author: Preston, J. Slidell, J.

text:
    Henry Blood v. Ludwig Vollers et al.
    The plaintiff held several mortgage notes onX. E. Beard, one of which he endorsed to a third person. The endorsee, not having an authentic transfer, took out executory process in the name of the plaintiff, without his knowledge, and had the mortgaged property sold. The defendant became the purchaser of the property. The plaintiff, alleging that the property had been sacrificed, to the injury of his rights on the other mortgage notes, and that the suit in his name was unauthorized, brought suit to annul the whole proceedings. Held : That the endorsee had the right of demanding an authentic transfer of the note, which would have enabled him to have taken out the executory process in his own name; that his not having done so, was an irregularity, but was not sufficient cause for annulling the sale, especially as the purchaser was ignorant of the irregularity.
    from the District Court of Jefferson, Clark, J.

      Benjamin and Micou, for plaintiff.

      A. W. Jourdan and A. N. Ogden, for defendants.
   The judgment of the court (Eustis, C. J., absent,)was pronounced by

Preston, J.

On the 3d of February, 1848, the plaintiff sold to J. li. Beard a lot of ground in the city of Lafayette, for $750, payable in equal installments, at one, two, three, four and five years from the date of sale, for which he took negotiable notes, secured by special mortgage on the property sold. The plaintiff negotiated the notes. Beard paid the first, and then removed to California, abandoning the property, and leaving the four last notes unprovided for-

Rice and Hathaway were the holders of the second note, which, being protested, they placed in the hands of an attorney for collection. In order to obtain an order of seizure and sale, and avoid the delays of a suit by attachment against a non-resident, he used the name of the plaintiff, he being payee and mortgagee, in a suit via executiva against the property, and caused it to be sold by the sheriff of the parish. It produced only $250, on twelve months credit. The defendant became the purchaser.

The name of the plaintiff was used in the suit without his authority, and the sale of the lot took place without his knowledge. Having made affidavit of these facts, the plaintiff seeks, in this suit against the purchaser of the lot, to annul the proceedings, and especially the order of seizure and sale, which is the judgment in the via executiva, and also the sale, on the ground that he was no party to the proceedings, his name having been used without his authority. And he alleges that he is entitled to do so, because the property is worth $800, and is his only security for the reimbursement of the third and fourth notes, which he has taken up as endorser, and for the payment of the last note, which he will be compelled to take up, Beard, the drawer, being entirely insolvent.

It was conceded, in argument, that the holder of one of a series of notes, secured by special mortgage on the same property, may enforce the mortgage without giving notice to, or asking the court to provide for the security of his co-mortgagees. This has been the practice, though, as illustrated by the present case, it is certainly an objectionable practice. There is some security for them in the disposition of the proceeds of the mortgaged property, as neither the sheriff nor the court would raise the whole mortgage, and give the purchaser an unencumbered title, without providing for a proportional division of the proceeds of the sale among the different holders of the mortgage notes. But no question has, or can be raised on that subject, in the present case, as the plaintiff is liable, as endorser, for all the notes.

Our laws provide the means by which a party may annul a judgment rendered against him without citation, or by the exercise of fraud or ill practices. And there is no doubt, as contended, that a party might annul a judgment, apparently in his favor, but practically prejudicial to him, when the proceedings had been carried on without his authority or knowledge, but to enable him to do . so, it must appear that the proceedings were carried on in the exercise of his rights. In this case, the name of the plaintiff was rrsed, not in the exercise of his rights, but to enforce the rights of others. By the endorsement of the note for value received, the plaintiff transferred to the endorsees the accessary right of mortgage. C. C. art. 2615. It is admitted that the note belonged to Rice and Hathaway that it was due, and secured by special mortgage upon the lot in controversy. Now, on that note and mortgage, the defendant shows an order of seizure and sale, directed to the sheriff by a court of competent jurisdiction, and under it, an official adjudication of the property made to him, at twelve months credit, on the second exposure.

The parties owning the mortgage note, caused the order to be issued in the name of a party who did not own the note. They should have obtained an authentic transfer of the mortgage, or authority to use the mortgagee’s name. But they had the right to demand the use of his name, or the authentic transfer of the-mortgage, in order to enforce the actual transfer made to them, and the mortgagee Was obliged to grant one or the other on demand. It was a great irregularity in the endorsees to apply for the order of seizure and sale without one or the other of these preliminaries. Still, it was only ail irregularity in making the application, and not a radical defect in the proceedings, which rendered it null. The irregularity in the means used to enforce the rights of the holders of the mortgage note, does not change the nature of the transaction. The substance of what was done is, that mortgaged property has been sold on the application of mortgagees, by an order of seizure and sale, or judgment to pay their debt, and the defendant became the purchaser.

The proceedings cannot be set aside for mere irregularity by a person nominally, but not in reality, a party to them. And, more especially, the sale cannot be annulled, as the purchaser knew nothing of the irregularity and in no manner participated in it, and as it preceded the order of seizure and sale or judgment under which he purchased, and behind which he was not obliged to look to be assured of the validity of his title. Broughton v. King, 2d Ann. 570. Pike v. Monget & Co., 4th Ib. 227.

It is true, as the plaintiff justly complains, that his endorsees should not have exercised their rights, in his name, without his authority, or under an authentic transfer of the mortgage from him; as, in either case, he would have been advised- of the proceedings and of the danger to his own rights, and have been enabled to guard against it. Still, if any direct and immediate damage resulted to the plaintiff by the unauthorized use of his name, he must look for indemnification to those who improperly used it. They did the act that caused the damage, and are obliged to repair it. Code, 2294, 2295. He cannot, in an indirect manner, recover the damage from an innocent purchaser, who knew nothing of the unauthorized act, and had no participation in it.

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

Slidell, J.

I think the plaintiff has a right to have the decree of seizure and sale declared null, and also the sale under it, because the decree was obtained in his name, without his authority, and there was, in truth, no plaintiff in that cause. It seems to me, there cannot be a valid judgment without a plaintiff in the suit on which' the judgment is rendered, and if the decree was null, the sale made in execution of it falls with it.

I by no means, however, mean to say that Vollers is to be denied any of the rights of a possessor in good faith. I think he is to be treated as such, and that he would have a right, upon the re-sale, to have the land and improvements separately appraised, and take a proportionate part of the price. He would also have a remedy against the party who has caused the injury.


source: Caselaw Access Project

author: Rost, J. Rost, J.

license: Public Domain

text:
    Hannah De Young v. Abraham De Young.
    Where the wife, in a suit against her husband for separation of property, alleges that she settled a dowry upon herself at the time of her marriage, she is bound to show affirmatively the truth of her allegations.
    Where the marriage contract stipulates there shall be no community of gains, that the wife shall be at liberty to trade in any manner she shall deem requisite, and alienate and encumber her property as she shall see fit, and that the husband shall give a receipt by notarial act for such,of her property as he shall receive, the property will be regarded as paraphernal, although other parts of the contract would characterize it as dotal; and to enable the wife to recover against the husband, she must prove that the property went into his hands.

      APPEAL from the District Court of Jefferson, Clark, J.

      Elmore and King, for plaintiff.

      T. S. McCay, for intervenor,
   The judgment of the court was pronounced by

Rost, J.

This is an action for separation from bed and board, on account of cruel treatment and outrageous conduct on the part of the husband.

The plaintiff avers that she settled upon herself, as dower, by her marriage contract, property and effects estimated at ten thousand dollars, which came into the hands and under the administration of the defendant, and are now in his possession. She asks judgment for ten thousand dollars against him, with mortgage and privilege.

The defendant pleaded the general issue.

Bernard Yoste, alleging himself to be a creditor of the defendant, intervened for the purpose of resisting the plaintiff’s claim for the restitution of her dowry, on the grounds that the marriage contract was fraudulent and simulated, and that no part of the property of the wife ever came to, the possession of the defendant. He prayed for a judgment against the said defendant for the amount due him, and that the marriage contract be declared null and void, and of no effect.

The judgment of the district court is in favor of the plaintiff against her husband, for -a separation from bed and board, and against her on her claim for the restitution of her dowry. There is, also, a judgment in favor of the intervenor, against the defendant, for the amount of his claim and interest. The plaintiff has appealed against her husband only.

The judgment, so far as it decrees a separation from bed and board, is fully sustained by the evidence, and it is, in fact, not before us for adjudication. The only question presented by the appeal, is in relation to the plaintiff’s claim for the restitution of her dowry.

Under the general denial, in the answer, it was incumbent upon the plaintiff to show, affirmatively, that she settled a dowry,upon herself at the time of her marriage, and that her husband is responsible for it.

By dowry, are meant the effects which the wife brings to the husband to support the expenses of marriage. It is given to the husband, to be enjoyed by him as long as the marriage shall last, and the income of it belongs to him. Arts. 2327, 2329, C. C. He alone has the administration of it during marriage, and his wife cannot deprive him of it. C. C. 2330. The real-estate settled as dowry, is inalienable during marriage, unless the marriage contract contains a stipulation to the contrary. Let us test the dispositions of the marriage contract relied on by these rules, always remembering that, in relation to property, the law only regulates the conjugal association in default of particular agreements, which the parties are at liberty to stipulate as they please, provided they be not contrary to good morals, and do not infringe upon laws founded on motives of public order.

