text:
    F. M. McIntosh et al. v. Merchants & Planters Insurance Company. J. Culbertson, Receiver.
    Privileges cannot be acquired by suits or seizures after a surrender made by a debtor to his creditors ; and the creditor on whose opposition to the tableau of distribution a reduction is ordered of the amount allowed by the syndic as counsel fees, cannot claim the exclusive benefit of such reduction.
    Appeal from the Fifth District Court of New Orleans, Egglestm, J.

      1$. Bawle and Durant ds JTornor, for appellants. 6. Schmidt, for ap-pellees.
   Land, J.

The question for our decision in this case is whether the creditor of an insolvent corporation who opxioses a tableau of distribution filed by the receiver, and succeeds on his opposition in reducing the amount of fees allowed by the receiver to his counsel, is entitled to the exclusive benefit of such reduction, by privilege or preference to all the other creditors of the corporation.

The creditors who claim the benefit of such reduction, are Angelrodl <& Barth, who succeeded on two former oppositions in reducing the fees allowed to counsel from three thousand to fifteen hundred dollars. These parties are now before us as appellees, on the appeal of other creditors of the corporation, from a judgment awarding to the appellees, on their op position to tlie final tableau, tbe entire amount refunded to- tbe receiver, under tbe former decisions of tbis court.

Tbe privilege claimed by tbe appellees cannot be allowed, because it is not granted by law. Privileges cannot be acquired after a surrender of property, either by suits or seizures. Tbe advantage claimed by tbe ap-pellees, is only allowed by Article 1792 of the Civil Code, when there is no cession of goods, and it§ provisions have no application to tbe case of an opposition by creditors to a tableau of distribution filed by a syndic or receiver.

It is, therefore, ordered, adjudged and decreed, that tbe judgment of tbe lower court on tbe opposition of AngelrocU & Bcerth be avoided and reversed ; and it is now ordered, adjudged and decreed, that said opposition be dismissed with costs in both courts, and that tbe final tableau filed by tbe receiver be confirmed and homologated at tbe costs of tbe ap-pellees in this court.


source: Caselaw Access Project

author: Mekhiok, C. J.

license: Public Domain

text:
    Charles L. Knabe et. als. v. J. B. Ternot et. als.
    The individual corporators may sue in their individual names when they have rights in the corporation to vindicate which relate to property or any intellectual gratification, the violation of which can he made the basis of a demand for money.
    The act of the majority of tho corporators is considered as the act of the whole. But as the individuals who compose a corporation do not directly own its property, so they act in the transaction of its -business primarily as agents ; and where the individuals composing one corporation formed a majority o£ another and separate corporation — Reid : That they could not, as agents of the first apply to themselves, as agents of the second, for a lease of the property of the latter, and then, as agents of the same, grant it on such terms as should please themselves as agents of the former, in opposition to the wishes and protests of their co-corporators ot the latter corporation, and to their exclusion. The co-corporators thus iujured may repudiate this act of the majority upon these grounds ; if they were joint owners, they could not he judges in their own cause, and if they were agents, they represented incompatible interests. The agents of a corporation when once appointed, or members acting in their stead, are subject to the same rules, liabilities and incapacities as agents of individuals and private persons.
    An agent cannot be permitted to assume duties and trusts incompatible with his agency, nor validly exercise such agency after he has acquired an interest averse to his principal.
    Appeal from tbe Tbircl District Court of New Orleans, JDmigneaud, J.

      T, W. Collens,, for plaintiffs and appellants. E. FilleulanA J. Tis-sol, for defendants.
   Mekhiok, C. J.

Tbo plaintiffs, twelve in number, allege that they are regular members of an incorporated society established for mutual relief and succor, according to law, under tbe name and title of St, Andrew Lodge ; that said corporation owns and bolds certain lots of ground, with tbe buildings and improvements thereon, situate in tbis city, together with various articles of furniture, masonic paraphernalia, and other moveable effects contained in tbe buildings aforesaid.

That tbe members of said society, being all master masons, agreed to meet masonically, and did so meet in unity, until a conspiracy was formed by a number of members to exclude them (tbe plaintiffs) from their common enjoyment and possession of tbe property and domicil of tbe society, and to appropriate among tbe parties to said conspiracy tbe exclusive possession and use of said property, to tbe disturbance of tbe actual and real possession of them, tbe plaintiffs.

That in order to effect them design, tbe defendants (consisting of twenty-two individuals) formed themselves into a separate corporation under the name and style of St. Andrew Lodge No. 5 ; and then applied to St. Andrew Lodge for a lease of its property, and being themselves all present at a meeting of the St. Andrew Lodge, passed a resolution leasing to themselves, that is, to St. Andrew Lodge No. 5, the property, masonic paraphernalia and movables belonging to St. Andrew Lodge, for a very inadequate rent, with the understanding that they should have, exclusive and continuous possession and control of the leased property.

That the defendants carried said resolution by (heir own votes, notwithstanding the objections and protestations of the plaintiffs, who were not members of the new society incorporated under the name of St. Andrew Lodge No. 5, and in furtherance of their action, the defendants are about to exclude and prevent the plaintiffs from the use and enjoyment of said corporate property according to its destination, and are appropriating the same to their own separate masonic purposes.

