text:
    The State v. Nathaniel T. Edson.
    An indictment charging embezzlement of a “lot of lumber,” or a “ certain lot of furniture,” &e., “ certain tools,” &c., is bad for uncertainty of description of the articles embezzled.
    from the Eirst District Court of New Orleans, Robertson, J.

      I. R Morse, Attorney General, for plaintiff.

      G. Boselius, for defendant and appellant.
   Buchanan, J.

The prisoner was tried and convicted at the May term, 1854, upon the Statute of 8th March, 1845, (Session Acts, No. 90.) The indictment stated that he, on the 26th September, 1852, at New Orleans, was the agent and depositary of E Garretson, and entrusted by him with a certain lot of furniture, of the value of four hundred dollars, with a certain lot of lumber, of the value of one hundred and fifty dollars, and with certain tools, commonly called cabinet-maker’s tools, of the value of two hundred dollars, of the goods and chattels of E. Garretson, for safe custody; and that the said Nathaniel T. Edson, agent and depositary as aforesaid, on the day and year aforesaid, at New Orleans aforesaid, in violation of good faith and contrary to the object and purpose for which said goods and chattels were entrusted to him as aforesaid unlawfully and wrongfully did embezzle and convert to his own use and benefit the said lot of furniture of the value of four hundred dollars, the said lot of lumber of the value of one hundred and fifty dollars, and the said tools, commonly called cabinet-maker’s tools, of the value of two hundred dollars, so to him entrusted as aforesaid, contrary to the form of the statute, &c.

The prisoner’s counsel moved the District Court to arrest the judgment, on the ground that the property embezzled was not described in the indictment with legal certainty.

We are of opinion that this objection to the indictment is well taken. The indictment should have set out specifically, at least one article of the property embezzled. The rule applicable to indictments for embezzlement, as well as to indictments for larceny, is, that the goods stolen or embezzled should be described, at least in part, with such a certainty as will enable the jury to decide whether the chattel proved to have been stolen or embezzled is the very same with that upon which the indictment was founded, and show judicially to the court that it could have been the subject matter of the offence charged, and enable the defendant to plead his acquittal or conviction to a subsequent indictment relating to the same chattel. Russell on Crimes, 1147 ; Starkie’s Or. Plead. 181; Purneaux’s Case, Russell & Ryan’s C. C., 885. There is one exception to this general rule, contained in the 8d Section of the Statute of 1845, which declares that in prosecutions for larceny or embezzlement of bank notes, checks, bills of exchange, promissory notes, gold or silver money, or any other property of that kind, it shall not be necessary to set forth in the indictment a detailed description thereof, but a general allegation of the amount or amounts, and of the thing or things embezzled or stolen, shall be sufficient. The case at bar is evidently not within the scope of this exception.

Our researches have discovered a case in North Carolina, reported in 1st Devereux’s Reports, p. 137, where it was hold that an indictment was good which charged the prisoner with feloniously stealing, taking and carrying away u a pa/reel of oats, of the goods and chattels of one,’’ &c. But this was because one of the significations oiparcel, in Johnson’s Dictionary, is “a small bundle and as oats, says the court, is made up in bundles for sale and other purposes, this was held to describe the article stolen, and the quantity stolen, in an intelligible manner. It strikes us that the same thing cannot be predicated of the quantity “a lot,” or the articles “furniture,” “cabinet-maker’s tools,” or “lumber.”

By the 4th Section of the Statute on which this prosecution was founded, the prescription of the criminal action is three years.

It is therefore adjudged and decreed, that the judgment of the District Court be reversed ; that the judgment against Nathaniel T. Edson upon the indictment preferred against him by the Grand Jury of the Parish of Orleans, on the 13th day of July, 1853, (a copy whereof is found in the record of this case,) be arrested ; but that the prisoner be detained in custody until the next session of the Grand Jury within and for the Parish of Orleans, then and there to answer in a new bill of indictment to be preferred against him for embezzlement, and to abide the further order of the First District Court of New Orleans.


source: Caselaw Access Project

author: Spoitokd J.

license: Public Domain

text:
      W. Miller v. John Roy.
    In an action of slander, if defendant pleads a general denial, he will be precluded from setting up a justification.
    The fact that the slanderous words were used in a public assembly, e. g., at a session of the Grand Division of the Sons of Temperance, is entitled to no consideration in mitigation of damages, where the defendant does not appear to have uttered the words in public debate, or in the discharge of any official duty imposed upon him.
    from the First District Court of New Orleans, Robertson, J.

      Ulcott S Field, for plaintiff.

      J. Q. A. Felloios, for defendant and appellant.
   Spoitokd J.

The plaintiff claimed $5000 damages of the defendantfor having called him a thief, and slandered him by divers other opprobrious epithets.

The case wras tried by the district judge, without the intervention of a jury, and resulted in a judgment for the plaintiff for the sum of $300, from which the defendant has appealed.

We think 'with the district judge, that the allegations of the petition with regard to the publication of the slanderous words are substantially proven.

The defendant merely filed a general denial; he is therefore precluded from setting up a justification.

We do not think the fact that the opprobrious language was made use of ata session of the Grand Division of the Sons of Temperance ought to be in mitigation of damages. The words do not seem to have been uttered in public debate, or in the regular discharge of any official duty imposed upon the defendant.

The district judge appears to have exercised his discretion properly in reopening the case for further evidence, and the bill of exceptions to the testimony of Qribben is not well taken.

Injuries to the feelings and to one’s social standing are not susceptible of a precise admeasurement. Still, in a very limited class of cases, such injuries are recognized as a legitimate ground of action.

There is evidence tending to show that the plaintiff’s good repute suffered in some degree from the charges brought against him in such intemperate language by the defendant, and it is not pretended that the charges had any foundation in truth.

The damages awarded by the district judge do not appear to us excessive or out of proportion to the injury inflicted.

Judgment affirmed with costs.


author: Spofpord, J.

text:
    Alfred Hewson v. Sarah Creswell.
    In a redhibitory action when defendant cites his vendor in warranty, and there is judgment for the defendants generally, plaintiff must include the warrantor in his appeal bond or the appeal will be dismissed.
    Citation of the warrantor to answer the appeal, without an appeal bond in his favor, is not sufficient.
    All parties interested in maintaining the judgment appealed from must be included in tire appeal bond.
    PPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Cohen, for plaintiff and appellant.
    Rozier, for defendant.
   Spofpord, J.

Alfred Sewson sued Sarah Creswell for the value of a slave, alleged to be affected with a redhibitory vice.

Creswell pleaded a general denial and called in warranty her vendor Watson. Watson pleaded the general denial. There was j udgment in favor of the defendant generally.

The plaintiff, at a succeeding term, filed a petition of appeal, but did not pray for citation against any one. An appeal was granted as prayed for.

The plaintiff gave a bond in favor of Creswell alone.

Both Creswell and Watson were cited to answer the appeal.

Mrs. Creswell has filed a motion to dismiss, on the ground that her warrantor, Watson, should have been made a party, and that Sewson has not taken the proper steps to bring him effectually into Court.

It is the duty of an appellant to bring before the Court’, in due form, all those parties to the judgment he seeks to have reversed or amended, who are interested in its maintenance. The warrantor in this case certainly has such an interest. Olivier v. Williams, 12 Rob. 180; Curry v. Roberts, 12 L. R., 474, Guerin v. Bagnieres, 9 L. R., 471; Blanc v. Cousin, 8 An. 72.

And it is not sufficient that Watson has been cited. There should have been a bond given in his favor by the appellant.

All the parties interested in having the judgment remain undisturbed must be included in the appeal bond or the appeal will be dismissed. Swearningen v. McDaniel, 12 Rob. 203.

It is no answer to say that the defendant may make her warrantor a party appellee if she chooses. For the defendant does not appeal. She is content with the judgment as it is. But if the plaintiff wishes it reversed, it is his business to bring the warrantor before us also, that the litigation may be terminated in a single trial.

The appeal is dismissed at appellant’s costs.


author: ■ Sjpofford, J.

text:
    George Callard v. Ann Matthews—Nancy Kokernot, Third Opponent.
    M. made her note for $15,0Q0, and executed a mortgage to secure its payment, which was duly recorded. Subsequently, in lieu of this note, she made fifteen notes of $1000 each, payable at same time and with like interest as the first note, and, by notarial act, the original mortgagee reserved his rights under the first mortgage, to secure the payment of the series of notes. XCelcl: That the registry in the mortgage office of the latter act was not necessary to preserve the rights and lien, granted by the first act of mortgage.
    PPExlL from the Fourth District Court of New Orleans, Reynolds, J.

      J. W. Duncan & Labatt, for plaintiff and appellant.

      W H. Sagan, for opponent,
    cited: O. C., Arts. 2181, 2, 8,4, 6; Palfrey v. Sis Creditors, 8 R., 278; Citizens' Bank v. Buckler, 8 R., 443.
   ■ Sjpofford, J.

This is a controversy between George Callard, plaintiff in execution, and Nancy KocTcernot, third opponent, relative to the proceeds of certain slaves which belonged to Ann Matthews, and were sold under the plaintiff’s execution.

The opponent claimed a higher privilege than the plaintiff, by. reason of a conventional mortgage recorded anterior to the registry of the plaintiff’s judgment in the proper mortgage office; there was judgment in her favor, and the plaintiff appeals.

