author: Laisauve, J.

text:
    No. 552.
    Valentine St. Ceran v. J. A. Sherman—L. Bernard, Garnishee—W. N. Rogers, Intervenor.
    Plaintiff ganmheos $J,()()0 bolongmg to clcl'emlanl, which had been deposited with a third party pending the issue of ahorse race; afterwards, an inlervcnor claims the money, as having won il at the race. Defendant is bhown to have been an insolvent at the lime of seizure. Tim (Joint will not sustain the intervention.
    A PPEAL from the Sixth District Court oi' New Orleans, Leuumoit/, J.

      Durant '& Hornor, and ,i.. P. Hornor, i'or plaintiff and appellee.
    Creo. L. Bright, for defendants and appellants.
   Laisauve, J.

This ease is on a rehearing.

The plaintiff and appellee obtained a judgment against the defendant, on the 18th November, 1862, for 82,800, with interest and costs. Several writs of fieri facias issued, and the judgment was partly satislied, leaving, however, a balance duo of upwards of 81,500.

On 7th Juno, 1864,' plaintiff issued another execution, and filed a supplemental petition with usual interrogatories, and levied a seizure in the hands oí L. Bernard, who was made garnishee.

L. Bernard, the garnishee, in answer to the interrogatory -whether ho had in his hands money, rights or credits belonging to the defendant Sherman, said:

“No; except such rights as may result in favor of J. A. Sherman, from a certain agreement in writing, made between W. N. Rogers and J. A. Sherman, a correct copy of which is now hereto annexed, and made part of these answers. In compliance with that agreement, Mr. W. N. Rogers deposited with me 82,000 in currency,

Mr. J. A. Sherman deposited with me eight half Spanish doubloons, representing......................................... 8100

Sixty-live dollars, Spanish gold coin.......... 000

In notes currency.............................................. 500

81,200

W. N. Rogers intervened,, and alleged'that neither ,T. A. Sherman nor Valentino St. Céran had any right or interest in 'the moneys described in the garnishee’s.answers, but that the same belonged to the intervener and claimant. That on the lltli June, 1861, he made a match race, with J. A. Sherman, and subsequently-reduced to’writing, a correct copy of which is annexed to the garnishee’s answers; that ho fully complied with all the stipulations and conditions of the bet, and that on the 15th June, 1861, the horse Reubo-Rynders, named by him, won the money without any opposition.

He -prayed, that the rule of Valentine St. Céran be dismissed, that judgment be rendered in his favor, and against L. Bernard for the money so deposited by-J. A." Sherman.

To-this inorvention the plaintiff answered that on the 7th June, 1861, date of .the seizure in the hands of Bernard, there existed no relation of debtor and creditor beweou Rogers and ¡-Sherman; that if there was auy agreement between them prior to said seizure, to run a horse raeo, the same was canceled by said seizure; that the wage]1 sot up by Rogers was illegal as well as excessive and ruinous in amount, and reprobated by law; that ¡áhormau was at the date: of the bet in insolvent circumstances, and had denied property on the execution against him, and was debarred in law and good morals from disposing of his property in that mauuor.

The Court below, after hearing the evidence, gave judgment for plaintiff, and the intervenor took this appeal.

The bet was §5,000 by W. N. Rogers, against §3,000 by J. A. Sherman. The §1,200 deposited by Sherman, and the §2,000 on Rogers’ part, were put up as a forfeit—the race to be run on the Pair Grounds course; the money was deposited in L. Bernard’s hands. The §1,200 deposited as a forfeit by Sherman was seized, and L. Bernard garnisheed before the day appointed for the race. On that day Rogers’ horse run; Sherman produced no horse; the judges declared that Roube Ryndors, Rogers’ horse, won the race. Rogers had put up the §5,000, according to agreement.

This case involves but one question of fact, which must be tested by the means and circumstances of Sherman, under Article 2952 of the Civil Code, which permits horse racing, but allows the judge to reject the demand when the sum appears to him excessive. Now, was the amouut excessive for Sherman V

The following admissions were made below by the parties:

“ That this is a suit originally instituted on two notes, on the 6th October, 1862; that after issue joined, judgment was rendered on the 18th November, 1862, and signed November 22d, 1862; that several writs of fieri, -facias have issued against defendant, and been returned not fully satisfied after due and legal demand; that there now remains more than §1,500 due on said judgment.”

The testimony clearly satisfies us that Sherman, at the time of this bet, was insolvent; that his horses had been seized and sold, and it was not known what he was doing for his living; two or three years before the trial below, he was keeping a truss store, and one witness thinks that store was sold out by the sheriff.

The term, “excessive,” is used by the code in a rehlive and comparative sense; for instance: §3,000 would be very little for a wealthy man, but it was an excessive and largo amount for Sherman, who could not pay his debts, having judgments and executions hanging over his head without apparent means wherewith to pay them.

Taking all the circumstances into consideration, we are of opinion that the judgment rendered below is in compliance with the laws and the facts of the case.

It is therefore ordered and decreed, that our former decision bo set aside, and that the judgment appealed from be affirmed, with costs.


source: Caselaw Access Project

author: Tallai'iskho, J.

license: Public Domain

text:
    No. 464.
    Frank Mallerich v. George Mertz.
    The charge against plaintiff that ho had sworn faloely, and the nailing Jmu a swindler and thief, amount to a presumption of damage.
    A
    PPEAL from the Bixtli District Court of New Orleans, Ihirall, J.

      J'l J. Wanak, for plaintiff and appellee.

      Cyprian .Uu/onr, for defendant and appellant.
   Tallai'iskho, J.

Tlio plaintiff sues the defendant for slander and claims $5,000 damages. The defendant puts iu a general denial, and adds, Unit if any such words were used by him as those charged iu plaintiff’s petition, they, were not spoken with malicious intent, and that plaintiff was nu.t thereby injured. In the Court a quo judgment was at lirst rendered in favor of the plaintiff for five hundred dollars, but it was afterwards, upon a now trial, reduced to two hundred dollars, From this judgment the defendant has appealed.

It seems that the defendant, having issued an execution upon a judgment he had obtained against one Roosk, had caused to be seized a coffeehouse and the stores it contained, as the property of his debtor. The plaintiff interfered by injunction, claiming the property as his own. This excited the ire of the defendant, who, it is shown, used on several occasions opprobrious epithets in speaking of the plaintiff—calling him a swindler and thief, and saying that he had committed perjury. No damages are proved ; but the charge against the plaintiff that ho had sworn falsely, and the calling him a swindler and thief, amount to a presumption of damage. There is no fixed rule, in cases of this sort, of assessing damages, and wc see no reason to alter the judgment which with the evidence before it, and in the exorcise of a sound discretion, was awarded by the Court below. Civil Code, Arts. 1928, 229*1. 11 La. 198. 10 An. 281.

