author: Voorhies, J.

text:
    City of New Orleans v. The Poydras Asylum.
    By the Act of 1850, all property belonging to charitable institutions is exempt from taxation.
    APPEAL from the Sixth District of New Orleans, Cotton, J.

      LcCbatt & Eustis, Jr., for plaintiff and appellant. Semmes & Edwards, for defendant.
   Voorhies, J.

(Ogden, J., absent.)

The Poydras Asylum, a charitable institution, incorporated by an Act of the Legislature, claims to be exempted by iaw from the payment of the taxes imposed upon its property by the city of New Orleans.

The property occupied and used by the Poydras Asylum for its charitable purposes, is assessed at §85,000. A portion of this property, valued at $10,000, was leased out as a garden during the years 1852 and 1853, and the rents thereof received by said institution. The residue of its property, situated in different parts of the city of New Orleans, is leased out and the rents thereof applied to the maintenance and education of the female orphans-

The exemption claimed by the defendant is based on the Act of the 21st of March, 1850, entitled “an Act to exempt the property hold by charitable institutions from municipal taxation.” It declares, “ that the property of the Female Orphan Asylum of New Orleans, of the Poydras Asylum, of the Orleans Oatholic Association for the Relief of Male Orphans, of the Milne Asylum, and the property of all other charitable institutions, be and the same are hereby exempted from any taxation by the city of New Orleans, or the several municipalities thereof.”

It is contended by the city, that this exemption merely applies to the situs of these institutions, and not to any other property owned by them.

It is undeniable, that the revenues derived from the property for which the exemption is claimed, are devoted to the charitable purposes for which the Poydras Asylum was established. "Without such revenues or donations made to it, it is obvious that this institution would fail to accomplish the praiseworthy public object for which it was established. Its successful operation may be considered as an auxiliary in the administration of the municipal government, which is under obligation to provide for its paupers.

The language used by the Legislature in the Act of 1850, is plain and unequivocal, and, in our opinion, clearly extends, without any discrimination, the exemption from taxation to all property held by charitable institutions. By the Act of 1847, the sites of these institutions were exempted from taxation; it is therefore clear that the Legislature, by the Act of 1860, intended to grant them a more extensive exemption. But if the least doubt existed in our minds as to the true construction of this statute, it is clear that the defendant would be entitled to the exemption claimed under the Acts of the 12th of March, 1836, and 25th of March, 1844. By the first of these acts, it is provided, that “ all the property, real and personal, belonging to the Orphan Boys’ Asylum of New Orleans, be, and the same is hereby exempted from all taxation either by the State, parish, or city in which it is situated and by the other, it is provided, “ that the exemption from taxation passed in favor of the Orphan Boys’ Asylum of New Orleans, by Act approved 12th of March, 1836, be extended to all other Orphan Asylums in the State, &c., and that they be exempted from parish and municipal, as well as State taxation.”

The corporation of New Orleans derives the power of taxation from the Legislature ; and as the Legislature has expressly withheld from it the power to tax defendants’ property, the attempt to tax such property must necessarily be abortive.

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


source: Caselaw Access Project

author: Spoppord, J.

license: Public Domain

text:
    Testamentary Executors of Alexander Gordon v. Jean Baptiste Maureau.
    The compensation of auditors is left to the sound discretion of the court which appoints them, (0. P. 462,) and a very clear case of error should be made out to justify the Supreme Court in increasing the allowance.
    The Code of Practice does not seem to contemplate that witnesses should be called to estimate the value of services rendered by auditors; they are to be determined by .the court “ according to the nature of the cause.”
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Miles Taylor, and S. H. Taylor, for executors. Clark & Ba/yne, for appellant.
   Spoppord, J.

(Ogden, J., absent.)

One of the auditors appointed by the District Judge in this case, appeals from a judgment on a rule taxing his fees at one hundred dollars, and prays that he may be allowed the sum of four hundred dollars.

A very clear case of error should be made out in an appeal of this kind. The compensation of auditors is left to the sound discretion of the court which appoints them. C. P. 462. The Judge, under whose eye the work is performed, has the best possible opportunity to measure the value of their services. The Code of Practice does not seem to contemplate that witnesses shall be called in to estimate their fees, which arc to be determined by the court, “ according to the nature of the cause,”

From a careful inspection of the record, and consideration of the nature of the cause, we cannot perceive that there is manifest error in the judgment. appealed from.

It is therefore affirmed, with costs.


author: Buchanan, J.

text:
    Kelly & Frazer v. J. P. Bently et al.
    In an attachment suit, where the petition, affidavit and bond were filed at the same time, and the petition contained no prayer for attachment, the attachment will be dismissed.
    APPEAL from the Fourth District Court of New Orleans, Ileynolds, J.

      Clark & Bayne, for plaintiffs and appellants. Q-arnett Buncan, and Eus-iis, for defendants.
   Buchanan, J.

The District Court dismissed the attachment issued in this case, upon a riilo taken to that effect, based upon the omission of any prayer for attachment in the petition filed.

It is contended, on the part of plaintiff, that the Article 243 of the Code of Practice is amended by the Act of 1828, page 150, section 4 ; and that under said statute, the filing of the affidavit and bond for attachment, stands in lieu of a prayer for attachment in the petition. Such may possibly be the true construction in case of a petition filed the next day after the affidavit and bond) as allowed by the statute of 1828; for it would seem to be superfluous to pray for an attachment after the writ had issued. But in the present case, the record informs us that the petition, affidavit, and bond wore filed on the same day ; and apparently together. The Act of 1828 has, therefore, no perceptible application in this instance.

The petition makes no reference to the remedy of attachment, and is in that respect defective, according to the Article 248 of the Code of Practice. An amendment to cure the defect, came too late after the rule taken to quash the attachment. Rhodes v. Union Bank. 7 Rob. 63.

Judgment affirmed, with costs.

Rehearing refused.


author: Voobhies, J.

text:
    Edward Conery v. J. B. Heno et al.
    Decision in Taylor v. Ifollender, 4 N. S. 535, affirmed.
    Where a proceeding was had by rule to annul an execution, and no objection was urged in the court below, it is too late to make it in the Supreme Court.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Purvis & Rugué, for plaintiff and appellant. Steele, for defendants.
   Voobhies, J.

’ (Ogden, J., absent.)

On the 30th of January, 1852, the steamer Bride was sold under an execution in this suit, on a credit of twelve months; T. G. Thurston became the purchaser for the price of $7450, for which he executed fifteen bonds in favor of the Sheriff, with Lyndsay and Lawrence as sureties, which bonds, as therein specified, purported to be given as the price of the steamer Bride, seized at the suit of Octave Roubieu v. J. J. Compere and J. B. Heno, No. 4740 of the docket of the Second District Court of New Orleans. The Sheriff was ruled to show cause why he should not deliver over to the plaintiff in this case the bonds thus executed in his favor. He filed an answer to the rule, averring that the steamer Bride was sold by him as Sheriff, by virtue of an execution in the suit of Roubieu v. Compere and Heno; that fifteen bonds were given by the purchaser for the price, with Lyndsay and Lawrence, as sureties; that while under seizure in said suit, said steamer was seized by him as Sheriff under writs in other cases; and that petitions of intervention and third opposition had been filed by other creditors, claiming .privileges on the proceeds of the sale of said steamer. He therefore prayed that said opponents and creditors should, in answer to the rule, show cause why the said bonds should not be deposited in court for distribution among them, and he discharged from all responsibility in the matter.

Upon the trial of the rule, it was discharged. But in regard to the plaintiff’s claim to a privilege on the proceeds of the sale of the steamer, contested contradictorily with those of Roubieu and other creditors, judgment was rendered in his favor for the sum oí $2749, with interest; for which, execution issued' on six of the twelve months’ bonds against Thurston, as principal, and Lyndsay and Lawrence, as sureties.

On motion of James V. Lindsay, one of the sureties, the plaintiff was ruled to show cause why said execution should not be annulled and set aside, on the ground that he, Lyndsay, after the signing of said bonds, had made a voluntary surrender of all his property to his creditors, in the Second District Court of New Orleans, which surrender was accepted by the court, and a stay of all proceedings both against his person and property ordered; and that he was duly discharged from all his liabilities by a meeting of his creditors held pursuant to the order of said court.

Upon the trial of the rule, it was made absolute, and the case ordered to be transferred to the Second District Court of New Orleans, and cumulated with the proceedings in insolvency.

The record shows that the name of James Brewer, Sheriff of the parish of Jefferson, was put on the bilan of Lyndsay and Lawrence, as a creditor or holder of the bonds in question ; and that a meeting of the creditors of the insolvents was held by virtue of an order of the court. But nothing shows that Brewer was ever notified. The proceedings in the eessio honorum of Lynd-say and Lawrence, are still pending before the Second District Court of New Orleans; and the syndic is still acting, but has not yet filed any tableau of distribution.

