text:
    John B. Murison & Co. v. Andrew J. Butler et al.
    Courts may, at the request of one of the parties, decree that the other party bring into Court, the books, papers, and other documents, which are in his possession, and which are material in the cause, provided the party requesting their production declares in writing and on oath, what are the facts he intends to establish by such books, papers, or other documents; and on the refusal of the party thus called upon to comply with the order of the Court, the facts stated and sworn to shall be considered as having been confessed, unless satisfactory evidence be shown of the impossibility of producing such documents.
    When a party, or a third person, has been ordered to produce some books, deeds, or other documents, he must deliver them previous to or on the day fixed for the trial, to the Clerk of the Court, who shall receipt for them, have charge of them, and return them again to the party to whom they belong, after the cause shall have been decided.
    If one of the parties wish to obtain books, papers, or other documents in the possession of the adverse party, the Court shall order, on motion of the party applying for the same, that such books, papers, or documents be brought into Court, and produced on the day fixed for the trial of the cause. The order must describe such books, papers, or documents.
    This is directory, and in the sound discretion of the Court, according to circumstances.
    The right givon by law to a litigant, to draw testimony from the books of his adversary, must receive a reasonable construction, and may be fully enjoyed without resort to means which would operate seriously to the detriment of commerce.
    When a party to a cause lives out of the Parish where the Court is held, we cannot recognize tho right of his adversary to compel him to bring all his commercial books from his domicil, to the seat of justice, where the litgation is pending.
    APPEAL from the Sixth District Court of New Orleans,

      Howell, J. tíeo. S. Lacey, for plaintiffs.

      J. Ad. Rosier, for defendants and appellants.

    — The appellant, Butler, contends that the grounds relied on for dismissal are wholly untenable.
    This is a suit instituted by Murison & Co., against J. E. Allen and A. J. Butler, on the allegation that an adventure in cotton was entered into between them all. The prayer is for a liquidation of the adventure, and that A. J. Butler, who is alleged to have in his hands the proceeds of the cotton, be condemned to pay the amount to the plaintiff's. Allen is made a party defendant, but no judgment is asked for against him.
    A judgment was rendered alone against Andrew J. Butler, and signed on the 17th of May, 1863.
    An appeal was taken by motion in open Court, on the 22d day of May, 1863, and the appeal was granted, and made returnable on the fourth Monday of June, 1803. On the same day the usual bond was filed in favor of the plaintiffs and J. F. Allen, the appellant, binding himself to pay whatever judgment may be rendered against him.
    1. The first point made by the appellees is that J. E. Allen is not made a party to the suit.
    By the amendment to the Articles 673 and 574, C. P., an appeal may be taken by motion in open Court, and when this is done, no citation or other notice is necessary. (Statutes of 1855). The appeal was taken at the same term, and the law was fully complied with, the plaintiffs and J. E. A11 An being made appellees by inserting tbeir names in the bond as obligees.
    The practice, in such cases, is well settled by the decisions of this Court.
    “ Where an appeal is granted by motion in open Court, the only test, of the question whether anyone has been made party to the appeal, is the mention of his name in the bond. The parties mentioned in the appeal bond are alone parties to the appeal.” Lawrence v. Burns, 12 An. 843. Robert v. Ride, 11 An. 410. Ilewson v. Greswell, 10 An. 232.
    The name of Allen was purposely inserted. in the bond, in order to make him a party to the appeal, and, under the law cited, no citation or notice was necessary, so that he stands before the Court as one of the appellees; there is no point of practice that can be better settled.
    2. The plaintiffs contend that the appeal bond should have been in. favor, alone, of the plaintiffs, J. B. Murison & Co. The appearers, in the motion', again show that the law referred to and the decisions heretofore quoted, have been ignored. The Code of Practice requiring the appellant to furnish one bond, the name of J. F. Allen had to be inserted on it for the double purpose of making him a party, and also that the bond he was entitled to should be furnished.
    The terms of the bond are in exact compliance with the law, reciting that a final judgment had been rendered on the 27th of April, 1863, and signed on the 12th of May in this suit, and, thereupon, obligating himself to pay whatever judgment may be rendered against him.
    Now the judgment is in favor of J. B. Murison & Co., and if the judgment be affirmed, then the obligation is that the sureties shall pay. whatever judgment may be rendered, in case the principal does not pay.
    The appellant is found only for one judgment; he furnishes the bond in favor of the judgment creditor, and, in order to make the necessary parties to the appeal, under the law, and the decisions, inserts the name of J. F. Allen.
    If J. B. Murison <& Co. maintain their judgment, then they proceed on the bond against the sureties and force them to pay whatever judgment may be rendered. Allen has no judgment or claim against Butler; so that, when Butler pays the amount of judgment and costs, Allen has no interest in the bond, and could not sue on it, and Murison & Co. are alone to be benefited by the bond; so that, in a suit by them, they would recover the amount of the bond.
    The name of Allen was inserted in the bond to make him a party to the appeal, and in order to furnish the bond required by law. No citation or notice was required, and the beneficial effects of the amendments of the Code of Practice are thus realized.
    It is strange that objections should be raised to that which the law so clearly defines shall be done, and which could not have been done in any other manner. The Court a quo very properly decided that the bond must be construed and executed with reference to the record, and that there can be no real difficulty in determining the real obligees in the appeal bond.
    3. But, in order to make assurance doubly sure, the motion to dismiss cannot be entertained. More than three judicial days have elapsed since the filing of the transcript, and an appearance has been made by the appeEees. Oreevyv. Breedlove, 12 An. p. 745; Morton v. Graham, 11 An. 452. See Hennen’s Dig., vol. 1, p. 71.
    The appeEees have even filed a claim for damages.
    A motion to dismiss, on account of informaHty in the appeal bond, etc., must be made within three judicial days after the record is filed. 2 A. 138; 3 A. 326; 4 A. 514; 11 A. 613; 12 A. 745; 7 N. S. 271.
   Labauve, J.

This case is upon a re-hearing.

The plaintiffs claim of the defendant, Andrew J. Butler, the sum of $15,006, with legal interest, less the sum of $3,000.

The petition states in substance : That, about the 19th August, 1862, petitioners, James F. AEen and Andrew J. Butler, entered into an agreement for an adventure in cotton; that petitioners and AEen were to advance the funds, and they, together with Butler, would divide equaEy the profits; that they purchased the schooner Geno and---bales of cotton; the same were sold in New Orleans at public auction, and adjudicated to said Butler on his account for $33,237 24, on the 25th day of October, 1862; that the net profits amounted to $23,424 06; that the advance of petitioners was $7,198; that the entire proceeds of such adventure are now in the hands of said Butler, who has made no advances; that said Butler is unwilling to pay petitioners’ interest in the same, until the legal rights of the parties are judiciously ascertained.

The petitioner prays that said Butler and AEen be cited to answer; that it be decreed that the advances made by petitioners be recognized to be $7,198, and their interest in the profits to be $7,808, and that all matters connected with said adventure be liquidated; that said A. J. Butler be •condemned to pay your petitioner $15,006, less $3,000, already received ■by petitioners from said Butler, on account of their claims and interest.

The defendants ans-wered by a general denial, and prayed for a trial by jury, who returned the foEowing verdict:

“We, the jury, do hereby find a verdict for plaintiffs for the sum of ■$12,006 02, with interest at five per cent., from the time of judicial •demand.”

On the same day the Court rendered judgment according to said verdict. Andrew J. Butler, alone, having been unsuccessful in an application for a new trial, took this appeal.

Before the case was fixed for trial, on the 2d December, 1862, on motion and affidavit, the Court ordered that the defendant, A. J. Butler, bring into Court, on Friday, the 5th of December, 1862, at 10 o’clock, A. M.

1. The commercial books in which are kept the account of transactions of his business, particularly the blotter, day-book, journal, and ledger.

2. The statement wherein the receipt and disbursements connected with the adventure in cotton in controversy, made out by said Butler, or under his directions, and presented by him or at his suggestion to plaintiffs, as the basis of partition or settlement of such adventure.

3. Any and all written memoranda add papers connected with the adventure in controversy.

This order was granted upon the following affidavit :

John B. Murison, one of the plaintiffs in this case, being duly sworn, doth depose and say that the following, etc. (here the books and papers are described as in the above order)-; and this deponent further says, that in and by said books plaintiffs expect to prove the interest of the several partners in the aforesaid adventure in cotton, and the amount of plaintiffs’ disbursement and profits to the extent set forth in the petition.

On the 4th of December, 1862, this order was served on Butler. On the 5th of the same month, on motion, the day and hour to bring the books and papers was continued until the 9th of same month; and, on the same day, 5th December, 1862, Butler was served in person with the whole. At the time fixed, defendant, Butler, failing to comply with the order, it was ordered that the said rule be made absolute, and that the facts alleged in the affidavit of plaintiffs, praying for said rule, be taken as confessed.

Defendant, Butler, by his counsel, took the following bill of exceptions to the ruling of the Court:

Be it remembered that, before proceeding with the trial of the rule herein taken, on the 2d December, 1862, J. Ad. Rozier, counsel for defendants, asked for a continuance of the trial of the rule until next morning at 10 o’clock, A. M., the opening of the Court; and that, at that time, the defendants would produce in open Court the books and statements as are asked for in the rule aforesaid, and which are in the possession of defendants. That the rule could not be tried, as only four days’ notice had been given thereof to the defendant, Butler; that ten days’ notice are required before the plaintiffs could force a trial of the rule ; that the plaintiffs have no right to call upon the defendant for the production of books, documents and papers, except on the day for the trial of the cause; that the above entitled suit is not fixed for trial,- and it is only for the day of trial that the said documents and papers can be ordered to be produced in open Court; that the affidavit and proceedings are insufficient, and that an application, such as is made, should and must be made according to the Articles of the Code of Practice, by way of petition and citation. But the Court overruled these objections and exceptions and prayer for a continuance, and ordered the case to be proceeded with.

