author: Slidei/l, J.

text:
    Alexander Lesseps v. His Creditors.
    In a contest for the appointment of syndic, the judgment of the court, rejecting the pretensions of an applicant, is appealable.
    A person who holds the notes of an insolvent is not entitled to vote for a syndic, where it appears, that, on a settlement of accounts, there would be a balance in favor of the insolvent.
    The wife, in partnership of goods with her husband or her heirs, should not be allowed to vote, in the deliberations of the creditors of the husband, for syndic, unless her rights have been previously settled by a deed of partition, or judgment for separation of goods.
    An agent, with authority to collect or renew a draft, on which an insolvent is bound, and who has a general authority to “do what he thinks best under the circumstances,” is authorized to vote for a syndic.
    Where creditors, lawfully entitled to vote, have had an opportunity to vote, a new election cannot be ordered for the purpose of letting in new voters, whose lawful claim to vote has been subsequently acquired.
    APPEAL from the Fourth District Court of New Orleans. Strawbridge, J.

      G. Le Gardeur and A. K. Josephs, for Edward Skiff.

      Benjamin and Micou, for L. Millaudon.

   By the court:

Slidei/l, J.

Alexander Lesseps instituted proceedings to obtain a respite. A meeting of creditors was ordered. They met, refused a respite, and voted for a syndic. On the 6th February, 1852, the meeting, which was kept open during several days, was closed by the notary, who stated the result to be, that the respite prayed for had been refused ; that nineteen creditors, representing the sums of $81,727 84, had voted for Edward Skiff; that twenty-three creditors, representing the sum of $129,593 42, had voted for Laurent Millaudon ; and that he was consequently duly elected syndic. Immediately upon the return of the proceedings before the notary being made to the court, Skiff filed an opposition, in which he alleged that Millaudon’s apparent majority was created by illegal votes, to the amount of $69,300, against which he protested before the notary. The grounds of opposition were as follows:

1. The vote of Wilhelmus Bogart, upon two notes belonging to Win. W. Pugh, a creditor of insolvent, on the ground of the total want of authority of said Bogart to vote on said claim, and of the insufficiency of the oath by him taken ; which notes are for the sum of $3,500 each, amounting together to the sum of $7,000.

2. And he further opposes the vote of H. C. Story, on behalf of his wife, Mrs. Story ; said vote being upon her hereditary share of the community of acquets and gains which existed between said insolvent and his late wife, the mother of said creditor, said community never having been settled, nor the rights of the heirs ascertained by a deed of partition or a judgment of court; said claim being for $12,000. c

3. And he further opposes the vote of Auguste Lesseps, son of the said insolvent, the same being based upon his hereditary rights in the community of acquets and gains which existed between said insolvent and his wife, the mother of said creditor, the same never having been liquidated by judgment or partition, and for the reasons cited in No. two; and also because the said Auguste Lesseps, even had the community been settled, is not a creditor of the insolvent; said claim being for $11,500.

4. And he further opposes the vote of the said Alexander Lesseps, as tutor of the minors, Eugene Lesseps, Hersilie Lesseps and Angela Lesseps, on the ground: 1. That the same is founded upon their hereditary rights and share in the community of acquets and gains which existed between their mother and her husband, the said insolvent, and which have never been, as stated above, settled by partition or judgment, or in any legal manner. 2. That the said Alexander Lesseps could not appear and take any part in the deliberations of his creditors. 3. Nor was he qualified or competent to represent the interests of said minors.

5. That he opposes the vote of Laurent Millaudon upon a certain note of the insolvent, upon which he was endorser, on the ground that, on the 3d of February, the hona fide holder of the note, D. Kennedy, Jr., had voted upon said debt, as will appear by said proceedings ; said note being for $2,800.

His prayer was, that the alleged illegal votes for Millaudon be rejected, and he, Shiff, declared the duly elected syndic, and authorized to administer the estate. Millaudon, and Lesseps in his capacity of tutor, filed an auswer'to this opposition, in which, after denying the alleged illegality of the votes for Millaudon, they pleaded that the vote of Trotter for Shiff was illegal, because he was not, at the time of voting, the owner of the potes described in his vote, nor authorized to vote upon them. Wherefore, they prayed that the vote of Trotter be rejected. They alleged that one Souhie was a creditor of the insolvent, in the sum of $40,000 ; that he attended the meeting for the purpose of votingfor Millaudon as syndic, but he was informed by the notary that he was not authorized, in consequence of which declaration, Souhie retired without voting; that he was entitled to vote, and should have been permitted to do so. They further alleged, that at the time of the vote of Lesseps, as tutor, the proceedings of a family meeting advising the adjudication of the property of the, minors, had been handed to the clerk of the Second District Court, with a petition praying for their homologation and the adjudication to him accordingly; but the same had not been presented to the judge. That the said proceedings have been since homologated, and the property adjudicated accordingly. Wherefore they prayed, that the opposition of Shiff be dismissed; but that, if the same should be sustained by rejecting the votes given in favor of Millaudon, then that a new meeting of the creditors be held for a choice of syndics.

Upon these pleadings, a trial being had and evidence heard, the following opinion and decree were pronounced by the District Judge.

“ Satisfied as I am that this court possesses the power to remand the cause for further deliberation among the creditors, remarking that, under the supposition that the pretentions of the opposing creditors were maintained, the difference in the vote would be so exceedingly close, whilst a large amount of votes were or would be lost by an error not within the control of the children of the insolvent; considering the time of the year which renders it impossible to settle the question of the syndicate (if an appeal is taken) during the present year, I judge it so far for the interest of the creditors, that the proceedings be remanded to the notary for the purpose of convoking a new meeting of the creditors, and reporting the result thereof to the court.

“ It is therefore adjudged and decreed, that the proceedings be remanded to the notary, Theo. Guyol, for the purpose of convoking a new meeting of the creditors of the insolvent, and that the result thereof be reported to this court.”

A motion has been made to dismiss the appeal on two grounds, one of which was afterwards abandoned, and the other is, that the judgment is not appealable, not being final, and working no irreparable injury to the appellant.

The motion, in our opinion, cannot be maintained. The matter in controversy was, who had been elected syndic. Shiff asserted that he had been duly elected, by virtue of the proceedings had before the notary. Millaudon, on his part, joined issue with Shiff, and also asserted that he had been lawfully elected. The court gave a judgment, which finally rejected the claim of Shiff to be recognized as syndic under the proceedings of the meeting. The court did not, upon a fair interpretation of the opinion and decree, hold the question of the light of Shiff, undeifthe proceedings already had, open for future deliberation. It rejected his pretensions. The decree of rejection is final. If, at the proposed future meeting, he should receive a majority of votes, and thus be elected syn_ die, (upon which point we are uninformed by the transcript), he would take the office under such new proceedings, not under those already had, which he insisted, and still insists, conferred upon him the right to the office. Was he entitled to be recognized as syndic by virtue of the first meeting, or was he not so entitled? That is the question which the court below decided finally against him, and it is that final decision which he asks this court to review.

The votes given by the Lesseps family amount to a total of $59,500. The counsel for the appellant have, we think, demonstrated conclusively that these votes were illegal; that at the time of voting, whatever may have since occurred, they had no right to vote.

With regard to the vote of Auguste Lesseps, to which various objections have been raised, it is sufficient to observe, that although his vote states that he was the holder of notes of his father, the insolvent, to the amout of $11,500, yet, on the other hand, it appears, that he was a large debtor of his fatherso that the balance was against him; and accordingly, at an earlier stage of the meeting of creditors, before it was found that a respite was hopeless, he stated that he was not a creditor of the insolvent.

The balance of the above mentioned amount of $59,000 is composed of the votes given by Mrs. Story, a daughter of the insolvent, and by the insolvent,' as tutor of his minor children. These votes must be considered as illegally given, because the community right of their mother has not been previously settled by a deed of partition, or judgment for a separation of property. The 15th section of the statute of 1817, enacts that, “ In all the deliberations which shall take place between the creditors, either for the choice of syndics, or for the sale or disposal of the property surrendered, or for any other object relative to the interest of the mass of creditors, the opinion of the majority of the said creditors, in sum or in claims, shall prevail; but, in the case of an equality in the sum or claims of the contending parties, then the number of persons shall prevail; provided, however, that the wife, in partnership of goods with her husband, or her heirs, shall not be allowed to vote in said deliberations, unless their rights should have been previous settled by a deed of partition, or a judgment for a separation of goods.”

If we give Millaudon the benefit of Bogart’s vote, which is disputed, and of his own vote, also disputed, and deduct the above illegal votes to the amount of $59,000, he would be left with votes to the amount of $70,093 42.

Ihe vote for Shiff was $81,727 84. Conceding, for the purposes of argument, that the Kennedy vote may be considered as withdrawn from him, he would be left with votes to the amount of $78,927 84 ; in other words, a majority of the legal votes given, unless the objection made to Trotter’s vote for $10,000 be maintained.

In our opinion, Trotter’s vote in Skiff’s favor, must be maintained at least to the amount of $5,000. He appeared, and voted at the meeting as the attorney of Tilford. Was he authorized to do so ? It will be observed that his authority, as agent, is disputed, he not being the actuaíowner of the claims for $5,000 each, although stated as the holder on the schedule. There is in evidence a letter of his absent principal to Trotter, dated 7th January,1 1852, in Kentucky, in which he says : “I was a good deal surprised to hear that Lessees’- draft was not paid, as 1 made sure it would be entirely paid. I had made arrangements to invest it; but as the object now is to secure it, you must do what you think best under the circumstances, although I would greatly prefer the money; at all events, if you have to renew, endeavor to get some stronger acceptor who won’t let down for so small an amount. I remitted his draft, via Baltimore, for $5,000, due 15th and 18th instant, which I have advised you in former letters, and which I am extremely anxious to hear of its safe arrival.”