Under this state of facts, we think the Judge a quo did not err. In Taylor v. Hollander, 4 N. S. 535, the court say: “ The creditor who is not put on the bilan may bring a separate suit, because he is not a party to the proceedings, and is presumed to be ignorant of them, but as soon as he is informed by the answer, that the concurso is formed, the cause must be transferred to the court where the action is pending, and be cumulated with it. The neglect of the debtor to insert the creditor’s name in the bilan, may be cured at any time before the tableau of distribution is homologated. The law has conceived it a less inconvenience that the creditor should be deprived of the right of voting for syndics, than that separate suits should be carried on at the instance of particular creditors.” In a subsequent case, Ibid, 024, this decision was affirmed. The cases of Thomas v. Breedlove, 6 L. 578, and Deslix v. Schmidt, 18 L. 465, were decided on a different state of facts. In both cases, the proceedings in the concurso of the creditors had been homologated and dividends declared.

It is urged by the appellant’s counsel in their brief, that the proceeding by-rule in this case, to annul and set aside the execution, is not sanctioned by law. No objection was made to this form of proceeding on the trial of the case below, which was conducted in the usual mode of trying such cases. We think it is now too late to raise the objection; it should have been made in writing in the court of the first instance. '

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


author: Spofeoro, J.

text:
    The State v. William R. Gallagher et al.
    A vacant succession, administered by a curator, is liable on a bail bond subscribed by the deceased intestate, as surety for the appearance of a party under indictment, though not forfeited until after his death.
    APPEAL from the First District Court of New Orleans, Robertson, J.

      I. H. Morse, Attorney General, for the State. Larue & Whittaker, for defendants and appellants.
   Spofeoro, J.

The single question in this case is, whether a vacant succession administered by a curator is liable on a bail bond for the appearance of a party under indictment, subscribed by the deceased intestate as surety, but not forfeited until after his death.

It is asserted by the appellants, that the obligation of a surety on such a bond, is a strictly personal obligation, not heritable by his heirs or binding on his vacant succession ; and this position is sought to be fortified by assuming that a curator of a vacant succession has no power under the law, to surrender in court the party for whom the deceased stood bail, and that the right to the custody of the prisoner is personal to his bail, and cannot descend to his vacant succession.

These arguments bog the question they seek to solve. For, if the obligation is heritable, the curator may lawfully surrender the accused, in discharge thereof, and to this end the custody of the prisoner, originally intrusted to the deceased bail, may be considered as continuing in the curator.

In Wheeler v. Wheeler, 7 Mass. 169, it was held that an administrator may surrender a principal for whom his intestate was bail.

In Niles v. Drake, 17 Pick. 517, the court remarked, that the bail were liable jointly and severally. But if one of.them should die before the service of the writ of scire facias, the action should be commenced against the survivor, or against the executor or administrator of the deceased.

In The Commonwealth v. Haines, 2 Virginia Cases, 134, a verdict had been rendered against one Ilelme, in a prosecution for perjury. He entered into a joint recognizance with two sureties, Patton and Haines, conditional for his appearance at the next term to hear judgment; at the next term he made default; scire facias was awarded against all the parties to the recognizance, which was served on the securities, Haines and Patton, but returned “ no inhabitant” as to the principal. No further proceedings were had against Patton, who died shortly afterwards. Haines pleaded to issue, and, pending the issue, died. The questions adjourned were, whether a scire facias to revive, could be awarded against the administrators or heirs of either of them,and whether original process could be awarded against the administers or heirs.

Per Curiam: “ It appearing that in this case the scire facias on the recognizance abated as to Helme, the principal, by the return ; and that of the other two conusors, Haines, was the survivor, it is the unanimous opinion of the court, that a scire facias to revive against the personal representatives of the said Haines will lie, though n'ot against his heirs; and that original process will lie against the heirs of the said Haines, or against the personal representatives or heirs of Patton, the other deceased conusor.”

Although some of these cases turn upon points of practice, they all implicitly recognize the heritable nature of the obligation of bail.

Nor do we find any thing in our own law to sanction a different doctrine.

The Articles 1992 and 1990 of the Oode, do not support the position for which they are cited by the appellant. The State, in intrusting parties accused of violating the laws to the friendly custody of their sureties, does not look to the peculiar skill of the sureties in apprehending offenders, but to their sufficiency in law. An important element of that sufficiency, is the solvency of their estates. They are often required to be examined under oath as to the amount of their property, after payment of all their debts; an absurd practice, if the obligation they, contract is strictly personal, and perishes with the obligor. 1 Chitty Or. Law, *p. 99.

The curators of vacant successions and of absent heirs, act in their names and quality, in all contracts, or other proceedings, in which the succession or the heirs which they represent, are interested, and appear in all suits in which they are obliged to act in that capacity, either as plaintiffs or defendant. 0. C. 1146. Ample authority has thus been given to curators to protect the estates they administer, and to stand in judgment in a proceeding like the present.

It is therefore ordered, that the judgment appealed from be affirmed, with costs.


author: Spoeeord, J.

text:
    David M. Matthews v. The General Mutual Insurance Company of New York.
    l'he policy of insurance, and the adjustment of losses thereon, even if subscribed by the party to be charged, are not negotiable. If they are assigned, the assignee takes them subject to all equitable defences against the assured.
    An adjustment signed by the insurer in ignorance of frauds practised by the assured which would avoid the policy, may be set aside.
    Where fraud is set up to avoid a policy, the better practice, probably, would be to specify the mode and circumstances of the fraud with particularity.
    APPEAL from the First District Court of New Orleans, Larue, J.
    Collins, for plaintiff. Briggs, for defendant and appellant.
   Spoeeord, J.

The plaintiff alleges that he is the bona fide holder of a promissory note, whereby the agents of defendants bound themselves to pay Mrs. Virginia Thompson, the sum of $1875, on the 29th of March, 1852 ; that Mrs. Thompson transferred the said note before maturity, and for value, to one Smith, who afterwards transferred it to the petitioner; that it was protested for non-payment at maturity ; that it was given for certain losses by fire which had been insured against by the defendants, and afterwards adjusted by their agents at the sum which the note called for; and that all these facts will appear from the policy, adjustment, note and protest, annexed to the petition.

We have searched the record in vain for any trace of the promissory note described in the petition.

There is a policy of insurance with endorsements transferring the’interest of the assured, (apparently without the written assent of the company,) first to Smith, and then to the plaintiff, and there is a notarial protest not of the note, but for an amount said be due on the policy of insurance.

There is also what is styled an “ adjustment” endorsed on the policy assessing the losses at the sum sued for; but it appears to have been altogether an ex parte affair; it is sworn to by the husband and agent of Mrs. Thompson, but not subscribed by the company or its agents.

Perhaps this is a clerical omission, as the cleric in his minutes speaks of the plaintiff offering in evidence, an “adjustment signed by Ed. Ogden, agent;” but it is the business of the clerk to certify copies of documents, not to state their contents; the instrument itself, as copied by him on this record, does not verify the fact he has chosen to state, and we can therefore pay no attention to the statement.

A diminution of the record has not been suggested.

Under these circumstances, we should have been obliged to non-suit the plaintiff, who obtained a judgment in the court below, but the defendants and appellants only ask that the cause be remanded. Probably the interests of justice will be best subserved by acceding to this request.

The Judge a quo refused to hear the testimony offered by the defendants to prove that their liability under the policy was discharged by the fraudulent conduct of Virginia Thompson, under one of the clauses thereof.

. To this refusal, the defendants took a bill of exceptiohs.

We think the Judge erred.

The policy, and the adjustment of losses thereon, even if subscribed by the party to be charged, are not negotiable. If they are assigned, the assignee takes them subject to all equitable defences against the assured. An adjustment signed by the insurer, in ignorance of frauds practiced by the assured which would avoid the policy, may be set aside. In this case, the defendants’ answer denied every allegation of the petition, except that they signed the policy of insurance in favor of Virginia Thompson; they specially denied that they were in anywise liable under said policy, either to the plaintiff or any other person, having been released from all responsibility under the policy, by the fraudulent conduct of the party in whose favor it issued.

Under the English practice, which has certainly not often been more indulgent than ours, the plea of the general issue to an action on a policy of insurance, was formerly sufficient to let in evidence of illegality, misrepresentation, breach of warrantees, or almost every matter which would discharge underwriters. 2 Arnould, Insurance, p. 128G. By the new rules of pleading framed and adopted in the King’s Bench, in 1834, matters showing the transaction to be void or voidable, on the ground of fraud, must be specially pleaded. In the present case, notice of an intention to prove fraud on the part of the assured, was given in defendants’ answer. Probably it would have been better to specify the mode and circumstances of the fraud with more particularity. But if the plaintiff was surprised by the evidence offered, the discretion of the court of the first instance, could have afforded him relief by granting a continuance.

It is therefore ordered, that the judgment of the District Court be annulled, avoided and reversed; and that this cause be remanded for a new trial according to law. It is further ordered and decreed, that the plaintiff and appellee, pay the costs of this appeal.