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

Howell, J. recused.


author: Howell, J.

text:
    No. 902.
    J. Baer v. Kopfler.
    To entitle a party to the rigorous remedy of sequestration, the affidavit must stale either that he has a privilege on the property, or that he is the owner of it. O. P. Art. 275.
    A PPEAL from the Third District Court of New Orleans, Fellowes, J.

      Sheldon & Pardee, for plaintiff and appellee,

      Belden cB Fuselier. for defendant and appellant.
   Howell, J.

Plaintiff alleges that, in April, 1865, he formed a partnership with defendant, for carrying on the business of sutlers to a United States regiment, by which he was to furnish the capital, defendant the “appointment of sutler” to the regiment, and both were to unite their labor and share equally the' xsroflts and losses ; that he advanced $5,000 in said business ; that, in September, 1865, their partnership was dissolved by the seizure and confiscation of their goods by the commanding officer at the “ post,” and by mutual consent; that, at the time, the assets consisted of $1,415 cash in his hands, $553 in the hands of defendant, a claim of §398 against said commanding officer for his wrongful seizure, and notes and accounts against the members of said regiment, amounting to §2,700; that, at his instance, the defendant, in October, 1865, collected said amount from said officer, and the sum of §135 on said notes and accounts, which the latter took into his possession and refuses to settle for or return, but threatens to collect; that, to defraud plaintiff, the defendant invested said sums thus collected in a grocery store in this city, for his own account; that, upon a settlement of the partnership, defendant will owe him §1,086 in cash, and one-half of the loss of capital; that said groceries really belong to the partnership; that he fears the defendant will dispose of the same, and collect or dispose of said notes and accounts; and prays for a sequestration of said assets, for their proceeds to be paid to him, and for judgment against defendant for $2,500, due on account of said partnership.

He made oath to the truth of the petition ; the grocery store was sequestered, and released on bond given by defendant.

No exception was made to the character of the action ; but a motion was made to sot aside the sequestration, on the grounds that the affidavit was insufficient, and that plaintiff claims no privilege on or ownership of the grocery store ; which rule was dismissed, and a general denial was pleaded'.

We think the lower Court erred in sustaining-the sequestration. The petition does not set forth the conditions for the writ, required by Art. 275 C. P., or any amendment thereof. It shows that the grocery was purchased after the dissolution of the partnership, and .does not allege that defendant claims the exclusive ownership of the notes and accounts in his hands, but that the latter held them for collection, and the fear that he would not pay over.

A sequestration, being a rigorous measure, will be allowed only when the party is clearly entitled to it. 2 A. 961. 9 A. 535.

It seems that the parties carried on the business of sutlers, for a lew months, as partners ; but the evidence does not enable us to declare defendant indebted in any particular sum to plaintiff, as charged in the petition.

The District Judge gave judgment against him for §652 ; composed of §238, acknowledged by him (in a letter) to be in his hands, in August. 1865; §392, collected from the commanding officor, and $16 collectod from other parties.

The letter referred to shows that he had the first item, and proposed dosing- their partnership then, upon condition of retaining said sum as his share, but it seems that they continued their business for a; month longer, and there is nothing to raise the presumption that he retained this particular amount. As to the other two items, the evidence is too vague to authorize a judgment. In answer to interrogatories on facts and articles, defendant declares that he did not collect from said partios enough to pay his expenses. The countervailing evidence is too indefinite of itself to overcome these answers.

We cannot say that the partnership is shown, in this record, to be settled, so as to make defendant a debtor to plaintiff in any amount.

It is therefore ordered that the judgment of the lower Court be reversed, • and that there be judgment against plaintiff, as of nonsuit, with costs in both courts.


author: Lauative, J.

text:
    No. 1304.
    Garthwaite, Wheeler & Co. v. John K. Wentz et als.
    Plaintiff*, obtained judgment against defendant, and others, in 18G1: afterwards, plaintiff's'attorney acknowledged satisfaction thereof, on receipt of the amount in ('tmft dnuU' monty 7/Wd—That the attorney had no right to receive such paper in payment of his clients’ judgment, without their ■ consent, and that the judicial mortgage must, be reinstated of record.
    A PPEAL from the District Court, Parish of St. Helena, Ellis, J.

      J). W. JTennen, for plaintiffs and appellants.

      J. K Wilson, .Tames Wekh and T. ff. Davidson, for defendants and and appellees.
   Lauative, J.

On the 2d August, 1861, the plaintiffs obtained a judgment against John G-. Burton and Thomas K. Cannon for §500, with interest. On the 23d June, 1862, Henry L. Daigre, the attorney ol' plaintiffs in that suit, acknowledged satisfaction of judgment, as shown by a receipt of the following tenor:

“ Reeoivod from H. E. Williams, clerk, the sum of §510 in Confedérale money, in full of the judgment, principal and interest, rendered in this case.

June 23d, 1862. (Signed) H. L. Daiore, Attorney.”

This suit is now brought on the ground that the attorney had no authority to receive in payment that kind of currency, and set aside said satisfaction of judgment as being illegal, and to correct the erasure of the judicial mortgage, and to reinstate said mortgage on record.

The Court below, after a hearing, gave judgment for defendants, and the plaintiffs appealed.

Wo are of opinion that the District Court erred. The mode of payment in treasury notes of the Confederate States of America, was clearly proven, and the attorney had no right to receive such paper's in payment of his clients’ judgment, without their consent. Dunbar v. Morris, 3 R. 278; Perkins v. Grant, 2 A. 328; Railey & Campbell v. Bagley, lately decided.

It is therefore ordered and decreed, that said satisfaction of judgment and cancelment of the judicial mortgage be annulled and avoided, and that said judicial mortgage he reinstated of record» and that the defendants and appellants pay costs in solido, in both courts.


author: Hyman, C. J.

text:
    No. 949.
    Amelia Michael v. H. V. Babin, Sheriff et als.
    Where an appeal is granted by motion in open Court, the names of the appeiloes must be inserted in the appeal bond, otherwise the appeal will be dismissed.
    A PPEAL from the District Court, Parish of East Baton Rouge, Posey, J.

      Burgess, Chaney and J. Joor, for plaintiff and appellee.

      J. ./. Burl', for defendants and appellants.
   Hyman, C. J.

The plaintiff has filed a motion to dismiss the appeal on the ground that the appeal bond is defective, it not being made in favor of any one.

The order of appeal was granted, on motion, in open Court.