Trotter was clearly the agent of Tilford, with authority to collect the draft, and with power even to renew. As an incident to these powers, and especially in view of the broad expression, “ do what you think best under the circumstances,” we think Trotter was authorized to vote for a syndic of the insolvent’s estate, a measure conservative and administrative in its character. It will be observed that he did nothing to impair the rights of his principal, such, for example, as voting for a discharge would have been. He simply attempted to select a depositary of the debtor’s property, which property was. by force of the judicial proceedings, to go out of the hands of the insolvent into the hands of some one else,:as a trustee for his creditors. As to voting against the respite, as he had the power and discretion to renew, he had the power and discretion to refuse a renewal. A respite would substantially have been a renewal.

We conclude, therefore, that Shiff had a majoi’ity of the votes legally given; that the illegal votes for Millaudon must be considered not given, and consequently that Shiff had a right to be recognized as syndic to the exclusion of Millaudon, unless, under the circumstances of the case, there was a legal discretiion vested in the district judge, to disregard the action of a majority of lawful voters, and order a new meeting.

If there had been any irregularity in the call or mode of conducting the nieeting, by which creditors having a lawful right to vote had been prevented from doing so, or it could be supposed that a fair expression of their will had not been obtained, it might then be said that no lawful election had been held, and that a new one should take place. But where creditors, lawfully entitled to vote, have had an opportunity to vote, we do not perceive upon what principle of right a new election can be ordered, for the purpose of letting in new voters, whose lawful claim to vote, if any they have, has been subsequently acquired. If there be any hardship upon the heirs of Mrs. Lesseps in entrusting the insolvent estate to a syndic in whose nomination they had no voice, it is the result of their own laches, or the laches of those who had charge of their affairs; and not the fault of those diligent creditors who attended the meeting, and selected the person in whose integrity and capacity they had confidence, and into whose hands they desired that the assets of the insolvent should immediately go to be administered for their benefit. We question, whether in the case of an election for directors of a corporation, a new election ought to be ordered under a similar state of votes ; but the case here is stronger against a new election, because in the former case the business of the corporation would be in the meanwhile under the care of the old board, whereas in the case 6f an insolvent estate, the creditors have no one to take care of their interests until a syndic is chosen.

The cases cited by the counsel for the appellee in support of the order of a new election, do not appear to us to sustain him. The point ruled in the case of the Long Island Rail Road Company, 19 Wendell, 37, was, that where votes rejected by inspectors at the election of directors, if received, would have elected a certain ticket, are adjudged to have been erroneously rejected, the only remedy is to set aside the election, the court not having the power to declare the ticket successful, for which the votes would have been cast, had they been received. It is true, that in that case the court refused to permit the four directors to hold whose names were upon both the contending tickets ; but the reason given was, that the election was irregular on account of defect of notice. If the whole proceeding, said the court, is to be deemed irregular, it seems necessarily to follow, that it must be entirely vacated. The court also there said, that they could not assume the power of pronouncing duly elected, a ticket which confessedly-received a minority of votes; but this is very different from saying, that they would not assume the power of declaring a ticket elected which received a majority of legal votes, although that ticket was in a minority, if all the yotes, legal and illegal, were counted.

The latter power was in fact exercised by the same court, in another case, cited by the appellant. See .Ex parte Lesdoity, and others. 1. Wendell, 98.

In Jordy v. Hebrard, 17 L. R. 457, it was held that if a candidate who received a sufficient number of votes, being the lowest of the successful candidates, was ineligible, the candidate next highest after him was not entitled to a seat, and a new election must take place as to the vacant seat. The case is not analogous to the present. The votes were given to him by lawful voters, but he was ineligible. The wishes of those voters, who inadvertently voted for him, being a majority, could not justly be disregarded, and a person brought into the board by the will of a minority of the lawful voters. The will of a majority of lawful voters had, through inadvertence, not been efficiently expressed.

In conclusion, we would add, that it is important that the administration of insolvent estates should not be protracted; and, to this end, it is particularly desirable that they should be speedily withdrawn from the possession of the bankrupt, and placed in the hands of syndics.. It would be a dangerous precedent to subject such estates to the delay of a second election, in order to give time for the qualification of voters, who, at the date of a meeting duly convoked, were not clothed with the necessary legal capacity.

It is therefore decreed, that the judgment of the district court be reversed ; and it is further decreed, that the said Edward Shiff is the duly elected syndic of the creditors of the said insolvent, Alexander Lesseps. It is further decreed, that the cost of this appeal be paid by the insolvent’s estate, and that this cause be remanded for further proceedings, and according to law.

Application for re-hearing refused.


source: Caselaw Access Project

author: Eustis, C. J. Eustis, C. J.

license: Public Domain

text:
    Carmelite, a Negress, Slave, v. Jean Lacaze.
    A condition in the act of sale of a slave, that the purchaser shall emancipate him after a specified time, is valid, and enures to the benefit of the slave ; the right of property is transferred to the purchaser, subject to the slaves status. If, however, the right of emancipation should be defeated or terminate, from any cause independent of the acts of the purchaser, the slave remains his property.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Tissot, for plaintiff.
    Dufour, for Lacaze.

      C. Maurian, for intervenor.
   By the court:

Eustis, C. J.

This suit was commenced for the purpose of effecting the emancipation of the plaintiff, on the ground of her having been purchased by defendant, on the condition of emancipating her at the expiration of the term of seven years from the date of the sale.

On this issue between the plaintiff and defendant, judgment was rendered dismissing the plaintiff’s pétition on the evidence exhibited. From this judgment no appeal has been taken.

On this suit was engrafted another, the issues of which had little connection with it, in which Lacaze is made defendant, and an intervening party is plaintiff. Judgment was rendered on this intervention, against Lacaze, and he has taken this appeal.

The accumulation of suits of this kind, tends to create confusion in practice, and much embarrassment in the administration of justice. It gives rise, frequently, to questions which have no place in jurisprudence, and to the solution of which the ordinary rules of practice can scarcely be applied.

As, however, the parties have litigated their rights, in this form, and all the evidence is before usj'we consent to revise the judgment appealed from.

The intervening party, who is the appellee in this court, Francoise E. Denbrere, a free woman of color, on the 7th of June, 3 844, sold Carmelite to Lacaze for $800. Lacaze bound himself to emancipate her after seven years service from the date of the sale, and to fulfill all the formalities requisite for her emancipation, and to bear the expense thereof. This was a formal condition of the sale. In the petition of intervention it is charged, that in selling Carmelite to the defendant, under this condition of enfranchisement, the petitioner intended to reward the faithful services she has received from the slave who had nursed one of her children; that Lacaze, in his answer to the plaintiff’s petition, had alleged, that he could not comply with the condition of emancipating her. in consequence of her having been guilty of such offences as prevented him from obtaining it under the laws, which allegation the petition alleges is true. It then prays that, inasmuch as Lacaze cannot emancipate the slave, she be restored to the petitioner, and that judgment be rendered against Lacaze for her wages. The district judge decreed the delivery of the slave to the intervening petitioner, and allowed her wages from the date of the decree, at $25 per month.

This judgment is sought to be maintained on the ground, that by selling the slave, on the condition that she should be emancipated after seven years service, at the expense of the purchaser, nothing was sold but the services of the slave for seven years; and the appellant having had her services for that term, he can have them no longer. Her emancipation havingbecome impossible, she reverts, of right, to her former mistress.

It seems that the misconduct of the slave, which was the obstacle to emancipation, was the necessary result of the vile and profligate employment and associations to which Lacaze subjected her, and it is strongly pressed upon us. that we cannot permit a man to falsify his title by his own infamy.

It is matter of regret that we are not permitted to act upon this suggestion, and to visit upon the party the consequences of his iniquity. But the question before us is one exclusively of property, and must be determined according to the rules of law.

A slave may make a contract with his master for his emancipation, and when he attains the age prescribed by law, may have his right under it adjudicated upon, and his emancipation decreed on a compliance with the conditions and formalities prescribed by law. A condition in the sale of a slave, that he shall be emancipated at a future time, has always been held as a stipulation for his benefit, of which he is permitted to take advantage in the same manner as in ordinary cases of stipulations in contracts for the benefit of third persons. Slaves who, by virtue of a contract of their masters with themselves or third persons, have acquired the right of being free at a future time, or on a certain condition or event, attain thereby the status of statu liberi. We understand the contract of sale, between these parties, as creating this status in the slave, and transferring the right of property in her to the purchaser, subject to the condition of the status, and not as a sale of the services of the slave for the term of seven years. If her right of emancipation should be defeated or terminate, from any cause, independent of the acts of the purchaser, she remains absolutely his slave. If he has been guilty of any acts which violate the condition on which the sale was made to him, the remedy, of the party aggrieved, is only to be had on an action for the dissolution of the contract, or of damages for a breach of the contract.

We do not find the case of Nimmo v. Bonney, cited by the counsel for the intervening party, applicable to the present case.

Our statement of the remedy of the appellee is to be understood as hypothetical. Either of those mentioned is liable to grave objections, which have their foundation in the contract itself. The case before us does not require them to be noticed, and it is sufficient for us to confine ourselves to the opinion, that the present action cannot be sustained.

The judgment of the district court is therefore reversed; and judgment rendred for defendant, with costs in both courts, without prejudice.

Same Case — On a Re-hearing.

By the court:

Eustis, C. J.

It is ordered, adjudged and decreed, that the judgment heretofore rendered by this court, remain undisturbed.


author: SiiDEim, J.

text:
    Pearl River Navigation Company v. Stephen A. Douglass.
    At the time of the shipment of a planter’s crop of cotton, the overseer was told by the master of the steamer on which it was shipped, that the stage of the water did not justify his taking the whole crop. In consequence of the stage of navigation, some of the bales were afterwards put on shore, the steamerretaining as many as she could carry out of the river. The evidence did not show that those which were left could, by any other conveyance, have been taken to market sooner. Held: That the steamboat was not liable for damages.
    APPEAL from tfre Second District Court of New Orleans, Lea, J.

      F. W. Haralson, for plaintiff.

      H. B. Egleston, for defendant.
   By the court:

SiiDEim, J.

