author: Spoitord, J.

text:
    Valery Ledoux v. J. Allegre et al.
    Plaintiff sued for a trespass in cutting wood on his land, Defendants pleaded in justification, a servitude of cutting wood on plaintiff’s land, in favor of land owned by him. Piaintiff replied that the servitude was extinct by non-usage. Held: That quoad the question of servitude, the defendants are the real plaintiffs; and that the plaintiff in this action might well setup the prescription of non-usage as against the alleged servitude; and that plaintiff might have availed himself of the prescription of non-usage without having specially pleaded it.
    In such a case, the objection that prescription is a means of defence, and not a ground of action, is not well taken.
    Where the prescription of non-usage is pleaded, the onus of proving the exercise of the right of servitude within the time of prescription, is thrown on the party claiming the right.
    The erroneous reservation in the prooes verbal of the sale at which plaintiff acquired title of a community of wood,” held not to be a renunciation of the prescription of the servitude, already acquired by the authors of plaintiff’s title.
    A right of community of wood is a very different thing from a servitude of cutting wood.
    from the District Court of St. Martin, VoorMes, J.

      A. Deblano, and F. Fusilier, for plaintiff.

      F. Simon, and J. Gwry, for defendants and appellants.
   Spoitord, J.

The plaintiff sued the defendants, claiming $1,500 damages, for a trespass in cutting down trees upon his land, on the east side of the.bayou Teche, and within the enclosure around his house. There are divers other matters set forth in the petition, by way of anticipation of the expected de-fence, which it is not material now to notice.

As expected, the defendants, in reality, justified the trespass by setting up the existence of a servitude in favor of the land owned by them on the west side of the bayou Teche, upon the tract claimed by the plaintiff on the east side, which entitled them to cut wood from the latter for the use of the former ; they denied that they had ever exercised their right of servitude to a greater extent than that provided for by their titles, or that they were liable in damages therefor; in conclusion, they prayed, “that they be confirmed in their right of servitude as provided for by the titles, subject to be lawfully exercised against the claims of the plaintiff or any other person holding the land, through or under him, and without any opposition on their part.”

After this answer was filed, the plaintiff obtained leave to file an amended petition, setting up “ in bar of defendant’s pretended right of servitude, the prescription of ten and twenty years.”

There was a judgment for the plaintiff, awarding him $100 damages, and quieting him in his title to his property against interruption from the pretended servitude of the defendants.

The latter have appealed.

The plaintiff’s title to the land claimed in his petition, and the cutting of the timber thereon by the defendants, (some of it even in an unnecessary and wanton manner,) are fully proven by the evidence.

The real point of controversy is, the present existence of the servitude under which the defendants attempt to justify their acts.

They strenuously contend that, supposing a servitude ever to have existed, the plaintiff cannot legally invoke the prescription of non-usage against it, inasmuch as the plea of prescription against an asserted right, is but a means of defence, and not a ground of action.

The argument overlooks one branch of plaintiff’s demand, and misconceives the real character of his action.

He claims damages for a trespass. The defendants, in effect say, they are not trespassers, because they have a servitude upon the plaintiff’s land, which authorized them to cut the timber, for doing which they are sued.

The plaintiff replies, that if they or their authors ever had such a servitude, it has been lost and become extinct by non-usage for more than ten years.

Quoad the question of the servitude, the defendants are really the plaintiffs. And the nominal plaintiff might avail himself of the position, that the servitude has been extinguished by non-usage, even without a plea to that effect, replications not being usual under our system of practice.

The plaintiff’s demand is not founded upon an exception. It is true he has added some allegations, which were perhaps unnecessary, but which he makes, because he probably knew beforehand, the defence which would be set up. But that does not not wholly change the character of the action ; it is still an action of trespass.

To say that prescription for non-usage cannot be invoked by a plaintiff who seeks to restrain a defendant from trespassing upon his property, by reviving an extinct servitude, would be to abolish altogether the prescription of non-usage. Eor the party who wished to revive such a servitude, would not resort to an action in which he would be sure of defeat, where, by taking the law into his own hands, and proceeding to exercise the servitude, he would be sure to defeat his adversary, who should seek to enjoin him, or make him liable in damages.

The defendants themselves have put the existence of the servitude at issue; upon that point, they hold the affirmative ; if they have failed in establishing it, the judgment is correct.

There is also a rule with regard to the burden of proof which is important to be considered in this connection. Art. 800 of the Civil Code declares, that) “ when the prescription of non-usage is opposed to the owner of the estate to whom the servitude is due, it is incumbent on him to prove that he or some person in his name, has made use of this servitude as appertaining to his estate during the time necessary to prevent the establishment of the prescription.”

Now, by Art. 785, “ a right to servitude is extinguished by the non-usage of the same during ten years, if the parties be present, and twenty years, if absent.”

Art. 786 says “ tho timo of proscription for non-usage begins for interrupted servitudes, from the day they ceased to be used.”

The defendants upon whom the onus of proof as to this matter, lay, were unable to establish that the servitude they claim had been in any manner exercised since about thirty years before they attempted to revive it by cutting the wood as complained of in tho plaintiff’s petition.

This would be decisive of the case, were it not that a question of much greater difficulty arises touching a pretended renunciation of prescription by the plaintiff and the immediate authors of his title.

The examination of this point compels us to go somewhat into detail.

A tract of land on both sides of the Bayou Teche, having five arpents front on the east, and six on the west side of said bayou, with a depth of forty-two ai'pents on each side, was confirmed to Joseph Melangon, by virtue of settlement and cultivation prior to the 20th December, 1803.

Some of this land was acquired by Wm. Pitt Higbee, who, on the 20th October, 1812, sold to Alexander Ledoux, ancestor of the present plaintiff, the tract now by him claimed, and described in the sale from Higbee as “on the east bank of Bayou Teche, bounded on the north by lands of Michel Cormier, and on the South by lands of Frangois Pothier, containing five acres (arpents) front, by the ordinary depth of forty.” This deed contained the following reservation under which the defendants assert their right of servitude : “ Whereas the said Higbee is proprietor of five acres (arpents) front, by forty in depth on the west side of the bajmu aforesaid, it is understood between the parties to these presents, that the said Higbee, his heirs and assigns, are to retain the privilege of taking the fire-wood necessary for the use of the said tract.”

Fmilie Barré, wife of Wm. Pitt Higbee, was his universal legatee, and, after his death, became the owner of the five acres aforesaid, on the west side of the Téche.

On the 30th August, 1863, Emilie Barré, the widow of Higbee, (and the survivor of her second husband, Joseph ffradenigo) conveyed by authentic act to the defendant, Joseph Allegro “ a certain tract of land, situated in the parish of St. Mai'tin, and lying on the west side of the bayou Téche, measuring four arpents in front on said bayou, by forty arpents, more or less, in depth, bounded on the north by land of Pierre Sameur, and on the south by land of Dar-meneourt Babin, on the east by said bayou, and on the west by land of Bien-venw.”

This act of sale contained the following clause, which is worthy of esp eeial notice:

“ It is also understood between the parties, that should it appear hereafter that there exists a right to take wood on some wood-land near by said land thus sold, and belonging to the owner of this said land sold, the use of said wood land is hereby sold and transferred with the above land, without further guaranty or consideration.”

As forty-one years had elapsed since Higbee resumed the servitude, and as it had been disused for a period of thirty years, the parties might well suppose it to be a very doubtful right, only to be asserted upon the discovery of new evidence, or in case it “ should hereafter appear ” to exist.

But the plaintiff acquired his title to the land claimed by him at a succession sale made on the 19th January, 1864.

In the prooes verbal of the sale, appears the following statement upon which the defendants rely as constituting an acknowledgment of their claim, and a renunciation of prescription :

“ II existe encore une communauté de bois en faveur de M. M. Joseph Alle-gre et Pierre Sauveur sur toute la face de la terra ci-dessus.”

But the plaintiff in'his original petition averred that this statement in the pro-cos verbal was an absolute error, into which the heirs of Ledovcc and the auction er were led by the unfounded and interested representations of the defendant, Joseph Allegre, and that the same was not, therefore, binding upon the plaintiff; these allegations and the prayer that it be decreed that no such “ community of wood ” exists, have somewhat confused the plaintiff’s action, and led the defendants to contend that it was in fact grounded upon an exception.

A “ community of wood in favor of Allegre and Sauveur upon all the front ” of the plaintiff’s tract, is a widely different right from the privilege “ reserved by Higbee in 1812,” of taking the fire-wood necessary for the use of the five acres on the other side of the bayou.” Pardessus Servitudes, No. 7; lb. No. 233.

It is most manifest from the evidence adduced by the defendants themselves that no such community was ever claimed by any of the authors of their title. The statement in the proees verbal was then an error; and, after a protracted examination of the case in all its bearings, we are compelled to concur in the conclusion to which the District Judge must have come in order to render the judgment he did, that the error was produced by the assertions of Allegre himself, who cannot, therefore, be permitted to profit by the statement. His own cautiously worded title put him upon the proof of even “ a right to take wood ” on other land ; and his researches must have convinced him that no one before him had ever claimed so extensive a right as that which, by his assertions and threats of suits, he induced the parties to the succession sale to admit in the proees verbal.

The far different right of servitude on the plaintiff’s land for a limited supply of fire-wood necessary for the use of defendant’s tract was not acknowledged in the sale; and that right, which, in his answer, Allegre seeks to have recognized by reason of the reservation in Higbee's deed to Alexander Ledoux is clearly extinct by non usage for the space of thirty years.