The future wife declares that she has seven children by her former husband, L. H. Newton, whose rights in the succession of their father have not been liquidated. She further declares, that she brings in marriage, wearing apparel, jewelry, money, household furniture, and other property, which she values at ten thousand dollars, with the reservation, that the appraisement made of the property shall not have the effect of transferring it to her husban'd.

Jf the contract stopped there, the property brought into marriage might properly be considered as dowry. But it goes on to provide, that there shall be no community of acquets and gains between the parties; that the future wife shall trade in any manner she shall deem requisite, and alienate and encumber her property as she shall see fit, and that when her husband shall receive any property, money or effects, belonging to her, he shall acknowledge the same by a public act.

Where a third person intervenes in a suit brought by the wife against her husband to recover her dotal and paraphernal rights, alleging in his petition of intervention, that the marriage contract is fraudulent, and the wife denies there was any consideration given for the notes on which the intervenor sues, but that it is a contrivance between the intervenor and her husband to defraud her, the intervenor is bound to prove the consideration and validity of the notes.

It is clear that, under this contract, the property of the wife was not placed in the possession of the husband to support the expenses of marriage. It remained in the possession, and under the exclusive control, of the wife, as paraphernal property, of which she retained the administration, and before she can recover it from her husband, she was bound to show that it came to his possession after the marriage. There is no evidence of that fact in the record. Some of the facts attending the execution of the marriage contract, throw great doubts upon the reality of the stipulations it contains. But it is unnecessary to determine the effect which those facts would have, if the case was, on its face, one of a constitution de dot.

As the plaintiff may have been led into error, by the belief that she was entitled to recover the amount claimed as dower received by her husband, and it may be in her power to show that some of the property held by her at the time of her marriage with him, in her own right, has been disposed of by him, or is now in his possession, her rights, in that respect, will be reserved.

It is therefore ordered, that the judgment in this case be amended, so as to reserve the rights of the plaintiff against her husband, for any paraphernal pr-operty alienated by him, or now in his possession. It is further ordered, that the judgment, as amended, be affirmed, and that the defendant pay costs in both courts.

Same Case — On a Re-hearing.

THE judgment of the court, on a re-hearing, was pronounced by

Rost, J.

Since the decision in this case, an appeal has been taken by the plaintiff against the intervenor, and a re-hearing having been granted, the two cases are now before us. Neither being in a situation to be finally determined, we will accede to the prayer of the appellant, that they be remanded.

Adhering as we do to the opinion, that, under the stipulations in the marriage contract, the property brought into marriage by the wife was intended to remain, and did remain, paraphernal, the plaintiff will thus have an opportunity of amending her pleadings, and of introducing such evidence as may be in her power, to substantiate a paraphernal claim.

We are also of opinion, that, under the facts of the case, the intervenor should have shown the origin of his claim. He will have an opportunity of supplying this deficiency in the new trial. It is clear that he cannot maintain his intervention unless he is a bona fide creditor.

It is ordered, that the original judgment rendered in this case, so far as appealed from, be reversed, and the case remanded for further proceedings according to law, with leave to the parties to amend; the defendant paying the costs of this appeal.


author: Rost, J.

text:
    L. Duperron v. E. Communy et al.
    The instruments and sign of a dentist are not liable to seizure for debt, (C. P. 644,) and where they have been seized, and the dentist has enjoined their gale, the seizure will not he maintained, in consequence of a third opposition on the part of the landlord claiming a privilege for rent. The landlord’s right to seize is personal to himself, and an ordinary creditor will not be allowed to exercise it for him.
    APPEAL from the Fifth District Court of New Orleans, Buchanan .1.

      J. C. David, for plaintiff.

      H. Y. Train, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Rost, J.

Communy was a judgment creditor of Duperron and caused all his furniture to be sold under execution. Berniard, the landlord of Duperron, claimed the proceeds of the sale by way of third opposition, and they were paid over to him under the judgment of the court. Communy then caused to be seized the surgical instruments and the sign of Duperron, who is, by profession, a dentist. Duperron enjoined the sale, on the ground that his instruments are protected from seizure by art. 644, C. P.

The district judge, considering that the sign was not exempt from seizure; that in relation to the instruments, there was a third' opposition filed for arrears of rent, exceeding in amount the proceeds of the other property sold, and that, although the box of surgical instruments may not have been liable to seizure at the suit of Communy, it was liable to the claim of the landlord; dissolved the'injunction. The plaintiff has appealed.

It appears to us, that the reasoning of the district judge does not support the judgment. If the movables already sold were not sufficient to pay the rent due, the landlord had the right to seize such portion of the surgical instruments as may have been necessary to satisfy his execution. But this was a right, personal to him, which Communy could not exercise. Art 644, C. P. would become a dead letter in this case, if Communy could seize the entire set of surgical instruments under the pretext of paying the rent, and retain the balance remaining after the judgment of the landlord was satisfied.

It may be doubled whether, under a fair interpretation of ait. 644 already cited, the sign of the plaintiff is not one of the instruments necessary for the exercise of his profession. However this may be, itis a thing of no value to any one but himself, and we think that it properly comes under the rule de minimis non curat lex.

It is ordered, thatthe judgment in this case be reversed. It is further ordered, that the injunction be reinstated and made perpetual. It is further ordered, that the defendant, E. Communy, pay costs in both courts.


author: Preston, J. Rost, J.

text:
    Marie L. H. Benoist v. A. G. Blanchard.
    Solar as the creditors of the husband are concerned, the wife must prove the reality of her dower by other evidence than the acknowledgment of the husband, or a judgment of court rendered between them.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      L. Grivot and L. Janin, for plaintiff.

      Moise and Randolph, for Nugent, Hopkins Sf Co.

   The judgment of the court was pronounced by

Preston, J.

The plaintiff and her husband made a marriage contract, by an authentic act, dated the 5th of January, 1839. A community was established according to the laws of the State. The husband brought nothing in marriage. The wife brought in marriage, and constituted her dower, “the capital sum of eight thousand dollars, placed, in commendam, in the commercial house of Bernard Laudumiey, of this city, as is made manifest by her act of association, in commendam, with the house, passed before the notary on the 3d of April, 1837 also, “the capital sura of ten thousand dollars, placed, in commendam, in the commercial house of Joneau, Meloyer Sf Co., of this city, as is made manifest by her act of association, in commendam, with Antoine Joneau, passed before Seghers, notary, the 24th of May, 1838.”

The husband bound himself to collect, take charge of and secure these sums. On the 27th of April, 1839, by a notarial act, he declared, that in pursuance of the clauses in his marriage contract, he had settled with Laudumiey, and received from him $9,500, in full of the capital sum of eight thousand dollars, placed, in commendam, for account of his wife in the co-partnership formed between her and him, and for her share of the profits of the partnership.

On the 28th of June, 1839, an authentic act of dissolution of partnership was passed between the husband and Antoine Joneau, in which he acknowledges to have received, in negotiable drafts, $11,300, the capital and interest placed by his wife,.«w commendam, in partnership with Joneau.

In 1842, Mrs. Blanchard brought suit against her husband, on account of his embarrassments, for a separation of property, and claimed judgment for the above amounts, and also for $8,000, which she alleged she had inherited, and her husband had received from her father, and for which she produced notarial receipts. A. C. Blanchard, the husband, admitted the facts; a judgment for a separation of property was rendered, and also for $31,725, the aggregate amount of the above mentioned claims. An execution was issued and returned unsatisfied.

In 1842, Nugent, Hopkins &¡■ Co. obtained judgment against Blanchard for $1579 90, and, in 1850, issued execution against him and seized a sum of near five hundred dollars due to him by the Second Municipality of New Orleans. They had brought a suit in 1843 against Blanchard and Wife, to annul the judgment in her favor against him, on the ground that he had received nothing on her account; that her suit against him was not defended, but that judgment was confessed, which could not have been obtained if the suit had been defended; and that the judgment was rendered to defraud them, being creditors of Blanchard, at the time. This suit was put at issue by an answer, but has never been disposed of.

Nugent, Hopkins 8f Co. having seized the debt due by the municipality, Mrs. Blanchard also issued an execution and seized it, and then took a rule upon them to show cause why it should not be paid over to her, ns a privileged creditor, for her dower. They answered, that the judgment in her favor was confessed, and could, not have been obtained if the suit had been defended; that they had brought suit to annul it; that they were judgment creditors of Blanchard, and had seized the money due by the municipality to him.

Where the wife claims as her dower, by. marriage contract,1large sums placed by her father in her name, in certain partnerships, in commendam, audit appears, from the evidence, that the money was returned by the partnerships t.o her father and not to her husband, and she fails to show that the money was originally hers, or how; she came into possession of it, the transaction will be, as to creditors, regarded as fictitious.

The rule was tiled and made absolute, by a judgment ordering the money to be paid to Mrs Blanchard, in preference to any "other creditor. Nugent, Hopkins Sf Co. have appealed.

It has been fully settled by many decisions, that, as'to the creditors of the husband, the wife must proke the reality of her dower, and that it was received by the husband, by other evidence than the acknowledgment of the husband or the judgment of the court. 2d Ann. 636. Dimitry v. Pollock, 5 R. R. 350. Yet the marriage contract and judgment ofseparation and for the amount of the wife’s claims are admissable in evidence, and, if fully corroborated by other evidence, will establish .the wife’s rights."