In 12 Robinson’s Reports, page 205, it was decided that there is no other way, when an appeal has been granted on motion in open Court, to compel appellees to take notice of an appeal, and to appear before us, than by including their names in the appeal bond.

The appeal bond should have boon given in favor of the appellee.

Let the motion bo. sustained, and let the appeal he dismissed.


author: Labatjve, J.

text:
    No. 1192.
    James N. Lea v. M. S. Bringier.
    The fact- tlmb a debtor is under protest and does not pay his debts, does not establish his insolvency. It must be shown that he has not tho means of paying his debts, by showing that all his property and credits arc not equal in amount, at a fair valuation, to the debts due by him.
    If a party is capacitated to act for himself, he may act in the capacity of agent for another.
    A PPEAL from tho District Court,' Parish of Ascension, Beauvais, J.

      Johnson, Denis, Bei aul! Legendre, for plaintiff and appellant.

      Burthe & Trudeau, for defendant and appellee.
   Labatjve, J.

This suit is brought to recover from the defendant $4,000, evidenced by a note dated 23d January, 1862, purporting to be signed by Martin Gordon, as agent of said defendant.

The answer contains a general denial, and an allegation that the power of Martin Gordon was canceled by his failure, in about February, 1861, and that therefore he had no authority to sign the name of defendant ; that the note was discounted by plaintiff at a time when there was no other circulation except Confederate notes, and under the implied contract that said note, at maturity, would bo paid in the same issue ; that Confederate notes were issued for the purpose of subverting the Government of the United States, and the contract was against good morals and for an illegal consideration ; that there was failure and want of consideration.

The District Court, after hearing the evidence, gave judgment for defendant against plaintiff, who took this appeal.

On the 27th day of March, 1860, by notarial act, passed before Thomas J. Beck, notary public in Now Orleans, the said defendant appointed the said Martin Gordon, Jr., to bo his true and lawful attorney “special,” granting unto said attorney full power, for him and in his name, to his use and in his behalf, to draw checks or drafts for the payment of money, upon any bank or banks, person or persons. * * And in his name and to his use, to make and endorse promissory notes, and to make notes payable to the order of Martin Gordon, Jr., either for the use of said Gordon or for the use of said M. S. Bringier, and to draw and endorse bills of exchange, and to make and give any note or notes which may be necessary from time to time, in renewal. * * *

The testimony shows that Martin Gordon, Jr., went to protestas endorser, on one note, in May, 1861; that he was a sugar and cotton factor before he went to protest; that ho suspended payment in May, 1863; that this suspension was of public notoriety in the commercial community; that said Gordon has not paid his obligations, and is no longer doing a commercial business.

On trial of the case below, defendant offered to prove by Bernard Avegno and Binder, that the note sued upon was discounted by said Binder & Avegno, as brokers, to James N. Lea; that the consideration paid for said note was Confederate treasury notes, and that there was no other currency at that time. Plaintiff objected, on the ground that there was no allegation in the answer that the consideration of the note sued upon was Confederate Treasury notes. The Court sustained the objections, and a bill of exceptions was taken to the opinion of the Court. We are of opinion the Court ruled correctly. The allegation in the answer, in regard to Confederate treasury notes, did not authorize the admission of the testimony.

There is but one question in the case : Had Martin Gordon fnihil, in the sense of Art. 2996 of the Civil Co.de, reading thus :

“ The procuration expires : - * By the death, seclusion, interdiction or failure of the agent or principal.”

Failure signifies the situation of a debtor who finds himself in the impossibility of paying his debts. C. C. (signification of terms) Art. 15.

The mere fact that a debtor is under protest and does not pay his debts, is not a proof of insolvency; it must be established that he has not the means of paying thorn, by showing that the whole of his property and credits ara not equal in amount, at a fair nppmisement, to the debts due by him. O. O. Art. 198Ü. Although Martin Gordon was under protest as endorser on one note, and had suspended paym'ent in May, 1861, he might have had property and assets exceeding largely the amount of his liabilities. He had yet the power of controlling and selling his property. Thompson v. Gordon, 12 La. 260.

If ho could act for himself, wo see no good reasons why he could not also act as agent of the defendant, who, it seems, remained silent instead of revoking his power, as ho had the right to do. C. C. Art. 2997.’ Besides, there is no evidence in the record, of knowledge in the plaintiff, of llie state of affairs of Martin Gordon.

Wo are of opinion that plaintiff has made out his case in all respects, and that the judgment appealed from is erroneous and must bo reversed.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled and reversed. It is further adjudged and decreed, that the plaintiff, James N. Lea, recover of the defendant, M. S. Bringicr, the sum of one thousand dollars, with interest at the rate of eight per cent, per annum, from the 26th January, 1863, till paid, and costs of suit in both courts.


author: Ilsley, J.

text:
    No. 301.
    Louis Folse et als. v. New Orleans Coast and Lafourche Transportation Company.
    Tlie responsibility of a common carrier, in transporting slaves, is of tlie nature of that assumed in carrying passengers, and not packages. If loss occurs the carrier is responsible only for negligence or unskillfulness.
    i PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Johnson cB Denis, for plaintiffs and appellees.

      Frank Haynes, for defendants and appellants.
   Ilsley, J.

The defendants are sued as common carriers for the value of a slave of the plaintiffs, which it is averred the said defendants undertook to convey on their steamboat Music, from New Orleans to the plaintiffs’ plantation, on Bayou Lafourche, and which they failed to deliver.

The lower Court gave judgment against the defendants, who have appealed.

The slave was a runaway, and was received on board tlie boat by the captain, who promised to have an eye on him, and he was fastened by handcuffs to the hog-chain of the boat on the boiler deck. One of the officers of tlie boat says that “ the slave asked to go to the privy, and that the porter took charge of and accompanied him, both his hands being in the handcuff's, of which the porter had the key. ”

The officer says he accompanied him a part of the way to the privy, the porter of the boat, a colored man, being- close upon him, and holding him by the tail of his coat; that as the slave went round by the barber’s shop, the officer lost sight of him, and that almost instantly afterwards the porter turned back with the boy’s coat tail in his hand; that the officer proceeded at once to the privy, but saw no more of the boy. Immediate search was made for him, but without effect. That there is a railing along the side of the barber’s shop. The witness represents the porter as perfectly trustworthy. The boat was landed at the time at the plantation of Capt. Dugas, a little below Donaldsonvillo, and a passenger testifies that the porter, who had charge of the slave, came running on the front deck where the witness was standing, and said that the slave had jumped overboard.