The defendant being sued for the freight of cotton brought by the steamer of the plaintiffs’, from a place on Pearl river to New Orleans, reconvened for damages for the injury done to sixty-four bales, part of the shipment, from having been thrown out on the bank of the Pearl river, where it was exposed and injured. He also claimed the alleged difference in price, owing to the delay in the delivery of the portion of the cotton so put ashore, and which, the steamer brought at her next trip. There was a serious decline in cotton between the time when a portion of the shipment reached New Orleans, and the arrival of that portion so put ashore.

We do not think it necessary to determine the question, whether the carrier is liable for the fluctuation of the market, where a delay has occurred, through his own manifest fault. The reasons, given by the district judge, on refusing an application for a new trial, made by the defendant, are sufficient for the decision of the present case.

“It is manifest,” he observes, “ That the reason the cotton was placed upon the river bank, was in consequence of the low stage of water, a fact which was as well known to the defendant’s agent as to the master of the steamer. It appears from ihe evidence, that the master of the steamer told the overseer, of the defendant, that the stage of water did not justify the tailing of the whole of the cotton. I am not satisfied, from the evidence, that defendant’s cotton did not get to the New Orleans market as soon as'it could possibly have been conveyed there at that season, and at that stage of the river. If this be true, and certainly the contrary is not shown, the defendant suffered no damage. The steamer took all she could carry out of the river on the first trip, and it is not shown that the remainder could, by any other conveyance, have been taken to the city any sooner.”

Judgment affirmed; costs of appeal to be paid by appellant.


author: Rost, J.

text:
    H. Carrell v. Municipality No. Two.
    The facts show that the defendants are not spoliators. Held; That no vindictive or consequential damages can be recovered against them.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J-

      Emerson and Whitaker, for plaintiff.

      Randell Hunt, for defendants.
   By the court:

Rost, J.

The Municipality No. Two purchased the barge, which has given rise to this litigation, in good faith, from the agent of the plaintiff, who delivered it to them. The price was not paid at the time of the delivery ; and, when, some three weeks after, the plaintiff denied the authority of his agent to sell, an offer was made to him to return the barge and to pay him $500. This pi'oposal was at first accepted by the plaintiff, although it was not carried into effect. The district judge came to the conclusion, under the evidence, which is conflicting, that the price of $1000, which the defendants had agreed to pay, was the full value of the barge, and that the damages sustained by the plaintiff were equal to one-half of that value. This being the precise sum originally offered him.

The plaintiff assigns as error, that he should have been allowed full compensation for the use of the barge, and the probable profits he would have made by using it in the transportation of freight and merchandise, during the time it remained in the possession of the defendants.

The defendants are not spoliators, and no vindictive or consequential damages can be recovered against them.

The plaintiff claims $350 only for the damage done to the barge, while in the possession of the defendants, and for the cost of repairs. So that the judgment allows at least $150 for the use of it. That amount appears, to us, reasonable.

It is unnecessary to notice the claim for damages in consequence of demur-rage, for which the plaintiff says he has become liable to the ship Arthur, in consequence of the detention of the barge by the plaintiff. There is no evidence in support of it.

It is ordered, that the judgment in this case be affirmed the plaintiff and appellant to pay costs of this appeal.


author: Etjstis, C. J".

text:
    Townsend and Milliken v. C. H. Miller.
    The law gives to every creditor, where there is no cession of property, and to the representatives of creditors, where there is a cession or other proceedings in which they are collectively represented, an action to annul any contract in fraud of their rights.
    Where a creditor, on his own responsibility, and at Ms own cost, prosecutes an action to avoid a fraudulent sale made by an insolvent, the benefit resulting from the action cannot be claimed by the syndic who is no party to it. It enures entirely to the creditor, by whose vigilance it was obtained.

      APPEAL from the District Court of the Parish of Jefferson, Clarice, J.

      Durant and Horner, for Charles Fonda, syndic of Miller,

      Hunton and Bradford, for plaintiffs.
   By the court:

Etjstis, C. J".

The plaintiffs having obtained judgment against Charles H. Miller, also had judgment against his wife, by which a certain fraudulent judgment, which she had obtained against her husband, was reduced, and the amount of the excess over that of her legal rights was decreed'to be paid to the plaintiffs, in part satisfaction of their judgment against the husband.

The plaintiffs took out execution against the wife, and a certain sum having been made under it, the syndic of the creditors of the husband, who had failed pending this suit, applied for the payment of. this amount in the hands of the sheriff to him, for the benefit of the mass of the creditors. The district judge determined that the money belonged to the plaintiffs in execution, and not to the creditors, and ruled accordingly. From this decision this appeal is taken.

It appears that, in the interval between the date of the rendition of the judgment of the plaintiffs against the wife and the signing of it, Miller, the debtor made a surrender of his property, which was accepted by the judge. A syndic was duly appointed.

There was an appeal taken, by the wife, from the judgment which rendered her liable to the plaintiffs, as before stated. The suit in this court was conducted exclusively by the plaintiffs, and in their name, the syndic being no party to it. The judgment of this court, so far as the present parties are concerned, did not change the judgment of the inferior court. The plaintiffs, at the institution of their suit, had a clear, undisputed right of action, for the purpose of annulling the fraudulent judgment, which stood in the way of their recovering their debt. The law gives to every creditor, where there is no cession of property, and to the representatives of the creditors, where there is a cession, or other proceedings in which they are collectively represented, an action to annul any contract made in fraud of their rights.

The judgment in this action, if maintained, shall be, that the contract be avoided as to the complaining creditor, and the property taken thereby from the debtor’s estate, or its value, be applied to the payment of the plaintiffs. Code, 1965 and 1972.

» The plaintiffs’ action was maintained, and by the. judgment of the court the fraudulent judgment was avoided as to them, and a certain sum decreed to them in satisfaction of their debt. The plaintiffs’ proceedings were conducted without reference to those of the insolvent debtors. They prosecuted their action on their own responsibility,, and at their own cost and expense, on the appeal and in the court below. The syndic took no part in those proceedings, was no party to them; but now, the money being made under the plaintiffs execution, asks for the appropriation of the fruits of the plaintiffs’ vigilance and diligence.

"We are not called upon to determine what would have been the rights of the mass of the creditors, under the facts presented, had the syndic been a party aiding the plaintiff in searching out and unmasking the property sought to be fraudulently appropriated to their detriment. It is sufficient, for the present decision, that he was not a party to the proceedings in which the plaintiffs’ recovered judgment.

We know of no rule of law which would deprive the plaintiffs of the full benefit of their judgment; there is certainly no principle of justice which would justify such a course on the part of the court.

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

Durant and Horner for a re-hearing. The attorneys for Charles Fonda, syndic of C. H. Miller’s creditors, respectfully ask for a re-hearing in this case, on the grounds following:

First. That the judgment herein rendered is contrary to L. C. 2172, which says, “ The surrender made, according to the forms ordained by law suspends all kinds of judicial process against the debtor.” The judgment against Miller and wife, in a revocatory action, was signed after Miller’s surrender. This signing was a judicial process.

Second. It is contrary to sec. 2d, of act 29th March, 1826, Bullard’s Dig. 495. “ That from and after such cession and acceptance, all the property of such insolvent debtor, mentioned in said schedule, shall be fully vested in his creditors, and shall not be liable to be seized, attached, taken, or levied on, by virtue of any seizure, attachment, or execution, issued against the property of the said insolvent debtor,” &e., &c.

Third. It is contrary to the same section, in said act, which says, " The syndic who may be appointed by the creditor, shall take possession of, and be entitled to claim and recover, all the said property, and to administer and sell the same, as is provided by the act to which this is a supplement,” &c.

Fourth. It places an erroneous construction on articles 1965 and 1972 of the Code : 1. On article 1965, by ruling that the action given by the law to every creditor, when there is no cession of goods to annul any contract made in fraud of their rights, can continue in the name, and for the benefit of the individual creditor, after a cession lawfully made. (See Rogers v. Reynolds, 3 L. R. 462, and Prudhomme v. Briard and wife, 32 Sirey, 2 part, p. 84. 2. On article 1972, by ruling that after the cession, “ the complaining creditors” are the individual creditors commencing the action. Whereas, by the cession, all debts become due, and all creditors become, in view of this article, “ complaining creditors.”

Fifth. It loses sight of the real issue between the parties. The syndic does not ask “ for the appropriation of the fruits of the plaintiffs’ vigilance and diligence.” He asks that their privilege, if any they have, may be inquired of in the concurso. The syndic says, the money now in the sheriff’s hands did, at the date of the cession, belong to Charles H. Miller, and passed, by operation of law, to the syndic; and that plaintiffs never had any legal right either to issue their execution or to receive the money from insolvent’s wife, even though she had paid it over to the sheriff without an execution. Blois v. Yard, 14 L. R. 250. Nimmo v. Allen, 2 Ann. 451. Posey v. Weems, 4 Ann. 195. Besides, if the plaintiff did receive the money, an action would lie to recover it back for the mass. “ II y a cependant une exception á ce principe, et la voici. Si, aprés une saisie des biens du débiteur, ou aprés le délaissement qu’il en a fait á ses créaneiers, un d’eux recevait son paiement, ou du fond des dioses saisies, ou de ce qui était délaissé aux créaneiers, il serait tenu de rapporter á la masse ce qu’il aurait recu, parcequ’alors ilaurait pris pour soi ce qui appartenait á fous.” Merlin Répertoire, vol. 7, Verbo “Créancier,” No. Ill, p. 5, quoting Law 6, §6 and 7, D. quae in fraudem creditorum, etc.