And that the pretended lease of the property of St. Andrew Lodge, by the resolution carried by the votes of the defendants, violates the title and rights of the plaintiffs, and is illegal, null and void.

The plaintiffs pray thct the keeper of the property of St. Andrew Lodge be enjoined from delivering the same to the exclusive use and occupancy of the defendants ; and further pray that the defendants be enjoined from preventing, interfering with, and obstructing the plaintiffs from visiting and using said property according to its destination ; that the resolution and lease in favor of St. Andrew Lodge No. 5 be declared null and void, and that the defendants be condemned in solido to pay heavy damages.

The plaintiffs amended their petition by making the St. Andrew Lodge a party defendant to the suit. The St. Andrew Lodge No. 6 was made a defendant in the original petition.

Exceptions were filed to the right of the plaintiffs to institute the action.

The same being overruled, the defendants answer by a general denial, and pray for damages on the dissolution of the injunction.

In June, 1856, a corporation under the general laws was formed, as stated in the plaintiffs’ petition, called the St. Andrew Lodge. The plaintiffs and defendants all belonged to the same as members. The real estate, the subject of the lease, is the property of the St. Andrew Lodge. The members all being master masons, agreed to meet masonically, as stated in the petition, and adopted the Scotch Rite. They placed themselves under the jurisdiction of the Supreme Council.

The individual defendants constituting a majority of the members of the St. Andrew Lodge, applied to the Grand Lodge of Louisiana (which by law has power to erect masonic corporations under its jurisdiction) for a charter ; and the same being granted, they formed the legal corporation known as the St. Andrew Lodge No. 5.

By their own votes, they leased to the new corporation, also under their control, the property specified in plaintiffs’ petition, and of the value therein stated.

It appears to be proven as well as conceded, that the plaintiffs have no right in virtue of their membership in St. Andrew Lodge, to participate with the defendants in the masonic meetings held in the buddings of the corporation by the members of the new corporation organized under the jiU'isdietion of the Grand Lodge. In fact, the proof shows that the doors of the building were closed on one occasion against the plaintiffs and those wishing to meet with them under the Scotch Rite. The inadequacy of the price of the lease only appears by a comparison of the value of the property with the rent, and the fact-of the exclusion of the plaintiffs from the use of the property. The questions made here are in substance the following, viz :

1st. Can the plaintiffs as individuals stand in judgment ?

2d. Are they not concluded by the act of the majority of their co-cor-porators, and is not the same binding upon them ?

It must be evident to every one that this court has only to deal with the questions of law which arise upon the state of facts presented by the record. Wliat is authentic or conformable to the usages of masonry, can-only be settled by those initiated in its mysteries. Whether the plaintiffs be or not true and accepted masons, concerns not this controversy. The St. Andrew Lodge is a legal corporation. So also is St. Andrew Lodge No. 5. The plaintiffs; are members of the first named corporation, and the two, -with certain members of both corporations, are the defendants to the suit. All these parties, plaintiffs and defendants, are capable of sustaining legal rights, .and our endeavor must be to ascertain what those rights are in relation to the matters presented for our consideration.

I. Can the plaintiffs sue as individual members of a corporation ? On this point it is urged by the defendants’ counsel, that the plaintiffs and defendants are corporators, and as such they have no interest whatever in the property of the corporation named St. Andrew Lodge.” They cite Art. 427 of the Civil Code, which says : “The estate and rights of a corporation belong so completely to the body, that none of the individuals who compose it can dispose of any part of them.”

Although corporations are distinct from the persons who compose them, and are considered as intellectual beings, yet it is well settled, that the corporators who compose the same, and through whose agency the affairs are managed, sometimes have rights in the corporations which they can protect in a court of justice. In monied corporations, legal proceedings on behalf of stockholders are of frequent occurrence; and we know no reason, why members of other corporations should be excluded from the coiu-ts when they have rights to vindicate which relate to property or any intellectual gratification, the violation of which can be made the basis of a demand for money. There is, therefore, no objection to the proceeding in the names of the individual members. Indeed, this was the only mode in which the plaintiffs could present their grievances to the court; for their co-corporators controlled both bodies, and they could thus prevent any suit from being commenced by the St. Andrew Lodge, the only body, besides themselves, who might vindicate the plaintiffs’ rights. See Dodge v. Woolsey, 18 Howard 331, and Zabriskees v. C. C. C. Railroad Company, 23 Howard 395.

II. The second question raised in this case is, whether the plaintiffs are not concluded by the act of the majority of the members of the St. Andrew Lodge ? The Civil Code declares that: “In corporations, the act of the majority is considered as the act of the whole.”

It being admitted that the resolution leasing the property of the St. Andrew Lodge to St. Andrew Lodge No. 5, was passed by a majority of the members present, notwithstanding the protests of the plaintiffs, presents a prima facie case of right on the part of the defendants, and this position must be overcome by the- plaintiffs. They suppose they have accomplished this, by showing that the- individual defendants by whose agency the resolution was passed were incompetent to act by reason of their interest, and moreover, that the price or rent was inadequate. From its nature, a corporation aggregate is compelled by necessity to act through the agency of others, whether it be a meeting of members or officers elect. C. C. 429.