The acts in evidence show that eighteen thousand dollars were invested for Mrs. Blanchard, before her marriage, in mercantile firms. By the marriage contract it was constituted her dower.

Laudumicy proves the payment, very soon-afterthe marriage, of $9,500, in full of the principal and interest invested in the partnership with him. He thinks he paid it to Mrs. Blanchard's father; but the partnership was with her, and the account balanced and signed by him on the 31st of March, 1839, was with her and the balance in her favor. Besides, he took a receipt, and none is produced, but a discharge in full, before a notary, signed by the husband the 27th of April, 1839. - . .

The dissolution of the partnership between Mrs. Blanchard and Joneau, is signed by the attorney in fact of Joneau and th'e husband alone, in less than six months after the marriage. H? acknowledges the Receipt of negotiable drafts, in payment of that part of his wife’s dower invested for her in partnership with Joneau before her marriage.

These transactions occurred at a time not suspicious, and before the debt of the defendants in the rule (so far as the record informs us) accrued. They have offered nothing .to impeach the reality of these transactions. From them the district judge concluded that the husband had received more of his wife’s dower than the amount seized, and in controversy with the .defendants in the rule. We areled to the same conclusion by the whole of'the evidence.

The code gives the wife a privilege over the defendants in the rule for the restitution of her dowry, art. 2355, and the district court decreed, that she should be paid in preference to them. We think the judgment should be affirmed, with costs, and so decree.

Same Case — On a Re-hearing.

THE judgment of the court; on are-hearing, was pronounced by

Rost, J.

This is a contest between the wife of Blanchard and one of his judgment, creditors in relation to a credit of |500, seized by the latter as the property of Blanchard. Mrs. Blanchard claims a .privilege upon this credit for the restitution of her dowry.

In April, 1837, when Mrs. Blanchard was little over fourteen years of age, her father contracted a partnership,ira commendain, inher name, with Bernard Laudumiey, and put into the firm a sum of $8,000, which he stated belonged to her. The ensuing year he entered into a similar contract in her name, with Joneau, Metoyer Co., and paid into that firm, ten thousand dollars on her account. There is nothing to show the origin of this money, or that it previously .belonged to the daughter, and there is a very strong probability that it did not. In January, 1839, Mrs. Blanchard was married, and constituted, herself, these two amounts in dowry by the marriage contract.

On the first of April, 1839, the partnership with Laudumiey was dissolved, and it results from the testimony of Mr. Laudumiey, that he paid Mr. Benoisl, the father of the plaintiff, $9,500; it being the amount received from him, in commendam, and the profits accruing thereon under the contract of partnership.

On the first of April, 1839, the sum purporting to have been settled as dower, was in the possession of Benoist, and there is no evidence it was ever paid by him to Blanchard. The acquittance of Blanchard to Laudumiey, was executed out of the presence of the latter; it has reference to a settlement previously made, and does not state that any money was paid in presence of the notary. Although admissible in evidence, it is insufficient perse against auditors, itshould be supported by such corroborating circumstances as would exclude all reasonable doubts of its truth. We think that those circumstances are wanting. We are satisfied that the money was originally BenoisVs money; he could not make his minor child a partner in a commercial firm, and was himself a partner in disguise; at the dissolution of the firm, he received the capital put in and his share of profits, and, under the facts of the case, it is not an unfair presumption that he kept the amount, and that whatever form his liberality to his daughter might assume on the public records, it was not intended to take effect while he lived.

From April, 1839, to March, 1841, there are, in the record, receipts of Blanchard to Laudumiey, Joneau, Metoyer Co. and Benoisl, amounting together to $31,725. On the 21st of April, 1842, he was sued by his wife for a separation of property and acknowledged the full amount claimed. Judgment was rendered against him for it, and the execution issued on that judgment was returned, “no property found.”

There is nothing to show the origin of any of the claims of the wife or the losses, which sweptfrom the husband this large sum of money, in so short atime. Upon a renewed and more minute examination of the evidence, the whole affair appears to us a paper case, and has not the requisites of satisfactory judicial proof.

It is not shown that anything was ever made on the drafts, which Blanchard acknowledged to have received from Joneau, Metoyer 8f Co. at the dissolution of their partnership; nor does the notary state that the drafts were deliverd in his presence.

We are of opinion, that the judgment should be reversed, the rule discharged, and the seizing creditors allowed to proceed under their, execution.

It is therefore ordered, adjudged and decreed, that the judgment rendered by this court be annulled. It is further ordered and decreed, that the judgment of the court below be reversed, the rule discharged, and the seizing creditors allowed to proceed under their execution; the appellees paying the cost of the appeal.


author: Preston, J.

text:
    L. M. Anderson v. Adeline B. B. Irwin et al.
    An appeal will not be dismissed, when the want of service of citation of appeal in time was not attributable to the appellant.
    The holder, in order to show title, must prove the genuineness of the endorsement to obtain judgment against the drawer.
    Where the defendant dies during the pendency of the suit, it is the better practice to transfer the suit to the court in which the succession is opened.
    APPEAL from the First District Court of New Orleans, Lame, J.

      J. S. Whittaker, for plaintiff.'

      JR. H. Marr, for defendant.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff and appellee moves to dismiss this appeal, on the ground that the citation of appeal was not served upon him until after the return 'day of the appeal. The appeal was made returnable on the 3d of November, but the appellant had until the 6th to file the record, when it was filed. The citation was served upon the appellee on the 5th of November. The motion to dismiss cannot, therefore, prevail.

The delay, amounting to an irregularity, in serving the citation, is not imputable to the fault of the appellants. An appellee, who is not seasonably cited, through the fault of the sheriff, might be entitled to further time to answer to the appeal; but that relief has not been asked in the present case.

The appellant assigns for error, that no evidence was offered of the endorsement by Lillard, Moseby $f Co. of the note, on which they are sued as drawers.

The assignment is well taken; the endorsement should have been proved to show a title, to the note in the plaintiff.

The plaintiff might be non-suited, but thinking with the defendant’s counsel that, as the defendant died during the pendency of the suit, and her succession was opened in the Third District Court of New Orleans, and a curator having been appointed in that court before judgment, the cause should have been removed to that court, justice requires that it should be remanded for that disposition of it. Had they asked for the transfer of the cause in the district court, no doubt the judge would have ordered it.

Conceding that money claims may be established before other courts than that in which a succession is opened, if no exception be made, still it is a better practice, if not absolutely required by our laws, to establish, liquidate and pay money claims by authority of the court in which the succession is opened, in order that the succession may be speedily and satisfactorily settled by that court. C. P. 164, No. 2. C. C. 1105. 3 R. R. 93. 11 L. R. 360. And it was the duty and interest of the curator, as well as of the plaintiff, to have this course pursued in the present case.

The judgment of the district court is reversed, and the cause remanded, with directions to transfer.it for trial to the Third District Court of New Orleans; and the appellee is condemned to pay the costs of the appeal.


text:
    J. M. Lapeyre v. R. Murphy et. al.
    The partners of a firm engaged in the business of ship carpenters are not commercial partners, nor are they bound in solido on an endorsement of a note in their partnership name.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      Benjamin and Micou, for plaintiff.

      C. Redmond and Durant and ILornor, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Rost, J.

This suit is upon a promissory note held by the plaintiff, made by Robert Murphy, manager, and John Kitty, secretary of the Independent Towboat Company, to the order of Hughes, Valette and Thomas, for the sum of $5500, dated at New Orleans, the 12th February, 1849, and payable on or before 1st May, 1851. It was endorsed by Hughes, Valette and Thomas, in the words, written by Hughes, one of the firm: “Pay to the order of Mr. Robert Murphy,” and was endorsed in blank by Murphy to the plaintiff. There was judgment for the plaintiff, in the court below, against Murphy, for the whole amount, and against John Hughes, Francis Valette and Marc Thomas, as joint debtors. All the defendants have appealed.

The only complaint Murphy makes against the judgment is, that it should have been rendered in solido against the members of the firm of Hughes, Valette and Thomas. The evidence shows that they are ship carpenters. As such, they are not commercial partners, within the definition of the code.

The other defendants contend that their endorsement was made in error, and that when they passed the note to Murphy, they intended nothing more than to give up to him, as the manager of the Independent Towboat Company, the evidence of a debt whichhe, as such manager, had paid. This proposition is directly in the teeth of the written contract, exhibited by the special endorsement made by them to Murphy, in his individual capacity, and even, as against him, could be supported only by the most cogent, and satisfactory evidence.

The evidence adduced by the defendants, which we have carefully considered, did not satisfy the district judge, and does not satisfy us, that the alleged error existed.

It is not, however, indispensable to decide whether Hughes, Valette and Thomas, are bound to Murphy by their endorsement. The question is, are they bound to the plaintiff? ¥e find nothing in the record which authorizes us to say that Lapeyre is affected by any equities existing between Murphy and the payees. He gave a valuable consideration for it, before maturity. He bought it from Murphy for f5539 02. But, it is said, he did not give that amount in cash for it. True, he gave his own note for it, to Murphy’s order, payable at one year, with eight per cent interest from date. But, to a solvent merchant, his note is cash; and Lapeyre afterwards paid cash for this note to the endorsee of Murphy. There was a suggestion in argument, that Murphy always remained the owner of the note in suit; but it is unsupported by the evidence which exhibits Lapeyre a holder for value, before maturity, in the ordinary course of business.