Rehearing refused.


author: Slidell, C. J.

text:
    A. J. Lowry v. S. M. C. Cobb and her Husband, O. B. Cobb.
    Plaintiff and defendants owned a plantation in partnership. Difficulties arising between them, the property was placed in the hands of a receiver, and arbitrators, clothed with the powers of amicable compounders, appointed. After flagrantly violating the award and usurping the administration of the property, defendants confessed a judgment in favor of a mortgage creditor, who seized and sold the property. At the sale, plaintiff, through friends, bought the property, and defendants claimed the benefit of the purchase for the partnership.
    A partner has no right to prefer his own interest to that of the firm, nor deprive the partnership of a profitable bargain, by taking it to his own account.
    But (by the Court,) plaintiff had faithfully submitted to the award, by which the partnership property was placed under the administration of a receiver, and which award defendants were bound by every consideration of partnership, and moral duty to respect. Without any just cause, they wrested the possession frmn the receiver, diverted to their own use the crops which had been sacredly appropriated to purposes vitally necessary to the protection of the partnership interests— awakened the distrust of an important creditor, and occasioned, if not invited, a forced sale by this creditor of the partnership estate, under his mortgage. When plaintiff thus saw his own ruin impending by the bad faith of his co-proprietors, who thus flagrantly violated the compact for their common preservation, the instincts of self-defence necessarily compelled him to seek the assistance of his friends ; and having sheltered himself, in some degree, through their interposition, from the calamity which would otherwise have crushed him, the promoter of the mischief has no equity to share the shelter with him.
    The penalties stipulated in a submission which is partially executed, can be modified by the discretion of the court. Code, 2128.
    APPEAL from the District Court of the Parish of Madison, Perkins, Jr., J.

      Slaey & Sparrow, for plaintiff and appellant. W. Perkins, and Bemiss, for defendants.
   Slidell, C. J.

We refer to the cases of Cobb v. Parham, 4 An. 148, and Parham & Lowry v. Cobb, 7 An., for a more minute detail of the origin of a litigation of which the present suit is a sequel. By a reference to those cases, it will be found that Lowry and Mrs. Cobb were joint proprietors of a large estate called the Buckhorn plantation; that they quarrelled, and after an acrimonious litigation, submitted their differences to arbitrators, clothed with the authority of amicable compounders; that those arbitrators made a very discreet and equitable award, by which both proprietors were divested, for a stated time, of the control of the estate, a receiver was appointed, and a judicious system of administration prescribed, which, if undisturbed, would have probably resulted to the great advantage of both parties; that Mrs. Cobb and husband, flagrantly violated the award, usurped the administration of the common estate, and appropriated its revenues to their own use.

Soon after this unjustifiable breach of the award, we find Mrs. Cobb and her husband, confessing a judgment in favor of a mortgage creditor, who, until then, it would seem, was satisfied with the receivorship, and willing to look to the application of the revenues of the estate in the manner prescribed by the award. The result of this confession was a sale, in 1849, of a large portion of the estate by the Sheriff. It was adjudicated to Moraney, on twelve months’ eredit, at $41,775.

It appears that Moraney was a friend and connection of Lowry, and that he and two other persons interested in this purchase, have an understanding with Lowry, to convey the interest thus acquired to him, upon reimbursement of the amount paid, and it may be inferred from the evidence, that this understanding existed at the time of the Sheriff’s sale; and one of the questions most urgently presented in argument for the defendants is, whether they have a right to treat this purchase as one made by Lowry and inuring to the benefit of the partnership.

It is true, as asserted by the defendants, that a partner has not a right to prefer his own interest to that of the firm, nor deprive the partnership of a profitable bargain, by taking it to his own account. The doctrine is obviously deducible from the nature of the contract of partnership, on entering into which, the partner promises to his associates his efforts for the common benefit. This promise he would violate, by seeking his individual advantage to that of the partnership. Hence, the books abound in cases where a partner who, ■while his relations as such existed, has stipulated clandestinely for any private benefit to himself, has been compelled to divide such gains with his associates. But we conceive that the circumstances of the present case do not fall within the rule, and that by her own inequitable conduct the defendant excluded herself from its application. Lowry had faithfully submitted to the award, by which the partnership property was placed under the administration of Par-ham, the receiver, and which award Mrs. Gobb was bound, by every consideration of partnership and moral duty, to respect. Without any just cause, she and her husband wrested the possession from Parham, diverted to their own use the crops which had been sacredly appropriated to purposes vitally necessary to the protection of the partnership interests, awakened the distrust of an important creditor ; and occasioned, if not invited, a forced sale by this creditor of the partnership estate under his mortgage. When Loiory thus saw his own ruin impending by the bad faith of his co-proprietor, who had thus flagrantly violated the compact for their common preservation, the instinct of self-defence necessarily compelled him to seek the assistance of his friends; and having sheltered himself in some degree, through their interposition, from the calamity which would otherwise have crushed him, the promoter of the mischief has no equity to share that shelter with him. A contrary doctrine would hold out to bad faith the chance of a successful wrong, with a certainty of impunity in case of failure.

It is said that on the day of sale, Gobb offered arrangements to which, if Lowry, had acceded, a sale in block could have been avoided, a better price realized, and further indulgence from the creditors gained. But the .evidence satisfies us, that Gobi was not prepared to carry out these arrangements, if Lowry had acceded ; and certainly Lowry’s experience was not such as to authorize him to entertain the propositions with any confidence that they would be fulfilled by his adversaries.

We conclude, therefore, that the defendant -was not entitled to share in the benefit of the stipulation made by Morancy and his associates in favor of Lowry.

With regard to the damages claimed by Lowry for the divestiture of his title, by the judicial sale, to pay Mrs. Gobbs' debt, we think his estimate of them exaggerated. The property was not bought by a stranger, but by his own friends, acting through Morancy, who stand ready to reinvest him with the legal title, whenever he shall repay their advances for his benefit. This is conclusively shown by their intervention in this cause, and by the testimony of Morancy and others. At the samo time, his position as owner of the mere equitable title, instead of the title in his own name which he previously held, involves some disadvantages which we think it our duty to take into account.

We have also to allow in the balance we are to ascertain, the sum of $2,101 97, being amount of balance ascertained by the award of the arbitrators, which should bear interest at six per cent, from 11th of March, 1847.

Also, one half of proceeds of the crop of 1847, appropriated by Pa/rham to the payment of Mrs. Gobb’s debt, to Burlce, Watt & Go., and Hynes, to wit, $8,289 74, to the former, and $400 to the latter, the one-half is $4,344 67, which should bear interest at six per cent, from the 1st of Pebruar}!-, 1848.

We have also in the estimate of Lowry's damages, taken into consideration the expensive, and vexatious litigation in which he was involved by the wrongful injunction suit. It will be observed, that with regard to the suits on the the appeal bond and the injunction bond, we have treated the damages there allowed, as compensating for the share of Lowry in the crop of 1848, appropriated by Mrs. Gobb to her own use.

There is some obscurity perhaps in the award with regard to an item of $14,000, appropriated to the payment of the debt to Burk, Watt & Go., for one-half of which credit is claimed by Lowry. Our conclusion is, that this was taken into consideration by the arbitrators, and allowed before striking the balance of $2,101 in favor of Lowry. If otherwise, we are at a loss to understand why the arbitrators should have made no provision for securing it by mortgage, nor for the rate of interest upon it.

The claim of Lowry for the one-half of the crop of 1848, is disposed of in another suit, No. 3007, of the docket of this court; but provision for its payment in the partition will be made in this decree.

As to the credits to which Mrs. Oobb's succession is entitled, they arise from her interest in the crops of the unsold portion, and the overplus of the price of the judicial sale remaining in Horancy's hands, after satisfying the debt to the Mitchell heirs.

It will be observed, that the Sheriff’s sale to Morancy, comprised a portion only of the joint property. After that sale was made, Lowry conveyed his interest in the unsold residue, to Morancy, Maher and Minnis; and it appears that since that period, Morancy has been in possession of the whole estate, acting in reality for the benefit of Lowry, who will ultimately reacquire the entire interest on reimbursing his friends for their advances. As one-half of the unsold portion of the Buckhorn estate belonged to Mrs. Gobb, it is obvious her succession is entitled to the one-half' of the net revenues of that portion, and that under the circumstances of the case, her net share of these revenues must be carried to her credit in account with Lowry

We have disregarded the claims set up by both parties for the penalties of $25,000, stipulated in the submission to arbitrators, in the event of a violation of the award. Without entering into the consideration of any other grounds for this course, it is sufficient to say that the award was partially executed, and in such case the modification of the penalty is a matter of judicial discretion. Civil Code, 2123. In striking the balance hereafter stated, we have given both parties such equitable indemnification as, under the circumstances, we consider them entitled to receive, and down to such period as the evidence e nables us to embrace. Both parties have expressed the desire that their mutual claims should be liquidated as far as possible, and we have endeavored to do so with a just and equitable reference to the peculiar features of this protracted litigation.

In our estimate, revenue of the credits to which Mrs. Gobb is entitled, we have only been able to embrace the crops of 1840, 1850 and 1851. We have no satisfactory data for crediting her portion of the crops after that of 1851; the credit on that score must be reserved for future examination.

We concur with what was said in Lowry v. Harris,—Annual, respecting the impracticability of carrying out specifically the provisions of the award touching the partition of" the property, especially after the long interval which has already elapsed, and in view of the delay which will still occur; and are of opinion, with reference to all the circumstances, that a partition should be effected by a judicial sale for cash, and without appraisement.