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


source: Caselaw Access Project

author: Merrick, C. J.

license: Public Domain

text:
    Succession of Jean Leon Boudreau.
    The recital in a noncupatiye will, by public act, that the testator “ has revoked and does by this act revoke,” a certain former will by him made, is not an interpolation of an act inter vivos, and a turning aside to other matters within the meaning of Art. 1571 C. 0., such as to vitiate the will.
    from the District Court of Vermillion, Voorhies, J.

      Crow & Girard, for appellant,
    cited: C. C., 1588; 1 Rob., 48; 12 Rob., 39 ; 5 Rob., 503; C. C., 1687.

      C. H.Mouton, for appellees,
    cited: C. C., 1684; Fusilier v. Masse, 4 L. R., 424; Toullier, vol. 6, hook 3, tit. 2, chap 5, No. 620-626.
   Merrick, C. J.

Opposition to the execution of the last will and testament of said Boudreau.

The appeal in this ease is taken from a judgment of the lower court declaring, in effect, that the will of said Boudreau, of the 27th of August, 1852, was revoked by an instrument passed before the Recorder of the parish of Lafayette, on the I7fh of September of the same year.

The appellants contend that this last mentioned instrument, which was proved in the presence of three witnesses, is void, for the following reasons, viz :

1st. That nothing shows that the will was read to the testator in the presence of the witnesses.

2d. Because there is an interpolation of an act inter vivos, an ordinary notarial act, which vitiates the act as a will, for it was a turning aside to another act.

I. We think it clearly appears from the will that it was read to the testator in the presence of the witnesses. The instrument, after stating that it was declared and dictated in the presence of the witnesses, has the following language, viz:

Q,u® (le Recorder) décrit tel qu’il a été dicté qui en a ensuite donné lecture au dit comparant, le dit Jean Léon Bodreau declarant le bien comprendre et y preserver, le tout déclaré dicté éerit et lu en présence de ses sus-dits trois té-moins, qui ont signé ces présentes.”

It is true that it does not all appear, from same part of the sentence, that the reading was in the presence of the witnesses, but it clearly appears from the context that the dictation, the writing and the reading of the will to the testator, were all done in the presence of the witnesses.

Keller et al. v. McCalop etal., 12 R. R., 642.

II. On the second point, it is urged that the following clause, viz., “ Lequel comparant a déclaré comme il déclaré par cet acte d’avoir révoqué et annullé son testament en part et en tout, fait devant moi l’autorité soussigné le vingt-sept d’aoüt le mois passé,” is not a testamentary disposition, and vitiates the act.

Article No. 1685 of the Civil Code provides that the act by which a testamentary disposition is revoked, must be made in one of the forms prescribed for testaments, and clothed with the same formalities.

The power of revocation is absolute, and the testator cannot renounce it or bind himself to exercise it under restriction. O. C., 1688.

Article 1684 C. C. divides revocations into express or tacit, general or particular, and then says it (revocation) is express where the testator lias formally declared in writing that he revokes his testament, or that he revokes such a legacy or a particular disposition. We see nothing more in the language referred to, that is contemplated in this Article of the Code.

We have been referred to the decision in the case of the succession of John W. Daigle, 12 R. R., 503, to show that the introduction into a will of matter foreign to testamentary dispositions, is itself a turning aside to other acts, and therefore vitiates the will. The foreign matter introduced into the will of John W. Daigle was the following : “ The parties dispense with the certificate required by Article 3328 of the Civil Code, and exonerate the said Notary from all liability on account of the non-production of the same.” The court annulled the will on the ground that the foregoing was matter inter vivos, and was the turning aside to other acts, reprobated by law.

In the instrument before us, the object of the party was solely to revoke a former will, and we can see nothing in it in contravention of law, and it appears to be in accordance with the Articles of the Code already cited.

It is therefore ordered, adjudged and decreed by the court, that the judgment appealed from be affirmed, and that the appellants pay the costs.


author: Lea, J.

text:
    Hester Lees v. H. C. Dwight.
    A deposit of money, by a third party, in the hands of an execution creditor, on the condition that the depositor is to be credited by the amount thereof, if he shall purchase property about to be sold under execution, may be recovered back immediately. The depositor is not bound to await the sale or bid for the property.
    from the District Court of St. Mary, Voorhies, J.

      A. L. Tucker, for plaintiff.

      B. N. McMillan, for defendant and appellant.
   Lea, J.

In this ease the plaintiff sues to recover the amount of two deposits of money made with the defendant, under the following circumstances:

The defendant, claiming to be a judgment creditor of E. P. Forrest, was about to issue execution against the property upon which plaintiff resided, as the property of his debtor, Forrest. The plaintiff made the two deposits referred to, amounting together to $510, for which the defendant gave the two following receipts :

“Franklin, June 10th, 1850.

“Received from Mrs. Hester Lees $260, on account of her purchase of the property where she now resides, which is to be sold under an execution, in the suit of the New Orleans Canal and Banking Co. v. E. P. Forrest el al, No. 2045, D. C. parish of St. Mary; but if she does not purchase said property at said sale, then I am to refund to her the above $260, with eight per cent, interest from date. Henry C. Dwight.”

“Received from Mrs. H. Lees $250, which is to be applied towards the payment of $585, which she engaged to pay me for my claim against E. P. Forrest, in the suit of the N. O. Canal and Banking Company v. E. P. Forrest et al., D. C., in case she purchases the property seized in the above suit; and if she does not purchase the property at said Sheriff’s sale, then I bind myself to return the above amount to Mrs. Lees.

“Franklin, February 15th, 1851. Henry C. Dwight.”

The plaintiff instituted this suit for the recovery of both the sums thus deposited, alleging that they were obtained from her by the defendant, who took advantage of her ignorance of her rights; that they were given in error; that the sale of the property under execution never took place, the same having been enjoined at the suit of L>. Capdebosq,. and that said injunction has been made perpetual.

For answer, the defendant pleaded the general denial, admits the signature to the receipts filed, avers that the injunction suit instituted by Capdebosq is still pending, and undecided, and that even if the judgment were final, it could confer no rights upon the plaintiff, being res inter alios acta.

Before entering into anyanaly sis of the testimony, it may be proper to enquire, what were the relations of the parties, as established by the documents sued upon, and admitted to be genuine.

The first receipt establishes a deposit, bearing interest until repaid, with the stipulation on the part of the defendant, that if the plaintiff should purchase, at Sheriff’s sale, the property therein referred to, the amount so deposited should be credited upon the price of the property so purchased. Giving full legal effect to this document, it fixes no obligation upon the plaintiff, except, perhaps, in the event of a purchase, which, it appears from the testimony, did not and could not take place. Whether we regard it as a mere deposit, or as a loan, payable on demand, or as a sum placed under the control of a mandatory, the plaintiff was at any time at liberty to demand the repayment of the money. The same remarks are strictly applicable to the second receipt, unless the insertion, by the defendant, of the words, “ to be applied towards the payment of $586, which she engaged to pay me for my claim against 73. P. Forrest, in the suit of the N. O. Canal and Banking Co. v. E. P. Forrest et al.” may be considered as controverting the other parts of the document and as binding upon the plaintiff. It is evident that Dwight did not sell his claim to the plaintiff, nor did the plaintiff ever intend to buy it. The receipt itself expressly stipulates that the money was to be returned if the plaintiff failed to purchase; and it is clear that the plaintiff was under no obligation to purchase, even if the sale had not been perpetually enjoined by a final decree of the Supreme Court.

The plaintiff merely deposited money in the hands of a judgment creditor of Forrest, with the understanding that if she became the purchaser of certain property seized in execution by the judgment creditor, the money so deposited (or lent) should be applied to the payment of the price. Under such an understanding, the plaintiff was at liberty to reclaim her money at any time, nor was she under any obligation to bid at the sale, had a sale taken place.

As respects the litigation in the injunction suit, we concur with the defendant in the opinion that, so far as the plaintiff is concerned, it was res inter alios acta; the plaintiff was no party thereto, and whatever may have been the merits of the litigation between the parties, the decision of this case cannot be embarrassed by a reference to it.

The only question to be determined, therefore, is whether the defendant is entitled to any offset against the established claim of the plaintiff.

It might be sufficient, in disposing of this question, to state that the answer sets up no such claim, but as reference has been made in the arguments of counsel to the agreement, without date, in which the defendant agrees, for and in consideration of the sum of $580, “not to bid against the plaintiff at the Sheriff’s sale of said property,” it may be proper to add, that such an agreement could confer no rights until such sale should take place, which can never occur, as the sale has been perpetually enjoined.

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


author: Preston, J.

text:
    H. Lockett v. Mrs. Toby.
    Wliere a party to a cause should hme bem ¡present on the trial, the admissibility of the evidence offered against him must be tested by the same rules as though he had bem ¡presmt ; and the admission of such evidence against the absent party as might have been received with his consent if he had been present, is not an error of law, and no relief can be granted merely on an assignment of errors. For the Supreme Court cannot examine objections to evidence, which were not made on the trial, nor questions of the admissibility of testimony, unless regularly presented by a bill of exceptions or other equivalent mode.
    from the District Court of Jefferson, Clarke, J.

      Hunt and Roselius, for plaintiff and appellant.

      Ogden & Leovy, for defendant.
   Preston, J.

The controversy between the parties in this ease is for a square of ground in the city of Lafayette. Mrs. Toby obtained a verdict and judgment, for the property, in the absence of the plaintiff. He applied for a new trial, which was refused, and he has appealed.

He applied for a new trial, on the following grounds :

1.That the cause was tried in his absence, without any fault or neglect on. his behalf.

2.Because the verdict was rendered upon illegal evidence, testimony, documents and papers, which should have been rejected by the court.