It is, therefore, decreed that the judgment be affirmed, with costs.


author: Rost, J:

text:
    Succession of Felix Connolly.
    Property of an insolvent succession administered by syndics, is not considered as property voluntarily surrendered to Ills creditors by an insolvent debtor.
    from the Second District Court, Lea, J.

      Hoffman and Halsey, for appellee.

      Stockton and Steele, for appellant.
   The judgment of the court (Eustis , C. L, absent,) was pronounced by

Rost, J:

The appellants, who were not parties in the court below, set up in this court a new cause of action, and it may well be doubted whether such a proceeding is authorized by article 571, C. P. It is unnecessary, however, to determine this question as supposing the right to exist; the pretensions of the appellants are preposterous as to some of them, and without any foundation as to the others.

Bridget. Connolly was confirmed as tutrix, by nature, of her minor children, and caused an inventory of the property of Patrick Connolly, and of the firm of Patrick Connolly and Sort to be made, and the promissory notes, bills receivable, slaves and book accounts inventoried, were left by the notary, in the possession of the tutrix. She was subsequently appointed administratrix, but she was unable to give security, and syndics were appointed by the creditors. The syndics took upon the tutrix a rule, to show cause why she should not deliver to them the evidences of debt and slaves .above mentioned. This rule was made absolute, and execution having issued thereon, the return of the sheriff was, that he had not found them, and that the defendant denied having them in her possession. No farther steps were taken to compel Bridget Connolly to obey the order of court, and the object of the appeal now taken by her and her minor children, who have since become of age, is to charge the creditors of Patrick Connolly and Son, and of Felix Connolly, the other partner who has since died, with the amount of the credits and the value of the slaves inventoried, on the ground that the slaves are not to be found, and that the credits have been either collected by the syndics or lost through their negligence. In support of this ground of action, their counsel relies on the cases of Fitzgerald v. Phillips, 4 M. R. 559. Meilleas v. His Creditors, 3 L. R. 532. Succession of Desormes, 10 R. R. 474.

We must infer, from the return of the sheriff, upon which the appellants mainly rely, .that the slaves, notes, bills and commercial books, remained in the possession of Bridget Connolly, and there is nothing in the record to show that the syndics ever administered upon any portion of those assets, beyond that for which they have accounted. It is clear that they could not have collected the sums due the succession without the evidences of debt. It is said, that it was their duty to have resorted to compulsory measures against Bridget Connolly; such may have been their duty towards the creditors whom they represented, but what injury have the appellants sustained in consequence of their indulgence to their mother ?

The appointment of syndic under the special provisions of the act of 1826, did hot vest the property of the succession in the creditors, as is the case in voluntary surrenders. B. and C. 497, sec.7; The succession having been accepted under benefit of inventory in behalf of the minors, the title was in them, and so ag were concerned, their tutrix had authority to administer such portions of it as the syndics left in her hands. The assets, for which the appellants now claim indemnity, remained under her administration for their benefit, instead of being applied by the syndics to the payment of the debts. She may have collected the credits, and her answer to the sheriff may have been true, in part, at least; whether it was or not, she was accountable to her children for their share of those assets, and they had a legal mortgage upon all her property, to secure their claims. The possession of their tutrix was, constructively, their possession, and it is no just ground of complaint, on[their part, that instead of being divested of that possession, other property of the succession has been taken for the payment of its debts. It would be unfair to charge the creditors with this portion of the assets, while the right of the heirs, to compel their mother to account for it, stands unimpaired, unless it should, through their neglect, have been lost by lapse of time. The claim of Bridget Connolly herself, requires, of course, no notice, and under the facts of the case, Felix Connolly must be presumed to have assented to all that was done.

It has further been argued, that the goods inventoried had not been accounted for by the syndics. But if this was true, the balance due the creditors, after deducting the appraised value of the goods, would far exceed the fund to be distributed. We are of opinion that the appellants have not made good their claim to that fund.

The judgment is affirmed, with costs.


author: Rost, J. SniDExm, J.,

text:
    John P. Watson v. A. Ledoux & Co.
    A planter is not liable for the whole costs of closing a crevasse which has occurred on his land, without being traced to any negligence on his part; but, after a break has occurred in the levee, he is bound to work on it with 1ns whole force, and, if he does not do so, he is bound for the hire of such labor and materials as he was able to have furnished.
    APPEAL from the Second District Court of New Orleans, Lea, J.

      'Durant and Hornor, for plaintiff.

      Elmore and King, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Rost, J.

The plaintiff sues for labor and materials furnished in stopping two crevasses in the levee of the .defendants’ plantation, situated on the Mississippi river, in the parish of Pointe Coupée. The defendants excepted to the petition, on the ground that it disclosed no cause of action against them, and that, even if the allegations in the petition were true, under the laws of the State and the police regulations of the parish of Pointe Coupée, the plaintiff cannot maintain his suit. The district judge •' was of opinion that it should have been alleged or shown that the defendants were bound in law to have incurred the expense for which the plaintiff claims to be reimbursed, and dismissed the petition, because this had not been done. The plaintiff has appealed.

The reasons of the judgment are not satisfactory to us. On the trial of the exception, d;he plaintiff could not introduce evidence to show that the defendants were bound, in the manner alleged by him, and if, under the law, there is a class of cases in which they would be liable, the allegation, as made, is sufficient; whether they come or not'within that class, is a matter of defence.

We have been referred, by the defendants’ counsel, to the 21st and 26th sections of the regulations of the police jury of the parish of Pointe Coupee, as sustaining the position, that the defendants are not liable to the plaintiff.

The first of those sections does not apply to cases in which the planter, on whose land the crevasse occurs, is able to repair the damage with his own slaves, but fails to do so, and the fund created by the 26 th section, cannot be appropriated to the payment of expenses incurred by the inspector in repairing such damage.

It is urged, that the petition does not allege that the inspector notified the defendants to employ their slaves in repairing the damage. We hold them to have been sufficiently notified by the overflow of their fields.

Admitting, that when a crevasse cannot be traced to the negligence of the planter, he is not, in all cases, liable for the entire cost incurred in closing it, it is equally true, that as soon as a break in his levee occurs, he is bound to work upon it with his entire force. All planters know, that in the great majority of cases, those breaks are originally inconsiderable, and easily repaired, if taken in time, and if, instead of availing themselves of that knowledge, the defendants employed the labor of their slaves otherwise, and it became necessary that the inspector should take the matter in hand, justice and public policy alike require, that the expenses incurred in hiring labor and procuring materials, which the defendants were able to furnish, should not become a charge upon the parish. The sections of the ordinance relied on, are evidently framed with that view.

We do not know what the facts are, in this case, and must not be understood as prejudging it, but it is enough to maintain the plaintiff’s action, that they may be as we have supposed them.

It is therefore ordered, that the judgment dismissing the petition be x-eversed, and the petition reinstated, and the cause remanded, with directions to the district judge to overrule the exception, and otherwise proceed according to law; the defendants and appellees paying the costs of this appeal.

SniDExm, J.,

dissenting. I think the views of the district judge, especially when considered with reference to the regulations of the police jury, are correct, and that the exception was well taken.


author: Slideli,, J.

text:
    John Bush v. T. F. Guion.
    Whore in a suit fox' the settlement of a partnei'ship, the accounts have been referred to auditors, who agreed in part, but disagreed as to some items, and the report; so far as they agreed, was assented to by the parties, and the case, as to the matters in which they disagreed, was tried by the court, after hearing evidence, without objection having been made, the parties will be considered as having acquiesced in the irregularity; and one of them cannot be allowed to urge the objection, that the matters in which the auditors disagreed, should have been referred to an umpire, instead of having been tried by the court.
    It is a violation of the fundamental principles of partnership, to permit one partner to make a profit, at the expense of the firm, by charging more for purchases made by him for the firm, than the goods actually cost.
    Where in the settlement of a partnership, the partner who had made the purchases for the firm, being called upon to produce the original invoices, produced a large number, but not all; and those that were produced showed overcharges by him, the court was authorized to presume, that the others, if produced, would have shown similar overcharges, and to give judgment accordingly.

      APPEAL from the Fourth District Court of New Orleans, Strawbr¡dge, .T.

      Benjamin and Micou, for plaintiff.

      L. Peirce, for defendant.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Slideli,, J.

The plaintiff, the defendant and Guiness, were partners as merchants. The partnership was formed in 1844, and by the articles, was to continue until November, 1847. New Orleans was to be the domicil of the firm. Guian, who resided in New York, was exclusively charged with purchasing and ordering goods for the firm. lie was to receive a thousand dollars per annum from the firm, and the profits were to be equally divided between the partners. In June, 1849, the defendant purchased theinterestof Guiness, and, from that time, appears to have assumed the exclusive control of the partnership property. A witness states, that, on that day, he took possession of the stock, books, &c., belonging to the firm, changed the sign from Guión Co. to Onion alone, and advertised a dissolution of the firm. Bush does not appear to have been present, or to have assented to these proceedings. He has brought this suit for a settlement of the partnership accounts.