Considering the partnership character of the property under the provisions of the award, and the conditions thereby provided and imposed for Lowry's security, we are of opinion that Lowry should be decreed to be a creditor, with mortgage and privilege for his ascertained balance and total claim, to be enforced in the partition.

After the allowance of all the credits of every nature to which the parties are entitled respectively, excluding only the crop of 1848, which has been separately settled as above mentioned, and the crop subsequent to that of 1851, we decree a balance in favor of Lowry, on the 1st day of January, 1852, of $22,769 48, which is to bear six per cent, interest from that date, and subject to a reduction to be hereafter ascertained in the court below, for the sharG of Mrs. Gobi's succession in the net crops subsequent to that of 1851, being one-fourth of the entire crop of the whole estate, sold and unsold.

It is therefore decreed, that the judgment of the District Court be reversed, and that the costs of appeal be paid by the defendants.

It is further decreed, that the succession of Sarah M. G. Gobb is indebted to the said Alfred J, Lowry, in the sum of $22,769 48, with interest thereon at the rate of six per centum per annum, from the 1st day of January, 1852, subject to such credits as may hereafter be ascertained in favor of said succession, for its fourth interest in the net crops of the Buckhorn plantation, subsequent to the crop of 1851; and that for the indebtedness aforesaid, and also the judgment in the suit No. 8007 hereinafter mentioned, the said Lowry be paid as a creditor, with mortgage and privilege out of the proceeds of the judicial sale to be made to effect a partition herein,

It is further decreed that, in' order to effect a partition, all the property held jointly between the said Lowry -and said Mrs. Gobb, and which remained after the judicial sale of part thereof, made to If. P. Morancy, on the 2d day of June, 1849, whereof a copy is of record in this cause, be sold by the Sheriff on the first Saturday of January, 1855, for cash, and without appraisement; the proceeds of said sale, after paying the costs thereof and the costs of this suit in the court below, to be applied first to the payment of the said balance in favor of said Lowry, and interest as aforesaid, (less such deduction as may hereafter be decreed for credits hereafter to be ascertained as above provided, in favor of said succession of Mrs. Gobb,) and also to the payment of the amount of a judgment, interest and costs, rendered in favor of said Lowry, in the suit of said Lowry v. Cobb et als., No, 3007 of the docket of this court, to wit, the sum of §5,059, with five per cent, interest per annum, from the 30th of April, 1852, and costs; the residue, if any, of the proceeds of said sale, to be equally divided between the said Lowry, and the said succession of Mrs. Gobi.

And it is further decreed, that this cause be remanded to the District Court for further proceedings, pursuant to this decree ; the rights of the said Horan-cy, Maher, and the Succession of Minnis, to intervene and claim out of the proceeds of said sale coming to said Lowry,” any balance that may be due to them by the said Lowry, being reserved to them.

AMENDED DECREE.

It is decreed that the judgment in this cause rendered on the 14th June, 1854, be amended so as to read as follows.:

. It is decreed, that the judgment of the court below be reversed, and that the costs of appeal be paid by the defendants.

It is further decreed, that the succession of Sarah M. G. Gobi, is indebted to the said Alfred J- Lowry, in the sum of §22,709 48, with interest thereon at the rate of six per centum per annum, from the 1st day of January, 1852, until paid, subject to such credits as may hereafter be ascertained in favor of said succession, for one-fourth of the net crops of the Buckhorn plantation, subsequent to the crop of 1851; and that for the indebtedness aforesaid, and also the judgment in the suit No. 3007, hereafter mentioned, the said Loiory be paid as a creditor, with mortgage, out of the share of Mrs. Gobi's succession, in the proceeds of the judicial sale to be made to effect a partition herein.

It is further decreed, that in order to effect a partition and satisfaction of the plaintiff’s claim, all the property held jointly between the said Lowry and said Mrs. Gobi, and which remained after the judicial sale of part thereof, made to H. J?. Morancy, on the 2d of June, 1849, whereof a copy is of record in this cause, be sold bjr the Sheriff, on the first Saturday of February, 1855, for cash, and without appraisement; the proceeds of said sale, after paying the costs thereof, and the costs of this suit in the court below, to be distributed and applied as follows : one-half of said net proceeds to be paid to the said Alfred J. Lowry ; the other half of said net proceeds, being for the share of said Mrs. Cobb’s succession, to be applied, first, to the payment to said Lorn'y, of the aforesaid balance of §22,709 48, with interest as aforesaid, (less such deduction as may be hereafter decreed for credits hereafter to be ascertained as above provided in favor of said succession of Mrs. Gobi,) and also to the payment to said Lowry, of the amount of a judgment, interest and costs rendered in favor of said Loiory, in the suit of said Lowry v. Cobb et al., No. 3007 of the docket of this court, to wit, the sum of §5,959, with five per cent, interest per annum from the 30th of April, 1852, until paid, and costs; the residue, if any, of the said share of said Mrs. Gobi’s succession in said net proceeds, to be paid to her succession.

And it is further decreed, that this cause be remanded to the court below for further proceedings, pursuant to this decree; the rights of the said Moraro-cy, Maher, and.the Succession of Minnis, to intervene and claim out of the proceeds of said sale coming to said Lowry, any balance that may be due to £hom by said Lowry, being reserved to them.

      The plaintiff and defendants admit in their printed arguments, that it would be fair to consider the sold and the unsold portions of Buckhorn, to be about equally productive, and that the property unsold should share equally the revenues and expenses of the whole.


author: Ogden, J. Btjciianan, J.

text:
    Louise Delord Sarpy, Wife of D. F. Burthe, et al. v. Municipality No. Two.
    Where property has been set apart for public use and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an * stoppeH^jpais, which precludes the original owner from revoking such dedication.
    The decisions in Livaudais v. Municipality JSTo. Two, 16 La. 509 ; Livaudais v. Municipality JLo. Two, 5 Ann. 8; Xiques v. Bi0ac, 7 Ann. 517; and Livaudais v. Municipality Jib Two, 9th Ann, were based on the principle that the designation on a plan of a space for the erection of an edifice which might be the private property of an individual, or a corporation, could not be considered as a dedication to the public use.
    APPEAL from the Eifith District Court of New Orleans, Augustin, J.

      Roselius, and V. Burthe, for plaintiffs and appellants,
    cited : Livaudais v. Municipality No. Two, 1C La. 509. French v. Few Orleans and Carrollton Railroad Company, 2 Ann. 87. ATew Orleans and Carrollton Railroad Company v. Carrollton, 3 Ann. 282. Hatch v. Arnoult, 3 Ann. 482. Livaudais v. Municipality No. Two, 5 Ann. 9. Town of Carrollton v. Jones and Wife.

      Livingston, City Attorney,
    cited: Cleip v. Winter, 9 La. 153. 18 La. 122. 18 La. 280. 7 Ann. 234. C Peters 431. 7 Ann. 233. Huber v. Gazley, 18 Ohio, 18. 19 La. 63. Wright v. Tube, 3 Oust. 290. Gamble v. Oily of St. Lou,is, 12 Miss. G17. Goopy v. City of Alton, 12 111. 29. Abbott v. Mills. S Verm. 521. State v. Colton, 3 Verm. 630. State v. Trash, 6 Ver. 305. Wy-man v. Mayor of New York, 4 Wend. 497.
   Ogden, J.

The plaintiff's set up title to a portion of ground in the city of New Orleans, known as Tivoli Circle, and also to two strips of ground, each thirty feet wide, the one in the centre of Triton Walk, running from Tivoli Circle to the extremity of Triton Walk, and the other in the centre of Na3'adcs street, and running from Tivoli Circle to the lower limits of Eauburg- Saulet. The defence is, that the property was abandoned and dedicated by the ancestors of the plaintiffs and their vendors, to the public use, and that they have been used and enjoyed as loeipublioi for more than thirty years. The New Orleans and Carrollton Railroad Company, in the year 1833, obtained permission from the defendant to build a railroad and run their cars through this property, and having been joined as defendants in the action, they set up the same defence with the city,' and allege that they have occupied and enjoyed the premises for the purposes of the railroad, openly, publicly and uninterruptedly, and with the knowledge of the plaintiffs, for more than nineteen years.

To establish the fact of the dedication of this ground to the public use, the defendants produce two plans; one is a plan executed by B. Lafon, engineer, dated the 8th of July, 1807, on which the premises are designated by, first, a circle, with the words “ Place Tivoli” written around it; 2d, a narrow strip of ground in the centre of Nayades street, running from the Circle, on which are the words “ Canal de Tivoli” ; 3d, a similar narrow strip in the centre of Triton Walk, with the words written on it, “ Canal des Tritons.” This plan was executed at the instance of Armand Duplantier, who purchased the plantation, out of which the Eauburg Delord was created, from Madame Belorrd Sarpy, the mother of the plaintiffs. He laid the property out into lots, streets, squares, &c., and, after having- sold a portion of the lots, he became insolvent, ani^> ln 1814, his syndics made a retrocession of the unsold portion to his vendor, Madame Sarpy. The other plan is one which the plaintiffs in this suit in the year 1827, caused to be deposited in the office of Felix de Armas, notary public, to be annexed to an act of partition of the estatu of their mother, executed before that officer. The only difference between that plan and the former one is, that the words written around the Circle are “ Place du Tivoli,” instead of “ Place Tivoli, and that the strip in the middle of Nayades street has nothing over it.