The facts are thus stated by appellant’s counsel:

“ On the 25th March, 1851, Ann Matthews executed her promissory note for the sum of $15,000, payable to her own order on the 25th March, 1852, with interest at the rate of 8 per cent, per annum, if not paid at maturity: to secure the payment of which she executed a mortgage on certain real estate and slaves, in favor of Benjamin Van Ostern, which was recorded in the office of mortgages on the same day.

“ On the 25th April, 1851, thirteen days after the institution of the suit in the Fourth District Court against her, she, (Ann Matthews,) by act before Barnet, N. P., substituted fifteen promissory notes, for $1,000 each, subscribed by her, payable to her own order on the 25th March, 1852, with interest at 8 per cent, per annum, if not paid at maturity, for the note afore-described of $15,000, which was thereupon cancelled and delivered up to the maker.

“This act of substitution was never recorded, nor has any evidence of this transaction been placed on the records of the mortgage office.”

The opponent is the holder of three of th'e substituted notes for $1000 each, and claims the benefit of the Van Ostern mortgage recorded on the 25th March, 1851.

The plaintiff contends that, as to him, the mortgage no longer exists, because what is styled the act of substitution was never inscribed on the mortgage book.

We are of opinion with the District Judge, that no registry of that act was necessary, because the original mortgage was never erased, released, or extinguished.

The second act recites, that “ whereas, by act passed before the undersigned notary on the 25th day of March last, the appearer, Ann Matthews, motgaged and hypothecated in favor of Benjamin Van Ostern the following property, &c., to secure the payment of a certain promissory note of $15,000, dated on the 25th of March last, and payable in one year, and if not paid at maturity, to bear interest therefrom at the rate of 8 per cent, per annum, until paid. And whereas the said Benjamin Van Ostern is desirous of obtaining, in lieu and stead of said note of $15,000, the fifteen several notes of said appearer for the sum of $1000 each, paj'able at the same period as the one presently held by him, with which request she is willing to comply: Now, therefore, the said Ann Matthews did make and subscribe to the order of, and endorsed by herself under date of this day, (25th April, 1851,) and payable on the 25th March, 1852, and if not paid at maturity, to bear interest therefrom at the rate of 8 per centum per annum, until paid, fifteen promissory notes of the sum of $1000 each; which said notes, after having been duly countersigned, ne varietur, by me notary, in order to identify them herewith, have been delivered to the said Benjamin Van Ostern, who, being here present, acknowledges the receipt thereof: and the said Van Ostern did thereupon deliver to the said Miss Matthews the above described note of $15,000, subscribed by her, and I, notary, did, at the request of said parties, erase the signature of the said Miss Matthews to said note, and at their request have annexed the same to the margin hereof for reference.

And, thereupon, the said Miss Ann Matthews declared that the substitution of the said fifteen notes for the one previously subscribed by her, shall not in any manner affect or impair the validity of the mortgage granted in favor of the said Benjamin Van Ostern, and that the holder or holders of said notes shall be entitled to all the rights and benefits, privileges, claims and actions of, in and to the said mortgage, as amply, &c., as if they had been fully set forth and described in said act of mortgage at the time of the execution thereof.”

Here there does not seem to have been an intention to create a new debt, but simply to make a change of form in the evidence of an old one; and even the form of the instrument which evidences the debt is unchanged, with this exception only, that one negotiable note for $15,000 is divided into fifteen notes of the same tenor, for $1000 each; the consideration, the parties, the term, the total amount, the interest, and the security, are still the same.

No new mortgage is created; but Van Ostern, the original mortgagee, expressly reserves the benefit of the first mortgage to himself, as a security for the fifteen notes, which, for convenience, he had taken in lieu of the former note. No now parties intervened in the second act; the evidence of the debt in both instances, being negotiable in its form, the mortgage taken by Van Ostern as the first holder, would of course enure to the benefit of all subsequent holders, whether it were so stated in the act or not: “The sale or transfer of a debt includes every thing which is accessary to it, as suretyship, privileges, and mortgages.” 0. C., 2615.

It does not appear whether the original act of mortgage stipulated that the holder of the large note should be entitled to its benefits, for we have not a full oopy of that act in the record; but it is immaterial, for such a stipulation would be implied ; and that part of the clause of reservation in the second act may be rejected as surplusage, without impairing the rights of the opponent.

She must necessarily hold the notes through and under Van Ostern, for the authentic act informs us that they were delivered to him as the first holder, and they were drawn in such a form as to pass by delivery.

The plaintiff has no equity in his favor, for the registry of the act under which the opponent is entitled to exercise her rights, notified him that the property of his debtor was encumbered by a special mortgage for $15,000, before he procured his judgment; it did not concern him to know whether that debt was evidenced by one note or by fifteen; “ Oar que lui importe que l’hypothéque qui le prime, s’applique á telle dette qu á telle autre dette; elle n’aura pas plus d’effet dans un cas que dans l’autre.” Such are the remarks of Marcadé, (Yol. 4, No. 778,) touching a case where the debt is actually novated, but with a reservation of the privilege or mortgage security attached to the first credit; they apply with greater force to a case like the present, where there is a mere change of form in the evidence of the debt, with a similar reservation as to the mortgage by which it is secured.

The judgment is, therefore, affirmed with costs.


author: Buchanan, J.

text:
    Brickell, et al., v. Conner, et al.
    A party who obtains an ord ex* for a devolutive appeal and fails to furnish bond as required, and to file the transcript in the Appellate Oourt during the term at which the appeal was returnable, will beheld to have abandoned his appeal, and should not be allowed to renew it at a subsequent term.
    from the District Oourt of Tensas. JPerlcins, J.

      Sham, for plaintiffs.

      J. & J, Henderson, and Fa/rra/r, for defendants and appellants.
   Buchanan, J.

The appellees move to dismiss this appeal, on the ground that a previous appeal had been granted, to the same party who now appeals, on motion in open Court, at the October term, 1852, returnable to this Oourt on the second Monday of Eebruary, 1853, which appeal was subsequently abandoned by the appellant, she having given no bond as required by the order ; and not having filed the transcript in the appellate Oourt at the Eebruary term, 1858.

In support of this motion, the appellees have referred to Article 594 of the Code of Practice, and to the cases of Doyer v. Sargeant, 4th La. 41, and Jenkins v. Bonds, 3d Annual, 339 ; in both which cases the Supreme Oourt dis missed an appeal taken after another appeal which had not been prosecuted. In the case of Jenkins v. Bonds, the circumstances were identical with those of the present case.

Appellant resists the rule upon the ground that the appeal taken by motion at the October term of the District Oourt had not been completed by the giving of a bond; and quotes the language of the Oourt in Gibson v. Silby, 3d Annual, 630, which was a case of an order for a suspensive appeal, and no bond filed; but the party afterwards made.application for a devolutive appeal, which was refused by the District Oourt. The Supreme Oourt said in that case, “ The invalidity, or omission, of the party to furnish a bond and fulfil the condition precedent upon which a suspensive appeal was granted, did not preclude him from applying within the year for a devolutive appeal.” It is sufficient for the purpose of harmonising the decision of Jenkins v. Bonds, with that of Gibson v. Silby, to observe, that in the case at bar, the first as well as the second appeal of the defendant, was devolutive, and that the appellant having suffered the whole term of the Court at which the first appeal was returnable, to elapse without taking- any steps towards consummating the same, must be held to have abandoned the appeal, within the spirit of the 594th Article of the Code of Practice, and should not have been allowed to renew it in the month of April following. Roberts v. Benton, 1 Rob. 100.

The counsel of appellant has pressed strongly upon our consideration that the right of appeal is a constitutional right, and that the current of decisions has been in case of doubt, to interpret the law liberally in favor of the appellant. 11 La. 382; 1 An. 407.

It is our desire no less than our duty to secure to every citizen the exercise of his legal and constitutional rights. But in the present case we are clear that the defendant had exhausted her right of appeal; under the rules of practice ; and we are unable to perceive any equitable claim that she has to a relaxation of those rules in her favor. On the contrary, we have no reason to doubt that the appellee was in attendance upon this Court, at the February term of 1853, inasmuch as the motion for appeal under the Act of 1843, was a constructive citation. If so, the expense and time consumed in a journey of some hundreds of miles, were lost, through the laches of the appellant.

Appeal dismissed at cost of appellant.

Defendant’s counsel, for a rehearing, argued :

The appellant, Susan E. Conner, with due respect, now prays this Court to grant her a rehearing upon the motion to dismiss this appeal.

This motion is based upon a point which, it is believed, has entirely escaped the attention of the Court. The point is this:

The first appeal taken was utterly irregular, and was bound to home been dismissed on motion. Because, this is a suit in which a •partition is sought between the appellant and her four children, of a plantation and slaves, owned jointly by them.

The minor, Louisa R. Conner, having a joint and conflicting interest with the appellant, her mother, could not be represented in this suit by that mother, who is her natural tutrix ; but on the contrary, should have been represented by her under-tutor, or a special tutor. See C. 0. 301, 1291; Succession of Story, 5 An. 208.

All the joint owners should have been made parties to the suit and to the appeal. C. C. 1252, 1230, 1231, 1234, 1246 ; C. P. 1024, 1025 ; 4 An. 56, Willy v. Carter; Farrar v. Newport, 17 L. 348 ; Kendrick v. Kendrick, 19 L. 38; Harrell v. Harrell, 16 L. 374; Traverso v. Rowe, 10 L. 502.