Sixth. The revocatory action cannot be maintained without the debtor being a party to the suit. The debtor is the main defendant always. He is the principal; the other defendant, joined with him, is' regarded as a surety, and can demand discussion of principal’s property, before any judgment shall be pronounced in the suit to avoid the contract. The very object of the action, and its necessary effect, being to revoke a contract, and bring back the property into the original debtor, (10 Duranton, sec. 574; Marcadé, vol. 4, pp. 410, 411,) the contracting parties must be before the court. The action cannot be exercised by the individual creditors, until their debts are liquidated by a judgment; unless the defendant be made a party to the suit lor liquidating the debt brought against the original debtor. L. C. 1967. From all the articles, 1965 to 1972, L. C., it is very clear that, without a judgment, or the ability to obtain one in the course of the judicial proceedings, no revocatory action can be maintained. It would be similar to an attachment suit without a defendant, the plaintiff and gnrnishee alone being before the court. Or to garnishee process under act of 20th March, 1839, (Bullard’s Digest, 458,) when plaintiff makes a seizure without any judgment against defendant. See Atwell v. Belden, 1 L. R. 500. Potier v. Harman, 1 R. R. 525. Hyde v. Craddick, 10 R. R. 395. Now this court admits that a cession was made by Miller, before the judgment against him and his wife was signed; and that “ a syndic was duly appointed.” Here, then, we have a revocatory action, without the original debtor being a party thereto, a revocatory action where plaintiffs have no judgment against their debtor, and where both the lower and appellate court are unable to render one, without annulling the judgment accepting the surrender. The insolvent, Miller, being civilly dead, ceased, on the day of his surrender, to be a party to the suit. No judgment could be signed against him. “ The judicial officer was rendered powerless for such purpose; and that which had not, when the Constitution (surrender) went into effect, the force and effect of a judgment, became a mere abortion, by the complete withdrawal of official authority, and the positive inhibition of the judge’s action.” “Hence it has been the uniform and settled jurisprudence of the Supreme Court, from its foundation down to the present time, (June, 1846,) that, until it is signed, the judgment is without efficacy ; it is inchoate and imperfect.” Succession of Asbridge, 1 Ann. 207.

Seventh. The property of a debtor is the common pledge of all his creditors. L. C. 3150, and whether insolvent be dead or alive. Orr v. Thomas, 3 Ann. 585. This pledge vests in all his creditors the moment he ceases his payments, under the French law; or as soon as he makes a cession, under ours. Pardessus, part 6, tit. 1, chap. 7, and Louisiana authorities cited herein. It seems therefore, that the equity of this case is decidedly in favor of the mass of the creditors.

Eighth. UndertheFrench Code of Com. this case is clearly with the appellants: “ A partir de ce jugement, toute action mobiliére au immobiliére ne pourra étre suivie on intentée que contre les syndics. II en sera de méme de toute voie d'exécution tant sur les meubles que sur les immeubles.” ' Code de Commere, aneieu texte 442, 494. Nouvelle Rédaction, du présentlivre, 443. Locré, vol. 19, p. 7.

Ninth. Neither the syndic of the creditors of Miller nor Miller himself, was made party to the original appeal. Neither of them can legally be blamed for not having made themselves parties. In truth, the syndic was not appointed till some two months after Miller's failure. It was the duty of Mrs. Miller to make proper parties to her appeal, and the duty of plaintiffs to profit by its omission. C. P. 903.

We pray for a reversal of the judgment in favor of the syndic, with costs.

Re-hearing refused.

      The principle alluded to is, that "no paymentof a just debt,in money, can be revoked.” L.C. 1981.


text:
    J. A. Maillet et al. v. Paulin Martin.
    Proof of compensation cannot be received where the defendant’s plea of compensation is vague and indefinite. Such a plea should state the nature and amounts of the claims, with such precision as to prevent the plaintiffs being surprised.
    from the Fifth District Court of New Orleans, Buchanan, J,

      Cauonge, for plaintiffs.

      Hufour, for appellant.
   By the court:

Rost, J.

Under an amicable settlement between the plaintiffs and the defendant, involving various commercial transactions, the latter agreed to pay, and did pay said plaintiffs, $3500, and assumed to pay Peter Maillet, of the Island of Martinique, the further sum of seven thousand francs, if so much was due him by the plaintiffs; and, if less was due, he bound himself to account to them for the difference. Subsequently the defendant paid Peter Maillet four thousand three hundred and eighty-seven francs fifty-five centimes, under this agreement, and took his receipt for that amount.

The plaintiffs, admitting this payment to have been properly made, alleged this to have been the whole amount of their indebtedness to Peter Maillet, and now claim from the defendant the remainder of the seven thousand francs, under their agreement with him.

The defence set up is, that the indebtedness of the plaintiffs to Peter Maillet exceeded seven thousand francs, and that the whole amount has been settled by compensating a portion of it with certain claims the defendant held against him, and by paying the remainder in cash, as appears by the notarial receipt in the record.

On the trial of the cause the defendant offered evidence to prove these allegations, and also for the purpose of showing that, in the settlement, the agent of Peter Maillet claimed at first the full amount of the seven thousand francs, but afterwards agreed to the compensation proposed, and a notarial receipt was given for the amount paid in cash.

Upon the objection of the plaintiffs’ counsel, the court refused to admit proof of compensation, because the defendant had not pleaded compensation with sufficient precision to enable the plaintiff to offer proof to the contrary. The defendant took a bill of exceptions.

The evidence having been excluded, the defendant failed to substantiate his allegations, and the case is before us on an appeal from the judgment rendered against him. We are of opinion that the plea under which the evidence of the defendant was offered, was too vague and indefinite to justify its admission. It did not state the nature and amount of the claims compensated, and would have operated a surprise to the plaintiff.

The plea in the case of White v. Moreno, 17 L. R. 372, was the same as that of the defendant. The court then refused to admit the evidence, on the ground that the specific amounts paid, and the date of the payments were not stated in the answer. The case turned upon the principle that pleas in compensation, should be set forth with the same certainty as to the amounts, dates, &c., as if the party opposing them were himself a plaintiff in a direct action. This decision was reviewed and affirmed in the case of Smith v. Scott, 3 R. R. 258.

The principle of these decisions being a rule of practice, clearly deducible from the article of the code which provides, that compensation must be pleaded specially, we feel bound to adhere to it. The judgment must, therefore, be affirmed. The lights of the defendant, for so much of the plaintiffs’ debt, to Peter Maillet, which he may have extinguished by compensation, remain unimpaired.

It is ordered, that the judgment in this casé be affirmed, with costs.


author: SiiiDEin, J.

text:
    Purvis, Wood & Co. v. Avery Breed.
    Money was deposited with Parvis, Wood Sf Co. for Breed; Breed sued to recover it, and P. W 8f Co. plead a debt due them by Breed, in compensation. The plea was overruled. Breed bad judgment. P., W. fy Co. then paid the money into the hands of the sheriff, and immediately attached it. Held: That the attachment did not lie.
    The sheriff is the proper officer to make a seizure, at the suit of a third party, of money which he has reoeivedunder execution. The coroner is not competent to make the seizure in such a case.

      APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Bonford and Finney, for plaintiff.

      J. Ad. Rozier, for defendant.
    In the case of Avery Breed v. Thomas M. Hand, a judgment was recovered against the plaintiff, in the parish of Union, for $504 97, exclusive of interest and costs. AJi.fa. issued on the judgment, and was sent to the coroner of the parish of Orleans, who seized, in the hands of the sheriff, the money which had been paid by Purvis, Wood Sf Co. to the sheriff, in satisfaction of the judgment of Breed against them. The question arose, whether the seizure should have been made by the sheriff or by the coroner. On this point the district court said:
    “As to the second execution, I am of opinion that the sheriff was not interested in the suit in the sense of the law. If his claim for costs made him so, he is interested in every case, and all executions must go to the coroner.”
   By the court:

SiiiDEin, J.

This is an attachment against Breed, upon a debt alleged to be due by him as a member of the firm of Hand and Breed. A motion was made to set aside the attachment, which was sustained by the district judge, and the plaintiffs have appealed.

The material facts are these. Breed formerly brought suit against Purvis, Wood Sf Co. for a sum of $1021, deposited with them for him. They filed a plea of compensation, alleging that Breed, as a member of the firm of Hand and Breed, was indebted to them in the sum of $1021, balance on account current. There was judgment in favor of Breed for the amount of the deposit. The plea of compensation was dismissed, on the ground that, to a demand of a deposit, such a plea was inadmissible. Purvis, Wood Sf Co. appealed, and the judgment was affirmed by this court, the case being considered as controlled by that equitable rule of our code, that “ the depositary cannot withhold the thing deposited, on pretence of a debt due to him from the depositor, on any account distinct from the deposit, or by way of offset.” Art. 2927.

Execution was then issued by Breed, against Purvis, Wood Sf Co., on that judgment, and they paid into the sheriff’s hands its amount in coin. On the next day, while the money was yet in the sheriff's hands, Purvis, Wood Sf Co. took out'the present attachment, their suit being founded on the same claim which they had unsuccessfully pleaded in compensation.

The spirit of the same rule which controlled the former cause, is, in our opinion, decisive of this. Why was the plea in compensation rejected? Because such a defence was repugnant to the nature of the contractunder which Purvis, Wood Sf Co. received the money for Breed. It was a contract of irregular deposit, to which, so far as our present inquiry is concerned, the equitable rules of the contract of deposit apply. This contract is one of confidence. It is considered, under all systems of jurisprudence, as imposing the duty of the most scrupulous good faith. Among the Romans, it was classed in the category of contracts bonce fidei. From its confidential character arose, with- them, the rule embodied in our code. In causa depositi compensationi locus non est. And so strictly was this principle carried out under that jurisprudence, from which our own is derived, that the depositary was not permitted to detain the thing deposited with him in compensation of what the depositor owedhim, even although it were another depositum; but each depositary was obliged promptly to restore the thing deposited with him. Q,uam eelerrime, sine aliquo obstáculo restituantur, was the stringent and uncompromising doctrine of the Roman law. The interpretation invoked at bar, which would restrict the depositor’s equity to a mere immunity from a plea of compensation, sacrifices the spirit of the law to a narrow consideration of its letter. But, in truth, the letter of the law is not so narrow as was suggested in argument. It imposes on the depositary the duty of instant return upon demand. Art. 2926. It forbids him to withhold that return on pretence of a debt due to him from the depositor on any account distinct from the deposit. Art. 2927. The form, then', in which the resistance to the right of the depositor comes, is immaterial. The spirit of the rule covers any substantial resistance. The deposit must be restored, sine aliquo obstáculo.