3.That, on the legal evidence in the cause, verdict and judgment should have-been rendered for Mr. Lockett, the real plaintiff in the cause; and if not, that there should have been only a nonsuit for his failure to appear and prosecute his claim.

The Third Rule of Practice adopted by the court is in the following words :

“The calendar of issues shall be called on each Friday, at 10 o’clock A. M., of the term. A list of the ordinary civil cases fixed for trial shall be hung up in the court room, which shall be notice to the parties. Jury causes and court causes shall be called at the discretion of the court, regard being had to the number of causes pending on the respective calendars.”

Formerly, it had been the custom of the court to fix jury trials for the first week in the term; but the District Judge says, in refusing the now trial, “ That this custom of the court had been discontinued more than two months preceding the fixing of this cause, and the party must have been informed of it, if present in court on the regular days for the calling of cases.”

Be that as it may, the printed Rules of the eourt left it to the discretion of the court when to call and fix jury cases for trial, and when court cases. In pursuance of the rale and this discretion, the court ordered jary cases to be called on the regular day for fixing cases, for the third week in February, and this case was regularly called and fixed for trial on the 17th day of February, 1850, and due notice thereof given to all parties interested, in pursuance of the rule, by posting up a list of the causes thus fixed for trial in a conspicuous part of the court room.

The defendant was himself an attorney-at-law, well acquainted with this rule, and the more so as the same rule is adopted and practice' pursued in all the courts of the adjoining city of New Orleans. By reasonable care and diligence, he and his counsel might have known the condition of the cause, and been present at the trial. We must adhere to the decision of this eourt in the case of Riley against the City of Louisville. The great and increasing legal business of New Orleans and the adjoining cities could not be transacted without a rigorous adherence-to the printed Rules of Practice, when demanded and insisted upon by parties to suits.

We cannot say that the District Court exercised his discretion illegally in refusing a new trial on the first ground ; and this view of the case disposes of the second ground. For, if the plaintiff should have been present on the trial, the admissibility of the evidence offered against him must be tested by the same rules as though he had been present. Now it has become a principle perfectly settled that this court cannot examine objections to evidence which were not made on the trial, nor the question of the admissibility of testimony, unless regularly presented to us by a bill of exceptions or other legal mode equivalent thereto. We cannot determine whether or not the deposition of McKinney should have been admitted as evidence in the ease, nor, indeed, any of the other evidence on the trial, since none was objected to, and no objections are presented to this court by bills of exception, or otherwise. See Beard v. Pritchard, 9 Rob., 464; West v. His Creditors, 4 An. Rep., 447; Summerville v. Young, 3 An. Rep., 290; Prebel v. Bales, 3 An. Rep., 627; Curtis v. Woodman, 2 An. Rep., 309.

The evidence, which has been spread upon the record without objection, fully supports the verdict and the judgment, and renders it unnecessary for us to investigate the question so much discussed in this case, whether trusts can be created in this State by donation, notwithstanding the Article 1507 of the Civil Code, and whether one who claims under an act can, by parol evidence, give it a different effect from that which is expressed in the act, notwithstanding the Articles 2233 and 2256 of the Code. For if, notwithstanding the conclusive effect which the law seems to give to authentic acts in relation to real property, as to all who claim under them, the parties make no objection to the investigation of their effect by other evidence, it is not for the courts to supply those objections in opposition to the probable truth of the case.

It is urg-ed that there should have been a judgment of nonsuit, and not a final judgment against the plaintiff. There were two suits consolidated, in which the parties were reciprocally plaintiffs and defendants. The plaintiff sued for the land, the defendant to have her possession quieted against his paper title. She was entitled, in consequence of their consolidation, to have a final judgment in the whole case.

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

Note. — This final decision in this cane, on a re-hearing, was rendered in January, 1852, and therefore properly belonged to those records which had been disposed of before the present Reporter came into office. On the suggestion of one of the Judges of the Supreme Court it is now printed. — [Rep.


author: Rost, J. Slidell, J.

text:
    Same Case, on a Re-hearing.
   Rost, J.

We held, in this case, that if Lockett had been present at the trial, he might have waived any legal objection to the evidence offered by Mrs. Toly to establish her title, and that, as he ought to have been present, the admissibility of the evidence offered against him must be tested by the same rules as though he had been present, and we would not supply objections to testimony which he had neglected to make, in opposition to the probable truth of the case.

It is urged that there is error in this ruling, on two grounds:

1st. That even if Lockett had been present at the trial, and had consented to admit that evidence, it was the duty of the Judge ex officio to reject it.

2d. That, if the evidence offered would have been admissible with the consent of Lockett, he was absent, did not actually give, and cannot in law be presumed to have given, that consent.

The 11th Article of the Code lays down the general rule that individuals may renounce what the law has established in their favor, when the renunciation does not effect the rights of others, and is not contrary to the public order or good morals.

It is clear that the rights of third parties could not have been affected by the consent of Lockett to admit the evidence. What is done in this suit is to them res inter alios acta. Babineau v. Cormier, 1 N. S., 459.

It is equally clear that such a consent, so far from being against good morals, would have been, as the result has shown, in furtherance of justice and truth. The only question, then, on this part of the case is, whether the law providing that no parol evidence of verbal sales of real estate shall be admitted, is a law made for the preservation of public order, from which individuals cannot derogate by their conventions ? And here it must be premised that the class of laws considered as affecting public order, is not the same in all countries, but varies in each, according to their institutions, the degree of freedom which they enjoy, and the system of jurisprudence by which they are governed. A comparison between the registry laws of Louisiana and those of our sister States, will illustrate our meaning. With us, those laws are considered as founded on public policy,-and the want of registry cannot be supplied. In the other States they are viewed differently, and notice in any form is held to be equivalent to registry.

Many authorities have been adduced to show that in Prance, whenever the law prohibits the reception of testimonial proof, the prohibition is considered as addressed to the Judge, and that he is bound to reject it, without regard to the consent of parties. This proposition is too general in its terms. It takes for granted that all such prohibitions are founded on motives of public order; and if this should be true, under the laws of Prance, it does not necessarily follow that it is equally true in Louisiana. The French jurists, in applying this rule of interpretation to Art. 1341 of the Napoleon Code, merely followed the previous jurisprudence of the country, under the Ordonnance de Moulins, and the subsequent ordinance of 1615. The same expressions are used in the ordinances and in the Code. Both say: “ II ne sera requ aucune preuve par témoin,” etc. Art. 1715 of the same Code again repeats: “Lapreuve par témoin nepeut étre regue." Prom the identity of the expressions used, it is manifest that the authors of the Code intended to make no change in the law, and as it had heretofore been considered that these prohibitions concerned not only the parties interested, but the public at large, it is now held in Prance to be the duty of the Judge to enforce them, without regard to the waiver of parties.

But how was it with our legislators when they first introduced analogous prohibitions in the Code of 1808 ? Did they intend to make a radical change in the jurisprudence of the country, and to consider as made for the preservation of public order, laws without which public order had been maintained from the foundation of the Spanish monarchy ?

It is well known that under the laws of Spain, which governed Louisiana at the time of the cession, sales of real estate could be proved by parol, and whether or not they were reduced to writing, was a matter for the consideration of the parties, in which the public was supposed to have no interest.

When, in the case of Babineau v. Cormier, the question first arose, under the old Code, whether testimony affecting the title to land which had been given in the District Court without any objection to its introduction, should be disregarded on the ground that it was illegal evidence, the court might, perhaps, by a strict adherence to the letter of the law, have adopted the principle of the law of Prance. But it was more logical to disregard the foreign interpretation, and to expound the law so as to make it harmonize with the settled jurisprudence of the country, as the French jurists had done. It was accordingly held, that parties have a right to acknowledge a parol contract for land, and to consent that their stipulations in regard to it may be proved by oral evidence.

The same principle has been recognized under the new Code, in the case of Strawbrídge v. Warfield, 4 L. R., 22. In that ease, the court says: “ The Judge of the eourt of the first instance considered the verbal sale of the slave was null; but we differ with him on this point. Under the provisions of our ©Id Code, the jurisprudence of this court was well settled, that parties had a right to admit a parol contract for the sale of immovable property; and that if they chose they might, as they did in this instance, admit parol evidence to prove it. The late amendment to the Louisiana Code has not changed the old Code, except in recognizing the validity of a verbal sale, and in establishing by their authority the doctrine that the exclusion of parol testimony in relation to contract s of the description of that before us, is a privilege which the parties may waive.”

We think with our predecessors, that the recognition by the new Code of the validity of verbal sales of real estate, where the possession has passed to the purchaser, is conclusive as to is right to establish it by all such evidence as the vendor does not object to. It is to be observed that no such exception is found in the Code of France.

The jurisprudence of the State on this question is settled by these decisions, which appear to us well considered, and we adhere to them.

The authority from the English Common Law Reports relied on, is only applicable to cases of evidence illegal per se, which we consider the evidence in this ease not to be. Shaw v. Roberts, 2 Starkie’s Cases, p. 455 ; 3 Eng. Com. Rep., 486; 1 Starkie, p. 423, sec. 39.

The cases relied on in support of the second ground, are those of Medley v. Wetzler, 5 An., 217 ; Louisiana State Bank v. Senecal, 9 L. R., 226; Michel v. Dolliole, 1 An., 459.

The first was a judgment by default, in which we held that the District Judge had the right to refuse to act at an ex parte hearing upon testimony, irregularly obtained on commission by the plaintiff; but even in that case, which is the last decided, we reserved the question whether the Judge was bound to refuse such evidence.