This was not done. Transcript, pp. 5, 6, 9 and 19. When the motion for appeal was made in open Court (Trans. 21 and 22,) on 12th October, 1852, the minor, Louisa, not being a party to the suit, was not a, party to the appeal, because the motion and order cited only those who were before the court. The first appeal was therefore irregular, and was bound to be dismissed. This Court has established the principle, “ that where an appeal is irregular upon its face, the appellant may disregard it, and take another appeal, if the time for appealing has not elapsed. Sec Rains v. Kemp, 4 L. 319 ; Bates v. Weathersby, 2 An. 485.

Whose duty was it to see that proper parties were made to this suit ? Was it the duty of the one seeJdng, or the one opposing the partition ? Who shall be relieved from the effects of this error and nullity ? the one who committed, or the one who resisted it? 4 An. 261.

The appellant, under the sanction of this well settled principle, disregarded the first appeal, because the minor was not a party to it, and took a new appeal regularly, and had all the parties in interest duly cited. The Court below considered the first order of appeal a nullity, and granted, without hesitation, the order for a new appeal, Transcript 24.

The dismissal of this appeal, instead of stopping litigation, will only increase it; for the minor is bound to bring an action to annul the partition, upon the ground that she was no parly to it; and this action will bring in its train more litigation and trouble, than could possibly flow from correcting the error at the beginning.

The Court would not be troubled with this application, were we not impressed with the conviction that this point has escaped its attention; and that it is only necessary to present it now, to afford the Court the pleasing opportunity (to quote its own language,) of gratifying its “ desire,” no less than discharging its “duty,” in “securing” to this “citizen the exercise of her legal and constitutional rights.”

The motion and order of appeal reads as follows, (Trans, pp. 21 and 22,) viz: “On motion of defendant’s counsel, in open court, in the presence of plaintiff's (Mrs. Brickie's) counsel, it is ordered that defendant, Mrs. 8. E. Conner, be granted a devolutive appeal from the above judgment rendered in this case, returnable into the Supreme Court of the State of Louisiana, sitting in the city of New Orleans, for the Eastern District of said State, on or before the second Monday of February, 1863, upon her executing bond with security in the sum of one hundred dollars, according to law; “and, that plaintiffs (Mrs. Brickie and husband,) appear then and there, to defend said appeal.”

The co-defendants did not appear by counsel.

This order in terms, makes only the plaintiffs parties to the appeal. The co-defendants are not cited. The language of this order is too plain for comment.

Rehearing refused.


author: Yookhies, J.

text:
    John Jeter, Administrator, v. Sandall & Hardee, Administrators.
    “ This is to certify, that I have this day made a full and final settlement with W. JI. Gaulden, which is in full of all and every demand up to this date. (Signed,) Jolm Jeter.”

    Such an instrument, unexplained, held to be insufficient evidence of the payment of a debt due by Gamlden at the date of theinstrument, to an estate of which Jeter was administrator.
    from the District Court of East Feliciana. Sterling, J.

      P. Pond, Jr., for plaintiff and appellant.

      J. U. Muse, for defendant, ap-pellee.
   Yookhies, J.

At the probate sale of the succession of John A. Beckham, deceased, Wade B. Gaulden became the purchaser of two slaves for the price of $1,800, payable in three equal annual instalments, and bearing ten per cent, interest from time due. At the same sale and on the same terms, a negro woman and her child were adjudicated to M. G. Gaulden, for the price of $726, with Wade 27, Gaulden as his security in solido. The latter having subsequently died, Wm. Sandall and D. O. PLan'dee, were appointed administrators of his estate. The object of this suit, which is instituted against them in their representative capacity, is to enforce the payment of these two sums, amounting in the aggregate to $2,626, besides interest.

The defendants in their answer, acknowledge the signature of the deceased, but aver that his indebtedness was extinguished by payment.

The Court below rendered a judgment in favor of the plaintiffs for the sum of $726, with interest at the rate of ten per cent, on the sum of $242 from the 1st January, 1843; alike interest on $242 from the 1st January, 1844; and a like interest on the remaining sum of $242 from the 1st January, 1845, until paid, subject to a credit of $729 paid, under the seizure and sale of the 9th October, 1848; and rejected the balance of the plaintiff's claim. From which judgment the plaintiff has appealed.

The estate of Wade H. Gaulden, deceased, is clearly entitled to the following credits, to-wit: $1,080 96, paid on the 1st of March, 1848, and $785 37, paid on the 9th October, 1848. The defendants offered in evidence .the following document:

“ Kellertown, March 5th, 1849.
This is to certify that I have this day made a full and final settlement with Wade H. Gaulden, which is in full of all and every demand up to this date.
John Jeter."

The plaintiff objected to the admissibility of this document, on the ground that it was not signed by John Jeter, in his capacity of administrator, and specified no amount. It was signed by John Jeter, apparently in his own right, and does not purport to be a receipt for payment, but simply a certificate of final settlement with Gaulden. Without deciding the question, submitted to our consideration under the bill of exception in the record, as to the admissi-bilty of this instrument, it is enough to say that we do not consider it by itself sufficient evidence to establish the payment of the claim due by Gaulden to the estate of Beelcham unconnected, as it appears, in any way with the official acts of John Jeter. See 4 B. R. 407.

It is therefore ordered and decreed that the judgment of the District Court be avoided and reversed, and that the plaintiff recover of the defendants as administrators of the estate of Wade H. Gaulden, deceased, in due co.urse of administration, the sum of twenty-five hundred and twenty-six dollars, with ten per cent, interest per annum on one third thereof from the 1st of January, 1843, on a like amount from the 1st of January, 1844, and on the residue from the 1st January,' 1845,subject to the following credit: $1,030 96, paid 1st March, 3848, and $735 37, paid the 9th October, 1848, the defendants and appellees to pay the costs of both Courts.


author: Slidell, O. J.

text:
    Wright, Williams & Co. v. L. M. Steed, Curatrix—J. L. Richardson, Third Opponent and Appellant.
    A purchase of real estate of a succession, made under an order of sale obtained ex-parte, and without notice to the curatrix or to creditors, is invalid and will be set aside.
    A third opponent who claims title to the property against which a mortgage creditor is proceeding, and whose title has been declared null, is without interest to litigate the correctness of the judgment as between the plaintiff and defendant.
    from the Tenth District Court of Madison, Snyder, J.

      M. Dubose, for plaintiff and appellee,
    cited 3 L. 495 ; 1 B. 41; 8 B. 14.

      Bemiss and Amonett, for third opponent and appellant.

      Andrew R. Hynes, for defendant.
   Slidell, O. J.

The appellant, Joseph L. Richmdson, filed a third opposition, claiming title to certain lands, which the plaintiffs were proceeding to have sold as the property of the succession of William Steed.

The court below declared the judicial sale, under which the third opponent claimed, invalid, and set it aside. In this we think the court did not err. The application for sale made by W. B. Richardson in the mortuoria, and the subsequent order and proceedings under which the sale was made to J. L. Richardson., were, so far as we are informed by the record, entirely ex-parte and without notice to the curatrix of the succession or creditors, among whom were the present plaintiffs. Comparing the price of adjudication with the appraisement, there was an enormous sacrifice.

The succession has not appealed, and the third opponent is without interest to litigate the correctness of the judgment as between plaintiffs and the succession.

Judgment affirmed with costs.


author: Slidell, C. J.

text:
    Henry Hardesty, Sen., et al. v. Sukey Wormley-Sukey Wormley v. Henry Hardesty, Sen., et al.
    A purchaser of a slave who stipulates with his vendor that he will emancipate the slave, when the price is refunded to him, is legally bound to fulfil the obligation resulting from that stipulation, and to emancipate the slave, on the repaymeut to him of the price.
    The fact that the purchaser was before and after the purchase and emancipation of the slave, in public concubinage with her, would not defeat the stipulation in favor of her freedom, and would not authorize the heirs of the purchaser to treat her emancipation as a disguised donation, and to reclaim her as belonging to his succession.
    PPEAL from the District Court of St. Tammany, Watterston, J.
    jljL J. R. Jones, for Hardesty et al., appellants.

      Ogden & Leovy, for Sulcey Wormley et al, appellees.
   Slidell, C. J.

The heirs of M. 0. Hardesty seek to reduce Sulcey Wormley to slavery, and to deprive her of all her property, upon the alleged grounds that she was the public concubine of Hardesty, that her enfranchisement and the sale to her of her daughter and grandchildren, were disguised donations in fraud of his heirs, and in violation of the law; and that, being a slave, her acquisitions belonged to his heirs.

The above causes ■ involving these issues, were tried by a jury, who found verdicts in favor of Sukey, and a new trial was refused, the District Judge having declared his opinion that the verdicts were fully sustained bjr the law and the evidence. The heirs have appealed. .

A perusal of the evidence has satisfied us that a non-suit of the judgment would involve a monstrous injustice, and we are glad that no stringent rule of law intervenes to force us to such a conclusion.

The case is pressed on the ground of concubinage. The evidence admitted at the trial does not prove it; and the evidence of public repute, which was rejected, would not, perhaps, have convinced the mind of the existence of that fact, coupled as it was with the declaration of the two witnesses, that they had no knowledge on this subject except from rumor. But suppose there was concubinage, the woman would still be entitled to judgment.