Here an obstacle is interposed by the depositary. He arrests the money with one hand which he proffers to pay with the other, and attempts to accomplish indirectly, what in the previous action he was not permitted to do directly. "We think the district judge did not err in dismissing the attachment. See also case of Lapeyre v. Orleans Ins. Co., 7 Ann.

We also concur in the opinion of the district judge as to the seizure in the case of Breed v. Hand.

Judgment affirmed, with costs.

Application for re-hearing refused.


author: Siideli,, J.

text:
    Robert A. Grinnan v. Baton Roughs Mills Company.
    The factory of defendants was at Baton Rouge. They had, in connection with it, an office and agency in New Orleans, where they raised funds for the prosecution of its business, and where the partners resided, and where also the membership of Peale was well known. Peale retired from the company, and gave notice of his withdrawal inapaper published in Baton Rouge, butdid not publish his retirement in New Orleans, where Grinnan resided. Held: A retiring partner is bound'touse reasonable diligence, to inform the public. The extent of diligence must be measured with a reasonable regard to the circumstances of the case, and ought not to be brought down to the inflexible standard of publication at the partnership domicil, where such standard would expose the public to an inequitable risk. The retiring partner was held bound.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Wolfe and Singleton, for plaintiff.

      Mathewson, and Ilunton and Bradford, for defendant.
   By the court:

Siideli,, J.

The question involved in this case is the liability of Elijah Peale to pay the bills sued on, as a partner in the Baton Rouge Mills Company, an unincorporated association.

The partnership domicile was at Baton Rouge. Its mills were established there, and its business was the making of bricks and sawing lumber. It had an office for the sale of its bricks and lumber in New Orleans, kept by an agent. Receipts to purchasers at this office, the transactions of which were however small, were made out in the name of the Baton Rouge Mills Company. It was assessed in New Orleans, by reason of this agency, upon the municipal assessment roll of 1850. Its members, including Peale, resided in New Orleans. The raising of funds for the company was accomplished in New Orleans, by means of bills drawn by its agent upon McMain, of New Orleans, one of the partners. A large amount of money was raised for the company in this way, partly before, and partly after the withdrawal of Peale. He withdrew in the latter part of October, 1850. The drafts in question bear date in the following December. McMain had them negotiated through a broker to the plaintiff, in December and January. The plaintiff had previously, in the same year, discounted upon the application of the same broker a similar bill, and before doing so, was informed by the broker that Peale was a member of the company. He was a person in good credit, and the broker testifies that he represented to Grinnan on that oecasiop, and to others on like occasion, that Peale was a partner, because he considered that made the paper very good. The only notice of Peale's withdrawal was published in the Baton Rouge Gazette, on the 14th December, 1850. No actual notice is brought home to the plaintiff.

There was judgment below in favor of the plaintiff, and Peale now asks its reversal.

It is conceded that the case turns solely upon the sufficiency of the notice of the withdrawal, by publication in the Baton Rouge Gazette.

It is said that Grinnan must, under the circumstances, be considered as a previous dealer with the company, and therefore the case is one requiring proof of actual notice. This question is free from difficulty, as may be seen from the elaborate discussion upon the point, what constitutes a previous dealing, to be found in Vernon v. Manhattan Co., 17 Wendell, 527. 22 Wendell, 189, and other cases. We do not however think it necessary to decide whether the purchase of the previous bill -by Grinnan, through a broker, put him on a footing of a previous dealer. For we are of opinion that the general notice, as given, was insufficient. To bind the New Orleans public, it ought, in our opinion, to have been published in New Orleans.

The general rule, as invoked by the defendant, is true, that as to those who have had no dealings with a firm prior to its dissolution, notice by advertisement in a newspaper of the city or county where the business is carried on, will suffice. But here, although the factory of the firm was in Baton Rouge, and so an important portion of its business was conducted there, yet an important portion of its business, the raising funds for its prosecution to a large amount, was cai’ried on in New Orleans, where its partner's lived, and where the membership of Peale, whose credit appears- to have been the most conspicuous, was well known; to which we are also to add the existence of the New Orleans office and agency above stated. Now, under such circumstances, to say the New Orleans public are to be held constructively warned of Peale's retirement by a notice in a Baton Rouge newspaper, whose ordinary circulation cannot be supposed to reach beyond the narrow sphere of a village journal, seems to us unreasonable. A retiring partner is bound to use reasonable diligence to inform the public. The extent of diligence must be measured with -a reasonable regard to the circumstances of the case, and ought not to be brought down to the inflexible standard of publication at the partnership domicile, where such standard would expose the public to an inequitable risk. The defendant must be supposed tohavebeen fully apprised of the mode in which the company was in the habit of raising money in New Orleans, and conscious of the credit his name gave the partnership. He might reasonably anticipate a similar course of financiering after his withdrawal, and a similar reliance in the New Orleans money market, upon his connection with the firm, unless he gave his retirement publicity here.

It remains only to notice a bill of exception taken to the rejection of Frierson as a witness, who was offered by the defendant.

He was the husband of Mrs. Frierson, one of the defendants in this cause, and among other grounds was objected to, on the score of interest and incompetency, under art. 2260 of the Code, which provides, that “thehusband cannot be a witness either for or against his wife.” It appears from the evidence, that in October, 1850, Peale sold his interest in the company, to the remaining partners, one of whom was Mrs. Frierson. As between Peale and the other members of the company, it is clear that Peale does not owe the amount sued for, and the company does. The company and its members are bound in law and good conscience to hold him harmless against all the partnership liabilities and the costs of the prosecution against him. If the remaining partners had discllai’ged their duty, by paying the debt, he would not have been distrusted. The costs of this suit would not have been incurred by him. Mrs. Frierson and her associates are liable to Peale for the costs incurred by him in this suit. If Frierson’s testimony defeats the plaintiff’s claim, her husband thus relieves her from liability for those costs. The court therefore did not err in rejecting him as a witness.

Judgment affirmed with costs.


author: Dunbar., J.

text:
    In the Matter of O’Flaherty—On the Opposition of Jones and Ufford.
    A creditor, holding a joint note, may have it placed on the tableau of distribution of one of the debtors, without citing the other joint debtor.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Wolfe and Singleton, for opponent.

      A. A. Melleart, for curator.
   By the court:

Dunbar., J.

The opponents, Jones and Ufford, claim to be placed on the tableau of the curator of the absentee, James O’Flaherty, for the sum of $1455 96, with interest, which they allege is due to them on bills, drafts and open account.

The district judge ordered them to be placed on the tableau for $727 26, with interest from judicial demand, and they have appealed.

The judge arrived at this amount by rejecting a joint note for $448 with interest at ten per cent per annum until paid, drawn by O’Flaherty and Hudson, dated Galveston, 5th May, 1850, payable twelve months after date, to the order of Jones and Ufford, and also rejecting a draft of O’Flaherty for $253 77, drawn by him in favor of Henry Hubbell on Jones and Ufford, and paid by them for the accommodation of the drawer. The reasons given by him for the rejection of the joint note are, that Wm. M. Hudson, the other joint obligor, should have been joined in the suit, under the provisions of the Civil Code, Art. 2080, which declares that: “In every suit on a joint contract, all the obligors must be made defendants, and no judgment can be obtained against any, unless it be proved, that all joined in the obligation, or are, by law, presumed to have done so,” and farther, that a note, or due bill of O’Flaherty, for $776 99, had been given to plaintiff at a posterior date to this joint note, for balance of account to its date.

We cannot see, for what useful purpose, Wm. M. Hudson, the joint obligor, could have been brought into court, upon the trial of the tableau of the curator of O’Flaherty. It appears from the evidence, that he lives out of the jurisdiction of the court, in the State of Texas, nor it is pretended that he has made any payment on said note. In fact, in his own deposition taken in the cause, he admits the justice of the claim. In the case of Brown v. Robinson and Hassam, 6 Ann 423, it was said: “ That the art. 2080 of the Civil Code, if literally construed, would sanction such palpable injustice, as to render it absurd. If the plaintiff is content with judgment against those cited for their share of the debt, and there is no ground to believe that those not cited could make defence to the action, not within the power of those before the court, we see no reason why the defendants cited, should not be rendered liable for their shares of the debt, and discharged from all claim for the shares of others.”

The other ground for rejecting this joint note is equally untenable. We cannot see why it should be inferred, that this joint note had been paid by O’Flaherty, from the mere circumstance of a settlement of his individual account, by the giving of his individual note, on the 1st November, 1850, to Jones and Ufford for balance of account to date. The joint note of O’Flaherty and Hudson, was not then due, and did not mature until the 5th of May, 1851. We, think there is no good reason for such an inference.

The district judge also rejected a draft of O'Flaherty for $253 77, as before mentioned. The objection urged to the liability of O’Flaherty on this draft, was, that his name as drawer had been erased. It is satisfactorily shown, that the draft was drawn by him for goods furnished his vessel; that Jones and Ufford accepted for his accommodation, without funds, and paid it to the holder; that, at that time, there was no erasure of the drawer’s name, and is proved, by several witnesses, that at Galveston, where Jones and Ufford resided as merchants, it is the usual practice, after a draft is taken up by the acceptors, to erase all the names thereon.

The judgment of the district court must therefore be reversed, and the several rejected items, above commented on, allowed. Ten per cent interest is stipulated iu the joint note, and will be allowed, as it is shown by evidence, that it is not unlawful in the State of Texas, where the contract was made.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that there be judgment in favor of Jones and Ufford against the curator of O’Flaherty, for twelve hundred and five dollars, with five:, per cent per annum interest on $727 26, from judicial demand, with like interest' on $253 77, from the 20th January, 1851, and with ten per cent per annum interest on $224, from the 5th May, 1850, to be paid in due course of administration, by the said curator, with costs in both courts.


author: Edstis, C. J.

text:
    A. T. Stewart & Co. v. W. M. and J. Lapsley et al.
    A judgment creditor required the sheriff to execute a Ji. fa. on certain property, and gave an indemnity bond in favor of the sheriff, in which they and their sureties bound themselves to save him harmless, defend all suits that might be brought against him, and pay all damages and judgments that the sheriff might be made liable for in consequence of the seizure and detention of the goods taken in execution. A person who claimed the property, sued the judgment creditors and the sheriff for damages on account of the seizure. The judgment creditors employed counsel to defend the suit. Held: The sheriff had aright to select his own counsel, and under the bond, the judgment creditors and the securities on the bond were liable for the payment of the fee.