There is no difference between the provisions of our code and the principles of the law of bailment applicable, to common carriers, which prevail in the other States. Their liabilities arc the same under articles 2722 and 2725 of the Civil Code, as those defined in cases reported, particularly in Wendell 236, 251; 21 Wendell 153, 354, and in the case of Baldwin v. Collins, 9 Rob. 568. (See Logan v. The Pontchartrain Company, 11 Rob. 26, 27), and it has been distinctly held that the law regulating the responsibility of common carriers does not apply to the case of carrying intelligent beings, such as negroes. The Court, in the case of Boyce v. P. Anderson, 2 Peters, page 150, in enunciating this principle, said: “The carrier has not, and cannot have over slaves the same absolute control that he has over inanimate matter. In the nature of things they resemble passengers, and not packages of goods. It would seem reasonable, therefore, that the responsibility of the carrier should be measured by the law which is applicable to • passengers, rather than by that which is applicable to the carriage of common goods.”

If, in the present case, the plaintiffs sustained any injury by the loss of their slave, whose value was proved, the defendants would only bo responsible for that injury, by the negligence or unskillfulncss of themselves or their agents, and we can perceive no reason under the facts proved thereon, to charge them with either the one or the other. The judgment of the Court below should have been in favor of the defendants.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and it is further ordered, that judgment be and it is hereby rendered in favor of the defendants and against the plaintiffs, and that the plaintiffs pay the costs in both courts.

Howell, J. recused.


author: Labauye, J.

text:
    No. 199.
    Hoopes & Townsend v. David C. McCan.
    Where the creditors of a commercial partnership make settlement with the liquidating partner after the dissolution, and take his separate notos in full settlement of their claim, and it appears that they were at the time aware that the liquidating partner had assumed all the liabilities ot the partnership, the retiring partner will not afterwards be held responsible.
    A PPEAL from tlie Second District Court of New Orleans, Morgan, J.

      Clarice cC Bayne, for plaintiff and appellee.

      Buranl c6 llornor, for defendant and appellant.
   Labauye, J.

This suit is brought against the defendant for $1,398 65, with interest at seven per cent., from the 12th March, I860, for goods sold and delivered to the commercial firm of MeOan & Patterson, on a credit of six months, expiring- 17th March, 1858, with a credit of $225, paid 12th March, 1860, leaving the balance due as aforesaid.

The answer contains, in substance, a general denial, and that, if any indebtedness ever existed, which is denied, the partnership of MeOan & Patterson, of which respondent was a member, was dissolved on the 17th May, 1858,- and that plaintiffs had notice thereof; that by the terms of said dissolution, all the debts of the said firm were assumed by George Patterson; that all the partnership property was left in his possession for the purpose of paying said debts; that respondent withdrew from said firm on the said date; that on the 12th March, 1860, the plaintiff's received from George Patterson $225 in cash, and his note at six months for $721, and his note at twelve months for $742, in full settlement of claim of Hoopes & Townsend, of Philadelphia, against the late firm of MeOan & Patterson; that it was the intention of plain tiff's, in thus settling with George Patterson, the liquidating partner, to grant a full and entire acquittance to respondent; that said Patterson had always ample means and partnership effects with which to pay any such indebtedness, if owing prior to his death, and that the delay of plaintiffs in looking to this respondent, their giving a long time to Patterson to pay the injury inflicted upon respondent, all debar them from any recovery herein; that plaintiffs’ claim, if any they have, is not yet due and payable, and that this'suit is therefore premature; that plaintiffs cannot recover of defendant, from their inability to subrogate him to all their legal rights.

He prays for judgment in his favor, for costs and for general relief.

The receipt given in settlement is of the following tenor:

“ Received, New Orleans, March 12th, 1860, from George Patterson, two hundred and twenty-five dollars in cash, and his note payable six months after date, with current exchange on Philadelphia, for seven hundred and twenty-one dollars, and his note payable twelve months after date, -with current exchange on Philadelphia, for seven hundred and forty-two dollars, being in full settlement of claim of Messrs. Hoopes & Townsend of Philadelphia, against the late firm of McCan & Patterson, the said claim being on the schedule of liabilities of MeOan & Patterson, on file in the office of James Graham, Esq., notary public in tlio city of New Orleans. (Signed) Hoopes & Townsend. ”

On the 17th May, 1858, the partnership of MeOan & Patterson was dissolved by public act passed before Graham, notary public. McCan, the defendant, transferred and sold to Patterson all his rights, titles and interest he had in the property and effects belonging to his said partnership, and the purchaser, Patterson, assumed and bound himself to pay all the debts and liabilities of said firm. The list referred to in the above receipt, and annexed to the notarial act, shows assets to the amount of $35,934 82, and liabilities assumed by Patterson to the sum of $21,990 31, ¿among which figures the debt due the plaintiffs, $1,450. The purchaser settled the difference, $15,000, in cash and in his notes. The plaintiffs must have had knowledge of this dissolution and arrangement, for they refer to the said list of debts in the receipt given by them; therefore, they knew that Patterson had assumed their debt.

The question arises, was this receipt intended as a-payment or novation of the debt due by McCan & Patterson, in using the term full settlement ? Taking all the-attending circumstances, we are of opinion that full settlement was intended for payment; because, in reference to the $225 paid cash, it certainly means payment, and of course must have the same meaning as regards the two notes. Settlement means: an adjustment of accounts or claims; liquidation; payment. Worcester’s Diet, verbo settlement.

If then the term in full settlement, and by the plaintiffs in their receipt meant payment, the debt owing by the firm of McCan & Patterson was novated and extinguished. 4 An. 543. 2 An. 174. 16 L. 140. 2 L. 111.

- We are of opinion that our learned brother below erred in giving judgment for plaintiffs.

It is therefore ordered and decreed, that the judgment appealed from be reversed and annulled, and it is further adjudged and decreed, that plaintiffs’ demand be rejected, and that they pay costs in both courts.


text:
    No. 264.
    Culver, Simonds & Co. v. Henry J. Leovy, Lucius C. Duncan and The New Orleans Delta Newspaper Company.
    A general power given to the business manager of a corporation, does not authorize him to bind the corporation as drawer of a promissory note.
    A promissory note is drawn to the order of two persons and endorsed by both : they are jointly liable, but are not bound in sólido.

    A PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Race & Foster, for plaintiffs and appellees.

      Leovy & Duncan and Jiobert Lovelace, for defendants and appellants.
   Hyman, C. J.

The New Orleans Delta Newspaper Company, a chartered corporation, was sued as maker, and Henry J. Leovy and Lucius O. Duncan were sued as endorsers, by plaintiffs, on a promissory note, made and executed by the business manager of the corporation, Henry J. Leovy.

The note was drawn as follows, to wit:

“ $1,125. New Orleans, May lOfcli, 1860.