The case of Senecal was also one of a judgment by default, in which the former Supreme Court held, that as the defendant had not appeared, no evidence could be legally given of a fact not alleged in the petition. The opinion of Judge Martin in that case is as follows: “The defendant having appealed from the final judgment, he seeks to reverse it in this court, and assigns, as an error apparent on the face of the record, that it is nowhere alleged that notice of protest was given to him.

“The counsel for the bank urges that notice may have been proved on the trial, and before obtaining final judgment. He further c ontends, that no defect of pleading can be assigned as error on the face of the record, which might be cured by legal evidence. This would be correct, if there had been a trial on an issue made up by filing an answer, for then the consent of the party might be inferred from the want of objection being made to the omission or defect. But in the absence of any defence, no evidence can be legally given of a fact not alleged in the petition.”

This opinion draws clearly the line between trials on judgments by default and trials on issues made up by filing an answer. The reason of such distinction is obvious to all who occupy the judgment seat. Judgments by default generally occur in eases of claims for money. In them the defendant has never appeared, and is presumed to have no adviser; but after issue joined, both parties are held in law to be in court, and in almost every instance, the failure of parties, standing in the relation of defendants, to appear at the trial, by counsel or in person, is part of their strategy. If the practice is encouraged, all cases in which the defendant has either no defence at all, or such a defence as honorable and high-minded counsel are unwilling to carry through, will be left to the guardianship of the Judge. His high function of cusios morwm, will cease, and he will become the protector of all fraudulent litigants who dare not face their adversary before the justice of the country.

Such a result must be avoided, and this can only be done by considering as actually present in court at the trial, all parties to the suit who have made themselves parties to the record by pleading. It was so held by our predecessors, in the case of Kohn, Syndic, et als. v. Wagner et als., 1 Rob., 275.

We overlooked the distinction between cases of judgment by default and cases of issue joined, in the case of Michel v. Dolliole. What we said then was, an oilier dictum not necessary to the decision, and having none of the requisites of a precedent. The admission of such evidence as might have been received with the consent of Lockett, if he had been present, is not, under the view we have taken of the case, an error of law, and the plaintiff cannot be relieved against it on an assignment of errors.

We think that there is nothing in the objection that the case was not fixed in the manner required by law, which is not fully answered in the opinion.

The re-hearing is refused.

Slidell, J.

After some hesitation, I yield my own doubts to the opinion of my brethren upon the question of practice involved in this case; but, at the same time, I must say, I think a Judge, before whom a cause is tried, in the absence of one of the litigants, would more safely fulfil his duty by refusing to hear evidence clearly objectionable, particularly in suits involving the title of real property. The presumption in his mind, it would seem, should be that the party or his counsel is unintentionally absent, rather than the reverse. There is much good sense and justice in the maxim of the Roman law : Litigatoris absentia dei presentía repleatur.


text:
    Matthews & Finley v. Their Creditors and the Creditors of Matthews, Finley & Co.
    The clause of Art. 2675 of the Oivil Code, which confers the lessor’s privilege, is absolute and unambiguous ; the words “ movable effects,” “ effets mobiliers,” being too comprehensive to admit of doubt or discussion with reference to their application. The concluding clause of the article appears to be rather illustrative than restrictive in its character; therefore, Held: the assets of a banker, so far as they are susceptible of being pledged, should he subjected to the same right of pledge as the merchandize in a store. Both the merchant and the banker, for the purpose of transacting their respective branches of business, are compelled to occupy a building in which their movable effects are sheltered and protected.
    from the Fifth District Court of New Orleans, Augustin, J.

      Walker & Pierce, for plaintiffs and appellants.

      Durant & Hornor, for Keane. Benjamin, Bradford & Finney, for J. P. Whitney & Co.

   Lea, J.

(Merrick, C. J., took no part in this decision.)

The only question for solution in this ease is, whether the privilege and right of pledge of a lessor extends to all the movable effects of the lessee which are found on the property leased, or is confined in its application to the office furniture of the lessee. The judgment appealed from, recognized the privilege and right of pledge of the lessor upon the notes, bills of exchange, certificates of stock, insurance scrip, etc., found on the leased premises, as forming a part of the movable effects of the lessee.

The appellant contends that the concluding paragraph of Article 2675 of the Civil Code, restrains “ the application of the privilege and right of pledge to the furniture or merchandize contained in the house or apartment, if it be a store or shop.” It must be conceded that the language adopted by the compilers of the Code, in the articles referred to, is open to misconstruction. It is to be observed, however, that the clause which confers the privilege is absolute and unambiguous, the words movable effects,” “ effets mohiliers,” being too comprehensive to admit of doubt or discussion with reference to their application; and that the con-eluding clause appears rather illustrative than restrictive in its character.

If reference is to be had to the general principle upon which the lessor’s privilege and right of pledge is based, we can see no good reason why the assets of a banker, so far as they are susceptible of being pledged, should not he subjected to the same right of pledge as the.merchandize in a store. Both the merchant and the banker, for the purpose of transacting their respective branches of business, are compelled to occupy a building, in whiph their “ movable effects ” are sheltered and protected. This view of the case was adopted by our predecessors, in the case of Bazin v. Segma, 5 An., 718, which, in principle, is identical with the one at bar.

Our attention has been called to an intervention, filed herein by N. B. Keene, claiming to be an acknowledged creditor of the insolvents, who, upon the suggestion that he has taken an appeal' from the judgment homologating the tableau of distribution filed by the Syndic, which, if sustained, would result in the an-nullment of all the proceedings connected with said tableau, asks that the decision of the issue, involved in the opposition of J. P. Whitney & Oo., be reserved until the intervenor’s appeal is determined.

In the absence of a consent to that effect, we do not feel at liberty to consider matters not on the record. The parties to the appeal have a right to have the issues, pending between them, determined solely by a reference to the pleadings and evidence, as they have themselves presented them.

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


author: Spofpord, J.

text:
    Solomon Kohn v. Mayor and Council of the Town of Carrollton.
    The allegation that the plaintiff has been demaged, does not determine the question, whether the action springs ex delicto or ex contractu; for damages result as well from the violation of contracts, cither express or implied, as from the commission of offences and quasi-offences. Nor will the casual and auxiliary averments of illegality, wrong and even violence, conclude the plaintiff as to the character of his action, unless it should appear from a fair examination of his whole petition, that an illegal tort forms the gist of the complaint.
    By the Act of May 1,1S47, p. 161, plaintiff was authorized by the Legislature, with the consent of the town of Carrollton, to make a contract, but within eight months from the passage of the Act. This condition forms a part of his implied contract with the town. He failed to meet it. Held: That the town had a right to resume the occupation of the road.
    from the Third District Court of Jefferson, J. Olarhe, J.

      Samuel B. Walker, for plaintiff and appellant.

      Beecher & Elliott, for defendants.
   Spofpord, J.

The plaintiff has appealed from a judgment of the District Court, dismissing his suit, upon a plea of prescription interposed by the defendants.

The only question decided below or discussed here, seems to be this; does the action spring ex deliaio or ex contractu ?

We cannot concur with the District Judge in considering it as an action in damages for an offence or quasi-offence, and therefore we find the prescription of one year to be inapplicable.

Por the purposes of this inquiry, we must look to the entire petition, and not to any detached expression.

The allegation that the plaintiff has been damaged, does not determine the question, for damages result as well from the violation of contracts, either express or implied, as from the commission of offences and quasi-offences. Nor will the casual and auxiliary averments of illegality, wrong, and even violence, conclude the plaintiff as to the character of his action, unless it should appear, from a fair examination of his whole petition, that an alleg'ed tort forms the gist of the complaint.

So far is that from being the case, that we find the demand to be really founded upon an account for moneys laid out and expended for the benefit of the defendants under a contract, or at least a quasi-contract, the complete ful-filment of which, on his part, they are alleged to have wrongfully prevented.

The plaintiff, in brief, complains that the Legislature of Louisiana, with the assent of the town of Carrollton, authorized him to make a turnpike or shell-road of Canal Avenue, with the privilege of taking certain tolls, until his expenses should he reimbursed, when the road was to be surrendered to the town ; that the said town of Carrollton, through its constituted authorities, for a time acquiesced in and approved his work, till he had expended the sum of $3,979 64, when they illegally took possession of the road before its completion — refused to allow him to finish it, so as to reimburse himself, and appropriated to their own use the results of his labor. Wherefore he prays'judgment for the amount so expended.

A plainer case of liability ex contractu could scarcely he stated.

In his commentary on the Napoleon Code, Marcadé has developed the distinction between damages ex delicto, and damages ex contractu, with his usual brevity and felicity. The former flow from the violation of a general duty, the latter from the breach of a special obligation. Commenting upon Article 1382 of the French Code, (O. C. 2294,) Marcadé, says: “Remarquons bien que c’est de la violation d’un devoir proprement dit qu’il s’agit, d’un de ces devoirs généraux existant au profit de toutes personnes, et non pas de la violation du devoir existant spécialement de telle personne déterminée á telle autre personne déterminée, et qui constitue 1'obligation,” etc ; “Le Codene s’occupe plus ici, sous le nom de délits et quasi-délits, que des violations de devoirs généraux.”

But tho judgment appealed from, although based upon an erroneous ground in the first instance, is correct for other reasons.

In the first place, the plaintiff has not proved his accounts by evidence sufficient to authorize a judgment in his favor.

Again: he seems to have forfeited all right to claim indemnity, upon his present petition, under the Act of May 1st, 1847, by his failure to comply with the conditions imposed upon him by that Act. His privileges were made to depend upon his carrying the work on to its termination, within eight months from the passage of the Act. (Session Acts, p. 161.) This condition formed a part of his implied contract with the town. Having failed to meet it, the town had a right to resume the occupation of the road.