The Court stated that, had there been a showing made why the books, papers, etc., had not been produced, and a showing that justice required a continuance, in that event, a continuance would have boon granted. In the absence of such showing, the Court would proceed to the trial of the rule.

All the objections set forth in this bill of exceptions are frivolous, except the one “that the case was not fixed for trial, and it was only for the day of trial that the said documents and papers could be ordered to be produced in open Court.”

The first Article upon the subject is found in that part of the Code of Practice relating to the process of Courts of original jurisdiction.

Article 14.0:'Courts may also, at the request of one of the parties, decree that the other party bring into Court the books, papers and other documents, which are in his possession and which are material in the cause, provided the party requesting their production declares in writing and on oath what are the facts he intends to establish ■ by such books, papers or other documents; and, on the refusal of the party thus called upon to comply with the order of the Court, the facts stated and sworn shall be considered as having been confessed, unless satisfactory evidence be shown of the impossibility of producing such documents.

This Article is the main one on that subject. It contains the great elementary rules fixing the rights and penalties of the parties, and yet we see that the law, in giving this power to the Court, leaves some discretion to the Judge. Courts may also decree.

Article 143 : When a party, or a third person, has been ordered to produce some books, deeds, or other documents, he must deliver them previous to, or on the day fixed for the trial, to the Clerk of the Court, who shall receipt for them, have charge of them, and return them again to the party to whom they belong, after the cause shall have been decided.

The object of this Article seems to be that the books and document? called for shall remain in' deposit until the decision of the case, to be examined and used for the purpose of proving the facts set forth in the affidavit.

The third article on the same subject matter, is found in section 4th, Code of Practice, on sitting, cause for trial, etc., preparatory to trial and judgment.

Article 473 : If one of the parties wish to obtain books, papers, or other documents, in tlio possession of the adverse party, the Court shall order, on motion of the party applying for the same, that such books, papers, or documents, bo brought into Court, and produced on the day fixed for the trial of the cause.

The question arises here whether this Article is imperative or directory, and whether some discretion is not left to the Court in fixing the day for the production of the books, papers, or other documents. There might be cases where it would be a vain thing to bring books in Court at the commencement of the trial, when an examination of them Would be of an absolute necessity, in order to know what part of them should be offered in evidence. We are of the opinion, on reexamination of the law, that that part of this Article, in regard to the fixing of the day for bringing and producing the books, etc., in Court, is directory; and that the Judge, according to the circumstances of the case, has the right to exercise a sound practical discretion, and' to fix for the production of the" books, another day than the one fixed for the trial. This Court has virtually decided that, that part of the said Article requiring the party to produce in Court commercial books, is not imperative; and that sworn copies made from them, of what is desired and needed by the other party, should be ordered and received in lieu thereof, when the party in possession of the books resides out of the parish in which the. Court is held. Id Cooper et al. v. Polk et al., 2 An. 158, this Court said: “The right given by law to a litigant to draw testimony from the books of his adversary must receive a reasonable construction, and may be fully enjoyed without a resort to means which would operate seriously to the detriment of commerce. The defendant might, in the interrogatories propounded by him to one of the plaintiffs, have required him to annex to his answers copies of the accounts; or, if unwilling to rely upon the conscience of his adversary, the Court might have been called upon to issue a commission; under it, witnesses might have examined the plaintiffs’ books, made sworn copies from them. The books themselves might have been required to be produced before the commission; the authenticity of the books and the correctness of the copies might have been fully ascertained; and it would undoubtedly have been the duty of the plaintiffs, under the order of the Court, to give the fullest facilities to the examination.” The same rule is recognized in Ludding v. Fullson, 4 A. 534. It seems clear from those decisions that the Court is bound to dispense with the production of the books, wrhen the party in possession of them resides out of the parish in which the Court is held; for the Court said in the first decision quoted : “When a party to a cause lives out of the parish where the Court is held, we cannot recognize the right of his adversary to compel him to bring all his commercial books from his domicil to the seat of justice where the litigation is pending. ” The Court below decided correctly in overruling the objections.

’ On the trial below, plaintiffs offered in evidence certain interrogatories to, and answer thereto, by said A. J. Butler, in the case of A. J. Butler v. J. B. Murison & Co. The defendant objected to the same, on the ground thaksaid documents would not be received in evidence by itself, and separate from the balance of the record. The Court properly overruled the objections., 2 A. 887. The defendant excepted to the charge of-the Judge to the jury. That the plaintiffs were entitled to receive interest on the amount of the verdict from the day of judicial demand. The charge was legal and proper.

We now come to the merits.

The defendant, A. J. Butler, haying failed to bring into Court, on the day fixed for that purpose, the books and papers called for, the following facts were taken as confessed, and are now considered as proved : The interest of the several partners in the said adventure in cotton; the amount of plaintiffs’ disbursements and profits to the extent set forth in the petition.

One of the answers of defendant, Butler, to the interrogatory propounded to him, by the present plaintiff, in the case of A. J. Butler v. J. B. Murison & Co., reads as follows :

Answer 5th : I agreed to give about sixty cents on the dollar on the face of the notes. I had been interested in a cotton transaction with Capt. Allen, who told me that Mr. Murison had an interest with him in the same transaction of eleven or twelve thousand dollars. That money was in my hands. On the strength of its being there, I made the trade with Capt. Murison in the purchase of the notes.

It is clear that the defendant, Butler, has in hands $11,000 or $12,000 belonging to plaintiffs; because Capt. Allen is a party here, and he has not pretended in his answer that anything was coming to him; he has-answered by a general denial, and that is the last we see of him; it is-clear that he is only a nominal party, brought in to assert his rights as a. partner in the adventure. We are satisfied that justice has been done.

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

Howell, J., recused.


source: Caselaw Access Project

author: Howeed, J.

license: Public Domain

text:
    Mrs. A. F. Simpson v. S. D. Richardson.
    — On a Rehearing.
    Liability for costs should only be paid when justly incurred. An error on the part of the Court a quowill be corrected.
   Howeed, J.

A rehearing has been granted in this case for the purpose of revising our judgment in relation to costs.

The plaintiff complains that there is error in condemning her to pay the costs in the lower Court, incurred prior to the refusal of the Judge to grant defendant a trial by jury. These costs should manifestly abide the final decision of the cause, as plaintiff may sustain her suit before a jury, and be entitled to recover them from defendant. It is only the costs subsequent to the error of the District Judge, which should be now paid by plaintiff.

It is therefore ordered that the decree heretofore rendered by us be so amended as to condemn the plaintiff to pay the costs of appeal and those of the lower Court, incurred subsequent to the refusal of the Judge, to grant defendant a trial by jury, those prior thereto to abide the final decision of the cause, and that, as thus amended, the judgment remain-undisturbed.


author: Howeld, J.

text:
    James O’Dowd v. Cornelius Boyle.
    Great latitude is allowed in introducing evidence under the plea of the general issue.
    APPEAL from the Second Judicial District Court of Jefferson, Oazdbat, J.
   Howeld, J.

This is a suit to recover the sum of $1,250, as damages for the value of a quantity of coal, alleged to have been taken by defendant from two flat-boats belonging to plaintiff, and sunk in the Mississippi river, at Willow Grove, Watson’s Landing, Parish of Jefferson, and the further sum of $250', counsel fees, expenses, etc.

The plaintiff alleges that defendant has taken from the said boats over five hundred barrels of coal; that two or three hundred barrels thereof were, at the institution of this suit, still on the bank of the river adjacent to the sunken boats; that defendant sold several hundred barrels, on which a part of the price is still due; aud he prayed for a writ of injunction, enjoining defendant from removing the coal and receiving the money due on what he sold; but we do not discover that it was issued or served. In an amended petition he asked for and obtained a writ of sequestration, under which the coal claimed by him was sequestered.

The defendant pleaded the general issue, and, after trial, judgment was rendered against him for §1,250, with interest, and privilege on the coal and money sequestered, and perpetuating the injunction, with all costs, from which he took a devolutive appeal.

Our attention is called to two bills of exception taken by defendant. The first is to the refusal of the Judge to permit the witness, Trucks, to answer whether or not the defendant had not, previous to the sale of the said boats to plaintiff, raked coal from said boats by the permission of the tow-boat company (the vendor of plaintiff); and, if so, how much, on the ground that it was inadmissible under the general issue.

We think this objection not well founded. The evidence offered tended to show that defendant was not liable to plaintiff for all the coal that may have been taken by him from the boats in question, and to that extent is not inconsistent with the denial of plaintiff’s ownership in the general issue.

The second bill of exceptions is to the exclusion of a written agreement of defendant to save the coal from certain sunken boats belonging to the tow-boat company, on the ground that it is res inter alios acta; that it proposes a title adverse to plaintiff’s and is irrelevant, defendant having set up no title.

This evidence can be considered as corroborative of that reserved in the first bill, and is not subject to the objections raised.