The evidence shows that the mother of the plaintiffs and, after her death, the plaintiffs themselves, sold lots according to their plan. In a sale of two lots to Jacob Ott, in 1825, one of the lots is described as “ situated at the comer of the street called Cours des Tritons and of the Circular place of Tivoli,” and measuring 140 feet 7 inches front on said Cours des Tritons, and 68 feet front on the place of Tivoli. Ott testified, as a witness on the trial, that before he purchased, a plan of Tivoli place and the wide streets, was shown to him, and he was then induced to purchase. In another sale made in 1820, to Andre Burn-ford, the property is described as follows: “ Un morceau de terre formant un polígono irrégulier situé au Fauburg Dclord, dans l’islet compris entre les rues du Camp, Calliope, les Cours de Nayades, la place Tivoli et la rue De-lord.”

In the act of partition made between the plaintiffs, of the property belonging to the succession of their mother, no mention is made of any claim on their part to the ground which, by the plan annexed to the partition, appeared to have been thus sot apart; and that they intended the partition to be a final and definitive one, of all the property in Louisiana belonging to their mother’s succession, is evident from a clause in the act, which is in the following words: “ Comme il pouvait avoir dans la succession quelques créances á recouvrer et qu’il existe des terres dans l’Etat du Missouri, dont les titres de l’une ne sont pas encore confirmés par le Congrés des Etats Unis, et il est convenu entre les parties, que ces biens domeureront indivis entre clles.” It appears that in 1826 or 1827, the city planted trees arround the Circle, and in 1837 they fenced it in. By an ordinance in 1833, they granted permission to the Carrollton Railroad Company to build their road, and run their cars through this property, and it is proved that the strips of land on Triton Walk and Nayades streets, were kept in repair by the city authorities, until the railroad company was established, after which the company kept them in repair.

It does not appear that the plaintiffs ever made any opposition to the exercise by the city of the absolute right of control over these places. The railroad company, under the authority of an Act of the Legislature, and of the permission granted by the city authorities, have ever since the road was built, and are now running their cars through the Circle, and through the strips of ground in the center of Nayades street and Triton Walk. No attempt was ever made by the plaintiffs or by their ancestor to subject this ground to any private use, since the plan of 1807, and until the institution of this suit, forty years afterwards, no one has ever laid claim to it as private property.

The question, and the only one to bo decided is, whether these plans, with the contemporaneous acts of the parties, and the long use and enjoyment of the property by the public, without opposition on the part of the plaintiffs, are sufficient evidence of their intention to make a dedication. The true principle of law applicable to this subject, is laid down in the case of City of Cincinnati v. The Lessee of White, 6 Peters, 431, “ that where pi-operty lias been thus set apart for public use, and enjoyed as such, and private and individual rights acquired with reference to it, the law considers it in the nature of an estoppel in pais, which precludes the original owner from revoking such dedication.” In that case it was held, that the assent of the owner of the land to its being used for public purposes, and the fact of its being so used, and that use continuing for such a length of time, that the public accommodation and private rights might be injured by the interruption of the enjoyment, would be of themselves sufficient evidence of a dedication. In the present case, to arrive at the intention of the parties, we have abundant evidence out of the plans which have given rise to much discussion, as to what meaning should be attached to the words written thereon.

The evidence satisfies our minds that it was the intention of the plaintiffs, and of their mother, that the ground claimed in this suit, should be dedicated to the public use; and we do not rest that conclusion on the plans alone, but we consider the acts of the parties as irreconcileable with any other hypothesis but that of their having made the dedication. How, otherwise, are we to view their having made a partition of the property of their mother, with the plan before them, on which these several pieces of ground are designated, and yet not embracing them in the partition. At that time, the city had not enclosed the Circle, and Nayades street and Triton Walk were not used ; there was therefore nothing to prevent them from proceeding to the partition of those parcels of ground as well as of the lots which they divided between them, if in point of fact they considered themselves as the proprietors. The conclusion is not to be avoided, that having made previously sales of lots, recognizing these as public places, in the boundaries and description of the lots sold, they no longer claimed the property, but considered it abandoned to the public use, and subsequently acquiesced in the enjoyment of it by the city, for the uses to which it was afterwards subjected.

The counsel for the appellees has contended, that this case is identical in principle with the cases of Livaudais v. Municipality No. Two, 16 L. R. 509; Livaudais et al. v. Municipality No. Two, 5th Ann. 8; Xiques v. Bujac, 7 Ann. 517; and David & Livaudais v. Municipality No. Two, 9th Annual. There is a striking difference, we think, between those cases and the present one. The case first decided will illustrate that difference. The heirs of Li-vaudais claimed a square of ground which figured on the original plan of Eau-burg Annunciation, on which tho word “ Colyséc” was written. This, it was contended on the part of the city, constituted a dedication by the plaintiff’s ancestor of the square to a public use. Judge Martin, who delivered the opinion of the court, says: “ The word Coliseum is the proper name of an edifice in Rome, originally known as the ‘ Amphitheatre of Titus,’ and that it ■was originally the private property of the Emperor.” He says : “ There is no evidence of the alleged dedication out of the plan in this case; and none in the plan out of the word ‘ Coliseum.’ ” He then decides, that there was no dedication, for the reason that the word thus written on the plan, indicated only that the ground was reserved for the erection of a building which might be private property or sold or leased out as such. Judge Martin, in that case, observes : “ The obligation which the plaintiff has contracted by the use of the word “ Coliseum,” might certainly be discharged by the erection of such an edifice. In the meanwhile, he may have lost the right of using the square for any other purpose.” The subsequent decisions related to squares reserved oil the same place by the same founder for a church and for a market house. Those decisions were based on the principle that the designation on a plan of a space for the erection of an edifice, which might be the private property of an individual or a corporation, could not be considered as a dedication to the public use.

That principle has no application in the present case. The words written on the plan of the Eauburg Delord, “Place Tivoli.” or “Place du Tivoli,” do not convey the idea of a place reserved for an edifice of any kind. Tivoli is the name of a town in Italy, not far from Rome, and was used for its classical associations, as the name by which the “ Circle” laid out for the public convenience, was to be distinguished, and in the same sense and with the same design as it is usual to designate the streets and squares of a city, by the names of persons and places, both historical and mythological.

Besides that difference, there is in the present case, full and complete evidence of the dedication out of the plan and resulting from the acts of the parties. In the cases referred to, the city never appropriated the ground to the use indicated by the plan j in the present case, they have done so — and without interruption or opposition, the public have had the use and enjoyment of the property as a public square and as public streets, for many years.

We are unable to perceive any advantage to be derived to the plaintiffs’ claim, from the decisions relied on in the cases of French v. Carrollton Railroad Company, 2 Ann. 87, and The Town of Carrollton v. Jones, 7th Ann. 233. There is no evidence in the present case, that either the plaintiffs or their ancestors used or exercised any rights of ownership over the strips of land in Nayades streets and Triton Walk, designated as canals.. They were probably designed to serve as drains for those wide streets. They have, however, for many years before the institution of this suit, been used by the public, as making part of those streets, and this having been done with the assent of the plaintiffs, as their acts necessarily imply, the dedication for that purpose is sufficiently established.

To deprive the public of the use of these thoroughfares which the former owners have so long ago abandoned, and which all their acts tend to prove, it was their intention to abandon in favor of the public, would be a disappointment of the just hopes and expectations which the acts of the plaintiffs and their ancestor have given rise to, and at the same time a violation of private lights which have sprung up on the faith of those acts.

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

Btjciianan, J.

I prefer to put my concurrence in the decree of the court, exclusively on the ground of the acts of the heirs of Madam Delord Bcurpy, as amounting to a renunciation of the right of proprietorship in the premises claimed in this suit.


author: Voorhies, J. Spoffobd, J.

text:
    Henry A. Lyons v. J. Lallande.
    The mere fact, or circumstance of a commission merchant having made advances to a planter, on which the usual commissions and interest are charged, is clearly insufficient to authorize a charge of commission on such portions of the planter’s crop as maybe consigned to other factors, in the absence of any agreement to that effect.
    APPEAL from the Fourth District Court of Now Orleans, Reynolds, J.

      Elmore & King, for plaintiff. Janin, for defendant and appellant.
   Voorhies, J.

(Ogden, J., absent, and Slidell, C. J., dissenting.)

This suit is instituted by the plaintiff as administrator of the estate of Mrs. (?. B. Lyons, his deceased wife, by whom the defendant was employed as a factor and commission merchant in the city of New Orleans.