As far back as 1834, Hardesty presented to the Police Jury of St. Tammany petitions in which he prayed leave to enfranchise Sukey and her child Adeline, declaring that when he bought them, Sulcey had advanced about half of the money, and, besides paying her wages, had also paid the balance of the money expended in the purchase; that the price was reduced by Wright, the vendor, in consideration of the long and faithful services of Sulcey to himself and his deceased father, and the promise of Hardesty to emancipate her and her child as soon as she should refund the money advanced. Upon this petition there were the usual proceedings, and a decree of emancipation. This declaration is corroborated by other evidence, from all which it satisfactorily results that there was an agreement for her conditional emancipation, made with her former owner, by Hardesty; that, by the indulgence of her former owner, she had amassed a considerable peculium ; that, by unusual industry, economy, and good character, she afterwards made a great deal of money, laboring day and night for the purpose of purchasing her offspring; that she has paid for herself and them, and that what she now has is the fruit of her honest and persevering exertions during along course of years, in a community where she seems to have enjoyed general confidence and respect.

Now, if all this be true, surely, even if concubinage were proved, there is nothing in the fact that the master had degraded himself by debauching the slave Under his dominion, which could discharge him in law from the fulfilment of his promise of emancipation — a lawful promise, which his obligation to the vendor bound him to fulfill, and which legally enured to the benefit of the slave, for whom the former owner, as the reward of her fidelity, had stipulated, and this at his own cost, by a reduction of price. See Gaudet v. Gourdain, 8 Annual, 137.

With regard to the subsequent conveyances to Sulcey, the circumstances justify the conclusion of the jury that they were honestly paid for by her.

This suit is a cruel experiment upon the liberty and hard earnings of an humble and deserving woman, and has been righteously discountenanced by the verdict of a jury of the vicinage with whom her character for industry, honesty and thrift had stood her in good stead'. We are satisfied the judgment below has done justice, and have no hesitation in affirming it.

Judgment affirmed with costs.


author: Voorihes, J.

text:
    Canal Bank v. John McGloin.
    The competency of witnesses cannot be questioned in the Supreme Court, unless exceptions lo then* introduction were taken in the Court a quo.
    The title sued on, need not be offered in evidence if it be filed with and as part of the petition.

      Á judgment reciting that it was rendered on due proof of plaintiffs demand, .contains sufficient rea* sons for judgment.
    from the Eourth District Court of New Orleans, Reynolds, J.

      Benjamin, Bradford & Finney, for plaintiff.

      O. Redman, for defendant and appellant,
    cited. Davis v. Davis 8 An; — Griffith v. Oaldwell, 1 Rob; Mechanics'1 Bunk v. Walden, 7 Rob ; Lopez v. Bos-mell, 7 L., and made the following points: The confirmation of the judgment by default was irregular, because, 1. There was no proof-of signature. 2. Neither the notes nor mortgage were filed in evidence. 8. There are no reasons for judgment. 4. The charter of plaintiffs was not introduced which was requisite to establish their existence.
   Voorihes, J.

The defendant is sued on his nine promissory notes, three of which are payable to the order of the plaintiffs, and the other six to the order of and endorsed by Laurent Millaudon and John Slidell. These notes were given in part payment of certain lots of ground conveyed to the defendant by the plaintiffs, Samuel Kohn, Laurent Millaudon and John Slidell, and identified with the authentic act of sale thus made, a copy of -which,, together with said notes, is annexed to and made a part of the plaintiff’s petition.

The record shows that a judgment by default was regularly taken against the defendant, and confirmed, as recited in the final jndgment, “ by due proof of the plaintiff’s demand.” The defendant has appealed from that judgment, and claims its reversal on various grounds.

It is urged by his counsel that “ the evidence on file consists merely of the testimony of plaintiff’s attorney — that the signatures of the payees and endorsers of the notes sued on are genuine.” It is argued at bar by the counsel, that the witness was incompetent to make such proof, on the ground of his being employed as the plaintiff’s attorney in the cause. It is clear that questions touching the competency of witnesses must be determined in the first place by the inferior court, whose decision in this respect' can only be revised by this court on a bill of exceptions. The other objections urged are: 1st. “ that neither the notes nor mortgage act were introduced in evidence to confirm the default — they are not filed in evidence and the implication derived from the testimony of plaintiff’s attorney that they were offered to and received by the court, cannot be accepted in lieu of the official certificate of the keeper of the record, and his evidence does not appear to be taken in open Oourt. The notes, acts of protest and deed of sale appear to be noted by the Olerk as filed with the petition. This, coupled with his certificate that the record contains all the documents filed and evidence adduced, affords, in our opinion sufficient evidence showing that the plaintiffs have substantially brought themselves within the requirements of the law to entitle them to a judgment. We do not think that the second and third objections urged by the defendant are tenable. It is clear that the signature of the maker to the notes is verified by the authentic act of sale, which also establishes the plaintiff’s capacity. The two last objections are equally untenable. If available at all-as matters of de-fence, and not apparent as “ errors on the face of the record, they should have been specially pleaded in the inferior Oourt.”

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

      The third objection is that theie were no reasons assigned by the District Judge for his opinion. The judgment commences as follows : “ On motion of E. A. Bradford, Esq., of counsel for plaintiff, and on producing tu the Court due proof of plaintiff’s demand. It is ordered &cM &c.” [Rep.]


author: Slidell, 0. J.

text:
    Larue & Prevost v. Rugely, Blair & Co.
    Defendants sold to plaintiffs a lot of cotton and gave plaintiffs’ broker an order on the press for its delivery. A few days afterwards plaintiffs paid $3,000 on account of the purchase, and the cotton was destroyed by fire, but before the pressman had turned out the cotton to be weighed. Held: that there was no delivery such as to put the cotton at the risk of the purchaser, and that plaintiffs had the right to recover back the part of the price paid.
    from the Second District Court of Now Orleans. Lea, J.

      P. F. Bonforcl and J. Finney for plaintiffs.

      Flmore & King, for defendants and appellants,
    cited Chitty on Contracts 113; 8d Ala. 698; 7 Ann. 372: C. 0. 2452 ; 13th Pickering, 182.
   Slidell, 0. J.

On the 26th February 1853, La/rue & Prevost purchased from the defendants 219 bales of cotton, then in a warehouse and press at New Orleans, called the Alabama Press. On the afternoon of the same day, which was Saturday, defendants gave the purchasers’ brokers a list of the marks of the bales, and at foot the following orders: “Alabama Press will please deliver the above lot of two hundred and nineteen bales cotton to Messrs. Guerin and Sanchez. On the following Tuesday the brokers sent a clerk to have the cotton turned out for classing and marking, but the pressman having other cotton to turn out, said, he could not do so this day, and probably would be able to do so the next day. On the next day, being Wednesday, plaintiffs and their brokers made unsuccessful applications at the press, but there was a promise to comply on the following day. On Wednesday, the defendants sent their clerk for $5,000, on account of the price. Plaintiffs at first objected, on account of their failure to get the cotton turned out by the press, having engaged freight for it and being pressed by the ship broker; but after some discussion paid $3,000 on account. On the same afternoon, about 6 o’clock, the cotton not having yet been marked, classed, weighed, nor even turned out, it was destroyed by fire. It appears from the evidence that the course of business at the press was for the purchaser’s broker to present his orders, one, two, or three days after the purchase, and sometimes longer, have the cotton turned out by the pressman, and classed and marked by the broker or his clerks, and then the cotton is weighed by a weigher appointed by the seller.

The plaintiffs brought a suit to get back their advance of $3,000; defendants answered by a general denial, and also pleaded specially as follows: “Respondents alledge that on the 26th day of February, 1853, they sold to plaintiffs 219 bales of cotton, and gave their brokers an order on the Alabama Press for the same that plaintiffs were to pay respondents, 8 11-16 cents per pound for the said cotton. That plaintiffs did not use due diligence to have the cotton turned out, marked, classed and weighed as they were bound to do, but permitted it to remain in the press where it was stored till Wednesday night, 2d March, when it was desti’oyed by fire. Respondents show that by their negligence aforesaid, they became responsible for the loss of the cotton burnt as aforesaid.

Without enquiring whether such negligence as was pleaded would avail to throw the risk on the buyer without steps taken by the seller to put him distinctly in default, we deem it sufficient to say upon this point of the defence that negligence or a want of reasonable diligence on the part of the purchasers is not proved.

The case therefore turns upon the question whether there was, as asserted by the defendants, a shifting of the risk of the things sold, from the seller to the buyer, by reason of the facts proved, which it is said constitute a delivery of the cotton to the plaintiff.

In the 2433d Article of the Civil Code it is said when goods, produce, or other objects, are not sold in a lump, but by weight, by tale or measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller (en ce sens, que les choses vendues sont aux risques du vendeurs) until they be weighed, counted or measured; but the buyer may require either the delivery of them or damages, if any be for the same, in case of non-execution of the contract.

Conceding for the purposes of the argument, and without expressing an opinion on this point, that the risk of a thing sold by weight, but delivered into the actual or clear constructive possession of the buyer before the weight is ascertained, passes to the buyer by the mere fact of delivery and in the absence of any convention, we deem it sufficient for the purposes of the present case to say that there was not a clear and complete delivery of this cotton, as between vendor and vendee, before the fire. We consider the orders on the pressman in favor of the buyer’s brokers an initiatory step towards such delivery, which, as between this purchaser and seller, was to be completed by subsequent acts, to-wit: the turning out the cotton by the pressman to enable the purchaser’s broker to class and mark it, and the weighing by the seller’s weigher.

As to the argument deduced by the defendant from that class of cases where contests have arisen between the seller who has not received his price and a subsequent creditor who has trusted the buyer on the faith of an apparent possession, it must be observed, they involve other principles, and do not necessarily embrace the question of risk between buyer and seller.