As the evidence which was excluded may relieve defendant from liability for the whole amount for which he is condemned; and, as no account is taken of the coal sequestered as iheprope?'ty of plaintiff, and which defendant, by the judgment, was perpetually enjoined from removing, we think justice requires the case to be remanded for a new trial.

It is therefore ordered that the judgment of the lower Court be avoided and reversed, and that the case be remanded for a new trial, with instructions to the District Judge to admit the evidence set forth in defendant’s two bills of exceptions. Plaintiff to pay the costs of appeal, and those of the lower Court to abide the final judgment.


author: Howedd, J. Hyman, C. J.

text:
    United States v. U. A. Murdock.
    • The proceeding by attachment is merely an incident to the main action ; a conservative process provided by law in aid of and to protect the creditor’s rights, under certain circumstances, in a suit against the debtor, and, as such, has long been known to and exercised under the common law-
    'The right of the United States to sue in our Courts, cannot now be oonsidored an open question, a doubt could have ever existed.
    •As a general rule, the Government of the United States, in its proceedings in its own Courts, and the Courts of the States to which in civil actions it may resort, can only aot through its offices and officers established by law, and thatitis made the duty of the District Attorney, in each District, under the superintendence of the Treasury Department, to prosecute all civil actions in which the United States shall be concerned.
    'The Government, as a sovereign, cannot be sued in State Courts.
    The acknowledgment of the right of the Government to come into our Courts, and its immunity from suit, by virtue of sovereignty, carries with it the right to the use, in its sovereign capaoity, of all the conservatory writs, common to other suitors.
    The writ of attachment can issue, under certain circumstances, from our Courts, at the suit of any creditor against the debtor, who resides out of the State, and with referenoo to the property within the jurisdiction of the Court.
    As long as the debtor can control his property it is subject to attachment by his creditors.
    An action of debt lies against the importer to recover the duties on goods imported by him.
    The taking of additional securities does not relieve him from his personal liability; nor will the unauthorized and illegal removal of the goods from the oustody of the custom-house officers discharge him.
    Averdict in the Court below will be set aside when contrary to law, in civil cases.
    A creditor, his agent or attorney in fact, praying attachment, must, besides, annex to his petition his obligation in favor of the defendant for a sum exceeding one-half that whioh he claims, with the surety of one good and solvent person residing within the jurisdiction of the Court to which the petition is presented, as a security for the payment of such damages as such defendant may recover against him, in case it should be decided that the attachment was wrongfully obtained.
    A judicial surety cannot demand the discussion of the property of the principal debtor.
    APPEAL from the Fourth District Court of New Orleans,

      Price, J. Henry C. Miller, for the United States. T. J. Semmes, for plaintiff .and appellant. G. B. Singleton, Curator ad hoc. Bonford, Singleton c6 Glach, and Adams & Hays, for the Mississippi Railroad Company.
   Howedd, J.

The United States, through their law officer, instituted suit by attachment on the 14th June, 1858, in the Fourth District Court of New Orleans, against U. A. Murdock, a resident of New York, to recover $21,162 60, amount of the duties on two cargoes of railroad iron, imported by him into this port in February and April, 1856, which iron was stored in a bonded warehouse here, aud fraudulently and illegally removed therefrom in January, 1857, by Thomas J. Casey, the keeper of . said warehouse, without the payment of the duties claimed.

The attachment was levied upon two other cargoes of iron subsequently .imported by the defendant, and held at the time by the Collector of the Port.

A rule was taken by the curator adhoe, appointed to represent the absent ■defendant, to set aside the attachment on various grounds, which being .dismissed, an answer was filed denying generally the allegations of the petition, and specially any personal liability; averring that the debt was inrem; that the delivery oí the iron by the Government officers, without requiring the payment of the duties was a forfeiture of the same; that the defendant sold said iron to the Mississippi Central Railroad Company, which undertook as a part of the price to pay the duties and the delivery without collecting said duties, was an extinguishment of any claim against defendant.

The Mississippi Central Bailroad Company intervened, and merely claimed the two cargoes of iron, which were attached in this suit, by virtue of a sale prior to the attachment; yet, in the Court below, and in this, it has contested the plaintiff’s right to recover against the defendant.

The ease was twice tried by a jury. On the first trial, a verdict was rendered in favor of plaintiff without privilege on the property attached, and on the second, verdict and judgment were in favor of the intervenor, and the plaintiff appealed.

Our attention is necessarily called, first to the rule to set aside the attachment, the grounds of which we will notice as presented in the brief filed by the curator ad hoc.

1. The United States cannot come into the State Courts as plaintiff, except in suits at common law, and that the proceeding by attachment was unknown to the common law.

We think the limitation attempted here to be given to the expression, “ suits at common law,” would effect too much, and would exclude the United States from suits at civil law, which, as a system, is distinct from the common law, and hence there would be but few cases in which they could appear in the Courts of this State.

We consider, however, that the proceeding by attachment is merely an incident to the main action of a suit; a conservative process provided by law in aid of and to protect the creditor’s rights, under certain circumstances, in a suit against the debtor, and as such has long been known to and exercised under the common law.

The right of the United States to sue in our Courts, cannot now be considered an open question, if a doubt could ever have existed. See 305, 733; 4 N. S. 317; 5 N. S. 567; 5 B. 120; 8 B. 262; 11 B. 418; 7 A. 185, and in the exercise of such right they can avail themselves of the remedies common to all suitors. It would seem anomolous that the Government, under the aegis of which all our laws are enacted and our Courts established, should be excluded from those Courts.

2 and 4. If the United States can sue by attachment, they must conform to all the rules and requisites in such proceeding as private suitors; and in this connection it is contended that the general authority of the District Attorney is insufficient to enable him to observe the pre-requisites of the writ prescribed in behalf of the debtor, and the remedy being a harsh one, cannot be exercised without their observance, even by the United States, and we are referred to authorities in support of these positions, which, in our opinion, do not meet the point really presented.

In the case of the United States v. Smith, 7 A. 185, which was an injunction suit, in which an agent made the affidavit required in such cases, it was said by the Court that the agent was not authorized; that, as a general rule, the Government of the United States, in its proceedings in its own Courts and the Courts of the States to which in civil actions it may resort, can only act through its offices and officers established by law, and that it is made the duty of the District Attorney, in each district, under the superintendence of the Treasury Department, to prosecute all civil actions in which the United States shall be concerned. Gordon’s Digest, Articles 374, 375, 1095.

In this case the District Attorney took the oath prescribed by the Code of Practice, and gave a bond, which it is conceded is not binding; but he contends that it i^a vain thing and without effect, as the Government,'by prerogative, is exempt from such obligation, and no action of an officer can waive such prerogative; in which view we concur.

The Government, as sovereign, cannot be sued, and being established for the protection and benefit alike of all its citizens, it is not to be presumed that it will seek to oppress any. Its authority and powers are exerted in the persons of its citizens, whose duty it is, in their official functions, to respect and save the rights of their fellow-citizens, as well as to secure the rights of the Government. Each citizen has ample protection in the very nature of our institutions and laws.

The acknowledgment of the right of the Government to come into our Courts, and its immunity from suit by virtue of sovereignty, carries with it the right to the use, in its sovereign capacity, of all the conservatory writs common to other suitors.

And, besides, it would be requiring a vain and useless thing, as no bond could be enforced against the United States.-

3. The property in question being in the possession of an officer of the United States, as such, cannot be attached by an officer of the State Court, without an act of Congress authorizing it.

To this, it is correctly answered, that the rule invoked is established solely in the interest of the United States, to preserve their rights upon such property, and does not apply where the Government is itself the attaching creditor.

The argument that attachments are designed to aid creditors, whose debtors are absent and cannot be cited, and that therefore the United States cannot resort tp that proceeding in this case, because the defendant is a citizen of the United States, and subject to citation in New York, where he resides, has no. force in it.

The writ of attachment can issue, under certain circumstances, from our Courts at the suit of any creditor against the debtor-who resides out of the State, and with reference to the property within the jurisdiction oil the Court. It not unfrequently happens that a resident of one State brings a resident of the same State (and it may be of the same jurisdiction) into our Courts by the process of attachment. It is not the jurisdiction of the United States, as a Government, that is to be considered in determining the right to the suit, but whether or not the debtor is in such position, and the facts such as to authorize the process.

We conclude, therefore, that the plaintiff and defendant (who is represented by a curator ad hoc) are rightly before the Court, if it appear that the property attached belongs to the defendant, or is under his control as owner.

This fact is contested by the Mississippi Central Railroad Company, which claims to be the owner thereof by right of purchase, and introduces in evidence two bills of sale of said property, then in warehouse in this port, of the láth and 27th April, 1858, from P. Chontean, Jr., Sandford & Co., of New York, of which firm it is shown the defendant is a member. By these bills the purchaser, as part of the price, was to pay the duties in favor of the Government.

The question is presented: was there a delivery, actual or constructive, of this property, prior to the levying of the writ of attachment?

To solve this enquiry, the counsel for the intervenor relies upoh a question of law rather than of fact, and argues that, by the laws of New York, it is unnecessary to make a delivery in the sale of movable property, and, consequently, the sale of thé iron in controversy was complete before the attempted attachment.