“ Six months after date, we promise to pay to the order of Henry J. Leovy and Lucius O. Duncan, one thousand one hundred and twenty-five dollars, value received, with interest, at the Canal Bank, in New Orleans.

Henry J. Leovy, Business Manager of Delta. ”

The note was endorsed in blank by Henry J. Leovy and Lucius O. Duncan.

Bresentment and demand of payment of the note was made at its maturity, and, on payment being refused, it was protested for non-payment, and due notice of its dishonor given to Leovy and Duncan.

The District Judge, on the 1st of March, 1861, rendered judgment against Leovy and Duncan, condemning them in solido to pay plaintiffs the amount of the note, with interest and costs ; and on the 2d day of the same month he also rendered judgment against the corporation, condemning it likewise to pay to plaintiffs the amount of th'e note, with interest and costs.

All the defendants have appealed from these judgments.

The act of incorporation, which was introduced in evidence, declared that the purpose for which the corporation was established was to publish a newspaper, to maintain and conduct a job printing office, to do all acts connected with the printing and publishing business, and to purchase the “paper” and “office,” and all things necessary for the same.

The act further declared, that all the powers of the corporation should be exercised by two managers and some clerks.

One of the managers to be the manager of the editorial department, and the other manager to be the manager of the business department, who was to attend to all things connected with the business department, and was the only person authorized to contract for the corporation, or to bind it in any manner whatever.

No other power or authority was given to the business manager,

Leovy was appointed business manager of the corporation.

This authority did not authorize Leovy, the business manager, to bind the corporation in this peculiar manner.

To enable plaintiffs to recover judgment against the corporation, they should have produced evidence that Leovy had special authority to draw the note, or its equivalent, to wit: that the making of the note by the business manager was necessary to effect the objects for which he was appointed. C. O. 2966. 6 La. R. 590.

The judgment against the endorsers is also erroneous.

Though it is not proved that the corporation is the maker of the noto, the defendants, by their endorsements, have acknowledged that the corporation is the maker, and they are as liable to the plaintiffs as if the business manager had authority to sign and make the note for the corporation.

As to them, the note is proved to have been made by the corporation, and by the note they became the joint creditors of the corporation.

By their endorsements they became joint debtors, not debtors in solido, to'the holders. See 3 La. 438. 4 Rob. 18.

It is contended that, as the plaintiffs made the note a part of their petition, and as there is an endorsement in blank on the note, made by an agent, subsequent to the endorsements of defendants, tlie authority of the agent should be proved before the plaintiffs oan recover judgment. As it was unnecessary for plaintiffs to make such averment, it was also Unnecessary to prove the averment. See 2 An. 331.

We do not deem it necessary that the endorsements made subsequent to .those of defendants should be struck from the note before plaintiffs can have judgment against the defendants on the note.

It is ordered, adjudged and decreed, that the judgments of the District Court be annulled, avoided and reversed; it it further decreed, that the suit of plaintiffs be dismissed at their cost, as to the defendants, The New Orleans Delta Newspaper Company. It is further decreed, that plaintiffs recover from Henry J. Leovy and Lucius C. Duncan, jointly, the sum of one thousand one hundred and twenty-five dollars, with live per centum per annum interest thereon, from 10th day of May, 1860, till paid, and six dollars and five cents, cost of protest.

It is further decreed, that plaintiffs have judgment against the said Leovy and said Duncan, in solido, for the costs of suit against them in tho lower Court. The plaintiffs to pay the costs of appeal.

Howekd, J. recused.


text:
    No. 287.
    Giffen, Smedes & Co. v. Ira L. Manning.
    ■Where the proceedings are in vein founded on a privilege, the defendant cannot except to tho jurisdiction of the Court, on the ground of his domicile being in a different parish from that where the seizure is made.
    A privilege follows the object to which it is attached, and the creditor may have the object seized by a writ of sequestration, in whatever part of the State it may be found, whether at tlie owner’s domicile or not.
    Where plaintiff claims a privilege on cotton, or other property, and has it sequestered m a different parish from that of the domicile -of the defendant, the personal action will be dismissed and the ' aotion in rein maintained.
    A PPEAL from tlie Fourth District Court, of New Orleans, Price, J.

      I). G. Labalt, and Ilyams <& Jonas, for plaintiffs and appellants.

      Eggleston c6 Earl, for defendant and appellee.

      Durant & Eornor, for intervenors.
   Labatjve, J.

On the 30th March, 1861, the plaintiffs and appellants, residing in this city, filed this suit against the defendant, a planter and resident of tlie parish of Carroll, alleging in substance, that petitioners, being the commission merchant of the said Ira L. Manning, had made advances to him during the years 1860 and 1861, under special agreement that the said Manning would ship his crops of cotton to them ; that, in accordance with said agreement, petitioners had advanced to him at divers times, more particularly 'set forth in the account annexed and made part of the petition, large sums of money, supplies and provisions ; that the amount now due by defendant is $25,340 61, as appears by reference to said annexed account, and tho further sum of $18,326 21, not yet due, being for acceptances ; that said Manning agreeably to said agreement, has shipped to petitioner a portion of his crop, but that he has shipped tlie latter part thereof, to W est, Renshaw & Oammack, merchants of this city, and is about to divest the proceeds thereof, in order to defeat petitioners’ lien and privilege accorded by law, and to deprive them thereof pending this suit.-

They prayed for a writ of squestration, directing the sheriff to seize and take in his possession the several bales of cotton raised and shipped by said Manning, to West, Renshaw & Oammack, and now in their possession ; that said Manning be duly cited to answer this petition, and that, after due proceedings had, petitioners have a judgment for $43,666 82, with interest, and for privilege on the property sequestered or its proceeds, and for general and equitable relief.

The defendant appeared by an attorney, who filed the following exceptions :

‘ ‘ The defendant, by his counsel, comes only for the purpose of pleading exceptions to the jurisdiction of this Court and the premature institution of the suit on the demand not due, and excepts :

“ 1. That no property has been legally sequestered and held in-custody of the officer or Court, to confer jurisdiction on this Court.

‘ ‘ 2. The plaintiffs should sue the defendant at his domicile, in the parish of Carroll.

“3. Upon the demand not yet due, the action is premature, and no writ can issue to sequester the cotton.

“ Wherefore the defendant prays that the said action may be dismissed, and the sequestration granted in the same may be quashed, with costs, etc.”

The District Court sustained the second ground, as to jurisdiction of the Court and domicile of the defendant, took no notice of the other grounds, and dismissed the suit.

The plaintiff took this appeal.