The accounts were, by order of the court below, referred to auditors, each party naming one, a person being also appointed to act, in case of disagreement, as umpire. They agreed upon the general state of accounts, but differed upon certain items. Their report seems to have been assented to by the parties so far as the auditors agreed. No application was made to have the matter referred to the umpire. The case was then set for trial generally, and after hearing evidence, for the production of which abundant time was allowed, was submitted. This course was not in conformity to the provisions of the Code of Practice respecting the reports of auditors; but, as the irregularity was acquiesced in by the parties, the defendant cannot now complain of it.

In certain invoices of shipments, made by Guión to the firm, it is shown there were overcharges made by him to the amount of $2715 04, being at a rate from seven to eight per cent. It is clear, that the firm had a right to be relieved from these overcharges. Guión should have put the goods, bought for his house, at their actual cost. It would be a gross violation of fundamental principles of partnership, to permit a partner to make a profit at the expense of his firm. Nor can the overcharge be justified upon the mere suggestion, that it was to cover the expenses of packing, cartage, and other expenses of shipping. There is no evidence what those expenses were, and moreover, it is the duty of a commercial partner to keep accounts of his transactions for the firm. None such have been exhibited in support of the suggestion.

There were also other invoices, the original bills for which were not produced before the auditors; and one of them based his report, on the assumption, that there was a proportional overcharge in them. The district judge thought the inference a just one, and we see no reason to disturb his conclusion. The ascertained overcharges in a very large number of the invoices, and the failure to produce the original bills of the invoices in question, brought the case fairly within the spirit of the maxim, omnia prcesumuntur contra spoliatorem.

The defendant complains, that the court erred in charging to Guión, the uncollected debts due to the house, on the 18th June, 1847; at which time, as we have already stated, Guión took possession of the stock, books, &c.

As these debts have been since that time in his charge, and he has furnished no proof of the insolvency of the debtors, or unsuccessful diligence in attempting to collect them, the court did not err in treating them as cash in his hands.

Judgment affirmed, with costs.


text:
    James Swain v. Sampson and Keen.
    To entitle a party to maintain an action to annul a judgment, a case must be exhibited ol' matter which would make it against good conscience to execute the judgment, and of which the injured party could not, with due diligence, have availed himself in the former suit, or of which he was deprived by fraud or accident. If there has been laches or negligence on his part, he is not entitled to relief.
    APPEAL from the Fourth District Court of New Orleans, Strawbridge, J.

      J. B. Bemiss, for plaintiff.

      J. Van Matre, for defendants.
   The judgment of the court (Eustis, C. J. absent,) was pronounced by

Preston, J.

The plaintiff brings this suit to annul a judgment rendered against him in favor of the defendants. He charges, that the defendants were guilty of fraud in writing the notes, upon which the judgment was rendered, payable to the order oí James Swain, and of fraud and illegal practices in procuring false testimony to obtain the judgment sought to be annulled.

It appears, that Mrs. Hunstable, a sister of the plaintiff, puchased a large bill of furniture from the defendants, amounting to about $1300. She had two brothers; the plaintiff, a man of means, who kept a boot and shoe store under the St. Charles Hotel, and one, without means, named John Swain, employed at the time by a Mr. Stewart and afterwards by the plaintiff.

The defendants required endorsers of the notes given for the bill of furniture, and filled them up payable to James Swain. They were taken by Mrs. Hunstable for the purpose of procuring the endorsements, and returned endorsed J. Swain, It is now ascertained, that the endorsements were made by John Swain, the toother employed by Stewart and the plaintiff, and not by James Swain, the owner of the store. Still, we are satisfied by the evidence, that the defendants sold the furniture for the endorsement of James Swain, and that there was no fraud on their part, as alleged, in inserting his name as payee, with the intention of holding him liable as the endorser of the notes. We are equally well satisfied by the evidence, that there was not, as alleged by the defendants, fraud or confederation on the part of James Swain, with his sister, M/rs. Hunstable, to substitute his brother’s for his own endorsement. The error has grown out of the folly of men writing the initials of their names, instead of writing in full the Christian name which was given in baptism, to distinguish them from other persons; a reprehensible custom, which probably grew itself out of the affectation of great hurry by men who had little to do. J, on the back of the notes, did not distinguish John from James Swain; and the parties must stand upon their legal rights growing out of subsequent events.

The defendants sued the plaintiff on the endorsements. The petition and citation was served upon him personally. He suffered judgment by defaulttobe rendered against him, and to be confirmed; and now sues to annul the judgment, on the ground that the defendants were guilty of fraud and illegal practices in procuring false testimony to obtain the judgment. There is no doubt the defendants believed the plainliff endorsed the notes. "What testimony they offered to confirm their judgment by default, does not appear. The notes were received, as endorsed by the payee, James Swain; they were all protested, as notea payable to James Swain, and notice given to the person supposed by the notary to be the payee and endorser; and the district judge is under the impression the witness, on whose testimony the judgment was confirmed, stated, that the person to whom they were presented, answered as James Swain, or the owner of the store, and acknowledged the signatures. Although, then, there may have been error in the testimony on which the judgment was confirmed, there is no proof of fraud in offering the testimony, or that the witness committed perjury, as contended. Now, error in the testimony, without fault of the party or witness, is not laid down as a ground for annulling a judgment. C. P. 607. Though we will not say it might not have that effect, if there was no laches or fault on behalf of the party against whom the judgment was rendered. Whatever might be the decision on that question, there was such laches and fault on the part of the plaintiff in the case under consideration, causing the injury of which he complains, that it is impossible to afford him relief. He should have appeared to the service of the petition and citation, and denied that he was the endorser of the notes; and then no error or fraud could have occurred in the testimony, having an effect on the judgment, which the court would not have redressed.

On this part of the subject, we cannot express ourselves in better nor stronger language than that used by the district judge. If there was a defective cause of action, or no cause of action, it was the duty of the party to appear and show it, and he had no more right to disobey the citation to appear and answer the petition, than if he had paid the notes, or if they were prescribed, to neglect pleading those things in defence. Relying upon his right to an injunction, nothing is more fully settled in our jurisprudence, than that matters which might have been set up in defence, to an original action, cannot furnish ground for an injunction. Livingston v. Winfrey, Sheriff, et al., 5th Ann., 670. Minor v. Stone, 1st Ann., 284. Morgan v. Driggs, 3d Ann., 124.

It is said, no case has been referred to, in which this principle has been claimed for a judgment taken by default, and confirmed. That is true; but the principle is based upon the neglect of the party to make a timely defence, when in his power. Now, there is certainly as much negligence in failing to appear and make any defence at all, as in failing to present the defence, having appeared.

Moreover, we consider the very question before the court decided in the case of Fristoe v. Norris, 3d Ann. 646. We there held, that to annul a judgment, a case must be exhibited of matter which would -make it against good conscience to execute the judgment; matter of which the injured party could not have availed himself in the former litigation, or of which he was prevented by fraud or accident from availing himself. The matter must also be such as the party, by the use of reasonable diligence, could not have known; for, if there have been laches or negligence, that destroys the title to relief. Story’s Equity Jurisprudence, § 887. Story’s Equity Pleadings, § 414. Garlick v. Reece, 8 L. R. 101, McMecken v. Millaudon, 2 L. R. 180. And there is a peculiar and strong reason for applying these pi-inciples, in the present case. When the judgment, by default, was.confirmed against the present plaintiff, he applied for a new trial, not on the ground that the judgment had been obtained through fraud, or other ill practices of the plaintiffs, but on the ground that the judgment by default was taken and confirmed, without any service of the copy of the petition or service of the citation, either personally or otherwise, upon him. And, in support of the application, he made an affidavit, that he had never been served with either a copy of the petition or of the citation, in this case, and had been con- dawned to pay a large sum of money, without notice of the suit, no service, personal or otherwise, having been made upon him. Yet, on the trial of the rule, he admitted, by his counsel, that the citation and copy of the petition in the case, was, in fact, served on the defendant on the day, and in the manner stated in the return. Now, the sheriff had returned, in the case of Sampson and Keen v. James Swain, that he had served a copy of the citation and petition, personalty, on the defendant.

This, naturally, threw suspicion in the mind of the district judge, upon his whole case, and induced him to draw conclusions then, as well as in the present case, unfavorable to the pretensions of the plaintiff, on the merits. For, although the frauds and ill practices now complained of were not set forth as a distinct ground for a new trial, yet the court allowed the present plaintiff to give evidence of them, and, yet, overruled the application. If he had based his application on the true ground thathe had never endorsed the notes, knew nothing ofthem, had not received the notices of protest, and had not, by silence or connivance, contributed to the error into which th e plaintiff had been led by his brother and sister, and that he had not appeared in obedience to the citation, from a confidence that the plaintiffs would not prove that he had any connection with the notes, and, having proved all this, had appealed to the wise discretion of the judge for a new trial, on the ground that injustice had been done him, and that it would be contrary to good conscience, on the part of the plaintiffs, to execute the judgment, it is probable the court would have yielded to his application. He did not do so, but, in fact, made his present demands, and gave testimony in support of them, under such circumstances, that it did not avail him, and probably was disbelived then,, as in the present suit. The plaintiff having offered testimony, in support of his application for a new trial, to the very facts which are the basis of this suit, to annul the judgment, if it were necessary to the decision of the case, we should incline to the opinion, that the matter in controversy between the parties was adjudged, in that suit, by a judgment from which no appeal has been taken. This is, at least, a strong additional reason to those already given, for affirming the judgment rendered in the preséntense.