Admitting this to be the law of New York (which is not before us), it appears from the evidence that, at the date of the attachment, the duties on said iron were not paid, and by the laws of Congress no delivery can be effected until the duties are paid. Act 2d March, 1799, ji 62. In reply to this, it is urged that this applies to the specific article on which the duty is imposed, and as no claim is made for the duties on this iron attached, it does not interrupt or prevent the constructive delivery. In our opinion, it is immaterial for what object the law is thus enacted; it is the effect to which we are to look. The transfer is suspended, and the delivery impracticable. It is clear that, up to the payment of the duties, or at least notice to the proper officer of the port, the defendant might have himself withdrawn, or authorized another'vendor to withdraw the property, upon paying the duties, and hence the application of the principle of our own law that, as long as the debtor can control his property, it is subject to attachment by his creditors.

We cannot resist the conclusion that the property was legally attached in this suit.

Upon the merits, as between the plaintiff and defendant, we find no difficulty.

An action of debt lies against the importer to goods imported by him. 1 Mason, 42; 13 Peters, recover the duties on 487. The taking of additional securities does not relieve him from his personal liability; nor will the unauthorized and illegal removal of the goods from the custody of the custom-house officers discharge him.

We are satisfied that the defendant, U. A. Murdock, imported the iron for which the duties are herein claimed; that the transmission of the funds by the intervenor to Thos. J. Casey, the keeper of the warehouse, to pay the duties, is not binding on the United States; that the entry in his account-current with the intervenor, of the payment of the duties, is no proof against plaintiff; that the said iron was surreptitiously withdrawn and delivered to the intervenor, without the payment of the duties thereon; and that the plaintiff are entitled to recover.

We do not feel embarrassed by the verdict of the jury, as the question of delivery in this case is resolved by one.of law rather than of fact.

It is therefore ordered, adjudged .and decreed, that the judgment of the lower Court be reversed, and the verdict ’of the jury be set aside;_it is further ordered, that the intervention of the Mississippi Central Rail Road Company be dismissed, with costs; and it is further ordered that the United States recover of defendant, U. A. Murdock, the sum of twenty-one thousand one hundred and sixty-two dollars and sixty cents, with five per cent, interest from 1st January, 1857, and costs in both Courts, and with privilege on the property attached.

Hyman, C. J.

The law of the State requires that a creditor, when he pursues his debtor by the conservatory process of attachment, shall give, before the process issues his obligation with the surety of one good and solvent person, as a security for such damages as his debtor may recover against him, in case it should be decided that the attachment was wrongfully obtained. See C. P. 245.

No creditor by our law is exempt from this pre-requisite, in procuriug such writ.

I know of no provision of the Constitution of the United States that gives the Government of the United States of America the prerogative of suing in the Courts of the State, without complying with the requisites presented by the State for suitors in her Courts; and I know of no authority in the Government of the United States, except that which is derived from its Constitution.

The maxim : “Lex nemmem cogit ad vana’/’ is not applicable to this ease.

True, it is, that defendant cannot sue the Government of the United States without its permission, but it does not follow from this hindrance that the Government could not have bound itself to him in its obligation, or'that he may not have a just claim of damages against the Government for the wrongful issuance of the writ of attachment. It is my opinion that the Government could have so bound itself that he may have such claim, and that he can enforce it against the person whom the Government has given as its,security, without being' required to sue the Government. See O. O. 3035.

Are all the obligations issued by the Government to its citizens for money borrowed by it of them not obligations, not binding, but vain acts, because the citizen cannot sue the Government ?

If the Government could bind itself on these written obligations, there seems to be no reason why it could not also bind itself on a written obligation to pay a citizen damages, if it should be established that he had been wrongfully pursued by the Government in a suit against him.

I think the attachment should be dissolved. The plaintiff has not furnished thejbond and security required by law.


author: Hvman, C. J.

text:
    John M. Monaghan v. John Morgan Hall.
    Commercial partnerships are not chartered under the laws of Louisiana; and, consequently, companies which arc so chartered do not come within that category.
    Creditors of such companies can only compel the members of the same to pay the amounts that may be due by them to the companies on shares owned by'them.
    If parol testimony, offered to prove the charter of a company be not objected to, it can bo received as evidence to establish that fact.
    PPEAL from the Second District Court of New Orleans,

      Hoioéll, J. Eggleston, for plaintiff.
    P. If. Morgan and John If. New, for defendant and appellant.

    — There was judgment in the lower Court, holding John Morgan Hall, defendant, liable for the payment of two bills of exchange, drawn in Louisville, Ky., by J. Hooper, Captain of the steamer J. A. Cotton, on E. Lanoue, President of the New Orleans and Bayou Sara Mail Company.
    It is not contended that the name of John Morgan Hall appears, in any manner, upon these bills. But the right is claimed and an effort made to connect John Morgan Hall with those bills, by evidence of the existence of a commercial partnership, known as the New Orleans and Bayou Sara Mail Company, of which he was a member.

      The Acts of the Legislature of 1855, p. 182, authorize any number of persons, not less than six, to form themselves into, and to constitue a corporation for certain purposes, promotive of the public good.
    If the Bayou Sara Mail Company be a corporation created under the provisions of this act, John Morgan Hall is liable on its contracts only for the unpaid balance due the company on the shares owned by him (Sec. 8, Act No. 131, 1855, p. 184); and the judgment of the lower Court is erroneous in holding him responsible as a member of a commercial partnership.
    Upon whom are the bills in question drawn ? Upon E. Lanoue, President of the New Orleans and Bayou Sara Mail Company.
    Is that an indication of a commercial partnership ? Do commercial partnerships have Presidents ? The designation of an individual by such a title in the very bills of exchange sued on, is reconcilable only with the existence of a corporate body or company in which that office could be held.
    The appellee contends that the existence of a corporation must be proved by the production of its charter. Yes; when a corporation sues and its existence is specially put at issue. But can a party accept an obligation of a company drawn on its President, and thus informed of its corporate existence, deny it when he sues the corporation.
    “Where a cognizance, mortgage, note or other instrument is given to a corporation, as such, the party giving it is thereby estopped from denying the corporate existence of the corporation.” Angelí & Ames on Corporations, page 574.
    Plaintiff having received bills of exchange drawn on the President of the New Orleans and Bayou Sara Mail Company, is estopped from denying its corporate existence.
    What evidence have we of the allegation that John Morgan Hall is a member of a commercial partnership, known as the New Orleans and Bayou Sara Mail Company ? The testimony of Landry, a witness, it will be observed, for the plaintiff, is that Hall was a member of the Bayou Sara Mail Company, chartered under the laws of the State of Louisiana.
    What meaning is there in this, if the position assumed by plaintiff be correct ?
    Are commercial partnerships formed under the laws of Louisiana, with Presidents at their head, upon whom bills are drawn and citations made ?
    If the witness of the plaintiff makes good the defence of the defendant, what need of enquiring into the nature of the best attainable 'evidence to be adduced by him ? If such evidence had been offered by defendant, the objection would be well taken. But it is the evidence of the plaintiff.
    With the provisions of the charter of the New Orleans and Bayou Sara Mail Company; whether the formalities required by law for its notification to the public have been complied with; whether it was inscribed or published in a newspaper, or in what Notary’s office it is deposited, we have nothing to do. Its existence is the fact which the plaintiff has kindly established; which, if he had not, under the authorities quoted, he is estopped from denying.
    If, then, John M. Monaghan, from tho evidence of the bills of exchange sued on, undeniably looked to a corporate body, of which E* Lanoue was President, for their liquidation, John Morgan Hall, a member of that company or corporate body, is clearly not liable for the debt in question, unless there be unpaid balances due on his shares. There is no such allegation here. Hence any promise made by him to pay such a debt, is a promise to pay the debt of a third person.
    Such promises must be in writing. Acts 1858, p. 148, g 8.

    The promises made in this case are not in -writing. They are, therefore, inadmissible. We take it then to be established, first, that the plaintiff is estopped, ,by the bills of exchange sued on, from denying that he looked to a corporated company of which E. Lanoue was President for their settlement; and, secondly, that the character of that company, its corporate existence, its formation under the laws of the State of Louisiana being made apparent from the testimony of plaintiff’s own witness, he is debarred from invoking the rule of evidence which requires the best attainable evidence of a fact to be adduced; and from insisting that the charter or act of incorporation of the company should have been offered by defendant; and that the promises of John Morgan Hall to pay the debt in question, not being made in writing, are to be considered as not made at all.
    Eor these reasons, we respectfully submit that the judgment of the lower Court is erroneous and should be reversed.
   Hvman, C. J.

Defendant is appellant from a judgment rendered against him in this case.

He is sued as a member of the New Orleans and Bayou Sara Mail Company, alleged to be a commercial partnership, to compel him to pay two drafts drawn on the President of the Company.

The question to be solved is, whether the Company is a commercial partnership; for, if so, we think there is proof sufficient to affirm the judgment of the District Court. .

The parol evidence, which was introduced without objection, is that, this company was an association or company duly chartered under the laws of the State.

Commercial partnerships are not chartered under the laws of the State of Louisiana; consequently, the New Orleans and Bayou Sara Mail Company could not be a commercial partnership so chartered.

On the contrary, companies, a term frequently used in the statutes for and instead of the term corporations, are chartered under the law.

Creditors of such companies can only compel the members of the same to pay the amounts that may be due by them to the companies on shares owned by them.

In this case, plaintiff has based his right to recover on the sole ground that defendant is liable as a partner in the New Orleans and Bayou Sara Mail Company.