It may be laid down as a safe doctrine, that the agents of a corporation when once appointed, or members acting in their stead, are subject to the same rules, liabilities and incapacities as the agents of individuals and pn-ivate pmrsons. Story on Agency, No. 16.

It may be further affirmed as fundamental truths, that no man can be allowed to decide his own cause as judge, and that no agent can be permitted to assume duties and trusts incompatible with his agency, nor validly exercise such agency after he has acquired an interest adverse to his principal. 11 An. 411; 13 An. 20 ; Story on Agency, Nos. 9, 10 and 210.

The contract which is the subject of the pn-esent suit was formed by the agency of a majority of the corporators themselves, and hence it might at first blush be imagined that they were acting as owners rather than agents. But as the individuals who compose a corporation do not directly own its p>rop>erty, so they act in the transaction of its business pu-imarily as agents. Quod universiiati débetur, singulis non débetur.

The twenty-two individual defendants, therefore, who voted in favor of the resolution to lease the pn-oporty of the St. Andrew Lodge, in so doing-acted as agents of this corporation. But at the same time, they had-formed a new corporation in which they had acquired interests as members and corporators, and had assumed its management and care as . agents. Here then they had acquired interests and assumed duties incompatible with their agency in the affair of granting the lease: They could not, as agents of St. Andrew Lodge No. 5, apply to themselves, as agents of St. Andrew Lodge, for a lease of the p>rop>erty of the latter, and then, as agents of the same, grant it on such terms as should palease themselves in their capacity of agents of the former, and in opposition to the wishes and pn-otests of their co-corporators of the latter lodge, and to their exclusion.

In another case, where a similar question is presented, it is said, in substance, that the mind is free in moulding its belief according to its apprehensions of truth, and hence, to limit its activity, and to stand in the way of change, is to set boundaries to human knowledge. From this proposition is then deduced the right of the majority of the St. Andrew Lodge to change its mode of working- out the charitable and social objects of the ’ foundation. See Keiser et al. v. Stansifer et al., 6 Ohio Rep. 363.

Perhaps a majority of a corporation might have a right to prescribe radical changes in the creed or in the ceremonies and rites of a corporation, so that the same should not be in contravention of the objects of the corporation itself, and should not exclude any of the corporators from participating in and enjoying the advantages of the corporation under the new regulations so introduced. But this is not the case before us. The pfiain-tiffs have never forfeited their rights as members of the corporation of St.. Andrew Lodge ; yet, by an act of the majority, they are excluded from the pn-oporty, and not pormitted to enjoy the advantages which their brethren derive from tlie property in connection with tlie new act of incorporation • and charter from tlie Grand Lodge.

Tlie plaintiffs are. permitted to say : “we stand upon otir act of incorporation ; we cannot by law be compelled, without any fault, to join another body of men, and become members of another corporation in order to en^ joy what is lawfully our own. If the defendants will deprive us of our rights for their own advantage, they must do it through the agency of otli--ors than themselves. If they be joint owners with ns, they cannot be. judges in their own cause ; if they be agents, they represent incompatible interests.”

' From this view of the case, it seems to us clear from principle, that the lease granted by the St. Andrew Lodge, through the agency of the indi--vidual defendants, to St. Andrew Lodge No. 5, was voidable, and that the plaintiffs are entitled to relief against it as depriving them of the free exercise of their franchises as members of the first named corporation.

No particular damages have been proven in this case, and we think that justice will be done by rescinding the lease and enjoining tlie defendants from opposing any obstacles to the enjoyment by the plaintiffs, as members of the St. Andrew Lodge, of their common property at all reasonable times.

The pleadings raise no question as to any right claimed by a third corporation, the St. Andrew Lodge No. 6, to use the buildings belonging to the St. Andrew Lodge.

The controversy here is argued on the issues made by tli& parlies to this suit, and on the questions submitted wliich have just been resolved in favor of the plaintiffs.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower Court be avoided and reversed; and it is now ordered, adjudged and decreed, that said lease, described in plaintiffs’ petition, from tlie St. Andrew Lodge to the St. Andrew Lodge No. 5, be rescinded and annulled, and that the defendants be enjoined from obstructing or preventing the plaintiffs, in their capacities of members of the St-. Andrew Lodge, from visiting at all reasonable times the property belonging to said last mentioned corporation ; and it is further ordered, that the defendants pay the costs of both Courts.


author: Voobhees, J.

text:
    V. Parlange & Co. v. H. Parlange & Co. — Mrs. D. Debat, Warrantor.
    In redhibitory actions, the conjectural opinions of physicians without anyjposi mortem examination, are not of themselves sufficient evidence to establish the origin of the disease of which the slave died.
    Appeal from the Sixth District Court of New Orleans, J.

      W- J>. Koonts and A. P. Avegno, for plaintiffs and appellants. IP IT. TIuni & Denigre, for warrantor. L. Gasteva, for defendants.
   Voobhees, J.

Tlie ground upon which tlie plaintiffs base tlieir action in redhibition, is that, at the date of the sale, the slave was afflicted with tubercular consumption.

The, only evidence upon this subject, is the conjectural opinion of physicians, two of whom had given medical attention to the slave during his illness. There was no post mortem examination.