The defendant avers in his answer, that about the end of February or be-gining of March, 1850, he made an agreement with the deceased, whereby he was to be her commission merchant, and, as such, to assist'her in procuring a loan of $10,000, advance to her the supplies necessary for her plantations, attend to her private affairs in this city, sell her crops, and generally render to her the services which are usually rendered by factors and commission merchants in this city, to planters residing in the country; that in consideration thereof, she was to consign to him all the crops of that year’s growth, on her two plantations in the parish of West Feliciana, and on that in the parish of Iberville, belonging to her husband, then absent from the State, and of whom she was the agent and attorney in fact. That he exerted himself and procured her a loan of $10,000, on very advantageous terms; attended to and executed promptly the orders received from her for the said plantations, or relating to her private business and personal property in this city; sold to the best advantage sixty-seven bales of cotton of her crops, consigned to him from her platations, and paid over to her on the 4th of January, 1851, the sum of $2600. He further avers, that she violated her contract by consigning the greater part of her crops to other commission merchants in this city, and that, by the usual course of dealing between planters and commission merchants, he is entitled to recover a commission of two and a half per cent, on the gross amount of the crops thus consigned.) That by two letters, dated the 3d and 4th of January, 1851, he communicated to her the state of his account with her, with the exception of commissions, and declared to her that he had $2500 at her disposal, but could not make out her account current until he knew what disposition she had made of her crops, on which he was entitled to a commission ; and by the same letters he informed her, that exclusive of commissions, she had in his hands a balance of $2401 36, and thirteen bales of cotton unsold, which were afterwards sold and yielded the sum of $739 03. That exclusive of said commissions, there would be a balance against him in her favor for the sum of $580 94. That with the commissions to which he is thus entitled, and the interest on his advances, a final account would show a balance of $200 in his favor against her, for which he prays judgment in re-convention. ■

We are of opinion, from a careful examination of the evidence disposed by the record, that the defendant has entirely failed to establish the alleged agreement. ('The mere fact or circumstance of a commission merchant’s having made advances to a planter, on which the usual commissions and interest are charged, in the absence of any agreement to that effect, is clearly insufficient, in our opinion, to authorize a charge of commission on such portions of his crops as may be consigned to other factors.J The law gives a privilege to the the commission merchant, in certain specified cases, on the crops of the planter, to secure the reimbursement of his advances; but we are not aware that the law creates a ly obligation on the part of the planter to pay him commissions on his crops consigned to other factors.

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

Spoffobd, J.

I concur in the decree affirming the judgment, because I do not think it can be fairly inferred from the evidence, that Mrs. Lyons was under a legal obligation to consign all her crops of the year 1850, to the house of Lallande.

Mr, Justice Buchanan, concurs in this opinion.


text:
    A. F. Rightor v. John Slidell.
    The proper mode of seizing a debt existing in the form of a judgment, is a notification of seizure by the Sheriff to the judgment debtor.
    When third persons seek to annul a judicial sale, it is essential for them to show that they have been injured by the sale; otherwise they have no right to interfere with it.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      S. L. Johnson, for plaintiff:
    1. The seizure of the judgment of Rightor v. Slidell, by the United States Marshal, by service on Slidell, the debtor of the judgment, of the notice copied into the statement of facts, was a good, valid, and effectual seizure, and nothing in law, or in the nature of the case, required a resort to the provisions of the 18th section of the Act of March 20th, 1839.
    Article 647 of the Code of Practice is,in these words: “But if the debtor has neither movable, nor slaves, nor immovable property, the Sheriff may seize the rights and credits which belong to him, and all sums of money which may be due to him, in whatsoever right, unless it be for alimony or salaries of office.”
    This article introduced no new' principle or rule into our law. It was meiely a declaration of the existing law which we derived from that of Spain and Rome. Flower et al. v. Livingston, 2 N. S. 615. 5 N. S. 180. Dig. 42, 1, 15, sec. S, etseg.

    No objection is made to the seizure in this case, except that it was not made by propounding interrogatories to the appellant under the Act of 1839, This assumes that the provisions of that act must be followed under penalty of nullity in all cases of seizure of incorporeal rights even when existing in the form of judgments. Prior to the existence of that act, and now', but for its existence, the seizure made in this case -would be exceptionable. This leads us to scrutinize the act to see what there is in it to justify the assumption. ,,
    It was at first applicable only to the parish of Orleans, and began by declaring, “ that in the parish of Orleans, whenever a party, plaintiff in a cause, has applied for a writ of ¿fieri facias against the defendant, and has reason to believe that a third person has property or effects in his possession or under his control belonging to the defendant, or is indebted to him, he may cause such third person to be cited to answer under oath such interrogatories,” &c., pourra faire eiter, &c.
    The terms which are used in the act, it will be observed, are facultative and not imperative, nor is there the least intimation of the prohibition or exclusion of the modes of seizure which had been previously employed. There is nothing expressly or by implication repealing any former law or prescribing under penalty of nullity the observance of the statute. It is purely remedial, offering a new means to the creditor to obtain the great object of the machinery of justice, which is to seeure the payment of that which is due.
    It is obvious that this statute can bo of very little use, where the indebtedness of the party in whose hands the seizure was laid, had been established by a judgment. The judgment debtor might even have good reason to oppose this mode of proceeding, as leading to several judgments, executions, and mortgages against him for the same debt and cause of action.
    The last clause of the act in question is in those words: “ The property and effects in the possession of a third person, belonging to the defendant, or debts due by him to such defendant, shall be decreed to be levied as by the Sheriff) from the date of the service of the interrogatories on such persons.”
    This part of the statute was necessary in order to attribute to the commencement of suit by citation and service of petition with interrogatories, the force of a seizure, which nothing in the nature of the proceeding gives to it.
    No nullity then can be argued from the terms of this statute under Art. 12, O. 0. There is no repeal of Arts. 642, 647, 0. P., there is onty auxiliary means of enforcing that article in certain cases.
    These views of the law are sustained by the decisions of the courts. Harris v. The Bank of Mobile, 5 Ann. 538. After reviewing the case cited, the court says: “ These decisions do not conflict rvith the principle, that an incorporeal right may be seized by notifying the person or corporation in possession of the subject of the right. The inability to seize the corporeal evidence of the right, does not prevent the creditor from seizing the right itself, by notifying the keeper of the subject matter of the right.” In Hanna v. Bry, 5 Ann. 656, the court says: “We understand the proper mode of seizing a debt existing in the form of a judgment, is a notification of seizure by the Sheriff to the judgment debtor; and such notification, we think, was effected in the present case by the process of garnishment served upon the judgment debtor.” The language of this decision is in perfect accordance with our view of the Statute of 1839, making it an auxiliary and cumulative remedy, not an exclusive one. The most essential element of the seizure of a judgment is the notification to the debtor of the judgment in order that he may not pay it, in ignorance of our seizure, to the owner of the judgment or to some fraudulent or negligent assignee. Sales of personal property are perfected as to third persons, by delivery, by the vendee getting actual possession of the property. As to incorporeal rights, “ the transferee is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place.” 0. 0. 2613. The Sheriff) in making seizures of personal property, follows the principle of the rule for sales. If the property be corporeal, he must take actual possession of it, or there is no seizure. If it be an incorporeal right that he has to seize, he must take possession of it by notice of the seizure to the debtor of the right, as the conventional transferee must do under the article just cited. At common law, choses in action are not assignable, and therefore not seizable, and the creditor is obliged to resort to a bill in Chancery to make them available. 4th Kent, 431, note 0.
    All the doubts about the validity and effectiveness of the seizure of incorporeal rights by notice to the debtor of them, are of common law origin, and are discordant with the spirit of the civil law, which looks upon incorporeal rights as forming the subject of sales and seizures equally with corporeal property. Our act of 1839 gives the creditor the benefit of an immediate discovery and of compelling his debtor to pay over to him, and thus gives us the benefit in a very simple way of the creditor’s bill in Chancery. It is in many cases a most useful remedy, but in cases like that before the court it is superfluous. Oases may be supposed in which its enforced application would be depriving the creditor of his rights. His debtor might have sold his property on long terms, and his creditor, by this remedy, would have to wait to be paid as the terms fell due. For this statute, says the court, shall order the debtor “ to pay such sum, if the same bo due, and if not, when the same shall be due.” Now, the Code of Practice contemplates the sale of property seized under a ¿ft,, fa. in order to make the money for the plaintiff without unnecessary delay. Art. 642. And when the debtor can sell his incorporeal rights in order to realize ready money, there is no reason why they should not be sold, in execution, to pay his debts.
    The counsel for the appellant relies upon several cases which will now bo noticed. The first is that of Scott v. Nihlett, 0 Ann. 182. In this case the Sheriff attempted to make a seizure of a note on file in a suit in court, by asking the clerk for the note, taking a description of it and handing it back to the clerk, with a notice of seizure. The court considered the note tangible property, of which the actual possession is indispensable to a valid seizure, as is evident from this extract from the opinion : “We have always hold that in order to make a valid seizure of tangible property, the thing levied upon must be taken into actual possession by the officer, ffaines v. Merchants1 Banlc, 4 Ann. 871. A promissory note, endorsed in blank by the payee, is of that class of property. It is not merely the evidence of debt; with its endorsement, it contains the obligations of several parties; and is the subject of sale and delivery as much as any other movable.” A judgment is not tangible property and is riot sold and delivered by delivery of the record, nor can it be seized by seizing the record. Hanna v. Bry, 5 Ann. 656.
    The next is a judgment in the matter of Bonner & Smith v. Eunice Carl, in ■Which R-. Carl-, co-surety of Eunice Carl, on a twelve months’ bond, caused llimself to bo subrogated to the plaintiffs; Bonner & Smith, issued a ¿ft. fa. against Eunice Carl, and seized her rights in the hands of H. C. Young et al., and then filed a petititiou setting forth the seizure, alleging indebtedness to Eunice Carl, in an amount sufficient to satisfy the writ, and asking judgment against them. This cause was excepted to as an endeavor to take advantage Of the remedy given by the Act of 1839, without propounding interrogatories and conforming to the conditions of the act. Judgment, 10th April, 1854. “ As a general rule;” says the court, “a debtor is subject to the pursuit of his his creditor; and not of the creditor of his creditor. To facilitate judgment creditors in the collection of their claims, the remedy of the statute of 1839, was given; and those who desire its benefit must exercise the remedy in the manner provided by the statute, to wit, by citing the third person to answer interrogatories.”
    This decision; in no manner, conflicts with anything that we contend for. An exorbitant right is given by the Statute of 1839; that of suing for a debt due to another before we have got title to it j that in many cases of suing for a part only of the debt due to another, leaving the debtor of it exposed to other suits for the remainder. It is evident that an exceptionable right of the kind given for the benefit of the seizing creditor must be exercised by him in strict conformity with the statute which grants it, and the court, in the case quoted, properly sustained the exception of the defendant on this ground-. But where is its applicability to the present case ?
    Another case relied on by the appellant is, that df S. 0. Nelson & Co. v. Simpson, decided on the 15th instant. It is perhaps sufficient to say that this was a case of an attachment by mesne process, and that the opinion confines itself strictly to such cases. The attachment moreover was made by a notice of seizure of the most general and comprehensive kind. In attachments generally, the jurisdiction of the court cannot be determined without the answers of garnishees, and there is no reason in this case for making a rule,-which is indispensable in the great majority of cases, yield to the few exceptions. An attachment moreover by mesne process is an invasion of the defendant’s rights of property, before any claim is proved against him to justify it; is therefore a harsh measure, and is construed strictly against the plaintiff and favorably to the defendant. No inference can safely be drawn from this case in favor of the appellant’s pretentions.
    Looking then to the practice and jurisprudence which have always prevailed in Louisiana, to the provisions of the Code of Practice, to the principals of the civil law, to the terms of the Act of 1839; and the absence of any thing imperative or exclusive in them, and finally to the latest decisions of our courts, we come to the conclusion that nothing in our law-, nor in the nature of the caso required us to propound interrogatories to the judgment debtor in order to make a valid seizure.
    2. At the time the seizure was laid in the hands of the appellant he had no interest in contesting it; it was a matter of indifference to him whether the judgment which he owed was paid to us or to our debtor. Ho was a simple stakeholder for three years while we were battling with other claimants. He then gets the control of a judgment against Rightor, with the view of contesting the validity of our seizure of Rightor's judgment against him, and pleading the extinction of it by compensation. We say that the stakeholder had no interest, and therefore no capacity to object to our form of proceeding when it was taken. Point de nullités sans griefs, is a maxim that may well be applied to the appellant’s pretentions. If ho saw fit voluntarily to change his position of disinterested stakeholder for that of interested party, the speculation was at his risk, and cnn give him no right to propose the nullity of proceedings prior to his acquisition of an interest, which the party then having an interest never opposed, and has now most fully ratified, if there was any need of ratification. In Leblanc v. Dubroea, 6 Ann. 360, it was held, that when third persons seek to annul a judicial sale on account of informalities, it is essential for them to show they have been injured by the sale, otherwise tljey have no right to interfere with it. The appellant cannot pretend thaj; h,e has been injured b}r our proceeding, when the pretended informalities were com: mitted long before ho had an interest in opposing them were known to him, and were the inducement to his acquiring an interest. If he has been injured at all, it is by his speculation upon our loss, and that speculation we do not suppose to have been made at any great outlay or exposure, as it would be easy to get the control of a judgment in such a case for a promise of a share of the profits.
    The doctrine that we contend for has repeatedly been the basis of the discussions of our courts. State v. Martin, 2 Ann. 667. Fortier v. Slidell, G Ann. 56. Oonrey v. Copeland, 3 Ann. 452. Monition of Johnson, 3 Ann. 656. . ' '
    . Olarl'e & Boyne, for defendant and appellant, cited Scott & Niblett, 6 Ann. 182. Bonner'& Smith v. Garl, 9 Ann.
   Voorhies, J.