It is a general rule, that one must be sued before his own judge, who' has jurisdiction over the place where he has his domicile or residence. C. P. Art. 162. To the provisions of this article there are many exceptions indicated in Articles 163 and 164 of the Code of Practice, none of which can apply to the case at bar, even by analogy. But it is contended by the plaintiffs and appellants that, as they had a privilege upon the cotton, they could sue the defendant and sequester the cotton in New Orleans, although the defendant had his domicile and residence in the parish of Carroll. There can be no doubt that the defendant could not be cited and decreed, in New Orleans, to pay plaintiff’s demand; if so, the question is, could the plaintiff obtain a sequestration of the cotton, when the Court could not give him a judgment for the debt against the defendant in personam? The amendment to Articles 274 and 275, Code of Practice, states : “The plaintiff may obtain a sequestration in all cases where he has a lien or privilege on property, upon complying with the requisites provided by law.” Revised Statutes, p. 94, g 21.

In the case of Henning v. Steamer St. Helena, 5 An. 349, where plaintiff had obtained a provisional seizure of the steamer, asking also a judgment with privilege against the vessel, and a personal judgment against her owner and captain, to pay his services as pilot of the vessel; the suit was brought in, and the defendants resided out of, New Orleans ; the proceedings in personam were dismissed, because of the defendants’ domicile. This Court said :

“Undoubtedly, the privilege is an accessory to the principal obligation ; but it does not follow that the remedy in rem and the remedy in personam are inseparable. The mortgage creditor may seize and sell the land without resorting to the personal liability. So the pledgee may proceed to have the thing pledged judicially sold, without cumulating a prayer for personal judgment. And, in the absence of any prohibition in the Code of Practice, we see nothing unreasonable in disconnecting the enforcement of the privilege from the personal pursuit, when it is impossible to pursue both together. Where there is right, there should be a remedy; it would be a mockery to acknowledge the right, and yet send a creditor to another forum, where the enforcement of the right would be impracticable. ”

From that decision, it is clear that when a party has privilege on an object, the law and equity give him the right to enforce it, wherever the object may be found. In the case at bar the plaintiffs reside in New Orleans, and the defendant in the parish of Carroll—hundreds of miles from this city; they found the cotton, upon which they claim, privilege, in said city; where would have been the cotton, and what would have become of the same, before they could have gone to and returned from the parish of Carroll, with the necessary writ ? The answer is suggested by the conduct of the defendant.

Where the execution issues from one parish to another, the courts of the latter may enjoin the writ. 2 A. 323, 492. 4 A. 84. 5 A. 648. This is lex necessitate. In this case we see that justice and equity require disconnection of the action in personam and in rem upon the privilege. We are, therefore, of opinion,' that the personal action must be dismissed, and the action in rem sustained.

It is therefore ordered and decreed, that the judgment of the District Courtbe annulled and avoided. It is further ordered and decreed, that the personal action be dismissed and the action in rem and sequestration reinstated; that the case be remanded upon the question of privilege and sequestration, to be proceeded in according to law, the costs of appeal to be paid by the defendant and appellee, the costs below to follow the final decision.


author: Howehh, J.

text:
    No. 882.
    W. N. Thomson et al. v. Mrs. S. C. Chick, Tutrix, et al.
    A note signed by a married woman is invalid, where ifc is nob shown that the debt inured to her sejiA1 rate benefit, nor that she was properly authorized. The presumption is that the debt is that o£ the community.
    A PPEAL from the District Court, Parish of East Feliciana, Posey, J.

      W. F. Xernan, for plaintiff and appellant.

      Me Vea <& Hunter, for defendant and appellee.
   Howehh, J.

This suit is brought against the defendant, individually, and as tutrix of lior minor children, upon a note given by her ‘ ‘ for mules for the use of the plantation.”

The defense is that when she signed the note she was a married woman, and unauthorized by her husband or the Court to sign it, and that sho has no right to bind her minor children.

Judgment was rendered against her, individually, and as of nonsuit in her favor as tutrix.

Plaintiffs appealed, and in her answer defendant asks that the judgment against her be reversed.

The evidence in the record does not sustain the judgment against the defendant.

It is shown that she was a married woman, and it is not shown that the debt inured to her separate benefit or that of her separate property, or that she was authorized by her husband or the Court to contract. The presumption is that the debt was a community debt, until the contrary is shown.

There is no evidence to bind her as tutrix. She did not sign the note as tutrix, nor is there proof of tutorship, or that the contract inured to the special benefit of the minors.

■ The evidence is insufficient to bind the defendant, individually, or as tutrix,

It is therefore ordered, that the judgment against Mrs. S. O. Chick be reversed, and it is now ordered that plaintiffs’ demand be dismissed as of nonsuit, with costs in both courts.


author: HoweiiIi, J.

text:
    No. 716.
    H. Reiners v. V. St. Ceran.
    Payment is a peremptory exception, which may be pleaded at any time before judgment.
    A PPEAL from the Fourth District Court of New Orleans, Thcarcl, J.
    . J. J. E. Planchará, for plaintiff and appellee.

      J. P. IJornor, for defendant and appellant.
   HoweiiIi, J.

This is an action for the balance of an account for building a steamboat, and furnishing material and labor, to which the general denial was pleaded. After the cause was partially tried, the defendant offered to file the plea of payment, which he was not allowed to do on the ground, as stated in the bill of exceptions, that “every means of defense, such as release, novation, contract or payment by contract, which goes to show the extinguishment of an obligation admitted or proved to have once existed, must be pleaded specially, and cannot be urged under the general issue, which only denies the facts alleged in the petition. The plaintiff might otherwise be taken by surprise.”

It need only be remarked that the learned Judge put it out of the power of the defendant to plead specially, as he desired to do, and thus conform tó the rule of law contained in the bill of exceptions. If the plaintiff was not prepared to meet such a plea, he was entitled to a continuance to obtain evidence, But the Court should have allowed the plea to be filed. The grounds of exclusion or refusal, set out in the bill of exceptions, would authorize the filing. It was not too late. Payment is a peremptory exception, which may be pleaded at any time before judg■ment. C. P. 345, 346. 6 L. 455.

It is therefore ordered that tho judgment appealed from be reversed and the case remanded, with instructions to tho .District Judge to allow defendant’s plea of payment to bo filed.'


text:
    No. 1144.
    Homer Marrionneaux v. R. C. Downs and Wife.
    Want of amicable demand, to be available, must be pleaded before issue is joinod.
    "Where husband and wife are defendants, citation served on the husband, in order to be binding upon tho wife, must bo addrossed to her as well as to tho husband.
    •A PPEAL from the District Court, Parish of Iberville, Posey, J.

      Barrow <® Pope, for plaintiff and appellee.