On tlie other hand it appears that the slayo previously to, and at the date of tlie sale, enjoyed, to all appearances, remarkably good health. Nor does it appeitr at what time, after the sale, the first symptoms of the disease became manifest. Under these circumstances the speculative opinions of the physicians, who attended the slave during his last illness, lire not of themselves sufficient to establish tlie precise origin of the disease. Dupré v. Demarest, 5 A. 592; Stackhouse v. Kendall, 7 A. 670; Williams v. Talbot, 12 A. 408.

Judgment affirmed.


author: Mebriok, O. J.

text:
    B. Wentworth v. Ship Realm, Master and Owners.
    "Where the shipper of goods look a hill of lading with the endorsement upon the margin “ weiyld and contents unlmown,” and on the arrival of the vessel at New Orleans they were condemned hy the Port Warden to he sold ns damaged goods — field : That under such a hill of lading, the common carrier has complied with his contract when he lias delivore 1 the box externally in good order and condition, and the burden of proof rests on the consignee to show that the content^ of the box were in good order and condition at the time of the shipment.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Benjamin, Bradford c0 Finney, for plaintiff. G. P. McPheeters, for defendants and appellants.
   Mebriok, O. J.

This case presents a question as to the burden of proof.

Douglass and ¿Sherwood, of New York, shipped by the Realm three cases of merchandise, Nos. 62, 63 and 64, to the jilaintiff in this city. The bill of lading had this endorsement upon the margin, “Weight and contents unknown,” signed “Dobson & Fosdick.”

The ship in her passage out did not meet with bad weather, and there was no appearance on any portion of the cargo of stains by salt water, and no complaint made by any of the consignees except by the plaintiff, and then only for damage to the contents of box No. 63, which contained hoop-skirts which were stained and rusty.

The proof on one side shows that the box was made of poplar or pine ; that it was delivered, so far as its external appearance indicated, in good condition, and received without objection ; that it was not stained ; and that salt water always stains wood of a dark color. On the other side it was shown that the box tasted of salt water when opened at the plaintiff’s store, and the hoop shirts were stained and rusty; that they were condemned by the Port Wardens to be sold as goods damaged by contact with salt water ; that the hoop skirts, if merchantable, would have been worth $556 ; that they sold in their damaged condition for only .$201 74 net.

There was no proof of the condition of the merchandise when placed in the case in New York, and the plaintiff having had judgment in the lower Court for the difference between a sound article and tlie damaged goods, the defendant appeals and makes the point here, that tlie burden of proof was upon the plaintiff (under the bill of lading and the proof) to show that the contents of the box were uninjured when shipped.

We are of the opinion that the objection is well taken. Under a bill of lading in this form, we think the common carrier has complied, prima facie, with Ms contract when he has delivered tlie box externally in good order and condition. Where this appeal’s, tlie consignee must show, in oidor to recover, that the contents of the box which were not exhibited to the carrier were also in good order and condition ; for as the box was delivered in the same order as received by the carrier, and as he affirmed in his bill of lading nothing in regard-to the contents of the box shipped, no presumption can arise against him from the condition of the goods which possibly may have been damaged and packed in a box giving no indication of its contents. See Abbott on Shipping, 338, No. 9, and Thomas v. Ship Monday Glory, 13 An. 269.

But as this is the first time in which this (Question has been presented to this Court for adjudication, we think that justice requires that the case should be remanded in order to enable the plaintiff to produce further proof, if such he have.

It is, therefore, ordered, adjudged and decreed by the Court, that the j udgment of the lower Court be avoided and reversed; and it is further ordered, that this case be remanded to the lower Court for a new trial; the plaintiff and appellee paying the costs of the appeal.


author: Land, J.

text:
    T. O. Trefethen et als. v. Samuel Locke et als.
    The principle, Unit notice of the acceptance of a guarantee must bo given within a reasonable time m unlor to fix the liability of a guarantor, cannot bo invoked where the acts and declarations of the guarantor amount to awaiverofsuch notice.
    The Article 2720 of the Civil Code, which declares “ If without any serious ground of complaint, a man should semi away a laborer whose services he has hired for a certain time, before that lime has expired, he shall be bound to pay suck laborer the whole of the salaries he would have been entitled to receive, had the full term of his services arrived,” is in the nature of a penal statute, mii«t be strictly construed, and cannot be applied to the ease of a contract for lotting and hiring entirely unperformed in all its parts. In such case only the actual damages sustained by reason of the non-performance ef tho contract can ho recovered.
    Appeal jLJL PPEAL from the Fourth District Court of New Orleans, Trice, J.

      M. M. Gohen, for plaintiffs. 13. II. Durel, tí-, A. Breaux and G. _P. MeDheeters, for defendants and appellants.
   Land, J.

The plaintiff's, who are ship carpenters, sue the defendants, Gerard <T Mooney, to recover damages for the non-performance of a contract of letting and hiring, and also sue Samuel Locke, as the guarantor or surety of those parties for the performance of the contract.

The defendants, Gerard dr Mooney, through their agent, Samuel Locke, employed the plaintiffs to work on a dry dock, which they were then constructing at Gretna in this State for parties residing iu Cuba. Samuel Locke employed the plaintiffs through Daniel Morey, who was residing at Portsmouth in New Hampshire', and the terms of the contract and the alleged liability of Locke, are specified in a letter written by him at Boston on the 2(>tli of September, 1857, and addressed to Morey at Portsmouth.