It is affirmed, with costs.


author: SxjdeIjIj, J.

text:
    William Bond v. S. W. Frost et al.
    Where the bill of lading shows the goods to have been shipped in good order, this acknowledgment,' if it be susceptible of explanation, throws the burden of proof on the vessel when the goods are not delivered in good order.
    A cotton pickery retained the damaged cotton picked off the bales for its own account, upon the ground that it was customary so to do. Held: That the case should be remanded for further investigation as to this custom.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      William C. Hamner, for plaintiff.

      P. E. Bonford, for defendants.
   The judgment of the court was pronounced by

SxjdeIjIj, J.

This is a suit for damages alleged to have been sustained by the plaintiff on a lot of cotton. The steamboat Naomi received the cotton in the Hatchee river, and undertook, by her bill of lading, to deliver it at New Orleans to Felix Walker Sy Co„ the plaintiff’s factors, “they paying freight at two dolIars per bale, and charges, with privilege of re-shipping.” The Concordia received the cotton from the Naomi at Memphis, and gave a bill of lading, in which the cotton is receipted for as in good order and condition. The bill stipulates freight from Memphis to New Orleans, atone dollar per bale, the consignees to pay, also, a sum of #106 87, amount of freight and charges advanced by the Concordia to the Naomi. Upon the arrival of the cotton at New Orleans, it was found that fifty bales were damaged by water. The consignees refused to pay the defendants their bill of freight and charges, but received the cotton, with the exception of five bales, which the defendants retained to reimburse themselves, and subsequently sold without the plaintiff’s consent. The bill of items annexed to the plaintiff’s petition is composed of charges for the five bales short, loss of weight incurred by picking the fifty damaged bales, cost of picking, surveying, &c.

There was judgment for the plaintiff in the court below, for the whole amount claimed, and the defendants have appealed.

The damaged bales were wet on one side only, and this from two to four inches deep. They must have lain partially in water, either on board the Concordia or the Naomi, or on the river bank before shipment. The damage was of such a nature as would not “dry out,” and rendered picking necessary. The principal contest between the parties is, whether this damage was incurred before or after the shipment onboard the Concordia.

The Concordia’s bill of lading acknowledged the cotton to be in good order and condition when received by her. It is said this receipt is not conclusive against the vessel. If it be admitted that it is open to explanation, still, itfis certain that the receipt throws the burden of proof upon the vessel, and that its recital cannot be overthrown or qualified, except by evidence of a very clear and convincing character. The policy of the law, a policy justified by long experience, is to hold the carrier to a very strict accountability. The recital of the bill of lading is not to be weakened by a conjectural showing.

We have carefully considered the conflicting testimony upon which the cause is presented, and concur with the district judge in the opinion, that the evidence preponderates in favor of the plaintiff. We think that the damage was a recent one; and the proposition that it occurred before the Concordia received it, rests upon a basis too loose and conjectural to warrant us in disturbing the opinion of the district judge upon the question of fact. The defendants have not furnished any direct evidence as to how long, and under what circumstances, the cotton lay on the river bank before shipment; and the speculative opinions of persons who saw the cotton after it was landed here, are conflicting. .

It was said, in argument, that in the navigation of the Mississippi and its tributaries, cotton is usually carried on deck, and it being necessarily exposed, the presumption should be, when it arrives damaged by water, that such damage arose from the manner of transportation, rather than the fault of the carrier. We have no evidence before us which would authorize us to say that the damage was the necessary consequence of a mode of transportation to which the shipper-assented.

In assessing the damages, there was a charge allowed which, upon the evidence before us, we are not prepared to sanction. In the plaintiff’s bill of damages, there is an item for loss of weight by picking, amounting to 1713 pounds, for which defendants are charged #205 56. The cotton-picker testifies, that he kept the cotton picked from the damaged bales, dried it, sold it, and got the money for it; that he charges so much a bale for picking, without reference ' to the damaged cotton, which he keeps. On re-examinatioD, he stated that the damaged portion is considered part of the price for picking. The defendants are charged $50 for picking the cotton, and if they are to pay the sound value of the portion damaged, it seems to us, as at present advised, unreasonable that its proceeds should not be allowed for. At all events, we think the defendants do not complain without reason, that the data furnished by the plaintiff are an unsatisfactory basis for the assessment of damages. As to the amount picked, we have the naked fact that the picker, whose interest it is, say the defendants, to make the picking as large as possible, has picked a certain number of pounds, which the defendants are held for at its sound value. It is not expressly proved by the picker himself, nor any one else, that the whole amount picked was necessarily taken out of the bales as damaged, nor are wfe informed what was the value of the pickings. The amount in this case is not large, but it involves the justice and reasonableness of a practice, the propriety of which we have hitherto had occasion to question. We think this branch of the case, upon which the evidence is meager and unsatisfactory, should undergo further investigation.

Judgment reversed, and the cause remanded for- a new trial. Plaintiff to pay costs of appeal.


text:
    Succession of W. H. Vanrensellaer.

      Where, at a succession sale made to effect a partition, a married woman, who was one of the heirs, purchased the property in her own name, and ever afterwards retained its administration, it will he regarded as her paraphernal property, although the amount given lor tlie property greatly exceeded her share of the succession.
    APPEAL from the Fourth District Court of New Orleans, Strawbridgc, ./.

      C. Boselius, for appellant.

      Benjamin and Micou, for appellee.
   The judgment of the court (Eusiis, C. J., absent,) was pronounced by

Rost, J.

The appellnnt, as administrator of the succession of Walter H. Vanrensellaer, applied for and obtained an order to sell certain immovable property, represented by him as belonging to the succession, for the purpose of providing funds for the payment of the debts. The execution of this order was opposed by the surviving widow, on the ground that the property did not form a part of the acquets and gains, but belonged to her in her separate and individual right. This property was purchased in the name of the opponent, during the existence of her marriage with Vanrensellaer, at a probate sale of the succession of her brother, Joseph H. Gladding, in 1842; which sale was made to effect a partition among the heirs of Gladding, of whom the opponent was one. The only question which the case presents is, whether property thus acquired, by the wife, forms part of the acquets and gains. The district judge held that it did not, and the administrator has appealed from the judgment sustaining the opposition.

It is said,-in behalf of the appellant, that this case cannot be distinguished from that of Dees and Husband v. Seale et al., 5th Ann. 688. The difference between them is obvious. In the case of Dees, the slave had been purchased in the name of the husband, at the sale of a succession in which the wife was an heir, and it did not appear, in the act of sale or otherwise, that he had received the slave as a part of the wife’s paraphernal estate, oy that it was purchased for her, There was, therefore, nothing in the record to show that the husband or wife intended the property to be paraphernal, at the time of the purchase, and the case clearly came within the rule established by art. 2371, C. C. In the present case the property was purchased by the wife herself. In the final partition among the heirs, her share in the succession being less than the amount of her purchase, was deducted therefrom, and it is shown, that she had ever after-wards the sole administration of the property. It would, therefore, more properly come under the authority of the cases of Dominguez v. Lee, 17 L. R. 296. Terrell v. Cutrer, Syndic, 1 R. R. 367. Rousse v. Willard and Wife, 1 R. R. 115. Savenat v. LeBreton, 1 L. R. 522. Stroud v. Humble, 2d Ann. 930. Ellis’ Syndic v. Rush, 5th Ann. 116. Squire v. Stockton, 5th Ann. 743.

It is urged, that in such of those cases as are otherwise analogous to the present, the share of the wife in the succession was sufficient to pay for the property she purchased, while, in the present case, the hereditary share of the opponent was only $774, and she purchased property to the amount of $3506 ; that, as it is not shown that she had sufficient means to pay that amount, the purchase must be held to have been on. account of the community.

We do not think that the right of the wife to purchase in her own name, and for her exclusive benefit, in a case like this, is affected by the amount of her bid. Art. 1265 of the code provides, that any co-heir of age, at the sale by licitation of the heriditary effects, can become a purchaser to the amount of the portion coming to him from the succession, and that he is not obliged to pay the surplus of the purchase money, over the portion coming to him, until this portion has been definitively fixed by a partition.

This article makes no distinction between such heirs as are married women and others, and nothing prevented the opponent from purchasing, as she did, provided her husband authorized her thus to jeopardize her share in the succession. Her co-heirs, perhaps, might have objected at the time, but as they did not, nobody else can.

We think that the title is in the opponent, and that by her separate administration of the property, she made the rents it produced, her own. If any part of the price, or of the improvements made, have been paid, or are now due by the community, she must account to the administrator for the advances. This, however, cannot be done in the present suit, the only question it presents being one of title.

The judgment is affirmed, with costs.


author: Kost, J.

text:
    John Bacon et al. v. John Leeds.
    A person who has hired slaves is entitled to be reimbursed the expenses incurred for necessary clothing and medical attendance.
    A person who has hired slaves is bound to give notice to the owner, in case any of the slaves fall sick or run away. If he does not, he cannot claim any deduction of the hire from the loss oftime incurred, from either of those causes. O. C., 2695.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. L. Bayne, for plaintiffs.