      A. T. Sleele, for defendants and appellants.
   Hyman, C. J.

The defendants, Richard C. Downs and his wife, Lavenia J. Downs, appellants from a final judgment rendered against them in favor of plaintiff, have brought up to this Court a transcript of appeal.

This transcript, according to the amended certificate of the clerk of the District Court, does not contain a copy of all tho testimony adduced on the trial of the case in tho lower Court.

In the transcript there is no statement of facts, bill of exceptions to the opinion of the Judge, or special verdict.

When a transcript is thus brought up to this Court, the Articles 896 and 897 of the Code of Practice require the dismissal of the appeal, unless the appellants, within ten days after it is brought up, file an assignment of the errors of the District Court as to the law, and which errors must appear from the face of the record.

Each of defendants filed their assignment of errors of law, within the time required by the articles of the Code.

Richard O. Downs assigned for error—first, that his exception, pleading therein want of amicable demand, was neither overruled nor set aside, before the final judgment was rendered against him.

This exception should have been pleaded before issue was joined by a judgment by default against him.

After issue was joined this Court did properly in proceeding in the trial of the case, as if no such exception had been filed.

And, secondly, that the final judgment was rendered against him, without a judgment by default having been first taken against him.

The record contradicts that last named ground. A judgment by default was taken against Mm on the 18th of April, 1866, (and final judgment was rendered against him in May, 1866.)

Lavenia J. Downs, the wife, has, in her assignment, pointed out several errors of law.

It is needless, for the decision of this case, to notice but one, and that is that she was condemned without being legally cited.

She made no appearance in the lower Court,

Service of a citation and a copy of the petition was made on R. O. Downs, her husband, and a single service of citation and a copy of the petition on the husband in a suit against the husband and wife, (where the wife is not separated from bed and board from him by a judgment), is a sufficient service of citation and petition on her. See Code of Practice, Art. 182.

The citation served on Richard C. Downs, was addressed to “R. C. Downs,” alone, and the question is whether a citation so addressed and served is a valid service of citation on his wife. Article 178 of same Code says that the clerk of the Court shall make a copy of the petition, and that he must annex to the copy a citation addressed to the defendant in the form prescribed in the following article. That article declares that the citation addressed to the defendant must mention the title of the cause, the name of the defendant to whom it is addressed, the place of residence, etc.

It is evident from these articles that the lawmaker required that, to make a citation valid against a defendant, it should be addressed to that defendant. And although service of one citation and a copy of petition on the husband, when both husband and wife are sued together, is a sufficient service of citation on the wife, yet this provision of law does not dispense with the requirement of the law, that the citation should be addressed to the defendant, the wife as well as to the husband, when sued together.

In referring to Article 192 of same Code, we become more confident, in our opinion, that the intention of the law is that citation should be addressed, as well as to the wife as to the husband, when they are sued together; for this article certainly requires that citation should be addressed to the wife when sued alone, although a service of the same on the husband, as in the case when husband and wife are sued together, would be a sufficient service on the wife.

A citation written out and addressed in the form required by law, and the service thereof, together with the copy of petition on the party on whom the law requires service to be made, is the only way in which a defendant can in ordinary proceedings be brought into Court. Proceedings taken against a defendant, (unless they are conservatory acts), before citation in ordinary actions, are null.

It is decreed that the judgment of the District Court against Richard C. Downs be affirmed, with costs of appeal.

It is further decreed, that the judgment of the District Court against Mrs. Richard C. Downs alias Lavenia J. Downs, wife of Richard C. Downs, be annulled, avoided and reversed. It is further decreed, that the case be remanded, as to her, to the District Court, to be proceeded with according to law. The plaintiff to pay the costs of appeal caused by her appeal.


author: Ilslex, J.

text:
    No. 307.
    George H. Wiley v. Woodman & Bement.
    The execution of a judgment cannot bo suspended on a rule to show oause. A suspensive appeal will not lie from a judgment dismissing such a rule.
    Execution of judgment can only be suspended upon petition, affidavit and bond given for injunction.
    A PPEAL from the Sixth District Court of New Orleans, Howell, J.

      Race & Foster, for plaintiff and appellee.

      Emerson & Huntington, for defendants and appellants.
   Ilslex, J.

A rule was taken in the lower Court by the defendants upon the plaintiff, who had caused execution to issue on a judgment which he had obtained against them, to show cause why proceedings should not be stayed until a bearing could be bad upon wbat the defendants styled their “plea in bar,” which they had filed in Court, alleging “the plaintiff to be au alien enemy, residing in the State of Missouri, holding allegiance to the United States of America, and said plaintiff to be an enemy of the Confederate States, and praying for judgment to quash the writ of execution and prohibit further proceedings on the part of the plaintiff. ”

Erom the judgment dismissing the plea and maintaining the execution the present appeal was taken. ,

The proceeding was an anomalous one. A rule to show oause is not the legal remedy to arrest the progress of an execution upon a judgment obtained for a sum of money.

That can only be done upon a petition, affidavit and bond given for injunction. Code of Practice, 304 Amendment of Article 298 C. P. Act 7th April, 1826,-<¡9.

A suspensive appeal should not have been allowed. 9 An. 302.

The appeal is a frivolous one, and it is a proper case to allow damages, as prayed for. Art. 907 C. P.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with fifty dollars damages for a frivolous appeal, and that appellants pay all the costs of appeal.

Howell, J. recused.


author: Tamaeebbo, J.

text:
    No. 1148.
    Joseph Dubuc v. William Voss.
    The doctrine that the power to remove is incidental to the power to appoint, does not apply to Governors of States. Their power of removal is limited to particular cases, provided for by statutory enactments.
    Where two commissions have been issued by the Governor, at different times, to different parties, for the same office, and the one bearing the latter date states on its face that the officer holding the fii'st commision is removed, the presumption is, that he was removed for causes provided for by statute, and the latter commission will supersede the former. The presumption in favor of thdproper exercise of power by the the Governor is subject tobe overthrown by countervailing evidence.
    A PPEAL from the Fourth District Court of New Orleans, Théard, J.

      A. & M. Voorhies, for plaintiff and appellee.

      E. Eilleul, for defendant and appellant.
   Tamaeebbo, J.

Tlie parties to this suit contend for the office of inspector of weights and measures for the Second District of New Orleans. They confront each other with commissions for the same offioe, derived from the same authority. The plaintiff’s commission bears date 28th of March, 1866; that of the defendant 16th of November, 1866.

Upon receiving his commission, Yoss (the defendant) gave public notice-of his appointment. He also demanded from his competitor the public property and the appropriate implements of the office, which were refused. The plaintiff Dubuc took out a writ of injunction against the defendant, restraining him from exercising the duties of his office. When the case was tried in the Court below, judgment was rendered in favor of the plaintiff, perpetuating the injunction, and the defendant has appealed.