(Sijdell, O. J., and Buchanan, J., declined sitting.)

On the 5th of January, 1854, a rule was taken on the defendant by Alfred Edwards, subrogated to the rights of the plaintiff, to show cause why a writ of fieri facias should not issue against him in this case.

. The rule was made absolute, and the defendant appealed.

On the 25th of Eebruary, 1848, the United States Marshal, by virtue of $ pluries writ of fieri facias in the suit of Arthur Tappan & Go. against A. F. Rightor, notified the defendant, John Slidell, in writing, that he had seized in his hands, “ the goods and chattels, rights, credits, moneys, effects, or property of any kind,” which he might have belonging to the said defendant, Rightor, or as much thereof as would satisfy the writ, say §5000 ; and, in the notice, added : “ I seize in your hands, for the purpose aforesaid, particularly a debt due by John Slidell to said defendant, A. F. Rightor, on which a judgment has been rendered by the First .Judicial District Court of the State of Louisiana, numbered on the docket of said court, 20,226, and confirmed by the Supreme Court against said John Slidell, and in favor of said A. F. Rightor, being the same judgment which has already been levied on in this suit, under the fl. fa. issued herein on the 6th of December, 1842.” On the next day, A. F. Rightor was also notified of the seizure thus made in the hands of John Slidell. In 1851, John Slidell was subrogated to the rights of Jennison Eager, in a judgment in favor of the latter, exceeding in amount that in favor of Rightor against Slidell. Rightor was notified of this transfer and subro-gated in February, 1831. In September of the same year, Alfred Edwards, plaintiff in the rule, became the purchaser of the judgment in favor of Bightor against Slidell, at a sale made by the United States Marshal, by virtue of the writ of fieri facias, in the suit of Arthur Tappan& Go. against A. F. Bightor. Bightor, being notified of the rule taken in this case, answered that he was notified of the proceedings by which Edwards became the purchaser of the judgment in his favor, and waived any exception or objection, if any existed, which he could have thereto, for annulling either the seizure or sale of said judgment. It is admitted by the parties, that the Code of Practice, and the amendments thereto, were adopted in December, 1839, as the rules of the United States Circuit Court.

The judgment of Jennison Eager is pleaded in compensation by the defendant in the rule. In order to sustain his plea, it is urged by him that the proceeding under the wiit of fieri facias in the case of Arthur Tappan & Go. against A. F. Bightor, were irregular and insufficient to effect a valid seizure in his hands.

Under this state of facts, the District Court, in our opinion, did not err in maintaining the validity of the seizure and making the rule absolute. The seizure was made under Articles 642 and 647 of the Code of Practice, the last of which provides: “ But if the debtor has neither movable, nor slaves, nor immovable property, the Sheriff' may seize the rights and credits which belong to him, and all sums of money which may be due to him, in whatsoever right, unless it be for alimony or salaries of office.”

The Act of March 20th, 1839, section 13, produced no change in either of these articles, but only gave an auxiliary and cumulative remedy to the judgment creditor to secure the payment of that which is due to him. In the case of Harris v. The BanTc of Mobile, 5 Ann. 538, it is held, “ that an incorporeal right may be seized by notifying the person or corporation in possession of the subject of the right. The inability to seize the incorporeal evidence of the right, does not prevent the creditor from seizing the right itself, by notifying the keeper of the subject matter of the right.” In Hanna v. Bry, 5 Ann. 666, it is held, that the proper mode of seizing a debt existing in the form of a judgment, is a notification of seizure by the Sheriff to the judgment debtor.” These decisions harmonize with our construction of this statute. Under Article 2613 of the Civil Code, in relation to the transfer of incorporeal rights, such notice is sufficient as it regards third persons. We do not think that the cases, to which we have adverted, conflict in any manner with any of those on which the appellant’s counsel rely, namely, Scott v. Niblett, 6 Annual, 182 ; Gaines v. Merchants' Bank, 4 Ann. 371; Bonner & Smith v. Eunice Carl, and Nelson & Co. v. Simpson. It is settled, that when third persons seek to annul a judicial sale, it is essential for them to show that they have been injured by the sale, otherwise they have no right to interfere with it. 6 Ann. 360. The appellant cannot deny that he was notified of the seizure previous to his having acquired any right to the judgment of Jennison Eager against A. F. Bightor, and must therefore submit to the injury or loss to which he has exposed himself by his own voluntary act.