      Elmore and King, for defendant.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Kost, J.

The defendant is sued as the surety, in solido, of Jonathan Davis> for $800, this being the sum agreed upon between the agent of the plaintiffs and Davis for the hire of certain slaves. It is shown that two of the slaves were sick, and that two others runaway and continued absent during the greater part of the 1imo the lease lasted. The defendant clajms a reduction on the amount of the lease on that account. He also claims the cost of clothing and medical attendance, and the jail fees paid by him for one of the runaways.'

The district judge considered the claims of the defendant well founded, and deducted $370 on account thereof from the plaintiffs’ demand. The latter have appealed. ' '

It is usual, when slaves are hired on a plantation, to stipulate that the lessee shall clothe them and furnish the necessary medical attendance during the continuance of the lease; but the contract between the parties in this case does not contain that stipulation, and the right of the defendant to be indemnified for expenses incurred by him on those accounts, cannot be doubted. We think the evidence fully authorizes the amounts allowed by the district judge for that portion of the claim.

It was correctly stated by the defendant’s co'únsel, that our law does not recognize a qualified ownership in the lessee during the continuance of the lease. With us, the thing leased remains at the risk of the lessor; he is bound to maintain the lessee in peaceable possession of it, and to keep it in a proper state of repair while that possession lasts. He is under warranty to the lessee against the vices and defects of the thing leased, which may prevent its being used, although he may have been ignorant, of their existence, and even if they have arisen since the lease was made, provided they do not arise from the fault of the lessee. C. C., 2663, 2665. But there is in the code, a special provision in relation to leases of slaves. Article 2695 provides that it is the duty of a person who has one or several slaves on hire, to give immediate notice to. the owner, should any of them happen to get sick, or to runaway, in defect-whereof he shall be liable in damages. The French text is, apáñe de tout dommages et intéréts qui en pourraient resulter ; that is to say, which might result t.o the owner, not from the omission of the lessee to give notice, but from the sickness or the running away of the slaves.

It is not pretended that any notice was given to the plaintiffs or their agent. The defendant was alone notified of the running away of the slaves by Davis’ overseer, and he took no steps whatever for the recovery of them.

Article 2695, C. C. must, in all cases, receive the interpretation under which it will have effect, rather than that in which it would have none. It would be a dead letter in this case, unless the damages, to which it refers, include those which the defendant claims from the plaintiff for the loss of the services of the slaves. Indeed, if that article was not in the code,-it is difficult to perceive how, on general principles, the plaintiff could be held responsible for not restoring the defendant to the possession of the runaways, when, instead of being notified that they had absconded, they were kept to the last under the belief that the lease was in due course of execution, and that their property was producing fruits. It is in proof,'that the first slave who runaway was sent by his former master, to the plaintiffs’ agent, who restored him to Davis, and the agent has testified, that if he had received the notice which the code requires to be given, he would immediately have attended to the sick, and caused the runaways to be apprehended and restored to the defendant. Areward, sufficient to insure the apprehension of the runaways would, no doubt, have been offered, -and the sick might have been brought back to the city and restored to health by means of appliances and skill not to be had on a remote and secluded plantation.

In cases of ordinary sickness which the parties could reasonably anticipate at the time of the lease, or of a short absence of any of the slaves without leave, the lessee is not bound to give notice, and would not be entitled to a diminution of the hire, if he gave it. But in cases where the disease or the unauthorized absence continues for any length of time, notice to the owner must be shown before the lessee can claim indemnity for the loss of the services of the slaves.

We are, therefore, of opinion, that this portion of the defendant’s claim must be rejected.

It is ordered, that the judgment in this case be reversed. It is further ordered and decreed, that the plaintiffs recover from the defendant the sum of $660, with legal interest, from the 11th February, 1851, till paid, with costs in both courts.


author: Seidell, J.

text:
    Caroline E. Huntington v. C. J. Ricard.
    Where a husband hires a slave belonging to his wife to a third person, he will be considered as administering her property, and notice to him of the purposes for which the slave is hired, will be regarded as notice to the wife.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      A. N. Ogden, for plaintiff.

      Ii. H. Strawbridge, for defendant.
   The judgment of the court (Eusiis, C. J., absent,) was pronounced by

Seidell, J.

The plaintiff alleges that, inDecember, 1847, she hired to Ricard a negro slave, her separate and paraphernal property; that the slave was hired by the month, at the rate of $18 per month, and was employed by Ricard on board the schooner Lehman, of which he was captain, plying between Mobile and New Orleans, up to the month of July 1848, at which time he made a voyage from Mobile toBrazos St. Jago; and, without the petitioner’s consent, took the slave with him, from which voyage the vessel never returned. She claims the value of the slave, and wages from December, 1847. There was judgment of non-suit in the court below.

The wife has the right to administer, personally, her paraphernal property without the assistance of her husband. C. C. 2362. But the ptaraphernal property which is not administered by the wife, separately and alone, is considered to be under the management of the husband. Ib. 2364. We consider the leasing of the wife’s slave by the month, an act within the scope of the authority thus conferred.

In the present case, it is satisfactorily shown that the wife did not exercise her right of personal administration. The slave was hired to .Ricard by her husband, A. J. Huntington, acting as her agent. The husband had in like manner hired him, on another occasion, to another person, during several months, on board another vessel. The husband collected the wages himself.

With regard to the voyages on which the slave was to go, it is not expressly alleged in the petition, nor is it shown by the evidence that the lessee was restricted. On the other hand, the following facts appear: The slave had once been hired to another person, as cook, on board a vessel employed in the Mobile and Pensacola trade, and this person deposed that there was then no agreement that his vessel should confine itself to that particular trade, but that he hired him simply as a cook for the vessel. The plaintiff’s son was a part owner of the Lehman ; her husband was the vessel’s agent, and had its funds in his hands. The vessel’s previous voyage was to the Brazos, and the slave went in her. Her last voyage to the Brazos, on the- return from which place she was lost, was not only known to the husband, but the agreement for the charter-party was made in his office. Here was full knowledge on the part of the husband, whom the wife permitted to administer her property, of the mode in which the slave was employed, and an implied assent from the absence of any objections. We may add, with the district judge, that it is scarcely probable that the wife knew nothing of the two voyages to the Brazos.

There is the testimony of a witness, that he had applied to Mrs. Huntington to hire the slave, at higher wages, for sea voyages, and that she refused, declaring her unwillingness to let him go to sea, because the slave disliked it, and that Ricard told the witness, he could not get the slave, because Mrs. Huntington had that objection. This seems to have been in 1846, when Ricard commanded another vessel. Her views may have changed afterwards, particularly when Ricard got another vessel, and her son became interested in it.

We readily concur with the district judge in the opinion, that the plaintiff is not entitled to judgment, but we think the court below should have gone further than a non-suit, and rendered final judgment in favor of the defendant. The defendant has asked that relief in his answer to the appeal. C. P. 890.

It is therefore decreed, that the judgment of .the district court be reversed, and that there be final judgment in favor of the defendant; the plaintiff to pay costs in both courts.


author: Prestow, .1.

text:
    Charles R. Kennedy v. John Watson et al.
    An endorser has the whole of the day after the date of-protest, to make payment; hut, if sued on that day, and the citation is not served until after that day, the suit will not he regarded as premature.
    APPEAL from the Fourth District Court of New Orleans, Sirawbridge,

      M. M. Cohen, for plaintiff,

      J. Livingston, for defendants.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Prestow, .1.

The appellant is sued as endorser of a promissory note. It was protested on the 26th of August, 1850, and notice thereof left at his boardinghouse in New Orleans, on the 27th of that month; The note was drawn at New Orleans — of course, is payable there; and the defendant alleges, that his residence is in New Orleans. The protest and notice thereof in New Orleans, therefore, fixes his liability to pay as endorser.

He plead that the suit was premature. It was-filed the 27th of August, the day after the note was protested, because the drawer, as well as endorser, was sued, he being then liable. But process was not served upon the endorser until the second of September, 1850, when he also was clearly liable.

The defendant offered proof, that he resided in’New Orleans, in support of his plea that the suit was premature. The plea was a dilatory exception. 1 L. R. 420. 7 N. S. 284. And the court rejected, the evidence in support of the exception, the suit being on the trial of its merits, but was willing to receive it on the merits. Whether offered in support of the exception, or on the merits, it tended to establish the defendant’s liability to the plaintiff’s claim, and no injury was done to the defendant by its rejection.

It is true, his property was attached on the 27th of August, before he was liable to be sued, having the whole day to pay; and the evidence might have induced the court to dissolve the attachment. The attachment, however, had been disposed of on other grounds, and is not now in controversy. The evidence, under these circumstances, could not destroy the effect of the subsequent citation, after the debt was demandable by suit.

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


text:
    H. F. Peterson v. Nolan Stewart.
    An execution issued upon a judgment cannot be enjoined upon tbe groundof payment, without the party applying for it giving security.
    from the Fifth District Court of New Orleans, Buchanan, J.

      Moist and Randolph, for plaintiff.

      R. H. Marr, for defendant.
   The judgment of the court {Rustís, C. J. absent,) was pronounced by

Seidell, J.