There is no need in this ease to go far into the inquiry, whether the power to appoint to office implies the power to remove. A mere arbitrary power to remove, depending solely on the will or caprice of the executive, and to be exercised without good cause, the sic volo, sic jubeo principle, was surely never accorded by the genius of American institutions. The doctrine of Mr. Madison, in regard to the right of removal by the President of the United States, was founded in considerations of public utility, and proceeded upon the assumption that the power of removal, in the hands of that high functionary, would be exercised with a nice discretion and for right purposes. But, in the progress of time, it has been found that this right is liable to abuse, even by the chief executive officer of the nation, and the last Congress has wisely limited its exercise. That the power to remove is incident to the power to appoint, we are not aware has ever been contended for as appertaining to the governors of States. The character of their functions is not, in all respects, analogous. Their power of removal, we apprehend, is generally limited to particular cases provided for by statutory enactments. It would seem to derogate from the efficiency of the chief executive officer of a State, and to lower the dignity of his office, if the grounds upon which he makes removals should be needlessly subject to the scrutiny of the courts, and liable for slight reasons to be annulled by judicial decrees. But there must somewhere be protection to the honest and faithful incumbent, if, unhappily, his right to hold office should be recklessly violated by the head of tlie executive department. To the judiciary, in such a case, would attach tho delicate and ungrateful duty of inquiring whether the executive had infringed the law. Such cases, we may hope, will be of rare occurrence.

The only evidence before the Court in this case are the two commissions. Both cannot have effect. If the one first issued continues in force, the last is simply null. If tho latter .is valid, it supersedes the former. The commission to Yoss recites that he is appointed in place of “Joseph Dubuc, removed.” The act of 1855 ($13), relating to the subject of weights and measures, authorizes the governor, in a certain contingency, to remove inspectors of weights and measures. Acts of 1855, p. 362.

The presumption is in favor of every public officer that he performs his duties properly. In the case now before us, the presumption is that the commission last issued is the one legally in force. That presumption is strengthened by the official declaration on its face, that Dubuc was removed, and by the fact that the governor, by the act of 1855, has, in a certain contingency, the right to remove an inspector of weights and ■ measures. But this presumption, in favor of the proper exercise of power by the governor, was subject to be overthrown by countervailing evidence, if it were in the power of the complainant to produce it. But no such evidence was introduced ; and, in its absence, the presumption that the commission of Yoss legally supersedes that of Dubuc, must prevail.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed. It is further adjudged and decreed, that the plaintiff and appellee pay costs in both courts.

Rehearing refused.


text:
    No. 6963.
    D. C. Johnston v. C. Yale, Jr., & Co.
    The rule of Court, declaring that no private agreement of the parties relative to the progress of any cause shall be alleged unless the evidence thereof shall be in writing, does not apply to agreements which may give rise to another suit.
    The waiver of a1 legal right, to be available, must be clearly and explicitly shown.
    A PPEAL from the Fifth District Court of New Orleans, Eggleston, J.

      Race <& Foster, for plaintiff and appellee.

      Emerson & Huntington, for defendants and appellants.
   Howell, J.

This is a suit for damages based on the violation of an alleged agreement between the parties.

Plaintiff alleges that, finding his business in this city becoming- embarrassed- by the failure of his former partner to pay his proportion of the partnership debts, he called upon the defendants, who had obtained a judgment against his firm on their note for $347 25, and entered into an agreement with them to the effect that the latter would not issue execution or proceed against him in any manner, until his return from New York, which place- he should have ample time to visit, and obtain an extension of credit from his creditors in said city; that on the faith of said agreement he left-for New York on 19th January, 1860; had interviews with his creditors; returned as speedily as possible, arriving here on 15th February following, and found his store seized and closed under a fieri facias issued by defendants, since the 4th of the same month, whereupon he paid-the said judgment, interest and costs, by reason of all which he sustained damage in the loss of trade, loss of customers, injury to mercantile standing and reputation, and to his mind and feelings, to the amount of ten thousand dollars. Defendants filed a general denial, and after trial' judgment was rendered against them by the District Judge for the sum claimed, from which they have appealed.

Defendants objected to parol proof of the alleged agreement as in violation of a rule of Court, prescribing that “ no private agreement or consent between the parties or their counsel, relative to the progress of any cause, shall be alleged or suggested by either of them against the other, unless the evidence thereof shall be in writing, subscribed by the party against whom it shall be alleged or suggested, or by his counsel.”

We think this rule applies to the mode of conducting, and the management of a cause before the Court in which it is pending, and not agreements, which may give rise to a cause of action in another suit, and which are subject to other rules of evidence.

The proofs, in our opinion, do not sustain the judgment of the lower Court. Admitting that the agreement of defendants, as alleged, not to-issue execution or proceed against plaintiff in any manner, until he could go to New York, get an extension from all his creditors there and return, is satisfactorily proven, the evidence does not afford the data for estimating accurately the damage caused by the acts of defendants, beyond the costs of keeping the property and making the inventory. The opinions of witnesses, engaged in the same business, upon this question, derive weight only from the facts and data upon which they are based being made known; for in no other way can the Court judge of the correctness of their estimate and receive it as proof. This has not been done in this case. The evidence as to the amount of business done in plaintiff’s establishment, at the date of the seizure, if of any weight in this respect, shows that there were funds enough on hand to pay defendants’ claim and avoid a seizure; but there is no evidence of the profits of which he was deprived or the actual loss in trade, or reputation.

But we do not think plaintiff has shown any such agreement on the part of defendants as precluded them from proceeding as they did under the circumstances. They certainly had the legal right to execute their judgment against him, and any waiver or suspension of that right must be made clearly and explicitly to appear. Plaintiff declares, on their positive agreement not to issue an execution or proceed in any manner against him until he should have ample time to visit New York, and accomplish his purpose of procuring an extension from all his creditors there. From the testimony of his only witness on this point, it is clear that defendants were unwilling to bind themselves positively in advance, and refused to make any written agreement on the subject.

We conclude, from the evidence, that plaintiff was referred to one of defendants’ firm, then in New York, and that the member here would not move in the matter until he could hear something from New York through his partner, then there.

It was after the return of this partner, and the lapse of sufficient time to hear from plaintiff, that the seizure was made.

To recover, it was incumbent on plaintiff to make out his case with legal certainty, which he has failed to do. 17 A. 239.

It is therefore ordered, that the judgment appealed from be reversed, and that there be judgment against plaintiff as of nonsuit, with costs in both courts.