The material part of this letter is as follows: “I wish you to send out-twenty good energetic carpenters to Gerard d"’ Mooney; you are authorized to say that they will give them .$2 50 per day, and steady employment i until the first of June, and more, if the going wages there for steady employment shoiild be higher. Thin letter trill be your guarantee, that téo men that you give a hue to Gerard & Mooney, shall be steadily employed on the Gttba Dock that they are building. They want the men as soon as possible, If you can get a good foreman at the price I offered, give him a letter, stating- tliat ho is engaged as foreman hy my request. Please let me know if the men, as above, will go out. Address me to the care of Messrs. John, J). Locha & Co. 193 Water Street, New York. I will be in New York on Tuesday next, and shall be awaiting your letter.”

The plaintiffs, who were employed by Marey on the terms mentioned in Locke’s letter, arrived in .this city on the 11th of November, 18S7, and tendered to Gerard <fi Mooney a performance of the contract on their part. Those defendants refused to receive the plaintiffs into their service, on the terms specified in the letter, but proposed to receive them on different terms, which the plaintiffs rejected, and soon afterwards, returned home without having performed any labor on the dock under the agreement.

The first question in the case is, whether Locke is liable to the plaintiffs, on the guarantee stipulated in his letter to Marey.

The second question is, what damages the plaintiffs are entitled to recover, for the non-performance of the contract, by Gerard & Mooney.

The letter fully discloses the agency of Locke, and in the absence of all other evidence, the guarantee might be considered that of his principals, Gerard & Mooney; but the acts and declarations of Loelce, and the testimony of Daniel Marey, to whom the letter was written, clearly establish that the guarantee was intended as a personal obligation on the part of Locke in favor of the plaintiffs. It is, however, urged that as no notice of the acceptance of the guarantee was given to Locke within a reasonable time, he was thereby discharged from all liability under it to the plaintiffs, for whose security the guarantee had been given. However correct the legal proposition may be, that notice of the acceptance of a guarantee must be given within a reasonable time in order to fix the liability of the guarantor, it cannot be invoked on behalf of Locke in this case, because his acts and declarations, after the arrival of the plaintiffs in this city, wore tantamount to an acknowledgment of his liability to them, and a waiver of the want of any previous notice of their acceptance of his guarantee.

The plaintiffs claim the stun of six thousand and twenty dollars as damages for the non-performance of the contract, and base their claim on Article 2720 of the Oivil Code, which declares : If without any serious ground of complaint, a man should send away a laborer whoso services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the -whole of the salaries which he would have been entitled to receive, had the full term of his services arrived. This article of the Code is in the nature of a penal statute, and should be strictly construed, and only applied to cases clearly within its letter, for it is against equity for a laborer to recover full wages for services not rendered when the amount of such wages greatly exceeds the actual damage sustained by reason of his discharge from service before the expiration of the term of employment. The case of the plaintiffs is not within the letter of the article of the Code; they were never in the service of the defendants under a contract of letting and hiring, and of coiu-se were not discharged-from service before the expiration of the time of their employment. The jjlaintiffs sue the defendants for refusing- to receive their services under a contract entirely unperformed in all its parts, in other words for the nonperformance of a contract ah initio, and the action is not within the purview of Article 2720 of the Code.

In tlie case of an undertaker employed to construct a building or other work, the proprietor may cancel at phnisure the contract he has made although the work has been commenced, by paying him the expense and labor already incurred, and such damages as the nature of the case may require; and it maybe well questioned whether workmen employed by an undertaker, architect or shipwright to work on buildings, vessels or other works, are laborers in the sense of Article 2720, for as the law allows a proprietor to discharge at pleasure his builder or architect, it would be most inconsistent with itself, if it denied the same privilege to tlie latter in respect to the workmen employed on the faith of his contract with the proprietor. Sec Article 2786 of the Civil Code.

The plaintiffs however wore never discharged from service by the defendants, and are only entitled in our opinion to recover the actual damages sustained by reason of the non-performance of the contract; and as the judgment of the lower Court awards to them full wages under Article 2720 of the Code, it must be reversed and the cause remanded for the purpose of ascertaining the amount of actual damages sustained by the plaintiffs.

It is, therefore, ordered, adjudged and decreed, that the judgment be avoided and reversed, and that the cause be remanded to the lower Court for a new trial and further proceedings according to law, and that plaintiffs pay the costs of this appeal.


text:
    Pierre Cougot v. City of New Orleans.
    Tho municipal authorities of New Orleans are invested with power to establish public markets.
    At tlie time of the lease of the Trémé Market an addition or prolongation of the market-bouse was being constructed by order of the City, which addition was not included in the lease. — Held: That on its being completed, the City had a right to lease it as a separate public market from that oí Trémé, and no action tor damages would lie in favor of the lessee of Trémé Market.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.
    • G. Dufour, for plaintiff and appellant. J. Michel, for defendant.
   Land, J.

