with $11,776 74 on account of this Gaines debt, and debited him with $10,308. The differenee, $1468 74, alone enters into the balance we declare due plaintiff. This amount of the judgment we render will, therefore, bear interest only from May 15,1877; the balance of the judgment will bear it from judicial demand.

The credit claimed by defendant for half of uncollectible advances and balances, as chargeable to profit and loss account, is inadmissible, since defendant has not been charged, in plaintiff’s favor, with such worthless assets, and can not, therefore, claim credit for them.

The judgment appealed from must, as to its amount, and as to the interest, be amended, and, in other respects, be affirmed.

It is therefore ordered,' adjudged, and decreed that the judgment in plaintiff’s favor be amended, so that the amount thereof be reduced from $8000 65 to $5248 15 ; whereof $1468 74 shall bear interest at five per cent from May 15,1877, and the balance at same rate from judicial demand, to wit: May 29, 1876. That in other respects the judgment appealed from be affirmed; plaintiff and appellee to pay costs of this, appeal.

The rehearing asked in this case by defendant is granted.

On Rehearing.

The balance of the Gaines fund, on which we allow plaintiff interest, is, it seems, in custody of the United States Circuit Court, and is not under control of defendant. The allowance of interest against defendant on the sum of $1468 74, the balance of the Gaines fund, from May 15, 1877, is, therefore, we think, an error.

It also seems that we did not give defendant credit for $125, salary from park commissioners for August, 1875, which was included in the $7082 42, and which was to be deducted therefrom by consent of parties. It also appears that the item, $211 25 from tax resisters, was received by way of re-imbursing to defendant expenses incurred by him, and not as fees.

These two sums amount to $336 25; which being deducted from the $6022 42 fixed as “ amount for division,” leaves $5686 17; making plaintiff’s one half ” thereof $2843 09, instead of $3011 21; making plaintiff’s total credits (instead of $17,877 91) $17,709 79 ; deduct total debits of plaintiff, $12,629 76; leaving balance due plaintiff, $5080 03.

It is therefore ordered, adjudged, and decreed that our former decree herein be amended, so as to reduce the amount thereof from $5248 15 to $5080 03; and that the sum of $1468 74 thereof bear no interest, instead of bearing interest from May 15,1877; that in other respects our said decree remain undisturbed.