We think there is no error in the judgment below, which was in favor of the plaintiffs, and it is therefore affirmed with costs.


text:
    Dunlop, Moncure & Co. v. Executors of Alexander Gordon.
    Defendants guaranteed that 0. would consign to the plaintiffs sugar of the value of $80,000, which O. failed to do. Held: That defendants were only liable for $30,000 and interest at five per cent.; that they were not liable beyond that amount as for commissions on the advances made to O , on faith of the guaranteed consignment, and for exchange, &c.
    PPEAL from the Fifth District Court of New Orleans.
    jl Benjamin, Mieou & Finney, for plaintiffs and appellants :
    The additional stipulations we copy verbatim from the agreement on file, p. 42 :
    “ The estate of Gordon is to be credited with the full amount received, or that may be received, by said Dunlop, Moneure & Go. for the one-third of the entire crops, or anything else arising from or out of said plantation, slaves, &c., by sale or otherwise. It being agreed and understood that the said estate of Gordon is held responsible for any deficiency or loss that may occur to prevent the said Dunlop, Moneure & Go. from getting the full amount for which the said estate of Gordon is liable as guarantee for said Oxnrn'd. It being also understood and agreed that in case the said Dunlop, Ifoneure & Go., or the executors or representatives of the estate of Gordon, should desire at any time (after the receipt of the present growing crops) that the said one-third interest be sold, it is to be offered for sale (by partition or otherwise) on as favorable terms as usual in such cases, by giving credit to purchasers, so as to induce them to give a fair price for the property ; in which case the said estate of Gordon is bound to make good the amount for which it is liable as guarantee for Oxnard. Witness our hands at New Orleans, this 2d day of August, 184-9.”
    The extent of the liability of the defendants must be determined by a fair construction of the letter granted, which we have copied above.
    In the case of Thompson v. Paclmood, 2 Ann. 624-5, the violation of an agreement to consign a crop for sale, imposed a liability for the commissions that would have been earned if the agreement had been fulfilled. If a surety had been bound for the consignment, it is obvious that the refusal of the principal to make it, would have bound him also for the commissions. The profits resulting from the consignment in commissions is one of the inducements to the advance. It is not merely a lending of money to be repaid in kind, but it is a transaction intended to secure the commissions on sales and advances, as well as the current interest.
    The District Court rejected the commissions, on the ground that the contract of a surety must be strictly construed, citing the Code, 3008; GanalBank v. Hagan, 1 Ann. R., 56 ; Freeland v. Briscoe, 3d Ann., 256 : and as commissions are not named in the contract, considered them not embraced in the guarantee.
    It would seem that the very next article of the Code would be a sufficient answer to this position ; as it declares that a general and indefinite suretyship extends to all the accessories of the debt. Code 3009. If commissions, although not expressed, are accessory to the contract resulting from a consignment of merchandize, then the party who binds himself that a consignment shall be made, binds himself for the commissions.
    Nor does the article cited by the court declare that the contract of the surety is to be strictly construed. It says that suretyship cannot be presumed, but ought to bo expressed, and “is to be restrained within the limits intended by the contract.'”
    The rule is equally applicable to all other contracts, as no contract ought to be extended beyond the intention expressed in it. Interpretation is, therefore, invoked, in order to ascertain the true intention ; and in the application of the rules laid down for that purpose, the law recognizes no distinction, whether the contract is a principal obligation, or one of suretyship. Thus, if the principal and surety contract in the same words, it would be out of the ques-ition'to say that one was bound differently from the other. If the words are -free from ambiguity, there is no room for construction. If there is an ambi■guity, it must be considered under the general rules of interpretation, in order to discover what was the intention ; but when that intention is reached, it is the same, in the case supposed, as to all the obligors, whether principals or ■sureties.
    This subject is considered by Burge on Suretyship, and he has collected the opinions of the civil law writers, (p. 40 to 46,) and the conclusion to which 'he arrives is, that the rule of construction, potius contra proferentem, is applicable to suretyships as well as to other contracts. This is the rule for the interpretation of contracts in general, as laid down in the English text of A. 1952, and as nothing in the special rules for contracts of suretyship excepts that contract from the general rule, it must be governed by it. Indeed, the art. 3009, declaring that the contract embraces accessories, though not expressed, seems to be in the same spirit with the general rule.
    The rule is the same at common law and in civil law. Pothier says that the surety who binds himself generally for a contract, binds himself in omnem causam. One of his illustrations is the case of a surety for a lease, who is 6on-dered bound not only for payment of the rents, but also for injuries to the buildings, ('degradations,) for the movables used on the farm, for arrearages, &c. &c. Pot. obi. 505.
    Troplong on Cautionnement quotes Casaregis, and adopts his conclusions: Simplex fide jussor alicujuscontractus non solum obligatur ad id ad quod princi-palis debitor expresse aut directe tenetur; sed obligatur etiam pro omnibus filis casibus et causas non expressis, quee possint provenire ex naturi ipisius contractus. No. 158, to same point, Ponsots, Caution., n. 118.

      At common law the rule is the same. The surety “is understood” to be obliged to the same extent with the principal, unless he has expressly limited his obligation. Theobald 69, 901 Law Lib.; Pitman S3, 40, Law Lib.
    The plaintiffs had an interest in the sale of the property arising out of their claims upon it, but by this agreement they also recognized an interest in the guarantors, and agreed to purchase, so to speak, for their own account.
    “ Le mandat peut se trouver co-ordonné avec d’autres eontrats et agisse-ments, sans pour cela que son existence en soit compromise ou effacée.” Trop-long, Mand., N. 98. An example may be found in N. 35 of the same book, of a debtor transferring to his creditor a claim upon a third person, to be collected and applied. This is at once a transfer and a mandate. It is also a mandate for the joint interest of the parties, for the transferree, in collecting, acts as well for his own interest as for the interest of the transferrer.
    Being a mandate, all advances made under it by the attorney bear interest by law. (Code 2294 )
    The advances made in the present case are of two classes: one, the expenses of administration and of re-sale; the other, the payment of prior mortgages which became necessary to perfect the title of the plaintiffs. With respect to the first class, the plaintiffs were clearly entitled to reimburse themselves out of the very first receipts. (Code 2992.) If, therefore, the interest upon those were reduced to the legal rate of five per cent, and the first receipts applied to them, the account would be still more favorable to the plaintiffs than it now is. This class of disbursements amount to less than $8,000, of date (reduced to average) in April, 1850, while the receipts to January, 1850, amount to near $11,000. On the latter, under the contract of mandate, the plaintiffs would owe no interest, unless it were proved that they had employed the moneys received for their own use. (Oode 2984.) The account is made up, however, with interest at the same rate on both sides, which is the most liberal principle for the benefit of the defendants.
    With regard to the second class of payments for prior mortgages, they all bore interest according to their tenor. Thus all the Howell notes, amounting to about $20,000, bore interest at 8 per cent., and the Citizens’ Bank instalment at the rate fixed by its charter. These debts having become the debts of the plaintiffs by the purchase of the property on which they bore mortgage, the plaintiffs, by their payment, became subrogated to the rights of the original creditors, and consequently entitled to the same rate of interest. (Code 2157.) It would indeed be a monstrous result, if the plaintiffs, having assumed this position, as the mandatories of the guarantors, and for their interest, were to be deprived of interest on the debts which they became thus compelled to pay, and which were bearing interest at the time of the payment.
    While on the subject of interest, we may observe that the original letter of credit is also recognized by the authorities as a mandate. (Amory v. Boyd, 5 Mart., 414; Gasqiietv. Tliorn, 14 Louis. 509 ; Pothier Maud., 18; Troplong, 36.) The rule of the Code 2994, that interest must be paid for advances, applies to the original advances under the guarantee.

      Miles Taylor & H U. Taylor, for defendants:
    “Suretyship must be restrained within the limits intended by the contract. C. C., 3,008. Suretyship must be construed strictly, the law favors the surety. H. O. Ganal and BanMng Go. v. Hagan, 1 Ann. 62. There can be no presumptions against the surety. Freeland v. Briscoe, 3 Ann. 256.

      Pothier says: “ Where the security has expressed the sum and cause for which he became security, his obligation does not extend beyond the sum and cause expressed.” Eor example : If one had become a security for my lessee for the payment of his rent, he will not be answerable for the other obligations of the rent, such as might result from waste or from the advances that I might have made to the lessee. If one had become a security for the principal sum due by the debtor, he will not therefore be liable-for the interest that may accrue. Pothier on Obligations, No. 404 of Evans’ Trans., No. 405 Paris Ed. Burge on Suretyship, p. 53. “ Lorsqu’on se rend caution pour quelqu’un, l’engagement ne vas pas au déla de la somme ou de la cause exprimée ; de sorte que, si la somme produit des intéréts, la caution ne sera pas responsable de ces intéréts, á moins que le cautionnement soit général.” — Merlin, verbo Caution, §1, No. 3. These authorities shew, that from the nature of the obligation, no interest is due, and that nothing can be claimed beyond the specific sum guaranteed.

      But if plaintiffs say, true it is Mr. Gordon himself could not be compelled to pay more than the specific sum, but his Succession, under arts. C. P. 988, 989, which allow interest at 5 per cent against Successions, is liable for interest at that rate, we answer, that these articles ¡very clearly only apply to those debts 'which from their nature hear interest. This is no longer open to argument, inasmuch as it is now the settled jurisprudence of the State. The Supreme Court, in the Succession of Durnford, 1 Ann. 93, say : “ We do not understand articles 988, 989 of the 0. P. and others relied on by counsel for the appellants, as binding Successions to pay interest, where by the nature of the debt no interest is due, but as providing that the payment of interest due or stipulated, shall not be affected by the administration which the Succession is under, and as putting the Succession on the footing of an ordinary debtor as to its liability to pay interest, and dispensing with the necessity of a judicial demand.”
   Slidell, 0. J.