This is an action for the recovery of damages; and the grounds of complaint are that in December, 1858, the plaintiff became tlie lessee of Trémé Market in the Second District of this city, for the year 1859; that at the time of making the contract of lease, an addition or prolongation of the market-honse was being constructed by order of the city; but the addition was unfinished and not included in the lease of the market to the plaintiff; that in the month of February, 1859, the addition to the market being completed, the city caused it to be leased out as a separate and distinct public market from that of Trémé market; and that the said last mentioned contract of lease was unjust and illegal, and has caused damage to the xilaintiff in the sum of ten thousand dollars, by diminishing the revenues of Trémé Market, to which he was entitled under his contract of lease with the city. These grounds of complaint are insufficient to maintain the action..

The municipal authorities of the city of New Orleans are invested with power to establish public markets; and the mere existence of a contract of lease of a market already established, is no restraint upon the exercise of such power for the purpose of promoting the public convenience and advantage. The exercise of the power to establish markets is but the exercise oí a lega) right, cm tlie part oí the city, and affords no cause of action to tlio farmers or lessees oí the revenues oí markets previously established, ior the recovery oí damages occasioned thereby. If the exercise of a legitimate power by a municipal corporation, cause damage to an individual, it is damnum absque injuria, and no action lies in his favor ior indemnity. Acrot v. City, Opinion Book No. 30, p. 185.

It is, therefore, ordered, adjudged and decreed, that the j udgment of the lower court be affirmed, with costs.


author: Mehbiok, C. J.

text:
    C. Butlitt v. R. A. Stewart.—C. Jones and Wife, Intervenors.-M. White & Co., Warrantors.
    A parly to a suit cannot bo received as a witness ii‘ l\e is liable i'or costs; he cannot in such case be considered as testifying against his interest.
    'J’ho judicial admission, in order to be divided against the party pleading the same, must be one in the nature of a confession and avoidance of the plamtili’s demand, or some portion, as in the plea of compensation, otherwise the admission cannot be divided.
    Appeal from the District Court of tlie Parish of St. Bernard, .Foul-house, J.

      Geo. 8. Lacey, for plaintiffs and intervenors, appellants. llyams, Labai <& Jonas, ior warrantors, li. MeK. 8pearhi<j, for defendant.
   Mehbiok, C. J.

A case between the above mentioned parties, arising upon the same transaction, was before this court in 1856, and then dismissed as in case of nonsuit. In tlie present suit, Charles Jones and liis wife, Laura Utawarl, have intervened, claiming the interest represented by plantiff. Maunsel While and Theodore Ilion have been called in warranty, and the defendant lias instituted a reconvontional demand against the intervenors. Judgment was rendered against tlie plaintiff and inter-venors, and they appeal. They unite in tlieir demands and are represented by tlie same counsel in this court.

On tlie trial of tlie case, tlie deposition of the plaintiff was offered in evidence by tlio intervenors, but rejected by the District Judge. The defendant also offered the depositions of Maunsel White and liiun, which also met tlie same fate. These depositions were properly disregarded. The testimony of tlie witnesses tended to defeat the demands respectively "farmed against thorn.' Liable as they might be for costs, they could not considered as testifying against tlieir interest.

'"The'facts of tlie case may be briefly stated as follows :

In':Í85Ü;. John Caldwell Jr. and Daniel Hickey, being the joint owners a plantation named Laurels, near tlie city of Baton Kongo, in tlie parish of East'Baton Rouge, and tliirty-two slaves, sold tlie same by separate acts .to'7l/rs. Laura Jones, the intervenor, for the aggregate sum, as spoci-iied in tlie acts, of §42,500.

Jones and wife lived upon the plantation.

' The firm of Maunsel While ct* Co., it would seem, advanced the price, if in fact the title was not taken ill the name of Mrs. Jones for their benefit. The firm of Maunsel White ff (Jo. was at that time composed of Cuthbert Ihillitl, the plaintiff, and White and Ilion, the warrantors. While was either tlie principal partner, or a creditor of the firm to a large amount, say 5700,000. In 1851, the firm bought the negroes in controversy, viz : Lewis, Phillip, JSmile and Amanda, and sent them up to the Laurels Plantation, where they remained as part oí the force for over a year before the aefc of sale from Jones and wife to Stewart, the foundation of the present suit, was passed. In 1852, the firm of Maunsel White & Co. suspended payment for a time.' They were indebted to Matthew Ramsey, the father-in-law of Stewart, the defendant, in the sum of $36,0(10. The indebtedness of Mrs. Jones to Maunsel White cO Go., including the price of plantation and negroes subsequently bought, was about $52,000. It was proposed to arrange the indebtedness of Ramsey by a transfer to him of the plantation and slaves. Steimrt acted as Ramsey’s agent, and previous to the sale visited the plantation with Got. Nolan Slewa/rt, to ascertain its value and condition. Jones and wife, who were met by them on the way, informed them that there were about forty-four negroes on the, place belonging to it, and that the overseer could show the property. The negroes placed there by Maunsel White cO Go., now in cantroversy, were shown by the overseer as belonging to the same. Some other negroes which Jones had brought from Black River were excluded. The defendant and Gol. Nolan Stewart formed an estimate of the value of the property, including Lewis, Phillip and '.Emile, at $62,500. Amanda yeas, absent and not shown to them at that time, although they were informed she belonged to the place.