He has not ashed to have judgment against defendant, because of any amount that he may owe the company on shares owned by him as stochholder; nor has he proved that defendant owed the company for his shares. It is contended that it is not shown that all the forms were complied with, so as to give the company the character of a chartered corporation, and thereby exempt the members thereof from liability as partner. It is easy to perceive how a company duly chartered under law must have complied with all the forms essential to obtain the charter; for otherwise, it would not have been duly chartered. The difficulty lies in not objecting to the admission of the parol evidence.

It is decreed that the judgment of the District Court be reversed, and that there be judgment for defendant; the plaintiff to pay all costs.


author: Labatjve, J.

text:
    Patrick J. Cull v. J. L. Herwig et als.
    The competent witness of any covenant or fact, whatever it maybe, incivil matters, is that who is above the age of fourteen years complete, of a sound mind, free'or enfranchised, and not one of those whom the law deem infamous.
    He must besides be not interested, neither direotly nor indirectly, in the cause.
    The husband cannot be a witness either for or against his wife, nor the wife for or against her husband; neither can ascendants with respect to their descendants, nor descendants with respect to their ascendants.
    Interrogatories having been propounded, answered and offered, and received in evidence, together with the affirmative answers, without any objection, we are bound to give to them their full effect.
    APPEAL from the Sixth District Court of New Orleans,

      JDuplaniier, J. G. Dufour and Thos. H. Hewes, for plaintiff.

    — On the back of the note are the signatures of the defendants, S. M. R. Kercheval & J. L. Herwig, which the petition avers were placed there at the time the note was executed and delivered to plaintiff; and we deem it indisputable that the obligations of the defendants thereby became those of ordinary sureties and not those of endorsers.

      Weaver v, Marvel, 12 An. 517, and the numerous cases referred to in Hennen’s Digest, p. 172, No. 1. And we also deem it clear that Mrs. Kercheval being separated in property by her marriage contract, might, with the authorization of her husband, become surety for any person except her husband. Farrell v. Yoe, 2 An. 903. Roberts v. Wilkinson, 5 An. 369.
    Has plaintiff shown by competent testimony that she was so authorized, is, we think, the important question for the consideration of the Court, in this case. The petition avers : “ That her said husband fully authorized her to contract said obligation, being present at the time and assenting thereto.”
    In support of this averment the plaintiff relied exclusively upon the interrogatories addressed to Mrs. Kercheval and to her husband. The husband was asked, “were you not present when Mrs. Kercheval placed her name on the note sued on, and did she or not do so with your assent and authorization ? State particularly what happened at the time said note was executed, relative to the necessity of your placing your name on said note as authorizing the obligation Mrs. Kercheval contracted.”
    Although properly served, being a resident of another Parish (C. P. Art. 352, as amended by Acts of 1843), he refused to answer, and on the trial, plaintiff sought to introduce the interrogatories as confessed, which the Court refused to permit, and plaintiff took his exceptions.
    Mrs. Kercheval was interrogated respecting other allegations in the petition, as to the eonsideration of the note, that the obligation enured to the advantage of her separate property, etc., etc.; but as she denied the tmth of these allegations, we ask the attention of the Court to only two of the questions propounded, viz : “Was or not your husband present when you signed the note sued on ?”
    2. “Did you or not sign the same with his authority, consent and approval ? State fully all that occurred and was said at the time relative to the property or necessity of your said husband’s signing the same ?
    To each of these questions, “she answers yes,” and they were introduced in evidence without objection.
    The law which requires the husband to “ concur in the act or yield his consent in writing (C. C. 124), is intended to exclude parol proof of such authorization. But this Court has invariably, held that answers to interrogatories, on facts and articles, are not parol evidence. 10 An. 704; Hen. Dig. p. 563, No. 9.
    In tmth, the fact of the husband’s authorization is here more satisfactorily shown; is proven by testimony of a higher nature than any mere writing signed by the husband could have created. For, in thus proving the fact, we prove in addition that the authorization was voluntary, was not obtained through fraud or given in error.
    Is it for the protection of the husband or the wife, of either or both, that the husband must concur in the act which evidences the contract of the wife, or yield his consent thereto in writing ? We offered them facilities of defence, which the husband’s signature, had he affixed it, would have precluded. The facts to be derived from a perusal of the record are, that Cull worked and loaned money in and about a business which he sxrpposed was conducted for the joint account and benefit of the two Herwigs and their sister, Mrs. Kercheval; for it was the same business carried on in the same place in which their deceased father had labored and prospered. When he wanted a settlement the elder brother gives him his note, with the other brother and sister as sureties; the husband of the sister standing by, advising and authorizing her to sign it, but assuring Cull that it was unnecessary for him to sign with his wife, because, by the marriage contract, there was “ to be no community, and the parties were to remain separate of estate of all property, and each was to have and retain the entire administration and enjoyment of their respective property.” Before the note matures, the elder brother obtains relief from its payment by bankruptcy; and when Cull sues the younger brother, who, for years had been holding himself out to the world as full age, successfully pleads minority; and the sister seeks to avoid her obligation by alleging the want of her husband’s authorization, which she swears was in fact and in tmth given her when she contracted. Her position is so repugnant to every sense of right and justice, that we may unhesitatingly assume that it has no support in law.
    The Court is referred to the following authorities, on the matter of the bill of exceptions, viz :

      Huff v. Freeman, 13 An. 262; Bached v.''Rooked, 4 An. 406; 2 An. 772, 807, 876.

      Whitalcer, Fellows eft Mills, for defendants and appellants.

    — Appellant, Mrs. Mercheval, is sued on her alleged endorsement of a note, regarding which -there is no evidence of any written authority granted by her husband to •endorse. The note is not a negotiable note, and appellant, by her endorsement, can only be held as an ordinary surety of the drawer.
    The only evidence of authority of any kind, is that drawn from the answers of appellant to interrogatories on facts and articles propounded to her by plaintiff.
    It is submitted :
    1. That without such authority by the husband the contract is not -binding on the wife. C. C„ Arts. 124, 128, 130, 1775, 1779, 2411. Hen. X)ig., (new ed.) p. 866, Nos. 5, 7, 9, 13, 18, 20, 26.
    2. That the authority given by the husband should' be evidenced and •established by as high kind of proof as required to establish the contract itself; and in this case by written assent of the husband. The action is •on a written obligation, and the essential proof of the consent of parties ■thereto should be found in the instrument itself, or some other written instrument directly referring to it. In this case the legal consent of the wife cannot be given by herself alone, but requires the consent of the husband. Hence, the perfect obligation of the wife cannot be said to .arise on the note until the same consent be tested by the signature of herself and husband; her signature to establish her consent, the signature of the husband to show the authorization required by law, and without which there could be no legal, binding consent given by her.
    The very character of the authorization of the husband, required by law, to render valid the acts and contracts of the wife, would seem,to require that such authorization should be in writing, even though the law does not specially declare that it shall be a written authorization. Thus Article 123 of the Oivil Code declares: “The wife cannot appear in Court without the authority of her husband.” Has it ever been •■doubted that such authority must be evidenced by some written instrument, either by the husband appearing in the suit, or by a written •consent.
    C. C., Article 1779, provides that: “The incapacity of the wife is removed by the authorization of the husband, or, in cases provided by law, by that of the Judge.” ‘
    In this Article there is no distinction made between the manner in which the authorization of the Judge and that of the husband is to be •given, and can there be any question that the authorization of the Judge must be in writing ?
    The same Article, moreover, restricts the presumption of authorization by the husband to “commercial contracts, if he permits her to trade in her own name.”
    Again-, in Article O. C. 2411, it is not. declared positively that the authorization by the husband to his wife to alienate her immovable property shonld be in writing, yet could it be seriously urged that such authorization could be established by parol ?
    3. No legal evidence was offered to establish any authorization, even parol, by appellant’s husband.
    The answers of Mrs. Kercheval, to interrogatories on facts and articles propounded to her, are insufficient to prove such authorization, because such authorization cannot be established by the wife herself. Such proof would defeat the very object of the law: for if a declaration by the wife that she was authorized by her husband to execute a contract were sufficient evidence of the fact, the prohibition of the law could always be avoided; the simple statement or affidavit of the fact by the wife, could preclude the husband from the discharge of his duty, in refusing his authorization to such contracts as he might deem injurious to his wife’s interest.
    This point, it is submitted, is no longer an open question.
    As early as the case of Gorman v. Berghaus (1 Rob. R. p. 168), this Court, Martin, J., held that where an appeal was taken by the wife, but the authority or assistance of the husband does not otherwise appear than by a statement in the petition and bond of appeal, that the appellant is authorized by her husband, the appeal must be dismissed, and that .this assistance and authority must be proved aliunde, and otherwise than under the hand of appellant, or her counsel.
    The same principle was declared in the cases of Gorman v. Berghaus, 2 R. 282; Laeour v. Belamaine, 2 An. 140.
    If the statement of the wife is not to be taken as evidence of the authorization of the husband, the case at bar is clearly with the appellant.
    4. And, as if to render still more restricted the power of a married woman to bind herself or her separate or dotal property, by the contracting of debts, the statute was passed allowing her to contract debts, with the authorization of the District Judge, only when “the wife shall satisfy the Judge aforesaid that the money about to be borrowed, or debt contracted is solely for her separate advantage, or for her separate or dotal property. See Session Acts, 1855, p. 254; Rev. Statutes, p. 560.
    There is no evidence whatever that the suretyship of Mrs. Kerche.val was for a debt incurred for her separate interest, or that she was in any manner beneñtted by it, but the contrary.
    5. The motion of plaintiff to .have the answers of the husband as against his wife, taken as confessed, was properly rejected by the Court ■ on the unquestionable rule of law, that a husband cannot be a .witness either for or against his wife.
   Labatjve, J.