The allegations in the plaintiff’s petition, that the term really given him was eighteen months, and was misprinted in the law as promulgated, are unsupported by any evidence in the record.

Nor does the Act of March 16th, 1848, (Session Acts, p. 61,) improve his case.

- Aside from other objections, it is manifest that the latter Act, purporting to amend the former, is in violation of the Article 119 of the Constitution of 1846, and is therefore void. The sections ostensibly amended, were not reenacted and published at length.

It is therefore ordered, that the judgment appealed from, be affirmed, with costs, without prejudice to a future action.


author: Spokfokd, J.

text:
    E. J. Hart et al. v. E. Cannon.
    A person against whom judgment lias been rendered, cannot enjoin it, for the purpose of pleading compensation by way of exception, unless he acquired the claims he wishes to plead, after the judgment against him was rendered.

      k PPEAL from the Fifth District Court of New Orleans, Buchanan, J.
    -il Ogden & Leomj, for plaintiffs and appellants.

      Sunt and Bright, for 'defendant.
   Spokfokd, J.

Elijah Oannon obtained a judgment against E. J. Hart, for $1,000, with interest and costs. 1'he case stood on default for nearly two years, and no answer was ever filed.

When execution issued, the firm of E. J. Hart & Go. brought this suit, praying an injunction against the execution, on the ground that the former judgment, though nominally against Hart alone, was really for a debt due by Hart & Go., the firm of which he was a member; and that Cannon was indebted to that firm, anterior to his suit against Hart, in divers sums which they now' pray leave to compensate against the said judgment, to the extent of $698 61, for which they also pray judgment.

These proceedings are extremely irregular.

The debt against E. J. Hart, was merged in a judgment, and cannot, without subverting elementary principles, be compensated by the unliquidated accounts of E. J. Hart & Go, against Gannon. C. C. 2206. Phelps v. Stone, 3 An. 617, &c.

The latter adjudications are also clear, that a person against whom judg-. ment has gone, cannot enjoin for the purpose of pleading compensation by way of exception, unless he acquired the claims he wishes to plead after the judg-ment against him was rendered. De Lizardi v. Hathaway, 8 R. 22. Morgan. v. Briggs, 3 An. 124, &c. C. P. 373.

The injunction should have been wholly dissolved, and the appellee's prayer^ for an amendment, must be allowed.

But as there is a prayer for judgment against Gannon for the sum. claimed; by E. J. Hart & Go., it is proper to allow that relief so far as it is.sanctioned, by the evidence.

We concur with the District Judge’s opinion, that only the sums of $116.90,. for insurance, and $140 69, for groceries, have been established.

It is therefore ordered and decreed, that the judgment of the District Court; be reversed. It is further ordered, adjudged and decreed, tha¡t the injunction. 'Sued out by the plaintiffs against the execution issued on the judgment of E. Cannon v. E. J. Hart & Co., be wholly dissolved, at the plaintiffs’ costs ; and that said Oamnon recover of the plaintiffs, E. J. Hart & Oo. and their surety, <7. L. Levy, in solido, the sum of one hundred and fifty dollars as damages. And it is further ordered, adjudged and decreed, that the plaintiffs recover of E. Oannon,- the sum of two hundred and fifty-seven dollars and fifty-nine cents, with legal interest from judicial demand, (7th December, 1852,) until paid, and all the costs in the District Court, except those growing out of the injunction. It is further ordered, that the costs in this court, be paid by the plaintiffs and appellants.


author: Vooriiies, J.

text:
    J. Fisk v. J. Callaghan.
    "When it does not appear that any ground existed on which the appellant could base any reasonable hope for the reversal of the judgment, damages for a frivolous appeal will be allowed.
    from the Sixth District Court of New Orleans, Cotton, J.

      Cotton & Dorsey, for plaintiff.

      Frarilo Haynes, for defendant and appellant.
   Vooriiies, J.

This is a suit on two promissory notes. The defence rests on the ground that the consideration has failed. The defendant alleges that they were given by him to the plaintiff as the price of two mules, which were warranted by the latter to be sound aud free from any disease; that said mules turned out to be worthless in consequence of diseases, one of them having died shortly after the sale. He therefore, prays that said notes be declared null and void, and returned to him.

The defendant has appealed from a judgment rendered against him by the court below in favor of the plaintiff:

In this court, no argument has been presented on the part of the appellant. After a careful examination of the evidence, we have been unable to discover any error in the judgment to his prejudice. It is true the evidence shows that a mule purchased by him from the plaintiff died shortly thereafter, but it does not appear that the disease of which it died, existed at or previous to the time of the sale. In regard to the other mule, no evidence appears to have been offered on the trial below, nor is there any evidence showing that the notes sued upon, constituted the price of the alledged sale.

The appellee in his answer prays that the judgment may be affirmed with damages, on the ground that the appeal is frivolous. We are of opinion that the prayer should be allowed, as it does not appear to us that any ground existed on which the appellant could base any reasonable hope for a reversal of the judgment.

It is, therefore, ordered and decreed, that the judgment of the Court below be affirmed with costs ; and it is further decreed that the plaintiff recover of the defendant the sum of forty dollars as damages.


author: Spofford, J.

text:
    Alexis Richard v. C. G. Ouviere, Administrator.
    Plaintiff claimed the benefit of a mortgige granted by Bertra/nd Combem favor ot Pierre Pehinmes in 1849. It was a mere simulation, intended to protect the property from seizure. Pelaunes gave no value for the note secured by the mortgage, and never claimed any rights under it. Ife held it simply as the trustee of Combe. Plaintiff was aware of this, and at the same time became the simulated holder of the property of Combe, which had been previously conveyed to Pelaunes, to avoid the pursuit of creditors. Plaintiff’s answers to interrogatories propounded to him, established indeed an indebtedness to him on the part of Combe’s succession, in a sum equal to that called for by the note, but the same answers in connection with other evidence received without objection, established also that it is an ordinary indebtedness, not legally identified with the note and mortgage given to Pelav/nes. Held: That the fact that plaintiff with full knowledge of these facts, paid to Combey in 1851, the amount of the note executed by the latter in favor of Pelawies, in 1849, cannot give vitality to a mortgage which never had a real existence.
    The appearance of an attorney of absent heirs, in the cause, does not destroy the right of Ihe administrator to oppose the allowance of an unfounded privilege.
    from the Second District Court of New Orleans, Lea, J.

      F. Filleul, for plaintiff and appellant.

      O. Dufour, for defendant.
   Spofford, J.

The only question in this cause is, whether the plaintiff, j.ilezis Richard, has a mortgage on the slave, Fanny, belonging to the succession of Bertrand Gombe.

It is clearly established that the mortgage of which the plaintiff claims the benefit, was executed in 1849, in favor of Pierre Pelaunes, and was a mere simulation intended to protect the property from seizure.

Pelaunes gave no value for the note secured by this mortgage, and never claimed any right under it. He held it simply as the trustee of Gombe.

Were the plaintiff an assignee of Pelaunes without notice of the facts, his position would be very different.

But he cannot assume that position. His answers to the interrogatories propounded to him, establish indeed, an indebtedness to him on the part of Combe’s succession, in a sum equal to that called for by the note, but the same answers in connection with other evidence received without objection, establish also that it is an ordinary indebtedness not legally identified with the note an d mortgage given to Pelaunes.

Pelaunes handed the note to him because it was waste paper in his hands, for which he had given and could receive no value. Riehard was aware of this, and, at the same time, became the simulated holder of other property of Gombe, which had been previously conveyed to Pelaunes, to avoid the pursuit of creditors.

The fact that Richard, with full knowledge of these facts, paid to Oornbe, in 1854, the amount of the note executed by the latter, in favor of Pelaunes, in 1849, cannot give validity to a mortgage which never had a real existence.

The administrator represents the creditors of the deceased, and it is proper that he should oppose the allowance of an unfounded privilege. The appearance of the attorney of absent heirs in the cause, does not destroy the right of the administrator to set up this defence. If the succession is solvent, it is not important to the plaintiff to have a mortgage allowed; if it is insolvent, it is important to other creditors to resist the allowance.

The judgment is, therefore, affirmed with costs.


text:
    City of New Orleans v. Pamela de la Cuesta
    Plaintiff obtained an injunction restraining the execution of a judgment rendered against her in fayor of the City of New Orleans, for $99 84 with interests and costs, on the ground, as she alleged, that she was not duly cited and that the judgment is therefore null, and on the further ground that the ordinance and law sued upon, are unconstitutional and illegal.. Held: That it is evident, that except so far as the constitutional question might be involved, the judgment is not within the revisional control of this court, the amount in dispute being under $800, and that the constitutional question cannot be properly presented, except by appeal from the judgment, the execution of which is enjoined.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Ldbatt and Rustís, for plaintiff.

      T. W. Gollens and 3. Train, for defendant and appellant.
   Lea, J.

In this case, the plaintiff in the injunction alleges that her property has been seized in execution issued upon a judgment rendered against her in favor of the City of New Orleans, for the sum of $99 34, with interest and costs. She has obtained an injunction restraining the execution of the writ, on the ground, as she alleges, that she was not duly cited and that the judgment is therefore null, and on the further ground, that the ordinance and law sued upon, are unconstitutional and illegal. From a judgment dissolving the injunction, she has appealed. It is evident, that, except so far as a constitutional question might be involved, the judgment is not within the revisional control of this court, the amount in dispute being under $300, and we are of opinion that the constitutional question cannot be properly presented, except by appeal from the judgment, the execution of which is enjoined.