In the letter addressed by Gordon to the plaintiffs, he did not bind himself as surety of the Oxnards for the debt they were about to contract, with all its incidents and accessories. He only made himself responsible for the due consignment by Messrs! Oxnard to plaintiffs’ house at Richmond, between 4th March, 1848, and July 31, of that year, of sugars to the full and fair value of $30,000. The letter is entirely silent as to the charge of commissions for advancing and exchange and to hold the surety for those charges, in addition to the $30,000, would be to hold him beyond the specific subject-matters and amounts for which he undertook responsibility. If the Oxnards had shipped to plaintiffs’ address, prior, to 1st August, sugars to the full and fair value of $30,000, or if Gordon had done it in their stead, his suretyship would have been fulfilled. Such shipments would have put the plaintiffs in possession of property of the value of $30,000. This not having been done, that amount is the measure of Gordon's liability, and may be considered as due by him on 1st August, 1848.

The guarantee being silent as to interest, we think interest should run against Gordon only at five per cent. It is true that Gordon was subsequently party to a written agreement by which the Oxna/rds agreed for eight per cent, interest ; but the terms of that instrument seems to us stringently to exclude any implication of an intention to enlarge the suretyship. It was expressly declared that the responsibility should be left precisely such as resulted from the letter of guarantee, and Gordon's estate should not be answerable for any amount in principal, interest, commission and exchange, for which it was not already answerable under the letter.

Under the various agreements respecting the purchase, at the judicial sale of the mortgaged property, its administrations, and resale, it is clear the plaintiffs must have credit for all antecedent incumbrances paid off by them, and for all disbursements necessarily made for expenses of administration and resale. The principal sums for these items are correctly stated in the accounts annexed to the petition.

The account, which is confessedly correct as to the Oxna/rds, must be reformed as to defendants, by excluding the charges for exchange and commission on the advance of $30,000, and reducing interest on that sum from eight to five per cent., to run from 1st August, 1848.

We think the plaintiffs are entitled to charge in account five per cent interest upon the amount of principal and interest of the Howell notes paid by them ; this five per cent, interest to run from the date of payment by plaintiffs of said notes respectively. In paying those notes under the agreements, they may be considered as having acted as the mandataries of the defendants. We cannot allow eight per cent, interest on the sums thus advanced, as there was no express agreement between plaintiffs and defendants to that effect.

Interest should also be charged only at five per cent, on the amount paid to the Citizens’Bank and Berthoud from the dates of the respective payments, and on the other items of disbursement.

The item for fees paid to counsel appears to have been an expense incurred in the administration of the property and its resale under the agreement, and was properly chargeable in the accounts. The reasonableness of the fee we do not understand as being disputed.

The defendants object to the charge of eight per cent, discount on the four unmatured notes credited in the account. As there was no agreement allowing plaintiffs to discount them at that rate, they are to be credited as cash at the period of their maturity.

We are unable to perceive by what right the estate of Gordon can claim reimbursement for the amount paid Fgana. We understand it was for a mortgaged note which constituted an antecedent incumbrance on the plantation. The guarantor was responsible for any deficiency of the proceeds of the mortgaged property to meet the amount guaranteed, and cannot, therefore, be permitted to receive with one hand what he would have to pay back with the other.

An account stated with interest according to the principles above expressed, exhibits a balance on 1st April, 1854, in favor of plaintiffs for the sum of $2602 58-100.

It is therefore decreed, that the judgment of the District Court be reversed ; and it is further decreed, that the plaintiffs recover of the said Succession of Alexander Gordon, to be paid in due course of administration, the sum of $2602 58-100, with interest from 1st April, 1854, until paid, and costs in both courts.


author: Spojtord, J.

text:
    W. F. Tunnard v. James Hill.
    Certain facts deemed sufficient evidence in corroboration of the testimony of a single witness who proved an express promise to pay a demand exceeding $500.
    The proper mode of proceeding against the purchaser of mortgaged property, by a creditor who seeks to be paid out of the balance of the price, retained by the purchaser for the payment of mortgage debts, is by rule. But objections to an original action are waived by pleading the general issue.
    PPEAL from the Seventh District Court of East Feliciana, Sterling, J.

      tT. B. Smith, for plaintiff.

      Benjamin, Bradford & Finney, for defendant and appellant.
   Spojtord, J.

On the 7th June, 1851, the defendant, Hill, purchased at sheriff’s sale in the parish of East Feliciana, the plantation, slaves, stock, &c. of one Pleasant G. Harbor, for the price of $31,570, cash, of which sum $13,-451 50-100 was applied to the satisfaction of the writs of seizure and sale in favor of Hill himself, under which the property was sold, and the balance, $18,118 50-100, was, according to the sheriff’s return, “retained in the hands of the purchaser to pay and satisfy all privileges and mortgages in their order, rank and privilege.”

The plaintiff was at that time, and still is, owner of a judgment against Harbor for the sum of $1359 99-100, with a privilege on certain mules, sold by one Shropshire to Harbor for the use of the plantation aforesaid. This judgment was properly inscribed in the parish recorder’s office, on the 9th April, 1851, and therefore affected the property of Harbor purchased by Hill, as a judicial mortgage.

Nearly two years after the sale, the plaintiff Tunnai'i brought this suit agains't Hill, claiming the amount of his judgment aforesaid out of the funds retained in Hill's hands for the purpose of paying the mortgage and privilege creditors of Harbor. In an amended petition he alleged that Hill specially assumed and promised to pay this debt. Hill answered by pleading the general issue, and averring that if the plaintiff ever had any privilege on the mules sold to Harbor, he lost it by suffering them to be sold with the plantation, without interposing any claim.

The plaintiff had judgment, and the defendant has taken this appeal.

In this court the defendant, for the first time so far as we can judge from the pleadings and evidence, sets up the special defence that he is not liable to pay the plaintiff, because there were enough mortgages and privileges of superior rank to that of the plaintiff to absorb the large balance of his bid, which he retained for the purpose of paying off such incumbrances.

The mortgage certificates attached to the prooes verbal of the sheriff’s sale do show that there was an apparent indebtedness of Harbor to a somewhat larger amount registered before the plaintiff’s judgment. But this fact was never distinctly put at issue by the defendant in the District Court. It does not even appear that he offered the mortgage certificates separately in evidence, so as to call the plaintiff’s attention to them. He does not now assert that all the prior mortgages are veritable claims which he has been or will be compelled to paj’-. He docs not shoy that he has been ordered to pay anything but the Niles & Oo. debt. These circumstances, in connection with the sheriff’s return, that the defendant retained the greater part of the price “ to pay all privileges and mortgages,” corroborate the evidence of a witness who testifies that he expressly agreed to pay the plaintiff.

Although it would ha ve boon mere regular for the plaintiff to have proceeded by a rule, the defendant has waived all objections on that score by his mode of pleading.

As we think substantial justice has been done, we will not turn the plaintiff round to a now proceeding.

Judgment affirmed.

Defendant’s counsel made the following argument for a re-hearing-:

The plaintiff placed his right of action on two grounds: 1st. That the defendant by his purchase had “ made himself liable” for the payment of all the privilege mortgage debts of the plantation.

And 2d. That the defendant had specially assumed and promised to pay the plaintiff’s debt.

On the first point, the proof, so far from sustaining the plaintiff’s allegation, directly conflicts with it. The defendant, by his purchase, did not assume or make himself personally liable for the payment of any of the debts of the plantation. He only retained a fund, out of which the privilege and mortgage creditors were entitled to be paid, “in their rank and order,” to the extent of the fund.

On the secoud point, the plaintiff offered the testimony of a single witness, which is not only insufficient, unless supported by corroborating circumstances, to make the required proof, but which, as it is believed, when properly construed, does not authorize the unqualified conclusion which the plaintiff wishes to draw from it. The expression imputed to the defendant, “ that he was desirous to have the claim settled and paid at as early a day as possible,” implies that such settlement and payment did not depend on the defendant alone, but required the action or concurrence of others to authorize it. The further expression, “ that he had assumed the payment of all the privileged claims against the estate, amongst which this was enumerated,” was probably a misapprehension of the witness, for the fact was not so.

Upon this state of facts, it was believed that the plaintiff had not made out his case; that he had not 'furnished the court with the means of arriving at an • intelligent conclusion and of pronouncing with confidence upon the justice or injustice of the plaintiff’s claim. Still more confident was the defendant in the belief, when, upon referring to the mortgage certificates, it was apparent to the court that the incumbrances on the plantation, prior to that of the plaintiff, were more than sufficient to exhaust the funds in the hands of the defendant.

The court appears, however, to have considered that the mode in which the defence was conducted was a “ corroborating circumstance” sufficient to sustain the plaintiff’s proof, and to have drawn from the manner in which the pleadings were made up and the argument conducted, inferences against the reality and justice of the defendant’s case.

It is said, that the fact that the fund in the hands of the defendant was insufficient to discharge the privilege and mortgage claims on the plantation, superior “ in rank and order” to that of the plaintiff, “ was net distinctly put at issue by the defendant in the District Court;” and the court proceeds to remark that “ he (the defendant) does not now assert that al! the prior mortgages are veritable claims which he has been or will be compelled to pay.”