    APPEAL from the Second District Court of New Orleans, Lea, J.

      Hart and Reese, for plaintiffs.

      Qrymes, for defendant.

      See act» of1853, p. 867.

   By the court:

Edstis, C. J.

The plaintiffs were judgment creditors of the Lapsleys, and took out an execution and caused to be seized under it the stock in trade of the dry goods store kept by the defendants, at No. 13 Chartres street, in this city. On making the seizure, the sheriff was warned, by N. E. Turner, that the stock of goods was his property, and not that of the defendants, and that he would hold the sheriff responsible for all damages sustained by him in consequence of said seizure.

Turner alleged, that he had bought out the stock of the Lapsleys, and, it appears, was in possession of the store under the bill of sale, which he exhibited. The sheriff, however, went on with the seizure, and sold the goods under execution, at the instance and order of the plaintiffs. Turner sued the sheriff and the Lapsleys for damages, and recovered against them in solido a verdict of $12,000, on which judgment was rendered. As the plaintiffs were bound to indemnify the sheriff, in the same proceedings judgment was rendered in his favor against them for the amount. The parties cast appealed to this court, and on the appeal the judgment of the lower court was reversed, and judgment rendered in their favor. This court held the sale to Turner fraudulent; that the seizure of the goods in Turner's possession was not lawful, but that the sale being in fraud of creditors, the only damages the sheriff or the parties were liable for to him were nominal, and not to be heeded by the court.

The plaintiffs directed the sheriff to make the seizure of the goods, and it was maintained at their instance, and on their executing an indemnity bond in favor of the sheriff, in which they and their sureties bound themselves to save him harmless, and defend all suits that might be instituted against him, and pay all damages or judgments that the sheriff might be made liable for in consequence of the seizure and detention of the goods taken in execution.

On the termination of this litigation, the plaintiffs took a rule on the sheriff, to show cause why he should not pay over to them the amount of money in his hand, made under the execution out of the goods seized. The sheriff claims the right of deducting from the amount the cost incidental to the third opposition of Turner to the seizure under execution, and also the amount of a fee paid by him to his counsel for conducting his defence of the suit in which Turner obtained judgment against him and the plaintiffs.

The district judge disallowed both of these claims, on the proceeds of the sale, and the sheriff has appealed. '

In relation to the item of costs of Turner's opposition, our impression is, that these costs being incurred by the seizure, and the plaintiffs being bound to save the appellant harmless from all costs and expenses, the plaintiffs are bound to pay them to the sheriff, and they can recover them from Turner. This relates to the taxable sheriff’s costs; as to the clerk’s costs, the sheriff can have no right to deduct them from the plaintiffs’ money.

In relation to the amount claimed for the fee, we observe that the bond, in general terms, provides to hold the sheriff harmless, and that no question is made, except as to the plaintiffs’ liability to pay the appellant this sum, and as to its amount. The matters were investigated in the court below informally, on an answer to a rule to show cause, and no objection is taken to the form of the proceeding or the right of the appellant to deduct this amount, provided it should be due to him from the plaintiffs.

We understand the law to be, that where the obligor of an indemnity bond undertakes, generally, to save harmless from the consequences of a particular act, the bond is forfeited by the obligee being damnified, and that a debt consequently accrues upon that event.

Mr. Grymes was the counsel employed by the appellant, and the sum paid him for his services was one thousand dollars. The cause was twice tried before a jury ; there was one mistrial, the jury not being able to agree. The cause was fully argued in this court. Mr. Grymes was the attorney on record for the appellant. It does not appear that there was any contract or understanding between the appellant and the plaintiffs concerning the management of the cause or the employment of counsel. The plaintiffs had their own attorneys, and, on the second trial, employed additional counsel, and paid him the sum of one thousand dollars. The case was one of unusual difficulty and notoriety. The trials before the juries lasted several days. Mr. Grymes argued the case on both occasions, and concluded the ax'gument for the appellants in this court. The parties, sued by Turner, made common cause in the defence, and we think the evidence fully supports the reasonableness of this charge of one thousand dollars, according to the standard of fees received for professional services by counsel of eminence.

Had the appellant a right to engage counsel at the expense of Stewart Sf Co. 1 We think he had. The case of Peck v. Acker, 20 Wendell Rep. 605, is conclusive as to that right. He was not bound to put his interests into the hands of the counsel selected by them. Indeed the record shows, that when the sheriff was sued, and called Stewart Sf Co. in warranty to defend the suit, their attorneys filed a plea that they were not bound in wari’anty to him, and prayed to be dismissed, &c. For his own interest he had a x-ight to employ counsel, and having paid no more than a just compensation for services of the most efficient kind, the amount must be x-efunded to him by the party who stands bound to save him hax-mless. The expense of defending the suit of Turner, was certainly much greater than it might have been, but this is exclusively the affair of the plaintiffs, and the result of their choice. It is clear that the right of the appellant to be indemnified, or to be saved harmless, cannot be affected by this fact.

It is therefore ordered, adjudged and decreed, that the judgment of the court below be revex-sed, and that the sheriff, John L. Lewis, defendant herein, have credit for the sum of $1000, paid his counsel, and for all the other costs and charges set forth in the account annexed to his answer, with the exception of the clerk’s fees charged therein, as paid to T. C. Poole, amounting to $30 60, leaving a balance due by said defendant, in rule to the said plaintiffs, of $3125 17, instead of $3094 57, as shown by the said account. It is further ordered and deci’eed, that the plaintiffs and appellees pay costs in both courts.


author: Slidell, .1.

text:
    Waters & Co. v. J. H. Maddox.

      Crockett, Garland 8p Co. dissolved partnership, and Crockett went into business with Maddox. He gave a note in the name oi‘ the new partnership, for a debt of the old firm, of which fact the holder was aware. Suit was brought against the new firm on the note. Held; Under such circumstances, it was incumbent upon the plaintiff to have shown that the debt had been assumed by the new firm, for the sake of some benefit or credit derived from the assumption.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Hammer and Iiays, for plaintiff.
    Are editors, owners and publishers of a newspaper, commercial or ordinary partners?
    We say they are commercial partners, under the 2796 article of the Code, which says: “ Commercial partnerships are such as are formed for the purchase of any personal property and the sale thereof, either in the same state, or changed by manufactory.” Proprietors of a newspaper buy and sell paper changed by manufacture. Paper is personal property. Then, under the terms of the law, they are commercial partners. The amount, of personal property that is bought and sold, or its relative value to the labor, skill and intelligence of the change produced in its condition, or whether it is sold by the sheet or ream, or by so much for a number of sheets per year, is not the test as to partnership. ’Tis not so nominated in the bond. Is it persona] property? is it bought? is it sold? Buying, sawing, and selling timber, forms a commercial partnership. 14 L. R. 244. 3 R. R. 130. An association for distilling, forms a commercial partnership. 15 L. R. 287. When one person furnishes the funds to purchase an article, and another his credit, skill and industry in preparing it for sale, it will constitute a commercial partnership.. 11 R. R. 136. Exchange dealers are commercial partners. 12 R. R. 132. The purchase of slaves in another State, and sale in this, constitutes a commercial partnership. 2 Ann. 876. The publishing of a newspaper is eminently commercial; it is almost formed and sustained by commerce, and by no fair reasoning can it escape the words of the text, or the tendency and leaning of the decisions. Policy and reason alike dictate that all commercial transactions should carry about them solidarity. Dalloz, Dlctlonnaire de Jurispiudenee, partle supplemenlaire, title Actes de Commerce No. 69; Pardessu, Droit Commercial, No. 1, p. 18.

      E. R. Olcott, for Maddox.

   By the court:

Slidell, .1.

For the reasons assigned by the district judge, judgment is affirmed.

The following is the judgment of the district- court:

“This case is presented upon the issue, made herein by the defendant Maddox, that the note sued on was given by his co-partner, Crockett, without his consent or knowledge, for a debt due by the firm of Crockett, Frost Sf Co.; and further, that previous to the date of the note, the firm of J. H. Maddox Co. had been dissolved, as between the parties, and that the note was given, as above slated, by J. W. Crockett without authority. Defendant further alleges, that the partnership of J. H. Maddox Sf Co. was not commercial, but was a particular partnership, they being engaged in publishing a newspaper. It is not, in my opinion, necessary to examine more than one of the points urged in the defence, viz, that the late firm of J. H. Maddox Co. are not liable for the debt of Crockett, Frost Sf Co. The evidence conclusively shows, that the note sued on was given for a debt of the old firm, by Crockett, and that the holder was aware of this fact. Under such circumstances, it was incumbent on the plaintiffs to have shown that the debt had been assumed by the new firm, for the sake of some benefit or credit derived therefrom. But no such assumption is established by the evidence. The payment of some of the debts of the old firm, without any proof of an obligation to do so, does not establish a contract. The plaintiff must have-known that he was receiving the supposed obligation of Maddox for a debt which he, Maddox, had no interest in discharging, unless there had been an assumption of the debt by the new firm. The presumption of law is against any such liability, and I do not consider that, “this presumption has been removed hy due and satisfactory proof of a contrary intention and agreement.” Story, on Partnership, 152. The defendant is not, perhaps, entitled to an absolute judgment in his favor; but am satisfied that the plaintiff is not, under the evidence, entitled to a judgment.

“The court, having duly considered this case, for the reasons assigned in the written opinion this day delivered and on file, it is ordered, adjudged and decreed, that as respects the plaintiffs’ clSim against the defendant, J. H. Maddox, there be judgment of nons&it.” ' V, v ''


author: SlideMi, J.

text:
    A. H. Hayes et al. v. John W. Crockett and Joseph H. Maddox.
    The vendor's privilege does not: extend to personal property which has passedinto the hands of a third purchaser, although such purchaser may have known of the embarrassed circumstances of bis immediate vendor.
    APPEAL from the Second District'Court of New Orleans, Lea, J.