It is ordered, that the appeal be dismissed, with costs.


author: Merrick, O. J.

text:
    S. A. Harper v. J. H. Devene.
    X. A. Searle, clerk of the house of X. X. ScJimidt & Co., of which defendant was a member, drew the note sued on, as agent for the house, and signed ifcX. X. Sdhnvi&t <& Co., p. pro. X. A. SeaHe. When the note was first shown to the defendant, a few days after it was made, he said that it was all right and he would have it to pay. He also took the note and corrected its date. Held : That this was a ratification of the making of the note and an acknowledgment of the liability of defen -
    from the Fourth District Court of New Orleans, Reynolds, J.

      James McConnell, for plaintiff.

      IT. 3. Taylor, for defendant and appellant.
   Merrick, O. J.

(Lea, J., recused himself.)

We think the testimony fully sustains the judgment of the lower court. The defendant is, as he informs us in his answer, a member of the house of E. F. Schmidt & Co., and E. A. Searle was a clerk in that house. The note sued on purports to have been drawn by Searle, as agent for the house; it is signed E. F. Schmidt & Go., p. pro. E. A. Searle. When the note was first shown to defendant, a few days after it was made, he said that it was all right, and he would have it to pay. He also took the note and corrected its date. We look upon this as a ratification of the making of the note and an acknowledgment of the liability of the defendant.

It is further shown, that the defendant had also acknowledged his liability for the whole rent, for which the note given was a part, and that the sale of the furniture of Searle was made with the express understanding that the proceeds were to be applied to the other portions of the rent for which defendant was responsible.

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


author: Ogden. J.

text:
    P. A. Lambert v. Bernard de Santos.
    Article 771 of the Oode of Practice provides, that the Deputy Sheriff may represent the Sheriff in all the duties confided by law to the latter. The administration of the oath to the appraiser of property is one of the duties of the Sheriff. Acts of 1847, p. 55.
    The evidence showed that the defendant was present at the sale, and although he had made a verbal request of the Sheriff to sell the lots separately, he had not taken the precaution to require a separate appraisement. lie stood by silently while the property was being sold in block, without making any objections to that mode of sale. Meld: That he cannot be permitted now to set up that objection to the title acquired by the purchaser.
    Defendant was apprised of all the proceedings, and made no objection, on the ground that the appraisers did not examine the property, until after the property was sold. Meld : that the objection comes now too late.
    from the Fourth District Court of New Orleans, Reynolds J.

      Rudd & Lambert, for plaintiff.

      G. S. O. B. Schmidt, for defendant and appellant.

      L. Oharvet & 0. Drouet, for P. A. Lanauze.

   Ogden. J.

P. A. Lanauze, the purchaser of the mortgage property, which was sold under a writ of seizure and"sale, issued in this suit, sued out a monition to perfect his title.

The defendant opposed the homologation of the sale, on the allegation of informalities thereof, which are urged in argument by the appellant’s counsel in this court. The first is an objection to the advertisement and description of the property, which it is alleged contains errors to the prejudice of the defendant. The description appears to us to be sufficiently certain as to the object which was to be sold, to prevent any one from being misled, and it corresponds with the act of mortgage and the writ of seizure and sale.

. The second and third objections relate to the appraisement of the property: it is contended that the appraisement was illegal, because the appraisers were not properly sworn, the oath having been administered by the Deputy Sheriff; that as the property consisted of two distinct lots of ground, there should have been a separate appraisement of each lot; that the appraisers neglected to examine the property before estimating it, and that the Sheriff', although requested, refused to sell the lots separately.

As to the oath being administered to the appraisers by the Deputy Sheriff instead of the Sheriff, there is no weight to be attached to the objection. Act 771 of the-Code of Practice, provides, that the Deputjr Sheriff may represent the Sheriff in all the duties confided by law to the latter, and this is one of the duties of the Sheriff. Acts of the Legislature, 1847, p. 55.

The evidence shows, that the defendant was present at the sale, and although he had made a verbal request of the Sheriff to sell the lots separately, he had not taken the precaution to require a separate appraisement, and having stood by silently while the property was being sold in block, without making any objections to that mode of sale, he cannot be permitted now to set up that objection to the title acquired by the purchaser. The objection that the appraisers did not examine the property comes also too late, when it is considered that the defendant was apprised of all the proceedings, and made no objection on that ground until after the property was sold.

The irregularities complained of are not such under the circumstances, as ought, in our opinion, to invalidate the sale.

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

This opinion, prepared by Judge Ogden, is adopted as the unanimous opinion of the court.


text:
    R. W. Rayne v. D. Taylor & Co.
    The property of a non-resident debtor is not exempt from seizure, on attachment, from the circumstance, that he has a commercial domicil in New Orleans.
    from the Fourth District Court of New Orleans, Reynolds, J.

      Race & Foster, and Wolfe & Singleton, for plaintiff and appellant.

      Durant & Homer, for defendant.
   Lea, J.

This suit was commenced by attachment of the property of David Taylor, a resident of the State of Massachusetts, who for several years past has been doing commercial business in this city, under the name and style of David Taylor <& Go.

On a rule taken upon the plaintiff, to show cause why the writ of attachment should not be set aside, the defendant urged the following grounds: 1st. “ That the defendant has for many years past and still has a commercial domi-cil in New Orleans, at which either he or a regularly authorized agent and attorney in fact could be found, with full power to appear and answer herein, all which is well known to plaintiff, who was formally the motioner’s partner, and is still a clerk in his establishment. 2d. Because the security on the attachment bond has not the legal requisites laid down in the Louisiana Code. Art 3011.”

This last ground having been abandoned in the argument of counsel, our enquiry is confined to the solution of the question, whether the fact, that a non-resident debtor has a commercial domicil in this State, exempts his propert y from seizure on attachment. The law has made no distinction between the different classes of non-resident creditors, and we are 'unable to perceive upon what principle of reason or policy the defendant in this case can claim an exemption from the ordinary operation of our attachment laws.

There is nothing in the relations of the parties which precludes the plaintiff from asserting the rights given to ordinary attaching creditors. He was an ordinary employee of the defendant, and there is nothing in the evidence which shows that in causing the property of the defendant to be attached to secure a debt, which for the purposes of the rule, must be assumed to be due, he violated any obligation incident to a fiduciary relation. The principles recognized in the case of Monroe v. Erosh et ala2 Ann,, so far as they are applicable to the case at bar, sustains the plaintiff’s position. In that case the property attached belonged to a mercantile firm, of which one of the partners was a resident of this State, and the attachment was set aside on the ground that property belonging in part to a resident partner, could not be seized in attachment, for a partnership debt. In the case at bar the property attached, belongs exclusively to a non-resident debtor.

It is ordered that the judgment appealed from be reversed; that the rule taken to set aside the attachment be dismissed, the defendant, Taylor, paying the costs incident thereto, and it is further ordered, that the costs of the appeal be paid by the appellee.


text:
    City of New Orleans v. Etienne Cordeviolle.
    Plaintiff cited the defendant, “Mieivae Cordeviolle^ a defaulting tax-payer, according to the Act of April, 1858, p. 86, by public advertisement, under the name, “32. CordoviaM.” A judgment by fault was confirmed against him, and notice of the same was served on him in his true name. Held: that no reasonable pronunciation can make the word published, “CordoviaM" sound like Cordeviolle, that the name advertised is not the name of defendant, and that the error is fatal.
    from the Sixth District Court of New Orleans, Ootton, J.

      Eiestand & Levy, for plaintiff.

      Gollens, for defendant and appellant.
   Merrick, O. J.

The defendant appeals from a judgment condemning him to pay $2717 85 taxes, levied by the city ordinance upon his real estate.

The suit is instituted under the summary proceedings, authorized by the Act of the legislature, approved April 15, 1853. Acts Session 1853, p. 86.

The defendant has assigned for error that, notwithstanding this suit is instituted against him, and notice of judgment was served on him, in his true name, Etienne Gordemolle, yet the publication in the newspaper, which stands in the place of a citation, and is the foundation of the suit, nowhere names the defendant, the nearest approach to it being the name of E. Cordoviatli.

We think the error assigned is fatal. The statute requires that the advertisement shall contain the names of all the defaulting tax-payers, and the amount claimed from each. It is clear that no reasonable pronunciation can make the word published, “ Gordoviatti,” sound like Oordeviolle. The name advertised is not the name of the defendant. It is hardly necessary to observe, that a case of this kind differs somewhat from a suit commenced by citation, where the personal service of the citation would demonstrate who was intended to be made defendant.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed, and that there be judgment in favor of the defendant as in case of a non-suit, and that the plaintiff pay the costs in both courts.


author: SpoifEOBD, J.

text:
    Overend, Gurney & Co. v. Robinson & Olroyd et al.
    s. was allowed the privilege of lessor for the sura of $2800 14, that being the sum. demanded in her petition. The lease annexed to and made part of the petition showed that $3850 14 were due her* The funds were not yet distributed, and there was a general prayer for relief. Held : That it would seem, under the precedents cited, 15 L. 116, 5 A. 666, that the judgment should be reformed in her favor.
    Legal interests are allowed upon the monthly installments for rent past due, and a discount at the rate of five per cent, only on the installments payable in future, according to the terms of the lease.
    .The District Judge afterwards allowed opponent a privilege upon the proceeds of the sale of the unexpired term of the lease. Held: That the sum thus realized must be credited upon the judgment.
    "Where the sale between the parties was, in New York, executory merely, with the intention that it should be consummated in New Orleans, and it was so consummated, the contract must be considered as completed in New Orleans, and the vendor’s privilege may be exercised according to the laws of Louisiana.
    from the Fifth District Court of New Orleans, Augustin, J.

      I. Pierce, for plaintiffs.

      Olarlce & Bayne, for Siebricht, appellant.