The defendants are sued as sureties on a promissory note, signed by one P. F. Herwig; Mrs. S. M. B, Kercheval, being a married woman, alone took this appeal. Her defence below, as web. as before this Court, is that she was not duly authorized by her husband to contract the obligation; that the authority given by her husband should be evidenced and established by as high kind of proof as required to establish the contract itself, and, in t^s ease, by the written assent of the husband.

This defendant and her husband stipulated, in their marriage contract, that there should be no community of acquests and gains between them, and they should remain separate in property. The husband was made a party in the suit for the purpose of authorizing his wife to defend herself, and being interrogated on facts and articles by plaintiff, with a view to prove by his answers that he had authorized his wife to sign the note as surety, refused and declined answering the ’ questions; the plaintiff moved the Court to order the interrogatories to be taken for confessed, which the Court refused to do, and plaintiff took a bill of exceptions to the decision of the Court. We are of opinion that the Court did not err. The husband could hot be a witness for or against his wife. C. C. Article 2260.

The plaintiff, among other questions, put the following to the said wife:

1. Was or not your husband present when you signed the note sued on?

2. Did you or not sign the same with his authority, consent and approval, etc. ?

These interrogatories, not being objected to, were both answered in the affirmative: Yes. On the trial of the case below, the interrogatories, ■together with the answers, were offered and received in evidence without any objection. Without passing upon the question of law, whether or not this authority could have been proven by parol or by interrogatories propounded to the wife, we are of opinion that the interrogatories having been propounded, answered, and offered and received in evidence, together with the affirmative answers, without any objection, we are bound to give them their full effect.

We are of opinion that our learned brother of the District Court has corretly decided this case.

The judgment is affirmed, with costs of appeal.


author: Labauve, J.

text:
    Soptime St. Martin v. F. Mestaye et als.

      Xi the submission does not limit any time, the power of the arbitrators may continue in foroe during three months from the date of the submission, unless the parties agree to revoke it.
    APPEAL from the Third District Court of New Orleans,

      Fellowes, J. A. Saucier, for plaintiff. P. H. Morgan, for defendant.
   Labauve, J.

The plaintiff and appellee states in substance that he was overseer on the plantation of Widow Louis Labranche, in the Parish of St. Charles, under the management and control of said Mestayé and Labarre, and that a large amount of money is due him; that there are three bales of cotton in New Orleans, in the hands of E. Bordelois, commission merchant, upon which he has a privilege as overseer; he obtained a sequestration; prayed that the defendants be cited, and that, after due proceedings, there be a judgment in his favor for the amount of the proceeds of said cotton.

The defendant, Francis Mestayé, excepted to plaintiff’s demand, on the ground that the parties had agreed to submit their difficulty to arbitrators, by whose decision they were to be bound; and that said arbitrators had not, as yet, rendered their award; and that, .until then, plaintiff had no right of action. This exception was properly overruled. The agreement to submit to arbitration was entered into on the 13th December, 1864; the time for the action of the arbitrators was fixed to be witjiin fifteen days from the date of the agreement, and this suit was only brought on the 30th December, 1864; and the exception which was filed on the 16th January, 1865, admits that the arbitrators had not acted. C. C. Article 3072. The same defendant further excepted that this action cannot be maintained against him, because it is a claim against a succession opened in the Parish of St.' Charles, and it can only be paid in due corase of administration; this exception was also overruled. On the 16th May, 1865, a regular judgment by default was entered-against defendants, and made final on 8th July, 1865. The defendant, Fran§ois Mestayé, alone took this appeal.

The appellee has prayed for the affirmance of the judgment. The defendant and appellant has not appeared in this Court to point out, if any, the errors of the Court below, and, by our examination of the record, we are satisfied that justice has been done, and that there is no reason to interfere with the judgment appealed from.

The judgment of the District Court is affirmed, with costs.


author: IosiiEY, J.

text:
    Thomas Hale v. City of New Orleans.
    An oxcoption to the ruling of the Judge in rejecting the testimony of witnesses cannot bo noticed, unless it states the grounds upon which it was rejected.
    The sale of a thing belonging to another person is null. It may give rise to damages, when the buyer knew not that the thing belonged to another person.
    Though the sale of the property of another be null, yet, the vendor’s subsequent acquisition of title vests it at once in the vendee, who cannot, afterwards, sue for a rescission.
    The thing claimed as the property of the claimant, cannot be alienated, pending the aotion, so as to prejudice his right. If judgment bo rendered for him, tho sale is considered as a sale of another’s property, and does not prevent him from being put in possession by virtue of suoh judgment.
    Property claimed by a plaintiff cannot be alienated pending the action, so as to prejudiCo his rights. If judgment be rendered in his favor, the sale will be considered as the sale of another’s property, and will not prevent his being put in possession by virtue of the judgment.
    Beforo the institution of an action for the rescission of a sale, the party seeking relief must offer to placo his adversary in the same situation that he was before the act of sale was passed.
    The plaintiff, in an aotion for rescission, must establish the loss of tho whole or part of the thing sold; the loss must be certain — it will not suffice if it appears probable.
    The loss will be considerodas certain, if a perfect outstanding title in a third person is shown to exist.
    "When the judgment directs one of the parties to deliver an estate to tho othor, the Olerk must issue a writ of possession, by which the Sheriff shall be enjoined to put him in whose favor the judgment was rendered in possossionof the ostate and tho appertenancos belonging to it, according to the ■ judgment.
    The buyer ovicted from property which belonged to another, is entitled to reimbursement for all useful expenses made by him on tho premisos.
    The damages mentioned in the fourth paragraph of Article 2482, do not include counsel fees for bringing the aotion in which thoy are sought to be recovered.
    APPEAL from the Fourth District Court of Now Orleans,
    Price, J. Buchanan & Gilmore, for plaintiff and appellant. Thos. 3. Bewes, for defendant.
   IosiiEY, J.

The following is the liistory of this case (reported in 13 An. p. 500), which was before this Court in 1858, and thence remanded to the District Court for a new trial:

At a public sale of certain batture lots, made by the city of New Orleans, in the year 1853, twenty-two of said lots were struck off, separately, to the plaintiff, the price of twenty-one .of them being $3,100 each, and that of the remaining one, $5,500.

The lots, thus purchased by the plaintiff, comprise nearly the whole square embraced within Julia and St. Joseph streets, above and below, and Fulton and Front streets, in front and rear, and are numbered on the plan 1 to 23.

The city subsequently transferred this property by notarial act of salo, to the purchaser, Thomas Hale, for the convenience of the sureties, in three parcels : one of which comprised six lots (2 to 7), for the sum of $18,600 ; another of which comprised six lots (numbered 8 to 13), for the sum of $18,600 ; and another of which comprised ten lots (numbered 13 to 23), for the sum of $33,100 ; making the aggregate price of all the lots, $70,600, payable one-ñfth cash, and the balance at one, two, three and four years’ credit, with six per cent, interest from the day of sale; and all of which price, principal and interest, were duly paid by the purchaser.

At the time of the auction sale of these lots, a petitory action for a portion of them was pending. This action had been instituted against Municipality No. 2 (to whose rights the defendants have succeeded), by Antoine and Francois Remy, in the Fifth District Court of New Orleans.

This' suit, after a protracted litigation, was finally decided by this Court, on the 25th February, 1856, in favor of A. & F. Remy. (See 11 An. 148.)

Upon that judgment a writ of possession issued, on the 27thMay, 1856, and was returned by the sheriff, executed, on the 19th August, 1856, by putting the Bemys in possession of the whole, or the • greater portion of four of the lots, namely, those numbered 20, 21, 22 and 23 — all purchased by the plaintiff at the public sale of the 15th March, 1853.

The present action was brought on the 29$ October, 1856, to rescind the sale of the twenty-two lots of ground purchased by the plaintiff, and to recover from the city the price paid by the plaintiff for the same, with legal interest from the date of the respective payments, together with the oosts of improvements, and the amount of State and city taxes, and damages.

The defendant, for answer, filed a general denial, and upon this issue a judgment was rendered in favor of the plaintiff, on the 25th March, 1857.

From that judgment an appeal was taken, and the Court being of opinion that an amended plea, offered by the defendant, to the effect that, by a notarial act of 14th March, 1857, the city had acquired all the right and title of the Bemys to the lots recovered by them, which it tendered to the plaintiff as a fulfilment of its warranty, had been improperly rejected, sent the case back to the District Court for a new trial.

Upon the second trial of the cause in the District Court, there was judgment in favor of the defendant, and the plaintiff is now prosecuting this appeal.

The main grounds of the plaintiff’s reliance, for a reversal of the judgment in favor of the defendant, are, in effect:

I. That the sale from the city to him of the lots described in his petition, is a nullity; and that his vendor could not cure that nullity by acquiring the outstanding title of the real owner, after he, the plaintiff, had instituted his rescission action, to have the nullity judicially declared.

H. That the nullity invoked is not restricted, in its effect, to the lots actually recovered by the owners of them; but, as the eviction from these defeats the object of the whole purchase, he is entitled to claim the rescission of the sales of all the lots purchased by him.