      Bonford and Finney, for plaintiffs.

      Mott and Frayser, for Maddox.

   By the court:

SlideMi, J.

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

The following is the judgment of the district court -.

This case differs from that of Waters Sf Co. against the same defendants, in but one material point. The plaintiffs sue upon the original obligations of Crockett, Frost Sf Co., given as the price of the Crescent newspaper establishment, alleging an assumption by J. H. Maddox 8f Co., of the payment of the notes sued, for the payment of which they claim a privilege upon the materials of said establishment.

“The evidence does not, in my opinion, establish any assumption of the debts of Crockett, Frost Co. by J. H. Maddox Sf Co., and the vendors’ privilege does not extend to personal property which has passed into the hands of a third purchaser. It is clearly shown that, prior to the institution of this suit, Maddox purchased the Crescent newspaper establishment, ‘ including the types, presses, fixtures, circulation, good will, &c., thereto belonging.’ It is contended that this purchase was a fraud upon • the vendor, having been made with a knowledge of his (the vendor’s) rights, out of the usual course of business, to the injury of plaintiffs. It is evident that Maddox knew of the embarrassments of the firm of Crockett, Frost Co. ; he, perhaps, knew that they were insolvent, and it is not improbable that he may have known that the plaintiffs were their creditors, but it is by no means certain that he was acquainted with the nature of their privilege.

“The case of Beck & Co. v. Brady et al., is referred to by plaintiffs’ counsel, as authority in this case. The two cases present scarcely any points of resemblance. Maddox appears to have the means of meeting his obligations (at least the contrary is not pretended). He paid not only "a fair price, but one far above the value of the establishment; and he cannot be said to have purchased out of the usual course of business, inasmuch as no course of business is shown to prevail in relation to sales of this character. If, instead of purchasing a newspaper establishment, Maddox had, under similar circumstances, purchased a quantity of dry goods, hardware, or other movables, on terms corresponding with the usual business credits, which goods, after the purchase, had been removed to another store, it appears to me, that neither his possession nor title could be disturbed. See C. C. 1981, 2628.

“ The fact that a newspaper establishment is not susceptible of convenient removal, ought not to prejudice the rights of a purchaser. If the doctrine contended for by the plaintiffs’ counsel be correct, then no sals made by one in an actual or supposed state of insolvency, to one acquainted with the fact, would be valid, though made for a valid consideration, and in the usual course of business. See 12 L. R. 263.

“ Perhaps the defendant is not entitled to an absolute judgment in his favor, but, under any view of the case which I have taken, the plaintiff cannot recover.

“The court having duly considered this case, for the reasons assigned in the written opinion this day delivered and on file, it is ordered, adjudged and decreed, that there be judgment of nonsuit herein, so far as relates to plaintiffs’ claim against J. H. Maddox.”


author: Slidell, J.

text:
    Lowe and Pattison v. Nelson, Bradley & Co.
    This action was brought to recover damages from the vendor of cotton, on the ground that when the bales were opened, it was discovered that the cotton was “country damaged.” Held: It is indispensable for the plaintiffs’ action, that they should prove the existence of the damage at the date of the sale, and should show the extent of that damage with such reasonable certainty as to enable the court to assess the just reduction of price. The burden is on the plaintiffs to make the facts reasonably clear and certain.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      A. N. Ogden, for plaintiffs.

      Benjamin and Micou, for defendants.
   By the court:

Slidell, J.

The plaintiffs bought of the defendants, at New Orleans, twelve hundred and five bales of cotton, for which they paid the sum of $29,-343 41. The sale was made in the month of August. It was shipped, in that month, to Glasgow, and upon examination by two brokers there, after landing, they gave a certificate that nine hundred and sixty-eight bales were “ country damaged,”, and two hundred and eighteen were in so bad a state that, to make them merchantable; it was necessary to pick and recover them. They certified that, had the'cotton been sound, the damaged sold as pickings would have been worth £127 7s. 4d.', but, as pickings, it was worth, and brought, only ¿666 14s. 7d. They also certified the cost of picking and recovering 218 bales at ¿681 15. They estimated the proper allowance for damage, on the 749 bales, which did not require picking and recovering, at £ 13 Is. They thus exhibit “ a loss from country damage ” of £155 8s. 9d. , For this amount the plaintiffs sue, alleging that the cotton was thus unsound at the date of its package.

The district judge rejected the item of ¿613 Is. on the 749 bales, considering the alleged damage too insignificant to require notice, especially as it was a mere probable estimate, not established by actual picking, and for other reasons stated in his opinion. As the claim for that item is not pressed here by the plaintiff, it may be dismissed without further remark. Our attention will be confined to the reclamation as to the 218 bales.

It must be observed, in the outset, that it is indispensable for the plaintiffs’ action, that they should prove the existence of the damage at the date of the sale, and should show the extent of that damage with such reasonable certainty as to enable a court to assess the just reduction of price. The burden is on the plaintiffs to make these facts reasonably clear and certain.

We have examined, with great care, the voluminous testimony offered in this cause. In some respects, it is conflicting; in others, indefinite. Hence we shall decline deciding, in this case, whether “ country damage ” of cotton, in bales, is an apparent defect within the meaning of the 2497th article of the Code. It is sufficient for the purposes of this suit, to say, that the evidence does not establish with reasonable certainty the extent of damage, if any, that existed at the date of the sale. To explain our reasons for this opinion, some detail is necessary.

The Glasgow brokers, on whose certificate the reclamation is based, were examined as witnesses under commission. They concur in saying that, by “ country damage,” they understand, damage received before the bale is put on board ship; that damage incurred by exposure to rain, in New Orleans, would be considered by them as “ country damage;” and that they are unable to distinguish, at Glasgow, between damage before arrival at New Orleans, and damage after arrival at N ew Orleans, by any visible effect upon the cotton in the bales. Now it is clearly established, by the concurrent testimony of all the witnesses, that during the period which intervened after the delivery of the cotton to the plaintiffs, and the completion of the lading on shipboard, there was much bad weather. Every day, say the witnesses, there were heavy showers, which would last an hour or two, followed by a hot sun; and portions of the cotton were necessarily exposed to it, during the transit from the press and while on the wharf, where it was not protected by tarpaulins. It is also proved, by several witnesses, that if cotton is put wet on board of ship, it is apt to rot the bagging, and cause injury to the contents of the bale. A witness, of much experience, states that cotton is more liable to injury from rain in warm weather, and when it has attained a certain age, than when new. Now, when we consider that this cotton, before delivery to the purchaser, had passed through the usual inspection, classing, and approval by an experienced broker selected by the plaintiffs, and was considered merchantable by the pressman and the weigher, and yet, upon its arrival at Glasgow, a portion of it is found to be damaged, in the manner described by the Glasgow brokers, it is certainly more reasonable to attribute this damage, in part at least, to the exposure to rain in New Orleans, after delivery to the purchaser, than to suppose its entire previous existence, and that it had escaped the vigilance of the broker, the weigher, and the purchaser himself, who was in the yard several times during the delivery of the cotton.

It therefore seems inadmissible, under the facts of this case, to assume that the entire damage, as exhibited at Glasgow, existed at the time of the delivery; while, on the other hand, if some of the bales were defective at the date of the sale, the evidence furnishes us no means of apportioning the damage then existing, and that which occurred in consequence of the subsequent exposure to rain and confinement in the hold of the ship. No attempt to make such apportionment appears to have been made by the district judge.

Aside from the question, whether “ country damage ” is an apparent defect of which the buyer must take notice, we think it obvious that it would be highly inconsistent with the interests of commerce, to let in reclamation, on the ground of “ country damage,” for comparatively small amounts, based upon an ex parte inspection in a distant country, after the exposure incident to shipment and transportation, without very clear and conclusive evidence. And, if courts demand stringent proof in such cases, it will lead to a mercantile vigilance on the part of buyers, and will probably tend, eventually, to the advantage of all parties interested in the great staple of our country, by inducing more care on the part of carriers, pressmen, and factors.

It is therefore decreed, that the judgment of the district court be reversed, and that there be judgment for the defendants ; plaintiffs paying costs in both courts.


text:
    Succession of Dufour.—On an Opposition of M. Barnett.
    Judges are not authorized to supply the plea of prescription; but, after the time required to sustain that plea has intervened, slight evidence of payment, or of the remission of the debt, is sufficient to satisfy the mind.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      J. Magne, for opponent.

      Bayne and Legendre, for curator.
   By the court :

Rost, J.

This is an appeal from a judgment dismissing the opposition of M. Barnett to the provisional tableau, filed by the curator of the succession of Dufour.

The claim upon which the opposition rests, bears date the 24th February, 1841, and the opposition was filed on the 27th May, 1852.

Why the prescription of ten years was not pleaded in bar of the action, is a mystery to us, although we are of opinion with the district judge, that this plea is not indispensable to the success of the defence. It is true that judges are not authorized to supply the plea of prescription; but, after the time required to sustain that plea has intervened, slight evidence of payment, or of the remission of the debt, as the case may be, is sufficient to satisfy the mind. The evidence in the record and the long silence of the opponent, raise a violent presumption, that the claim of the opponent for commissions was remitted when the sale was rescinded, and he settled with Dufour for the actual costs incurred in making it. The district judge acted upon that presumption, and we are unable to say that he erred. Davenport v. Labauve, 5 Ann. 141.

Judgment affirmed, with costs.


author: Dunbak, J.

text:
    L. A. Gunst v. Rika Brull et al.
    Although the law prohibits a wife from becoming the surety of her husband, yet, if after her husband’s death, she borrow money to.pay his debts, she will be bound to repay it.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      Gedge and Hagan, for plaintiff.

      J. S■ Whitaker, for defendant.
   By the court:

Dunbak, J.

This suit is brought to recover of the defendant, Rika Hernsheim, now wife of Israel Brull, $1160, with eight per cent interest from the 2d of September, 1851, the balance alleged to be due on one of three several promissory notes secured by mortgage.