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


text:
    Duncan v. Labouisse.
   THE following amended decree in the aboye case, reported ante p. 49, was accidentally omitted:

Slidell, C. J.

The opinions of the Judges respectively remain unchanged, except as to the propriety of the reservation added to the judgment of affir-mance, by way of amendment.

It is therefore ordered that the application for re hearing be dismissed.

It is further ordered, that the judgment in this cause by this court rendered on the 23d of January last, be amended so as to read as follows:

It is therefore decreed, that the judgment of the District Court be affirmed, with costs, without any prejudice to any right of action the said Duncan may have for damages for the breach by said Labouisse, of the alleged formal agreement between said Labouisse and said Duncan, mentioned in the petition.


author: CLAIBORNE, J.

text:
    No. 9585.
    Orleans Appeal.
    O.K. REALTY CO., INC., Appellants, v. JOHN A. JULIANI, INC., ET AL.
    (October 6, 1924, Opinion and Decree.)

      (Syllabus Tig'the Court.)

    1. Louisiana Digest, Garnishment, Par. 34, 49.
    A judgment is essential to a fieri facias, and a fieri facias is an essential foundation to a garnishment proceeding; without the existence of either the garnishment proceedings are null.
    2. Louisiana Digest, Appeal, Par. 425, 426.
    An appellate court cannot consider any document which was not offered in evidence on the trial of the case.
    Appeal from First City Court, Hon. Val J. Stentz, Judge.
    This is a suit to set aside a garnishment. There was judgment in favor of John A. Juliani and against the Realty Company perpetuating the injunction and releasing the seizure, and dismissing the reconventional demand “without prejudice”.
    Defendant in injunction appealed.
    Judgment affirmed.
    W. H. McClendon, Jr., attorney for plaintiff in injunction and appellee.
    Theo. Cotonio, attorney for defendant in injunction and appellant.
   CLAIBORNE, J.

The plaintiff, in their petition, averred that John A. Juliani, Inc., and John A. Juliani, were indebted unto them in solido in the sum of $210 for a commission for procuring a contract; that the said John A. Juliani, Inc., and John A. Juliani individually, had acknowledged the indebtedness by the following instrument;

“July 7, 1923.'
O. K. Realty Co., Inc., City.
Gentlemen:
In consideration of your having been instrumental in obtaining for us the contract for the construction of a four-room double cottage for account- of Reuben Victory, the site of the same being on Alexander Street between D’Hemecourt and Baudin Streets, we agree to pay you the sum of $210.
Yours truly,
(Signed) Jno. A. Juliani, Inc.
Jno. A. Juliani.”

The plaintiffs prayed that John A. Juliani, Inc., through its proper officers, and John A. Juliani, individually, be cited and for judgment against the said John A. Juliani, Inc., and John A. Juliani, individually, jointly and in solido for $210.

The defendants answered by a general denial.

There was judgment against the' defendant, John A. Juliani, Inc. The suit against John A. Juliani was dismissed as of non-suit.

The plaintiff issued execution on this judgment and caused the “Phoenix Utility Co.” to be garnished.

They were asked:

1st. Are you indebted to the defendants herein, John A. Juliani, Inc., and John A. Juliani in the sum of Three Hundred Dollars or any part thereof?

The Phoenix Utility Company answered $250.

2nd. Is not the defendant herein, John A. Juliani, in your employ? If yes, state what are his wages and how paid, and if there is any money due him for services rendered?

The Phoenix Utility Company answered: “Defendant left our employ December 15, 1923. Wages due him from November 15 to December 15, 1923, $250.”

Upon an order of court the garnishees deposited- the $250 in the hands of the Sheriff.

Thereupon the defendant, John A. Juliani, filed these injunction proceedings in which he alleged:

“That notwithstanding the fact that there is no judgment in this cause against John A. Juliani personally, the O. K. Realty Company has caused to be issued a writ of fieri facias and garnishment, and instructed the Sheriff of this court to serve upon the employer of John A. Juliani, namely, the Phoenix Utility Company, said garnishment and seizure whereby the salary of your petitioner, John A. Juliani, in the sum of $250 has been wrongfully and illegally attached and seized by the Sheriff", and that said writ of fieri facias and garnishment is not known in law, being unsupported by any judgment against John A. Juliani personally. He prayed for an injunction restraining the Realty Company and the Sheriff from executing the fieri facias and garnishment and for the release of the seizure.

For answer the Realty Company averred that John A. Juliani, Inc., and John A. Juliani, are one and the same; that John A. Juliani is doing business for his own account under the name of John A. Juliani, Inc., and the indebtedness for which the Realty Company obtained judgment is really the indebtedness of John A. Juliani, individually.; and in the alternative he prays for a judgment against John A. Juliani individually.

There was judgment in favor of John A. Juliani and against the Realty Company perpetuating the injunction and releasing the seizure, and dismissing the reconventional demand “without prejudice”.

From this judgment the Realty Company appealed.

However ingeniously worded, the inter rogatories may be as to the particular defendant employed by the garnishee, and to what particular defendant the garnishee was indebted, and with whatever lack of precision the garnishee may have answered those interrogatories, the clear inference is that “John A. Juliani” was the person in their employ.. They speak not of “John A. Juliani, Inc.”, but they say “defendant left our employ. Wages due him $250,” meaning undoubtedly John A. Juliani.

The plaintiff himself has removed any doubt on this point by alleging and attempting to prove that John A. Juliani, Inc., was a myth. It is not necessary for us to decide that question. Suffice it for us to say, with plaintiff in injunction, John A. Juliani, that the Realty Company has no money judgment against him and, of course, it could not issue a fieri facias against him. In Featherston vs. Compton, 8 La. Ann. 381, the court said:

“A judgment and a fieri facias thereon are necessary to support the proceedings in garnishment. They form the foundation of the plaintiff’s right to resort to that remedy and the garnishee may require that their existence be proved as a prerequisite to a judgment against him.” Affirmed in Pollock vs. Williams, 9 La. Ann. 460; Johnson vs. Murphy, 124 La. 146, 49 South. 1007.

In Matthews vs. Insurance Co., 26 La. Ann. 386, the court held garnishment proceedidngs null because “the judgment upon which the pretended garnishment process issued was an absolute nullity, because there was no citation served on Matthews against whoih it was rendered”.

As there was no judgment against John A. Juliani there could have been no fifa issued against him, and a fifa was necessary to justify the garnishment. Johnson vs. Murphy, 124 La. 146, 49 South. 1007.

A seizure under a writ that has expired is null. Johnston’s Ex’r vs. Wall, 1 Mart. (N. S.) 541; Dugat vs. Babin, 8 Mart. (N. S.) 393-7; Simpson vs. Allain, 7 R. 505; Frellsen, Stevenson & Co. vs. Anderson, 14 La. Ann. 65; Copley vs. Fretwell, 2 La. Ann. 310. Affirmed in Andrew Matta vs. William Thomas, 21 La Ann. 37.

After the Sheriff has returned the fifa he can no longer make any seizure under it. Baboteau vs. Valeton, 11 R. 218 (220).

Garnishment process cannot issue unless there is a fifa against the defendant in the hands of the Sheriff. Baboteau vs. Valeton, 11 R. 221; Pollock vs. Williams, 9 La. Ann. 460.

In Matta vs. Thomas, 21 La. Ann. 37, the court said: “A writ of fieri facias is the basis of the proceedings in garnishment. The service of interrogatories on the garnishee will not operate a seizure of the assets in his hands unless the sheriff holds at the time a writ of fieri facias against the defendant.” Affirmed in Roos vs. Cain, 28 La. Ann. 319.

Inasmuch as there was no judgment against John A Juliani, no fieri facias could have issued against him; and as there was no fifa, there could have been no garnishment or seizure sublato fundamento cadit opus. The seizure and garnishment proceedings against John A. Juliani were therefore null and were properly set aside.

But the Realty Company alleges “that the indebtedness for which suit was filed by respondent is also the indebtedness of the said John A. Juliani individually, and respondent makes part of this pleading all the allegations in its petition contained against John A. Juliani, Inc., and John A. Juliani, and your respondent should therefore recover judgment against John A. Juliani, individually”.

The letter dated July 7, 1923, addressed to the Realty Company and signed Jno. A. Juliani, Inc., Jno. A. Juliani, the basis of the original suit does not appear to have been offered in evidence either in the original proceedings against them or in this injunction suit. Bilich vs. Mathe, 149 La. 484, 89 So. 628; Wilkin-Hale State Bank vs. Tucker, 148 La. 980, 88 So. 2390; Gubernator vs. City of New Orleans, 20 La. Ann. 106; Alfred Marchand vs. H. T. Coffee and Wallace & Co., 23 La. Ann. 442.

There is no testimony in the record to show that the contract, for which the commission is acknowledged in the letter; inured to the benefit of John A. Juliani, individually. On the contrary, John A. Juliani testifies that the money for the Victory contract on Alexander Street was collected by John A. Juliani, Inc., and deposited in bank to the credit of that company.

The trial judge dismissed the demand of the Realty Company “without prejudice”. Interpreting this judgment to be one of non-suit, we shall affirm it.