/ His money claim against the city, if his action prevails, consists of the following items:

1. Reimbursement of the price paid by the plaintiff to the oity.

2. Interest on that price.

3. Reimbursement of paving, paid by the plaintiff since the sale.

4. Reimbursement of the city and State taxes, paid by the plaintiff on the property, and counsel fees.

On the first appeal, the decree only concluded the plaintiff as to the admissibility of the amended answer, styled a peremptory exception, and of the notarial act of sale and compromise of 14th March, 1857, leaving open to him every defence of law against that compromise, to which he was not a party. •

I. The plaintiff’s action rests on Article 2427 C. 0., which provides that “the sale of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person.”

The basis of the decree in the Jower Court, on the second trial of the case, was the fact that the city had acquired the Remy title, and that, that title enuring to the benefit of its vendee, all its obligations as vendor were satisfied.

Leelerq, in his work, entitled “Droit' Romain,” etc., vol. 5, p. 279, supposes the case of the purchaser being ignorant that he bought the thing of another, which was delivered to him by the seller, and admits that the buyer might have the contract declared null, on restoring the thing, etc. Hut, if, before the contract be annulled by competent authority, the seller should acquire the thing, which he had delivered, it is the opinion of the author that the purchaser would then not have the power to cause the sale to be annulled ; because every obligation on the part of the vendor would be fulfilled ; the purchaser acquires the property in the thing sold, as well as the possession; and, consequently, the contract stands fully executed. r

In the case of Bonin v. Essaline, 12 Martin, 228, the Court says : “The principle established by„the latter part of the case (as stated by Leelerq),' we are inclined to think correct; evidently so, in a case where no action for rescission has been commenced,” and no such action had been commenced in that case.

No one contests the correctness of the'' general rule that, though the sale of the property of another be null, yet, the vendor’s subsequent acquisition of title vests it at once in the vendee, who cannot, afterwards, sue for a rescission. It was so held in Bonin et al. Essaline, 12 M. 228; in McGuire v. Amelung, ib. 649 ; in Lee v. Fergusson, 5 An. 533 ; Fenn v. Rills, 9 La. 99; Stokes v. Shakleford, 12 La. 173, and Woods v. Kendall, 5 N. S. 247.

And the principle obtains under the common law, which estops the grantor from setting up an after-acquired title against the grantee ; for it is a perpetually operating covenant, and as estoppels ought to be reciprocal, equity requires that both parties should be bound reciprocally. Greenleaf on Evidence, vol. 1, g 24.

But no decision of our own Courts has been pointed out to us, nor are we aware of any, wherein the question was directly presented, as it is in this ease, in which the sale of another’s property was maintained, when the vendor had acquired the real title, after the institution, by the purchaser, of the rescissory action to annul the sale on that account. Under our law, differing in this respect from the Roman law; which only imposed on the seller the obligation of procuring for the purchaser the undisturbed possession of the thing “la libre possession de la chose,” tho contract of sale is a direct and immediate transfer of the property sold, “la translation immediate et directo de la propriété vendue,” and hence, as Marcadé observes, “aujourd’hui que vendre c’est opérer immédiatement la translation d.e propriété, il est clair que, par la force memo des choses, je ne puis pas vendre ce qui ne m’appartient pas; ce dont je n’ai pas la propriété, puisqu’on ne saurait transmettre a un autre le droit qu’on n’a pas soi-méme.” “Nemo plus juris ad alium transferré potest quam ipse haberet.” “ La vente de la chose d’autrui est done nulle aujourd’hui, nulla est venditio; iln’y a pas de vente; il y a un acte qui présente les apparences d’une vente, mais qui n’en est pas une. * * * * * * Cette vente purement apparente est done sans réalité juridique, et son inexistence légale peut étre opposée sans dificulté, tant par le vrai propriétaire contre l’acheteur, que par celui-ci contre le vendeur.”

Article 2427 of our Civil Code corresponds verbatim with Article 1599 of the Napoleon Code, and hence the decisions of the tribunals of Franco and the dicta of able commentators, which tend to expound the corresponding Article of the French Code, may very properly bo resorted to, to aid us in ascertaining the full import of our own Articlo.

Zachariso, a German writer of great celebrity, thinks that, upon principle, the seller of a thing belonging to another, has no right to deprivo his vendee of his action of nullity by purchasing the adverse title, even before the latter should have brought such an action.

Marcadé does not admit the correctness of this doctrine to the samo extent as is contended for it by Zacharias; but he distinctly admits and advocates the doctrine, that no purchase made by a seller can have the effect of defeating the purchaser’s action of nullity instituted before such purchase. He examines the question with his usual masterly ability and logical acumen. We transcribe his argument in his own words:

‘ ‘ L’acquisition de lá propriété par le vendeur n’empéche plus 1’acheteur de faire proclamer la nullité, quand son action en nullité Uaü deja inientée au moment oú cette acquisition est faite. G’est évident, puisque, Tácheteme n’étant pas encore devenu propriétaire au moment oú il a intenté son action en nullité, et prouvant par cette action qu’il entend X’” pudier tons les effets que la convention pourrait avoir, la propriété ne : • - .rait lui étre acquise ultérieurement; on ne devient pas propriétaire i algré soi. Le fait, par l’aclieteur, d’intenter l’action en nullité, empéclie -done la propriété, que le vendeuf acquiert ensuite, de passer de la téte de ■ eelui-ci sur la sienne, et la vente reste des lors nulle, comme elle l’était ab initio.”

Again, still commenting on Artide 1599 (our Article 2127), the samo - author says:

“De méme que Tacheteur ne peut plus agir en nullité quand son vendeur acquiert la propriété de la chose avant Taction intentée, de méme il ne le peut plus et la vente devient valable, quand le vrai propriétaire vient ratiñer Tacte. Mais, ici, encore, il faut que la ratification précede Taction de Tacheteur, sans quoi celui-ci resterait libre, comme ci-dessus, de faire proelamer la nullité. En effet, tant que Tacheteur, qu’il sache ou qu’il ignore que la chose est & autrui, n’invoque pas la nullité de Tacte, il entend done conserver la chose et en avoir la propriété, d’oú la eonséquence que, quand le vrai propriétaire vient déclarer qu’il ratifie Tacte et code sa propriété a Tacheteur, il y a concours des deux volontés, et la propriété se trouve ainsi transmise au possesseur á partir de ce moment. * * * * * * Mais quand le propriétaire ne vient ratifier qu’aprés Taction en nullité déjá intentée par Tacheteur, cet aeheteur n’ayant plus la volonté de conserver la chose, au moment ou le propriétaire manifesté celle de la lui attribuer, le concours des volontés n’existe plus et la ratification resto sans effet.”

Troplong partakes of the same opinion as that expressed by Marcadé; he says (Do la Vente, No. 236): “On doit méme décider que si avani que la nullité de la vente soii demandée, la propriété vient h se consolider sur la téte du vendour, soit parcequ’il a acheté la chose, soit parcequ’il en a hérité du véritable propriétaire, la vente se trouve validée.” And in support of this doctrine we find Delvincourt (vol. 3, p. 131), Duranton (16, p. 179), Troplong (No. 236), Duvergier (1, 219), and several decisions of the French Courts, expressing the same opinions; and in a note (vol. 2, page 502, Zachariso, Cours de Droit Civil Framjais) that author observes: “Les' auteurs et la jurisprudence s’accordent a reconnaitre ce principe, toutefois avec la restriction que la demande ou Toxception de nullité proposée par Tacheteur devrait étre rejetée si des avant l’époque a laquelle la demande a été introduite ou Texeeption opposée, le vendeur était devenu propriétaire de la chose vendue.”

And in the matter of Jourdan v. Lecourt, the Court of Cassation, 1856, vol. 2, p. 209, decides: “Que l’aequéreur de la chose d’autrui ne peut plus demander la nullité de la vente lorsque cette vente a été, avant toute action de sapart, ratifiée par le propriétaire.”

The doctrine of Marcadé, and of the other commentators, and of the tribunals of France, the plaintiff applies thus to this case:

The city sold to Hale the property of the Remys. That sale-was null;-' it conveyed no right to the purchaser. The city, subsequently however, bought the Remy title. That purchase would have enured to the benefit of Hale, had Hale not manifested his intention by an action of nullity to refuse to become the owner. His semblance of a purchase from the city was a nullity.

It was optional for him to refuse to become the owner. The action of nullity manifested the refusal on his part, and this action was instituted previous to the manifestation of the will of the owners of the property to make him the owner.

This was intended by the city to have the effect of a sale from the Remys to Hale.

But the contract of sale is a bilateral contract. It requires two wills. The consent of Hale to the sale by the Remys would have been presumed in law, had he remained in possession up to the time of that sale without complaining.

But it is impossible to presume such a consent in the face of the action of nullity instituted by him against the city.

The reason of the doctrine is, therefore, plain.

It results' from the text of Article 2427 of our Civil Code, which pronounces the contract between the plaintiff and the defendant to be a nullity.

The Article 2428 treats it as a nullity, as the possession of Hale is no' obstacle to the proceeding of the Remys against the city.

It was out of the power of the city, by the aid of the Remys, to make a contract for the plaintiff against his will, on the 14th March, 1857, which should be valid and binding upon him, and should take the place of the void contract of the 15th March, 1853.

For, as Marcadé, in further demonstration of his doctrine, says, there was no contract at all for the land recovered by the Remys, until the contract by which they themselves sold, and that contract only took effect from ihe moment it was made.