      G. Be Ghoiseul, for Ida A. Sloaonib, appellant.
   SpoifEOBD, J.

These appeals, which have been tried together, grow out of a conflict of privileges, assisted by various creditors of Robinson & OVroyd, upon a particular fund, the proceeds of the sale of a stock of goods, which is insufficient to pay them all.

We proceed to notice the points presented for our adjudication in their order:

I. Miss Ida Slocomb was allowed the privilege of lessor for the sum of $2800 14, that being the sum demanded in her petition, in intervention. She has appealed from the original judgment, and alleges that the court should have awarded her the sum of $3850 14, as it appeared- from the lease annexed to and made part of her petition, that the latter sum was due her. The ap-pellees contend that,as she had obtained a judgment for the specific sum prayed for, a greater sum cannot now be allowed her to their prejudice. The fund not having yet been distributed, the error of her counsel being one of calculation, amendable by reference to the document annexed as part of the petition, and there being a prayer for general relief, it would seem, under the precedents cited, that the judgment should be reformed in her favor. 15 L. R. 116., 5 An. 666. We think, also, that legal interest should be allowed upon the monthly installments that are past due, and a discount at the rate of five per cent, only, on the installments payable in futuro, according to the terms of the lease. But it appeal’s that the District Judge afterwards allowed her % privilege upon the proceeds of the sale of the unexpired term of the lease. The sum thus realized must be credited upon the judgment.

II. The vendor’s privilege was awarded to Houghwont for the sum of $2151 35. Some of the appellants contend that this was erroneous, because the goods on the proceeds of which a privilege is claimed, were sold in New York, so that the vendor’s privilege formed no part of the contract. The cases of White v. Stoddee, 8 M. 133; Copley v. Stanford, 2 An. 336; and Colt v. O'Calahan, 2 An. 984, are cited by the appellants as conclusive on this branch of the case. We concur in the doctrine established in those cases, but it does not decide the present controversy. There the contract was executed and complete in the foreign State, whose laws did not recognize the privilege of the vendor. But here it seems that there was only an executory contract made in New York. The goods which have been identified were not shipped by EougJiioout from New York to Robinson & Olroyd, under an absolute contract of sale. They were shipped to an agent of the consignee, in New Orleans, with special instructions not to deliver them to RoMnson & Olroyd, until the latter should have complied with certain specified conditions about furnishing security. The sale was therefore completed and delivery made in Louisiana, and by the law of Louisiana the vendor’s privilege attached. There is no error then in this part of the judgment.

III. The same remarks will apply to the claim of Patton & Oo., for $897 15, which is also opposed on similar grounds.

IV. Burnside & Go. were recognized to be privileged creditors for the sum of $448 89, as lessors. This allowance is opposed upon the ground that the claimants were not strictly lessors, but were merely vendors of certain fixtures and the unexpired term of a lease held by themselves, which they sold in a lump to RoMnson & Olroyd for an endorsed note, which they took in absolute payment.

The evidence, in our view, fails to sustain the apppellants in their opposition to this claim. The indebtedness for the rent does not seem to have been absolutely discharged by the endorsed note. That note was afterwards returned, and other notes taken from the lessees, the consideration of which was the rent, and the fixtures. It is admitted that these notes are unpaid. The amount allowed by the District Judge appears, under the evidence, to be less than the proportionate value of the rent as compared with the fixtures. A clearer case of novation should have been made out to destroy the lessor’s privilege.

V. Finally, the appellant,Mertens, contends that a privilege was erroneously given to Levi Eubbell, from the 24th of February,-1855,-the date of the seizure under a fi. fa. issued upon his judgment against RoMnson & Olroyd, because the latter by certain waivers had expedited the prosecution of his claim with the view of giving him a preference when it was improper for them to do so. The only waiver was, of a right to appeal after judgment had gone against them upon evidence which would have rendered an appeal frivolous. It is not proved that there was any collusion to prejudice this appellant. He might have procured the same waiver himself,, for ought that appears to the contrary.

It is, therefore, ordered, that the judgment appealed from, regulating the distribution of the proceeds of the sale in the suit of Overend, Gurney & Co. v. Robinson & Olroyd be so amended as- to recognize Miss Ida Sloeomb as a creditor of RoMnson & Olroyd, with the first privilege as lessor upon the fund in question, for the sum of $3850 14,- according to the lease, of which a copy is of record annexed to her petition,- and' that she be allowed legal interest upon the several installments due from their maturity f and that a discount at the rate of five per cent, per annum be made upon the installments not yet due under the terms of the said lease; this judgment, however, to be credited by whatever amount may be realized by Miss Sloeomb from the sale of the lease.

It is further ordered, adjudged and decreed, that the said judgment in all other respects be affirmed, and that the costs of appeal be paid, one-half by the appellees, who have been cited to answer the appeal of Miss Sloeomb, and one-half by the appellants, SiebrieJit and Mertens.


author: Vooruies, J.

text:
    City of New Orleans v. Samuel Locke.
    On the trial below, after the evidence had been closed, and the plaintiff’s counsel had opened his cause, and during the argument of defendant’s counsel, the Judge, a quo, permitted the correction of a clerical error to be made in the certificate of the ordinance introduced in evidence by the plaintiff. Held: That it was a matter which peculiarly pertained to his discretion, in the exercise of which it does not appear that any principle of law has been violated.
    In creating the office of Recorder, the framers of the Constitution evidently intended to place it oo the same footing as that of the other Justices of the Peace in the State, so far as i o make them a component part of our judiciary department.
    PPEAL from the Fifth District Court of New Orleans, Augustin J.
    xL Labatt and Eustis, for plaintiff.

      J. A. Breaux, for defendant and appellant.
   Vooruies, J.

(Merrick, C. J, took no part in the decision of this case.)

This is an action for the recovery of municipal taxes alleged to be due by the defendant, who is appellant from a judgment rendered thereon against him.

The action is resisted on various grounds. It is objected by the appellant that none of the formalities prescribed by the Act of the 20th of March, 1850, under which the taxes in question are alleged to have been assessed, has ever been fulfilled. The assessment on the contrary, appears to have been made under the provisions of an Act entitled, “An Act to consolidate the city of New Orleans, and provide for the government and administration of its affairs,” approved the 23d of February, 1852, the 35th section of which forms the basis of the present action. The same question presented here by the appellant’s counsel, also arose in the case of the city against Solomon, lately decided by us, in which we held, after mature consideration, that the provisions of the Act of I860, in relation to the manner of preparing and publishing the budget of the receipts and expenditures of the city, and establishing the formalities precedent to taxation, were irreeoncileabie with those of the Act of consolidation and consequently repealed on that subject. See Ante p.

The record presents several bills of exception taken by the appellant’s counsel.

On the trial below, after the evidence had been closed, and the plaintiff’s counsel had opened his cause, and during the argument of the defendant’s counsel, the Judge, a quo, permitted the correction of a clerical error to be made in the certificate of the ordinance introduced in evidence by the plaintiff. We do not think the Judge erred; it was a matter which peculiarly pertained to his discretion, in the exercise of which it does not appear that any principle of law has been violated.

In the case of Toulman v. Elliott, 15 L. R. 229, Judge Martin, as the organ of the court, said : “ It is true the Code of Practice, Article 484, says, ‘ after all incidental questions are decided, and both parties produced their evidence, ¡the argument commences, and no witness or proof can be introduced withoutthe consent of all parties.’ The object of this is clearly to induce parties to present at once all their evidence, by depriving them of the means of eking it out ,by interrupting the argument for the introduction of the same or other wit-aiesses, or of documents.”

In the case of Richardson v. Debuys & Longer, 4 N. S. 127, we held that the Judge, a quo, correctly overruled the opposition of the defendant to the admission of a witness offered by the plaintiff,’after the parties had closed their evidence, and the arguments had commenced; being of opinion it is within the discretion of the court to permit a witness to be sworn, even at that period of the trial.”

The objection to the introduction of the testimony of witnesses to prove the correctness of the tax bills, authenticated by the signatures of the Comptroller and Treasurer of the city, appears to us immaterial, inasmuch as the assessment rolls from which they were extracted were also in evidence.

The objection to the introduction of the assessment roll of the Fourth Representative District, on the alleged ground that it was not made and published in accordance with law, goes more properly to its effect than to its admissibility.

The defendant also excepted to the introduction of the tax rolls, on the ground that the same did not appear to have been sworn to or certified by affidavit before any Justice of the Peace, as required by the sections 27 and 28th of the Act of the 21st of March, 1850.

It is urged by the appellant that the Recorder was incompetent to administer the oath to the assessors required by this Act, as he is not a Justice of the Peace in the general sense of the term, but merely ex officio such, for certain specified purposes.

In creating the office, we think the framers of the Constitution evidently intended to place it on the same footing as that of the other Justices of the Peace in the State, so far as to make them a component part of our judiciary department. The Article 124 provides, that “ the Mayor, Recorders, Aldermen, and Assistant Aldermen, shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences,, and as the police and good order of said city may require.” The language of this Article appears to be too clear to us to admit of any such construction as that com. tended for by the appellant. See also Art. 61.

We do not think the Judge, a quo, erred in overruling the defendant’s objec-. tion to the introduction of the testimony of Recorder Ramos, and F'ellerin, one of the assessors, for the purpose of showing that the assessment roll of 185.8,. of the Fourth Representative District, was duly sworn to hefore Mi\ Ramos> as-. Recorder, whose signature was omitted, and permitting the signature of saidi Ramos to be affixed thereto, nunc fro tunc.