Nolan, Stewart, having obtained judgment against Peterson, took out a, fieri facias, and thereupon Peterson applied for an injunction, upon the ground that the judgment had been paid ; the court granted the injunction, without requiring from Peterson a bond with surety. Stewart then took a rule to show cause why the injunction should not be set aside, upon the ground that no bond had been required or given. The district judge dismissed the rule, and Nolan Stewart has appealed.

The sole question before us is, whether a judgment debtor is entitled to enjoin a fieri facias upon the ground that the judgment has been paid, without giving bond with surety. s

The appellee relies, in support of the ruling below, upon the 739th and the 740th articles of the Code of Practice. These articles are found under the head of “Executory Process,” and authorize a party against whom an order of seizure and sale has issued, to arrest it by injunction, on the ground of payment or compensation, without giving bond and surety. They do not, in terms, cover the case of a fieri facias, issuing upon a judgment rendered in this State, from the court wherein the judgment was rendered; and the legislation in pari materia, forbids us to apply them to such a case. The Code of Practice, in an earlier portion of that work, treats generally of the subject of injunction, and after enumerating, in article 498, the cases in which an injunction may be obtained, requires the applicant to give bond with a good and solvent surety, residing within the jurisdiction of the court, for such sum as the court may determine, to secure the payment of such damages as may have been sustained by the defendant, in case it should be decided that the injunction had been wrongfully obtained. In 1826, an act amendatory of the Code of Practice, was passed. By the 6th section, it was enacted, that in addition to the cases enumerated in article 298, injunctions may be granted in all cases, to stay execution, where payment is alleged to have been made after judgment rendered; where compensation is pleaded against said judgment; or where the sheriff is proceeding on said execution contrary to some provision of law, upon the petitioners making affidavit of the facts alleged, in order to obtain the injunction, and upon complying with the requisites prescribed by law. The requisites contemplated are obviously those contained in the article 304. In the year 1831,' the Legislature, to check the abuse of the remedy of injunction, enacted, “that on the trial of injunctions, the surety on the bond shall be considered as a party plaintiff in the suit; and, in case the injunction be dissolved, the court, in the same judgment, shall condemn the plaintiff and surety, jointly and severally, to pay to the defendant interest, at the rate often per cent per annum on the amount of the judgment, (meaning the judgment, the execution of which is enjoined) and not more than twenty per cent as damages, unless damages to a greater amount be proved, and the sureties, in such case, shall not be allowed to avail themselvqs of the plea of discussion.”

Looking therefore, on the one hand, to the restricted language of the article 739, and the restricted scope of the chapter of the code in which it is found; and on the other hand, considering that the injunction of tile execution of judgment has been ingrafted upon that portion of the code which treats of injunctions generally, and that the subsequentlegislation distinctly contemplates that where the execution of a judgment is enjoined, a bond with surety is given, we are necessarily led to the conclusion that the appellee should not have been permitted to arrest the execution without giving security.- See also Dashiell v. Lesassier, 15 L. R. 103. Morgan v. Driggs, 17 L.R. 183.

It is therefore decreed, that the judgment of the district court be reversed; and that the order granting the injunction be^setjaside, and the injunction dissolved ; the plaintiff in injunction, to pay the costs of the order of injunction and its execution, of the rule to set aside the injunction, and of this appeal.


author: Slidell, J. Rost, J.

text:
    John M. Bach v. R. and O. Abbott.
    A purchased property in the name of B, the title having been made to the latter. B after-wards executed notes payable to A, secured by mortgage upon the property. These notes were negotiated by A. A judgment creditor seized the property, as belonging to A, alleging that the purchase in the name of B was a simulation. Held: That the third person, who had taken the notes without notice, could not be affected by the equities exist-ting between the original parties, and was entitled to be paid out of the property, although the use of B’s name in the the purchase of it was a simulation.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      T. W. Collins, for plaintiff.

      M. Grivot, for appellant.
   The judgment of the court (Eustis, C. J., absent,) was pronounced by

Slidell, J.

In June, 1848, Abbott, purporting to act as the attorney of Michaela Cox, purchased a slave at sheriff’s sale. The sheriff’s deed was made to her; Abbott was at the time insolvent. A judicial mortgage, in favor of Bach, stood on record against him. In 1850, Michaela Cox executed a mortgage of the slave in favor of Abbott, to secure two promissory notes, made by her to his order, for $250 each. Abbott endorsed these notes in blank, and gave them, for a valuable consideration, to Van Balsón, before whom, as-notary, the act of mortgage was passed. Van Balsón, for a valuable -consideration, as is alleged, passed them to Mrs. Gottschalk.

The controversy now before us is between Mrs. 'Gottschalk, who, as a mortgage creditor, claims a preference upon the proceeds of the sheriff’s sale of the slave, made under a fieri facias in the suit of Bach v. Abbott, and Bach, who claims by virtue of his judicial mortgage recorded against Abbott’s.

The district judge was of opinion that the purchase in the name of Michaela Cox was a simulation, and that Abbott was the real owner. His conclusion, we think, is authorized by the evidence. He gave the proceeds of the sale to Bach, disregarding the claim of Mrs. Gottschalk.

As against Michaela Cox, Abbott and Van Balsón, we think the property was rightfully subjected to the payment of the judicial mortgage. Is .Mrs. Gottschalk subject to the same equity? In answering this question, we will assume, for the present, that Mrs. Gottschalk was an innocent transferree of the mortgage, having no notice of the simulation and of the rights of Bach, as the holder of a judicial mortgage against Abbott.

If Michaela Cox had sold the slave to an innocent purchaser, for a valuable consideration, befoi’e Bach made his seizure, we have no doubt such purchaser would have been unaffected by Bach’s judicial mortgage. She was the apparent owner, and the secret equity which could have been enforced by Bach against her, would not have been permitted to disturb a bond fide purchaser from her. See Stockton v. Craddock, 4th Ann. 282. Richardson v. Hyams, 1st Ann. The same rule applies, we think, to bond fide mortgagees. Foster’s Heirs v. Foster’s Administrator, 11 L. R. 408. Its application is not affected by the circumstance, that Mrs. Gottschalk is not the- original mortgagee, but holds through Van Balsón and Abbott, who were affected by the equity in favor of Bach. On the face of the various papers, the title was in Michaela Cox, and the transaction fair and regular. The equity in favor of Bach was unknown to the public, and even to himself, and was only brought to light by his subsequent vigilance.

A difficulty, however, still remains, and that is, whether Mrs. Gottschalk took the mortgage notes without notice of the infirmity with which the title was affected. The district judge has not noticed this point expressly in his written opinion; but we may infer, from the decree he has rendered, that he was not satisfied on that score. Our conclusion, from the evidence as it appears on paper, would have rather been, that the good faith of Mrs. Gottschalk was not successfully impeached; hut as he heard the witnesses, and had a better opportunity than we have to come to a correct conclusion upon the question of fact, we have thought it proper, in deference to his supposed opinion, to send back the case for further investigation.

It is therefore decreed, that the judgment of the district court be reversed, and that this cause be remanded for a new trial, the plaintiff paying the costs of the appeal.

Rost, J.

I assent to the remanding of this cause exclusively upon the ground, that if it turns out that Mrs. Gottschalk was affected with notice, it wiil be unnecessary to decide the other legal questions which the case presents.


text:
    Succession of Henry Block.
    An o'ppdsítion may he made to the appointment of a curator of a succession, after the ten days’ advertisement of the application have expired, if the appointment has not "been already confirmed by order of court.
    As a general rule, a woman cannot he appointed curatdx of an estate, but where she is an heir, or legatee, she may be.

      from the Fifth District Court of New Orleans, Buchanan, J.

      T. R. Howard, ex parte, for appellant.
   The judgment of the court (EusUs, C. J. being absent,) was pronounced by

Preston, J.

John H. Bruns applied for the ciiratorship of the succession of Henry Block, a deceased minor. Bertha Block,Job aunt, and only heir in this country, made opposition, and was appointed.'

It is urged, that her opposition was made too late, as the application of Bruns had been advertised ten days. But Bruns had litre yet been appointed by an ordex- of court, and, thei'efoi’e, she was in time to oppose the appointment. Succession of McKinney, 4th Ann., 25.

Her appointment is opposed, on the ground that she is a female, and incapacitated by the 25th article of the Civil Code, which -provides that women cannot perform any civil functions, except those which the law specially declares them capable of exercising. Under this provision, it has been frequently held that women could not be appointed the curators of estates. 4th Ann 538. Carraby v. Carraby, 7 N. S. 466.

But the law makes exceptions. Thus, the 1114th article of the code provides, that in contestations for the euratorship of a vacant_succession, the surviving wife shall be preferred to creditors, and we so held, in the case of Sears v. Wilson, 5th Ann., 689. An act of the Legislature, passed in 1840, page 123, also recognizes powers in an administratrix or curatrix, when an heir or legatee of the deceased. We think this a recognition of the capacity of females to perform those civil functions, when thus interested in the property.' The reason of the exception is very forcible. In the present case, it is admitted, that the curati'ix is an heir of the deceased, and, as no other appears,. may be the owner of the whole property. It would be most unreasonable to give its administration to a strangei-, when she claims it herself.

The judgment of the district courtis affirmedvjvith costs.