The defence set up is, that the said notes were given in error, without consideration, and were obtained by fraud. The defendant further alleged, that she had already paid two of these notes in ignorance of her rights; pleads the same in reconvention, and prays that the note sued on may be cancelled.

The district judge ordered the note sued to be cancelled, and the mortgage to be erased. He further gave judgment for defendant, for the sum of $1600, with interest from the 1st of December, 1851; and the plaintiff has appealed.

It appears that the defendant, Rika Brull, then the wife of Joseph Hernsheim, on the 26th of January, 1843, in the Parish Court of New Orleans, in a suit for separation of property, obtained a judgment against her husband for $412'5, with interest from the 26th of January, 1843, and that afterwards, on the 28th of February of the same year, the said judgment was satisfied to the extent of $3359 65, by a sale add transfer, from the husband to the wife, óf all the effects, goods, wares and merchandise, furniture and fixtures, contained in a house and store on New Levee, street, No. 82.

Several years after this period, Joseph Hernsheim, the husband, removed to Roma, in Texas, his wife remaining in New Orleans. It is shown that he was then extensively engaged in commerce when he died, in April, 1849, leaving a large property in Texas, but at the same time owing debts to a considerable amount. The defendant, his widow, qualified as administratrix upon his estate in Louisiana, which was small, and another person qualified as administrator in Texas.

Amongst the creditors who were pressing for their money, both in this city and in Texas, was Goldsmith, Haber Co., Who had a claim agsinst the deceased for $6600. The administrator in Texas came to New Orleans, and, with the assistance of the plaintiff, Gunst, and the defendant,' effected a compromise of this debt, for $4000, The plaintiff advanced, for defendant, the money that was necessary; and, to secure the repayment of which, she executed the three several notes before mentioned, payable to the order of Aaron .Frank, who endorsed and delivered them to the plaintiff.

Frank, upon being examined as a witness, states, that Mrs. Hernsheim took him herself to the notary to sign the act of mortgage; thathe endorsed the notes, and, by her order, delivered them to Gunst. It appears from other testimony, that the defendant admitted, that the money to effect this settlement had been advanced toiler by Gunst; that she had given to him her three notes, secured by mortgage, to indemnify him, and .that she owed $1160 on the remaining note, the balance now claimed by plaintiff.

We can see nothing improper or unlawful in this transaction, either on the part of the plaintiff or the defendant, except the defence she now makes to this suit. It is true, she may not have been legally bound to pay the debts of her deceased husband; but, if she desired to do so, and borrowed money for that purpose, she is bound, as well in law as in morality, for its repayment. Art. 2412 of the Civil Code, prohibits the wife from becoming the surety of her husband whilst living; but there is no law that prohibits her from the payment of his debts after his death, if she thinks proper.

It is, moreover, proved in this case, that the defendant has received very considerable sums of money from the succession of her husband, both in Texas and Louisiana. We do not, however, consider this material, except so far as the expectation of the receipt of these funds may have influenced her in assuming the responsibility of discharging her husband’s debts, and is a strong circumstance, in connection with others, to show that no imposition or fraud has been practiced upon her by the plaintiff, as she now alleges. We cannot agree with the district judge in his opinion that the defendant is an ignorant woman, who has been imposed upon. We think it more probable from the evidence, that the sudden change in her disposition to pay the debts of her deceased husband, has been owing more to the circumstance of her having taken a new spouse, than to her ignorance.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be reversed, and that there be judgment against the defendant, Rika Brull, in favor of the plaintiff, for $1160, with eight per cent interest from the^d of September, 1851, and that his mortgage be recognized as prayed for in his petition, with costs in both courts.


author: Dunbar, J.

text:
    Sarah Ann H. Allen v. George Landreth et al.
    Where the order of appeal was granted on the petition of amarried woman, unauthorized by her husband or the court, and where she and her surety signed the appeal bond withouther husband’s authorization, the appeal willbe dismissed.
    from the District Court of the Parish of Jefferson, Clarke1,‘‘ J.

      Wolfe and Singleton, for plaintiff.

      McCay, for defendant.
   This suit was commenced by injunction, and the wife was duly authorized by her husband to institute it. By the court:

Dunbar, J.

A motion to dismiss this appeal has been filed, upon the ground that the plaintiff and appellant, a married woman, has not been authorized by her husband, or the court, to take an appeal.

It appears, that the order of appeal has been granted in this case upon the petition of a married woman, without the authority of her husband, or the court, as is stated in the above motion, and we further find, that she and her. surety executed the appeal bond without any authorization from the husband. The appeal must therefore be dismissed. Code of Practice, art. 106, 107. German v. Berghans, 1 R. R. 230. Same v. Same, 2 R. R. 282. Curry v. Dudley, 6 R. R. 77. Bray v. Bynam, 2 Ann. 879.

Appeal dismissed.


author: Etjstis, C. J.

text:
    The City of New Orleans v. Miller.
    The evil to be suppressed by the act of 19th March, 1835, entitled an act to prevent gambling, was the gaming house with its capital, always ready for play. Whether the capital, or stake, is owned or furnished by the house, or made up at the time by the players, the offence is the same. Held: Therefore, that the game of Keno is within the statute of 1835. The municipal authority of the city,- has no power to impose a penalty on that which the law of the State has made punishable as an offence.
    APPEAL from the first J ustice of the Peace for the Parish of New Orleans, D. Byrne, Justice.

      E. T. Parker and M. A. Foute, for plaintiff.
    “The case of Municipality No. One v. Wilson, 5 Ann. 747, is fully “applicable to this offence; it comes within that class of nuisances against the public order, not included in the statute, which it is the duty of the city to suppress, and for which the power has been delegated by the Legislature.”

      'O. Roselius, for defendant.
   By the court:

Etjstis, C. J.

This suit is instituted for the recovery of a penalty of one hundred dollars, for the violation of an ordinance of the late General Council of New Orleans, passed on the 19th November, 1846. The appeal is taken by the city, from the decision of one of the magistrates of New Orleans. He decided, that the ordinance under which the penalty was claimed, was null and void ; that the act for which it was sought to be enforced, was an offence under the penal laws of the State, and that the municipal power of the city had no authority to impose a penalty on that, which ’the law of the State had made punishable as an offence.

The ordinance provides, that it shall not be lawful to keep within the limits of the city, the game, or games, called keno, or lotto, or any other gambling games of hazard, or to allow such game, or games, to be played on any occupied premises, under a penalty of one hundred dollars.

It is evident from the other parts of this ordinance, and from the construction which it has always received, that the effect of the ordinance was to be the suppression of gaming in this form, or of playing the games mentioned, for money.

Our impression is, that the offense of keeping the game of keno, is punishable under the act of March 19th, 1835, entitled an act to prevent gambling. That act evidently purports to prohibit and punish the keeping of gaminghouses. The terms used in it of banking house, or banking games, present no difficulty whatever as to its meaning. The evil to be suppressed, was the gaming house, with its capital, always ready for play. Whether the capital, or stake, is owned, or furnished by the house, or made up at the time by the players, the evil is the same, and the offense is the same.

This game of keno we understand to be of the latter description; it is consequently within the statute of 1835.

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


text:
    F. M. Fisk v. Abram Haber.
    Where a person owned adjoining lots, and made doors and windows in the wall which divided them, apurchaser of one of the lots, at the succession sale, cannot claim the door and window openings as a right of servitude. The purchaser acquired the wall, in common, and the previous destination du fere defamille, resulting from the openings, was abrogated by the sale.
    The servitude of passage claimed, is not a continuous servitude, and could, under no circumstances, result from the destination of the pere defamille.

    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    Bariletle, for plaintiff.
    Article 765. “ If the proprietor of two estates, between which there exist ah apparent sign of servitude, sell one of those estates, and if the deed of sale be silent respecting the servitude, the same shall continue to exist, actively or- passively in favor or upon the estate which has been sold.” - ‘
    This law seems to be too clear and positive to admit of doubt or argument. * It applies directly to the case before the court. The reasons given by the court below for its judgment in favor of the defendant, do not touch it. But in addit'on to these provisions of the code, which seem too clear to require support or interpretation, there are decisions of this court Which are applicable to the case at bar, and strengthen the position we assume. See the case of Alexander v. Boghel, 4 L. R. 312. Bmton v. Kirkman, 5 R. R. 16. Dwell v. Boisblanc et al., 1 Ann'. 407. This last case was precisely similar to the present one in all the important facts. The sale of both lots was made at the same time, and was silent with regard to the servitude. The court held that it continued to exist.

      Ducros, Jr., for defendant.
    It is manifest, from the report of the tribune Albisson, (motifs and discours du Code Civil, vol. 1, page 327); Marcadé, vol. 2, p. 690 ; Zachariae, vol. 2, p. 87, and from the decision of the Royal Court of Lyon, of the 11th of June, 1831, that article 765 of the Louisiana Code, which is a literal transcript from art. 694, C. N., does not relate to the destination of the paterfamilias.

   By the court:

Rost, J.

The servitudes claimed by the appellant, are to be exercised through doors and windows in a wall standing on the division .line between his lot and that of.the defendant. Every such wall is presumed to be in common, if there be no proof to the contrary. C.' C. 673. For want of any such proof in this case, we must assume that, at the probate sale of those two lots, made in the succession of Joseph Tabony, who in his life time owned both, the purchasers acquired this wall in common, and under that state of facts, the previous destination du pere de famille resulting from the openings Tabony had made in the wall, was abrogated by the sale of an undivided half of it to the defendant, and the case is to be determined under article 681 of the Code.

Under the express provision of that article, the defendant might have compelled the plaintiff to close all the openings in the common wall, and rested his buildings upon it; but it was optional with him so to do, or to give up the right of Common,.and erect a new wall as he has done. The plaintiff has no cause of action against him. See Cuelin v. Renaud, 19 Sirey, 2d part, 277. It may be observed that the servitude of passage claimed, is not a continuous servitude, and could, under no circumstances, result from the destination of the pere de famille.

Judgment affirmed with costs.