‘ ‘ Nous disons, ” says Marcadé, ‘ ‘ á partir de ce moment; ear il est bien evident que ce n’est pas la une ratification proprement dite, venant confirmer l’acte et en assurer l’effet rétroaclivement a compter du jour méme de sa date: on ne peut pas confirmer une vente légalement inexistante. Le second acte n’est done, sous le nom impropre de ratification, que la cession méme de la chose, et e’est a partir de sa date, sans aucune rétroactivité, quel’acheteur est propriétaire.”

The defendant, however contends, that the plaintiff cannot maintain his rescissory action, because no judgment was ever rendered in favor of the Remys against him; and he could not have been evicted from the property under the judgment against the city, until he was made a party to it, and there had been a judgment against him for its delivery; and because the sale from the Remys to the city has quieted Hale in his title to and possession of the property.

Tne appellee directs our attention to a bill of exceptions to the ruling of the District Judge, rejecting the testimony of two witnesses offered by him on the trial of 'the case. This bill has been already passed upon by this Court on the first appeal, and, as was properly observed in regard to it: “ We cannot notice it; because it does not contain the grounds upon which the testimony was rejected, and we have no means of judging correctly of the ruling of the Court. See 13 An. 501; Bonnaffe v. Wiltz, 10 An. 657.

By the textual provision of our law, no alienation of the thing claimed as the property of another, can be made pending the action so as to prejudice his right. If judgment be rendered for him, the sale is considered as a sale of another person’s property, and does not prevent him from being put in possession by virtue of such judgment (Article 2428, G: C.'); and it was not necessary to make Hale a party to the Remy suit. Kohn et al. v. Byrne, 10 Rob. 114.

In the case of McDonald v. Vaughn (14 An. 717) the Court, we think, laid down the true doctrine as to what constituted in law, a justification on the part of the pruchaser of property to resort to the rescissory action. That case was analogous to this one, and says the Court therein: “No active disturbance is shown to have occurred in this case, nor was it necessary: it suffices for the plaintiff to establish the loss of the whole or a part of the thing sold. This loss must, however, be certain; it does not suffice that it appears probable. ”

The loss would be certain, if a perfect outstanding title.existed; and such a title to the property sold to Hale, the city knew was that ©f the Remys. But, we are satisfied, however, that the eviction of the plaintiff from the four lots of ground recovered by~ the Remys, is fully proved; and that the oity, having acknowledged that fact in the notarial act of the 14th March, 1857, is thereby estopped from gainsaying it. C. P. 630, 632 and 633; Bissell v. Erwin, 15 La. 99.

The view we take, in regard to the plaintiff’s right to maintain his rescissory action, notwithstanding the purchase of the city of these lots from the Remys, for the purpose of quieting thereto the plaintiff’s title and possession, is adopted, after considering maturely the reasons for the distinction drawn by the commentators of the Frenoh Code, and the tribunals of France as to the effect of such an action, instituted before and one instituted after a vendor has acquired the real title to the property sold by him.

It differs from the opinion intimated by this Court on the first trial of this case, but the question was not then, as it is now, presented for a final solution, and did not undergo a thorough examination.

H. The lots of ground were adjudicated to the plaintiff at the auction sale, separately and for a distinct price for each lot, as appears by the proces-verbal of the auctioneer. The adjudication was the completion of the sale and that, rather than the notarial transfer, determined the nature and extent of the warranty. For the convenience of the parti es, tho lots were in the notarial act transferred not separately but collectively, in parcels, and for aggregate prices, but the sale, nevertheless, purported’ to be made pursuant to, and on the terms and conditions of the public sale and adjudication, which was its basis. The Court, on the first appeal of, this case, very properly held that the sale of the lots was the sale of a number of independent things, giving a right of warranty as to each, and the purchaser has no action of rescission, except for such lots as have been deprived of their proportions by eviction.

For the very satisfactory reasons which the Court assigned, the rescissory action of the plaintiff must be restricted to the lots Nos. 20, 21, 22 .and 23. The land recovered by the Remys, in their petitory actionagainst the city, crosses the square in which the plaintiff’s lot lie, diagonally in such a manner as to leave of lot No. 23 only a small triangle, unfit for any useful purpose, measuring 46 feet, 1 inch on St. Joseph street, by 13 feet 1 inch and five lines on Front street, taking the whole of lot No. 22; the whole front of lot No. 21 on Front street, and one foot of its front on Fulton street, and from lot No. 20, taking five feet of the front on Front street, and one foot of its front on Fulton street. These lots, including the most valuable one, are either entirely taken away or cut up in such a manner as to destroy their market value. No portion of lot No. 22 remains, and the parts of lots Nos. 20, 21 and 23, recovered by the Remys are of such consequence, relatively to the remaining portions, that the

- buyer, it.must be supposed, would not have purchased them, without tho parts from which he is evicted. The sales of these four lots must, therefore, be rescinded. See Articles 2427 and 2428, C. C. Hall v. Nevill, 3 An. 327.

The aggregate price of the adjudications of these four lots, was fourteen thousand eight hundred dollars, that is to say $3,100 each for three of the lots, and $5,500 for the remaining one. Of this amount ($14,800) the purchaser, Hale, had paid previous to the 19th August, 1856, eleven thousand eight hundred and forty dollars. On the 15th March, 1857, he paid the last instalment of two thousand nine hundred and sixty dollars; and he is entitled to judgment for this total amount of fourteen thousand eight hundred dollars ($14,800) with interest thereon till final payment, at the rate of five per cent, per annum, from the nineteenth day of August, in the year one thousand eight hundred and fifty-six, the date of the actual eviction by the Sheriff. On the sum of eleven thousand eight hundred and forty dollars, and on two thousand nine hundred and sixty dollars, from the nineteenth day of August, eighteen hundred and fifty-seven.

Two items remain to be disposed of; the bill paid by Hale for the paving of the sidewalks, etc., in front of the lots 20, 21, 22 and23. Also the State and city taxes, paid by him on the said lots.

■ The buyer evicted from property, which belonged to another, is entitled to reimbursement for all useful expenses made by him on the premises. 2485 C. C. Laiser v. Genares, 10 An. 178. Pothier Contrat de Propriété; and for the reasons, entirely satisfactory to us given on the first trial of the case in this Court; the city is legally bound for the pavement and gutters in front of the four lots above described.

The total amount of the paving-bills in front of the twenty-two lots, was three thousand eight hundred andforiy-seven dollars and forty-seven cents, and the proportion thereof, at the rates charged, is thirteen hundred and two dollars and thirty-two cents, and for this last named sum, also, with interest thereon at the rate of five per cent, per annum, from the 19th of August, '1856, the plaintiff must also have judgment against the defendants. See 13 An. 502.

We think that the plaintiff is. not entitled to the reimbursement of taxes paid by him on the four lots, in 185|, 1855 and 1856. The reasons already assigned for reaching this conclusion are satisfactory to us.

A claim was also set up for counsel’s fees, which however, does not seem to be insisted on, on the present trial of the case. In any event, we do not think that the plaintiff is legally sustained in urging such a claim. This Court (in 13 An. 502) said : “On a reconsideration of the question, we think that the damages mentioned in the fourth paragraph of Article 2482 do not include counsel fees for bringing the action in which they are soitght to be recovered. We are satisfied with the reasoning of the Court in the case of Melancon's Heirs v. Robechaud’s Heirs, 19 La. 357.”

The judgment of the lower Court must be reversed.

It is-therefore ordered, adjudged and decreed, that the judgment of the Court below be annulled, avoided and reversed, and proceeding to give such judgment as should have been rendered by the said Court:

It is further ordered, adjudged and decreed, that the sale and adjudication of the four lots of ground, purchased on the 15th March, 1853, by the plaintiff, Thomas Hale, from Municipality No. 2 (now the First District of the city of New Orleans), the' said lots sitúate and being on the batture, in the square bounded by Front, Julia, Fulton and St. Joseph streets, being designated on the plan of J. A. Beard, dated 12th June, 1852, deposited among the archives of H. B. Cenas, notary public, as the lots numbered twenty (20), twenty-one (21), twenty-two (22) and twenty-three (23), measuring, each of them, 23 feet 3 inches and 1 line, on Front street, being the same lots described in the auctioneer’s procés-verbal, dated 15th May, 1853, and in the notarial transfer from the city of New Orleans to Thomas Hale, on the 31st March, 1853, be, and the sale and adjudication of the said four lots of ground are hereby, cancelled and rescinded.

It is further ordered, adjudged and decreed, that the plaintiff, Thomas Hale, do recover from and have judgment against the defendant, the city of New Orleans, for the sum of fourteen thousand eight hundred dollars, with interest thereon till paid, at the rate of five per cent, per aunum, from the nineteenth day of August, eighteen hundred and fifty-six, on the sum of eleven thousand eight hundred and forty dollars, and a like interest on the sum of two thousand nine hundred and sixty dollars, from ilie twenty-fifth day of March, eighteen hundred and fifty-seven.

It is further ordered, adjudged and decreed, that the said plaintiff, Thomas Hale, do recover from and have judgment against the defendant, the City' of New Orleans, for the further sum of thirteen hundred and two dollars and thirty-two cents, with interest thereon, at the rate of five per oent. per annum, from the nineteenth day of August, eighteen hundred and fifty-six.

It is further ordered, adjudged and decreed, that the plaintiff’s claim for taxes and counsel’s fees be rejected, and that the sale and adjudication of the remaining eighteen lots of ground be and the same is hereby maintained.

It is further ordered, adjudged and decreed, that the defendant and appellee pay all the costs in both Courts.