The assessment roll of the Fifth Representative District for the year 1853: being exhibited to Pellerin, he testifies that it was sworn to by him before Mr.. Ramos, as Recorder, who, he supposes, forgot to affix his signature thereto that three copies of each roll, one for the State, one for the city, and one for the. State tax collector, were signed and sworn to by him, by taking only one. oath.

After a careful perusal of the evidence on the merits, it does not appear to us, that there is any error in the judgment of the court below.

It is, therefore, ordered and' decreed,, that said judgment be affirmed: with, costs.


author: Voorhies, J.

text:
    City of New Orleans v. Cordeviolle & Lacroix.
    The principle of this case was settled by the judgment in the case of City of New Orleans v. J. 0. De St. Homes, 9 An., 573.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    Ü Labalt & Euslis, for plaintiff.

      Collens and Train, for defendants and appellants.
   Voorhies, J.

The plaintiff having obtained a judgment against the defendants for the recovery of city, railroad and consolidated loan taxes, the latter sued out an injunction arresting its execution, on the ground that said judgment was rendered ex parle against them, no citation having ever been legally issued and served upon them; and that they never had any notice of said suit, although they had a good and valid defence to oppose to the plaintiff’s demand.

The judgment complained of, appears to have been rendered in accordance with the provisions of the Act of the 23d of February, 1852, consolidating the Municipalities of the city of New Orleans.

There was a judgment in the court below, dissolving the inj unction, with damages, and the defendants appealed.

In this court, it does not appear that the appellants have filed any brief or points on which they rely, for the reversal of the judgment. Having carefully examined the pleadings and evidence, we are not prepared to say that there is any error in the judgment appealed from. The only questions of law involved in this case appear to have been already settled in the case of the City of New Orleans v. J. C. De St. Romes, 9 An., 573.

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


text:
    Thomas C. Malone v. His Creditors.
    Under Article 2156, § 2, of the Civil Code, both the loan and the receipt must be established by notarial act, in order to create in favor of the lender the subrogation granted by that article.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.
    -tL Jacob Barker, Price & Denegre, L. F. Ardrey, Larue & Whitaker, Cotton & Dorsey, John Henderson, jr., P. O'Neal, T. W. Collens and F. H. Clack, for appellees.
   Voorhies, J.

Thomas IJ. Earlier is appellant from a judgment dismissing his opposition to the homologation of the tableau of distribution presented by the Syndic in this case. He claims to be a mortgage creditor for the sum of $1000, with interest thereon at the rate of eight per cent, per annum, fro,m the 13th of December, 1853, until paid.

The origin of his claim is as follows: On the 10th of December, 1850, Thos. C. Malone, the insolvent, executed a mortgage in favor of Lewis F. Generes on a certain lot of ground and improvements, situated in the city of New Orleans, to secure the payment of three promissory notes, for the sum of $1000 each, drawn to his own order and endorsed hy himself, dated on the day of the execution of the mortgage, and payable twelve months after date. The aet contains various stipulations, among others the pact de non alienando, that the holders of the notes should have the right to effect insurance on the property in case the mortgagor neglected to do so, etc. The prolongation of the term of one of the notes, the one which forms the basis of the appellant’s demand, appears to have been granted until the 18th December, 1852.

Shortly after the execution of this mortgage, Thomas C. Malone conveyed this, and other property, to his wife, Mary Houghran, as a dalion en paiemmt of her dotal and extra-dotal rights, on her assuming the payment of the mortgage notes. On the 0th of March, 1862, she sold the mortgaged property to Robert Allen, who also assumed the payment of said notes, executing besides, as part of the price, his three promissory notes, each for the sum of $1775, drawn to his own order, and by him endorsed, and payable in one, two and three years respectively from date. Jacob Barker, as transferee of the notes, having obtained an order of seizure and sale against Robert Allen, the Syndic of the creditors of the insolvent sued out an injunction arresting the sale, on the ground that the conveyance from the insolvent to his wife was simulated and fraudulent, and consequently vested no legal title to the property in any person claiming under her.

It appears to be conceded that this property, on the proceeds of which the appellant asserts his privilege, was sold as part of the assets of the insolvent. On the 18th December, 1852, Thomas C. Malone executed a receipt in presence of a notary and two witnesses, whereby he acknowledged the payment made on that day by Jacob Barker of the Generes’ notes, amounting to $3000. On the same day he executed a notarial act, subrogating Barker to ail the rights of the State Bank of Louisiana, as holder of said notes. After declaring that said notes were due on that day, and that Robert Allen, who had assumed their payment, was absent from the city, without having provided the means for that purpose, and that the maker was unable himself to pay them, the act recites:

“ Now, therefore, the said Jacob Barker hereby lends the said Thomas Conolly Malone for the period of twelve months from the date hereof, the sum of three thousand dollars for the purpose of paying said notes, which sum was paid in the presence of the said Malone, and at his request, and also in presence of the undersigned notary, and of Hugh Madden and William V. Phelps, witnesses, to the said State Bank of Louisiana, in payment of said three notes, of one thousand dollars each, which said notes were -then taken up and delivered to the said Jacob Barker.”

The note in question is identified with this act by the usual words “ ne varie-tur,” written by the notary across its face, and bears only the blank endorsements of the maker and Bmy. Bacas; and the only evidence which shows the payment to the bank, as holder thereof, is the recital contained in this act.

The Civil Code, Article2156, §2, provides: “To make this subrogation valid, it is necessary that the act of borrowing, and the receipt, be executed in presence of a notary and two witnesses; that in the act of borrowing, it be declared that the sum was borrowed to make the payment, and that in the receipt it be declared that the payment has been made with the monies furnished for that purpose by the new creditor,” etc.

Under this Article, it is urged by the appellant, that both the act of borrowing with subrogation and the receipt — l’acte d’emprunt et la quittance — should be executed by the debtor. Such is not the interpretation given to this article in the case of Wilcox v. His Creditors, 11 R. R., 346, in which Judge Martin said:

Hester Matilda Thompson's claim is on a subrogation of a judgment obtained by Bundy against Wilcox, as a lender of the amount of that judgment to Wilcox for the payment thereof. The loan is established by notarial act.’ So ought to have been the receipts by Bundy. If this had been done, the subrogation would have been perfect. The payment to the creditor is proven by parol,” etc. In this case, the recital in the act of borrowing appears to be the only proof of payment to the bank. It is clear, in regard to parties and privies to the act, it would be binding, but we do not understand the rule to go any farther. 1 Greenleaf on Evidence, §23 el seq. No inference of the alleged payment can be drawn from the note itself.

The last position assumed by the appellant’s counsel appears to us to be equally untenable under the evidence.

John Corbett is also appellant from the same judgment. His claim is evidenced by a judgment in his favor against Martin Costello and Thomas C. Malone, in solido, for the sum of $2200 with costs, based on a contract of lease.

In his answer to the opposition of Corbett, the Syndic objected that this judgment was a mere nullity, inasmuch as it was for the rent of the premises which were occupied by Corbett since its rendition, and that it was moreover in fraud of the rights of the creditors of the insolvent. The record exhibits no evidence in support of this allegation. The Judge a quo ordered the claim to be classed on the tableau, deducting therefrom: “$240 allowed t® M. Costello, subrogated to the rights of S. Hubbell.” This deduction, of which the appellant complains, appears to us to be unexplained either by the evidence or the judgment itself. We think the Judge a quo therefore erred in not allowing the whole amount claimed by the appellant, including the costs awarded to him in that suit.

It is, therefore, ordered and decreed, that the judgment of the court below, in regard to the claim of Thomas H. Barker, he affirmed, with costs, and in regard' to that of John Corbett, it be amended by allowing the whole amount claimed by him, including the costs decreed in his favor in said suit, against M. Costello and the insolvent; and so amended, that the same be affirmed, the costa of appeal to be borne by the insolvent’s estate.

Note. — Merrick, O. J., not haying been present at the argument, took no part in this opinion..


author: Buchanan, J.

text:
    City of New Orleans v. Etienne Cordeviolle.
    A debt not being equally liquidated and demandable, cannot be pleaded in compensation of the execution enjoined.
    from the fourth District Court of New Orleans, Reynolds, J.

      Labatt & Rustís, for plaintiff.

      T. W. Collins, and H. Train, for defendant and appellant.
   Buchanan, J.

An injunction was sued out (on the 17th January, 1855,) by defendant, against an execution issued by plaintiffs upon a judgment obtained by them for nineteen hundred dollars, with interest. The ground alleged for the injunction, was compensation. The petition for injunction alleged, that the city had taken property of defendant for public use, and that commissioners or experts, appointed jointly by the city and defendant, had estimated the value of the property so taken at ten thousand dollars cash. The evidence does not show that the estimation thus made was ever approved or adopted by the common council, and we cannot view it as being conclusive on the city. Indeed it is proved, that a suit was instituted before another court, a few days before the suing out of this injunction, claiming- of the city judgment for the amount of the estimation of the property in question ; which suit was discontinued simultaneously with the trial of this suit in the court below.

The debt not being equally liquidated and demandable, cannot be pleaded in compensation of the execution enjoined. Of this opinion was the District Court, and dissolved the injunction. The defendant (plaintiff in injunction) having appealed from that judgment, the plaintiff and appellee has answered the appeal, demanding an amendment of the judgment of the lower court; and to be allowed damages and interest, according to the Act of 1881.

We think the appellee entitled to the amendment asked, so far as damages are concerned; but will allow no interest, inasmuch -as the judgment enjoined already bears the highest rate of interest sanctioned by law.

It is therefore adjudged and decreed, that the judgment appealed from, be amended: that plaintiff have judgment against defendant, for one hundred dollars damages; and as so amended, that the said judgment be affirmed, with costs in both courts.