On the 19th of February, 1852, Jones and wife and Stewart, the defendant, appeared before II. B. Genas, notary public of this city, and in consideration of $65,000 paid and assumed by Rcmsey, transferred to the. defendant the plantation and certain slaves therein named and described as attached to and employed on said plantation. The description of the property was followed by this declaration in the act, viz :

“ The said property and slaves were acquired by the present vendor as follows : the undivided three-fourths thereof by purchase from John Gold-well Jr., by an act passed before Albert 0. Ainsworth, then notary public in this city, on the 20th day of March, 1850, and the remaining undivided fourth part by purchase from Daniel Hielcey by act passed before Thos. J. Beetle, then also a notary public in and for the city and parish of New Orleans, on the. 29th day of June, 1850.”

After many other clauses in reference to the price and excluding warranty, and declaring that the title was but a quit claim deed, the acfc_-concluded with the following clause : _ ./

“And as there has been a death among the slaves on the said plahtatjotf since it was purchased by the said vendor, and as there may possibly be errors as to the same in the names thereof, as well as in the niiknjmr, it well understood that the purchaser will make no claim for cojnpensatiqn in case the number of said slaves should fall short, it being thedntention of said vendor to sell all which are now living and as purchased by her,with the nxoaption of Zade, Yellow John, JUliga, her five children,\,and5 Riohard.”

Zade and Yellow John appear to have been acquired with the plantation from Galdwell cO Hidcey; the other seven excepted negroes were, it seems, brought from Black River. -

Stewart took possession of the plantation and negroes employed thereon, including those in controversy. Jones and wife having disturbed, him in possession of these last, he applied to the plaintiff, and represented to tlie latter that Lewis, PhilTtp, 1Jmile and Amanda were intended to bo included in the. sale.

The plaintiff examined the books oí Maunsel White & (Jo., and having found that the value of these slaves swelled the amount which was exacted of Ramsey, and that the title was, as he supposed, in himself, he thereupon executed in favor of Stewart an act of sale under private signature for the negroes in controversy, for the nominal price of seventeen hundred dollars, being' of the opinion that it was the intention of the defendant to purchase all except the negroes specially excluded by the act. Stewart shortfy afterwards made title to his principal, Ramsey.

This suit is brought to rescind the sale by act under private signature from RnlMli to Steioart, on the ground of fraudulent misrepresentation on the part of the latter'at the time he obtained the act, and error. Bullitt, in his answer to the intervention, admits that the title to the four slaves is in Mrs. Jones, but alleges that he has an interest in rescinding the sale.

Maunsel White for himself, and as liquidator oí Maunsel White & Co., excepted to the call in warranty because Matthew Ramsey who was the principal of the agent Stewart, was not cited; because Bullitt cannot stand in judgment, having no interest; and if the foregoing exceptions should be overruled, then they defend the title acquired by Ramsey from Bullitt.

The appellants in this court rely, in order to establish the fraud, principally upon the testimony of J. K. JSlgee, JSsg., and William Christy the notary who prepared the act of sale from Mrs. Jones to Stewart, connected with a judicial admission in defendant’s answer.

jWe remark, in regard to Mr. Jñgee’s testimony, taken as a whole, that it is quite as favorable to the defendant as to the plaintiff and intervenors, and makes nothing in their favor.

The plaintiff’s and intervenors’ attempt to show title in Mrs. Jones through a supposed judicial admission in defendant’s answer, is equally unavailing. It is true that defendant says that said Ramsey was the creditor of Maunsel White & Co. for upwards of $37,000, and that Airs. Jones owed them $70,000 on account of the price of the plantation and supplies, and ‘1 which said account included the price paid by said house of Maunsel White c6 Co., for the identical four slaves in controversy, to wit, Lewis, Phillip, JEmile and Amanda, and also the other slave, viz, a man named Robert, wrongfully taken away from said plantation by said Mrs. Jones, &e.”

But this allegation must be taken with the other allegations of the answer on the same subject, to wit, that the legal title to said slaves had been taken by Ciithbert Bullitt in his own name, and that he had never parted with said legal title, or vested the same in said Laura Jones, and in substance, that said slaves were transferred by Bullitt and received by defendant in good faith in pursuance of the understanding of the parties.

It is true, that a judicial admission may sometimes be divided against the party pleading the same. But the admission which may be so divided is one in the nature of a confession and avoidance of the plaintiff’s demand, or some portion of the same, as a plea in compensation, payment, or the avoidance of a contract by duress, fraud, error, and the like, where the defence pleaded necessarily admits the allegations of the petition, but avoids their effect by showing some other matter in bar of tlie same. Here the defendant does not admit a legal title in Mrs. Jones, but on the contrary, avers tliat tlie same was in Bullitt. The intervenors and plaintiff cannot, therefore, divide this portion of the answer and urge that because the price of these slaves was carried into the account, therefore, the title rested in Mrs. Jones, although she paid no part of the price of the same.

The testimony of Ghristy relates principally to what transpired and what was said and done by the parties at the time the notarial act was passed before Genas, in which Mrs. Jones transferred the property to Stewart- It is somewhat inconsistent with the last clause which he dictated in the notarial act. On the trial of the first case before this court, we said we did not think the fraud was legally proven by the testimony of Ghristy; that fraud should be clearly established. We see nothing in his testimony, as exhibited on the last trial, which makes the case stronger than the first, and we concur with the District Judge in opinion, that the plaintiff and intervenors have failed to make out a case for relief on the merits.