The counsel for the defendant begs leave to explain to the court, that he made no assertion of the kind in the argument at bar, because ho could hot do so without travelling out of the record. But as his reserve on that point has been misconstrued by the court, to the prejudice of his client, he feels it to be his duty to correct it. lie begs, therefore, to be permitted to assure the court that the defendant has already paid, on account of such prior incumbrances, more than the whole amount of the funds retained in his hands for that purpose, that he accordingly advised the defendant, before this suit was brought, that the plaintiff had no valid claim against him. The defendant was a non-resident; and claim after claim was presented and paid, till he became greatly alarmed at the demands upon him. Aud, under these circumstances, if the judgment of the court below be affirmed, so far from doing “ substantial justice” between the parties, it must work the defendant an irreparable injury.

The defendant, therefore, prays that a re-hearing be granted, and. the case remanded for further proceedings.

Re-hearing refused.


text:
    P. H. Goodwyn v. J. Pritchard.
    In the case of.sale of articles of produce, &c., sold by "weight, the sale is not perfect till the articles are weighed, and until such time they remain at the risk of the seller. C. C. 2433.
    Parties may by agreement, withdraw their contracts from the operation of this rule, but if the agreement rests on inference, the inference should be clear, cogent and convincing.
    The waiver of the benefit of the law which puts the thing sold at the risk of the seller, until the weighing, &c., is the waiver of an important legal right, and to impair this right under the law, an express or implied agreement to waive it should be distinctly and convincingly proved.
    from the District Court of the parish of Iberville, Robertson, J.

      G-ookl and Stansbury, for plaintiff.

      R. A. Upton, for defendant and appellant.
   Slidell, C. J.

In November, 1852, the plaintiff, a New Orleans merchant, agreed with the defendant, a planter in Iberville, for the purchase of his crop of molasses, then in process of manufacture, at the rate of twenty cents per gallon, the plaintiff to furnish barrels. The molasses was to be delivered in barrels at the plantation, and the gallon was to be determined by weight, at twelve pounds to the gallon. The agreement originally, was for delivery on or before 25th December, and for payment, from time to time as delivered. It was subsequently agreed to extend the time of delivery to a date left somewhat indefinite by the evidence, but it would seem as late as 15th January; and it was understood that Pritchard might draw on Goodwyn {or $1600, on account of the price, payable on first (fourth) January. Goodwyn paid on 4th January a hill so drawn, under date of 28th December. - On the 4th January the defendant’s sugar house took fire, and the undelivered portion of the molasses was in part damaged, and in part destroyed. The question presented is, at whose risk was the molasses at the time of its loss. The question, who should bear the risk of the destruction or deprivation of the thing sold, in the interval between the agreement of sale and the delivery, is one, which, treated as a question of natural equity, presents serious difficulties, and has divided the opinions of learned minds. 'Puffendorf and others thought that the Roman juris-consults had wandered from the true principles of natural justice in the adoption, as the general rule of the doctrine, that as soon as the contract of sale is perfect, the thing sold is at the risk of the buyer. Our Code has by positive provisions set at rest discussion, both as to the general rule and its exceptions, and these we shall first consider and apply to the general features of this case, leaving for subsequent remark some peculiar circumstances on which the defendant relies, for the purpose of withdrawing this case from the operation of the ordinary rules.

Our Code has adopted the principle of the Roman law above noticed, by declaring in Article 2431 that the sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser, with regard to the seller, as soon as there exists an agreement for the object and the price thereof, although the object has not yet been delivered nor payment made. The operation of the rule is, however, restricted to the pure and simple sale of a determinate thing, un corps certain; for by Article 2433 it is said, when goods, produce, or other objects are not sold in a lump, but by weight, by tale or by measure, the sale is not perfect, inasmuch as the things so sold are at the risk of the seller until they be weighed, counted or measured.

Now in the present case the molasses remained in the possession of the defendant, and had not been weighed at the time of the fire, and under the Article 2433, its damages and destruction was at the planter’s-risk, and the loss must be borne by him. The case was not withdrawn from the operation of that Article by the fact that Goodwyn had agreed to buy and Pritchard to sell the whole crop of molasses. Until the weighing, the price and quantity were undetermined, and the sale could not in legal contemplation be considered perfect. The point is distinctly discussed by Pothier, with his usual clearness:

Cette décision a lieu nonseulement lorsqu’on a vendu une certaine quantité de marchandises a prendre dans un magasin off il peut y en avoir davantage, parce qu’en ce cas, comme nous venons de le dire, jusqu’á ce que la mesure ou le poids en ait été fait, ce qui a été vendu ne consiste encore en aucun corps déterminé sur lequel le risque peut tomber; elle a lieu aussi dans le cas oil l’on aurait vendu tout ce qu’il y a dans un magasin, dans un grenier, si la vente en a été faite á raison de tant par chaqué millier, par chaqué muid de blé, etc.

La vente, en ce cas, n’est point censée parfaite, et les marcbandises vendues ne sont point aux visques de l’acheteur, j usqu’á ce qu’elles aient été mesurées ou pesées; car jusqu’á ce temps, non apparet quantum venierit. Le prix n’étant constitué que pour chaqué millier qui sera pesé, chaqué muid qui sera mesuré, il n’y a point encore le prix déterminé avant la mesure ou le poids; et par consequent la vente avant ce terns n’est point assez parfaite pour que le risque des choses vendues puisse concerner l’acheteur; il n’en doit étre chargé qu’aprés que les marchandises auront été pesées ou mesurées. Pothier, Vente No. 308. See also, Troplong, Vente No. 90, who suggests an additional consideration, the uncertainty of quantit}’. Sans doute, cette chose est précisée quant au lieu qui la contient; mais elle ne l’est pas en égard á la quantité, et c’est ici la quan ■ tité qui est la condition décisive. En effet, quand j’achote á la mesure, au poids, au compte, j’annonce que je ne veux envisager la chose que comme quantité, et non comme corps certain. La quantité peut diminuor par dessication, absorption, coulage, corruption, etc.; car il s’agit de choses naturellement sujettes á dépérissement.

It remains only to consider the special circumstances upon which the defendant relies, as withdrawing the case from the operation of the ordinary rule, governing sales by weight.

And in the outset of this enquiry it must be borne in mind, that although parties may by agreement withdraw their contract from the operation of the rule of law we have just considered, yet such agreement should not be let in, unless where there is no doubt of its existence. If the agreement rests on inference, the inference should be clear, cogent and convincing.

It is not pretended that there was an express agreement upon the prolongation of the time of delivery, that the molasses should without weighing remain until delivery at the risk of the buyer; and we may also observe here that it does not satisfactorily appear, as asserted in argument, that the prolongation was made purely for the accommodation of the buyer. It is by no means clear that Pritchard was ready to deliver on 25th December; and the arrangements for further time with an intermediate partial payment was probably the result of considerations of mutual convenience, and mutual inability to comply at the time originally designated.

Then, an agreement by Goodwyn to waive the benefit of the law which puts the thing sold at the risk of the seller until the weighing, a waiver certainly of an important right, rests solely upon such inference as may be drawn from the following facts. On the 25th December a letter appears to have been written by Goodwyn to Pritchard, which is not in evidence, and the tenor of which is only deducible from Pritchard’s reply, under date of 27th December, which is in evidence, and of which letter Goodwyn acknowledged receipt, under date of 5th January, 1853. Pritchard’s letter is in these words:

Ibekvilms, December 27th, 1852.

Dear Sir: Your favor of the 25 th, by Mr. HcGavoclc, has been received, aud according to your request, I reply that I am willing to accept your proposition to pay on the 3d of January three-fourths or four-fifths of the probable amount of molasses remaining in the cistern, which is not less than 10,000 gallons, and I suppose it is nearer 12,000 gallons. The cistern is nearly new, and I have not had it in use long enough to know its contents. It is of an irregular oval form, and difficult to measure the contents. I form my judgment from the quantity of sugar drained over it. You say that you wish to have it insured. You will do as you think for your interest., but it appears to me that it will be safe until the 15th or 20th of January, for there will be upwards of two hundred hhds. of sugar remaining in the cistern until after that date, so that it will be for my interest to keep a careful watch as I have no insurance upon anything.

I will draw upon you for the $1000, payable on 4th January, in favor of Mr. James Teller, to whom I owe a large amount, to be paid 1st and 4th January. Tours very truly,

J. Pkitcuakd.

In a letter of 5th Januaiy, written before intelligence of the fire, Q-oodwyn acknowledges receipt of his letter, informs Pritchard, that his draft has been paid, and instructs him to fill and forward 200 half barrels by the next Saturday’s steamer. And by an affirmative answer to an interrogatory, Qoodwyn states that on the 5th January he made application to an Insurance Company, for insurance upon 10,000 gallons of molasses then in the sugar house of defendant as his property and for himself, and his application was accepted. This insurance, it may be inferred, proved ineffectual, having been made after the fire.

Although we are not informed of the precise terms of Qoodwyn's letter of the 25th, to which Pritchard made the reply above stated, it is not unreasonable to infer from the language of the reply, that Qoodwyn had intimated an insurance at Pritchard's expense. For Pritchard tells Qoodwyn he has no insurance on anything, and thinks the molasses will be safe, but leaves Qoodwyn to act as he thinks best, for his, Qoodwyn’s, own interest. At all events the matter is susceptible of this construction, in the absence of explanation to the contrary, and if so, there is nothing in the suggestion of insurance, which involves the existence of an implied understanding that the molasses in the meanwhile should be at Qoodwyn's risk. Nor must we necessarily imply the existence of such an understanding from the fact of Qoodwyn subsequently insuring on his own account. His advances on the molasses gave him an insurable interest, and his taking the precaution, may be reconciled with the hypothesis that although he considered a loss before delivery, would be at Pritchard's risk, he choose to protect himself against his insolvency. Even if he did it from a doubt about his legal right as vendee, it would not affect his right. To impair his right under the law, an express or implied agreement to waive it should be distinctly and convincingly proved. It should not be left to uncertain and inconclusive inference. See Bach v. Cohn, 3 Ann. 103 ; Civil Code 2267.

Judgment affirmed with cost.


author: Shdeld 0. J.

text:
    John Glenn v. G. T. Dunbar’s Administratrix.
    An action for moneys advanced is a personal action,which is only barred by the prescription of twenty years when the plaintiff has been continuously an absentee residing in another State, since the inception of the debt.
    A letter containing this language: “ I beg that you will bear with me a little longer, and if my health is spared you will yet receive from me everything. I shall have to make you monthly payments, and by this means secure you the amounts,” imports a conditional promise to pay. Such a letter, written by defendant, will not entitle plaintiff to judgment, as upon a new promise to pay after insolvency, when it is proved that defendant continued in bad health from the date of the letter . till his death; and when it is neither al’eged nor proved that his affairs so prospered after that date as to give him the ability to pay.
    PPEAL from the Third District Court of New Orleans, Kennedy, J.

      L. Runton and E. A. Bradford, for plaintiff.

      W. R Runt, for defendant and appellant, argued:
    The evidence offered to. sustain plaintiff’s demand consists, 1st. Of the extract from the schedule in the case of O. T. JDunbar v. Ris Creditors, filed 27th of March, 1840, which is as follows, to wit: To John Glenn, of Baltimore, for balance of his acceptance of my draft for $2750, receipted and paid by him for my accommodation (about) $2000; and, 2d. Of the letter of G. T. Dunbar, dated December 17, 1849, annexed to the petition, which is in these words :
    “You will remember that when the first note I received from the sale of the machinery became due, I made a remittance to you. When the second series were near their maturity, I was out of town, but left the notes with my wife to hand to Mr. Ramey, with instructions to purchase a draft for the amounts remaining due to you and to Mr. Stanley, and remit them immediately. On my return I found that the notes had been paid, and that Mr. Ramey, to oblige a friend, had lent him the money for three days. He failed the day after, and I lost every dollar. I beg that you will bear with me a little longer, and if my health is spared you will yet receive from me everything. I shall have to make to you monthly payments, and by this means secure you the amount.”
    Prescription commenced to run in this case on the 27th March, 1840, the day when Dunbar's schedule was filed. Sue. of Debrcuil, i2 Rob. 513 — Trop. Pres. No. 719.
    The defendant was cited on the 13th of June, 1851. More than eleven years had elapsed in the interval between these dates, and the plaintiff’s right of action had become barred. C. O. 3508.
    But the plaintiff alleges that prescription was interrupted by the letter of Dunbar, above, dated Dec. 17, 1849.
    It is submitted that this letter does not contain such an acknowledgment of the plaintiff’s right as the law requires to interrupt prescription. 0. O. 3486. Marcadé de la Pres. Art. 2248, ¶ 10, p. 145. It is evident that the debt spoken of in the letter is not the same as that placed upon the schedule, and that there is no necessary or even apparent connection between them.
    There is no specific mention in the letter, of date, circumstance, or amount, from which it can be inferred that the obligation of mention is in any way whatever connected with that mentioned in the schedule.
    In speaking of the interruption of prescription, in his commentary on Art. 2243 of the Napoleon Code, which is in the precise terms of Art. 3486 of oúr Code, Troplong says: “Elle peut également resulter d’une lettre missive. Mais il faut que la lettre presente un sens clair et précis sans quoi les juges ne de-vraient pas s’y arréter.” 2 Trop. Pres. ch. 4, No. 614.
    The principle here laid down has repeatedly been admitted by our courts. In the case of Laclcie v. Macmurdo, 9 An. p. 15, Slidell, Oh. J., said: “ As the alleged interruption practically affects the rights and obligations of the parties to a contract, it is reasonable to require that the proof of an assent to such change should be clear and unequivocal.” See also, Conway v. Williams, 10 La. 570 ; Courlebray, &c., v. Rite, 9 Rob. 513.

      But, conceding that the letter refers to the same debt as that admitted by the schedule, and that it affords such evidence of an acknowledgment of plaintiff’s rights as the law exacts to interrupt prescription, it is submitted that the letter contains an obligation which is made to depend on an uncertain event — a conditional obligation. O. 0. 2015; 1 Trop. Pres. No. 74; 2 Trop. Pres. ch. 4, No. 617; Tyson v. McGill, 15 La. 146 ; Lafourcade v. Barron, 8 La. 283 ; Tompkins^. Brown, 1 Denio, 249 ; Farmers' Bank v. Glarlc, 4 Leigh. 003; 2 Green!. Ev., sec. 440.
    If the case at bar be tested by the principles recognized in the cases cited, it is clear that the conditional offer of Dunbar to pay the plaintiff, “ if his health was spared,” and by “monthly payments,” could not be enforced by a judgment against defendant. Por not only has the plaintiff failed to prove that the condition did happen, but the record shows that it did not happen — thatXhm-bar was in bad health from Dec., 1849, up to the time of his death.
   Shdeld 0. J.

The petition in this case was filed and served in June, 1851. It alleges that the succession of Dunbar is indebted to the plaintiff in the sum of $2000, for which a judgment is prayed; and the ground of action is thus stated: “ That petitioner advanced the said sum of money to said Dunbar, and the said indebtedness was acknowledged by placing the same on his schedule filed in his insolvent proceedings in the late Commercial Court of New Orleans, and by the letter of said Dunba/r, dated 17th December, 1849, and annexed to the petition, by which he promised to pay petitioner said sum of money so due by him, thereby renewing the obligation and conferring on petitioner a right of action for its recovery.”

Among other grounds of defence, the defendant relied on prescription. This ground seems to us untenable, for it appears that at the date of the schedule and of Dunbar's letters, Glenn resided in Baltimore ; his residence is so stated in the petition; there is no evidence that he has ever been in this State. The fair inference from the proof before us, is that he has been absent. It will be observed also that the plea of prescription is general, that is to say, without any specification of terms, and the Article 3508 of the Code, which is invoked in argument by the defendant, declares that “in general all personal actions, except those above enumerated, are prescribed by ten years, if the creditor be present, and by twenty years if he be absent.”

As, therefore, a final judgment cannot be rendered for defendant upon the plea of prescription, it remains to consider the other grounds of defence.

We do not think the letter of 17th December, 1S49, sustains the allegation of the petition, that Dunbar thereby “promised to pay the debt mentioned in the schedule, and thereby renewed the obligation, and conferred on petitioner a right of action for its recovery.” It is by no means clear from the language of the letter written in 1849, that the writer refers to the debt mentioned in the schedule in 1840. But were it conceded that the letter refers to the same debt, it does not contain an absolute promise to pay. If the letter can be considered as anything more than a conscientious acknowledgment of the existence of an obligation and the suggestion and the encouragement of a hope that it would eventually be paid, if a promise be its true import, it was nevertheless nothing more than a conditional promise. The writer describes the struggles he had made to pay his debts, the misfortunes he had encountered in his subsequent business, and the large absorption of his salary by family expenses, and then uses this language : “ I beg that you will bear with me a little longer, and if my health is spared you will yet receive from me everything. I shall have to make to you monthly payments, and by this means secure you the amount. My expenses this winter have been heavy, from the fact of my poor wife being confined with rheumatism to her bed,” &c.

By his cessio bonorum, Dunbar was relieved to this extent, that his creditors, parties to the insolvency, could only attack, for the unsatisfied balance of their claims, upon showing that he had acquired property over and above what was necessary for his maintenance and that of his family. Civil Code, 2178, Act of 1817, p. 188 ; Plympton v. Preston, 4 Annual, 359; Quimper v. Biena, 8 Rob. 204; Goicochea v. Ricarte, 4 La. 45. Unquestionably the original obligation is a sufficient consideration for a new promise, and such promise will support an action. Beck v. Howard, 3 Ann. 501. But if the promise bo conditional, the condition must be observed. Here the evidence shows that Dunba/r was in bad health from December, 1849, up to the time of his death, and it is neither alleged nor proved that his affairs so prospered after the letter as to give him the ability to pay.

Having failed, therefore, to substantiate a right of recovery by virtue of the alleged new promise in 1849, the plaintiff’s case rests solely upon the acknowledgment made in the schedule. But the evidence which proves that acknowledgment, establishes also that there has been a cessio bonorum; and the grounds for a new attack in such case are neither alleged nor proved. We will not undertake now to decide a question both novel and difficult, whether upon the death of a debtor who has made a cessio bonorum, his subsequently acquired property is answerable for the unpaid balance of debts antecedent to the cession, even though the property thus left at his decease be insufficient for the maintenance of his widow and children. Leaving that question open, it is sufficient now to say, that the plaintiff has not alleged nor proved that the insolvent estate has been settled and its assets have proved inadequate.

It is therefore decreed, that the judgment be reversed, and that there be judgment against the plaintiff, as in case of non-suit — the costs in both courts to be paid by the plaintiff.