This view malees it useless to consider whether Bamsey should have been made a party, or whether Bullitt had sufficient interest to maintain the action.

Defendant has prayed for an amendment of the judgment in his favor.

The testimony of Bion is rejected, and therefore the defendant has failed in his claim for the negro Bobert, removed by intervenor.

The only damages which the law gives to the defendant for the wrongful bringing of this suit, are his costs. See Hale v. City of New Orleans, 13 An. 502.

Judgment affirmed.


author: Buchanan, J.

text:
    Mrs. Rebecca White et al. v. G. S. Hawkins et al.—H. M. Wright, Warrantor.
    The bond given by an intervenor claiming property attached in a suit between other parties, is a substitute for the property attached with regard to the plaintiff in the attachment, but not as to third persons claiming title to the property attached.
    Where property had been attached and bondod by an intervenor claiming title to it, and after judgment against the defendant in attachment, a suit being instituted against the intervenor by a third party claiming the property, the defendant cited in warranty the plaintiff in attachment — Etdd: That the liability of the intervenor in the attachment suit on his bond having become fixed by the judgment, plaintiffs could not be hold liable in warranty.
    Appeal from the Fourth District Cpurt of New Orleans, Pnce, J.

      Kennedy & Miles for plaintiffs. Mott <& Fraser, for defendants and appellants. Clmdc é Bayne, for warrantor.
   Buchanan, J.

Wright, Williams & Oo. brought suit by attachment against an absent debtor, J. J. B. White, husband of one of the plaintiffs in the present action.

Certain bales of cotton, consigned to Oakey & Hawkins, were attached in that suit as the property of defendant.

Oakey & Hawkins filed an intervention, claiming the possession of the cotton attached, under their bill of lading. Simultaneously with the ■filing of this intervention, they took a rule upon the plaintiffs in attachment, Wright, Williams & Oo., to be allowed to bond the cotton. .This rule was made absolute after hearing argument, and the cotton was accordingly delivered to the intervenors on their furnishing bond, with security, in the sum of ten thousand dollars, to produce the property to meet the judgment of the court, or to account for its proceeds, whenever required.

After the cotton had thus been bonded, the present plaintiffs filed an intervention in the'attachment suit, claiming the cotton attached to be their property. The final jizdgment in the attachment suit (14 An. 588) was in favor of plaintiffs against defendants, with privilege on the property attached; and dismissed the interventions.

Mrs. White and Mrs. Faust, the second intervcnors in the suit of Wright, Williams & Co. v. White, now bring the present action against Hawldns & Coekburn, composing the firm of Oakey, Hawkins & Co., the first intervenors in said suit, as detainers of their property, to wit, the cotton attached therein.

Defendants answer, by acknowledging that the cotton which had been bonded by them in the suit of Wright, Williams & Co. v. White had been received and disposed of by them, and that the proceeds thereof wore now in their hands; but they contend that they cannot be obliged to pay over said proceeds more than once; and that, as Wright, Williams & Co. are now prosecuting them upon their bond, given to release the cotton from attachment, as aforesaid, they (Wright, Williams & Co.) are bound in law to defend and warrant respondents from the claim of the plaintiffs. Wherefore they pray that Wright Williams & Co. be cited to defend this action of plaintiffs; that all further proceedings be stayed against respondents until it be determined to whom the proceeds of the cotton belong; when the respondents will be decreed to pay over said proceeds to the successful party litigant.

Wright, Williams & Co. except to the petition in warranty, that it sets forth no legal cause of action against them. This exception having been sustained by the District Court, defendants aj>peal.

We find no error in the ruling of tlfe District Court.

In deciding the apj>eal taken in the original attachment suit, we said (14 An. 584): “ The peremptory exception filed by Wright, Williams & Co. to the intervention of Mrs. White and Mrs. Faust, should have been sustained. The bond given by Oakey, Hawkins & Co. was only a substitute for the property attached, with regard to the plaintiffs, and not as to the intervenors, or third parties claiming title thereto. The intervenors can not avail themselves of the bond, and their remedy was against the property itself in the hands of the party having possession of it.” Dow v. Kershaw, 18 La. 57; Beal v. Alexander, 1 Rob. 277 and 7 Rob, 349. The present call in warranty is inconsistent with the doctrine thus enounced by us. It is an attempt to revive the intervention of Mrs. White and Mrs. Faust, for the protection of Oakey, Hawkins & Co. against their bond in favor of Wright, Williams & Co., although it has been already adjudged, contradictorily with all those parties, that Mrs. White and Mrs. Faust were strangers to that bond.

It is clear, from the authorities cited above, as well as from 'our decision in the previous litigation between these parties, that the liability of Oakey, Hawkins & Go. to Wright, Williams & Co. has been fixed by the judgment rendered in the attachment suit.

Judgment affirmed, with costs.


text:
    J. N. Curien et als. v. J. Santini et als.
    Tlie dissolution of a corporation cannot be effected by a resolution to that effect of a majority of its members.
    The majority of the members of a corporation may, by the abuse of its powers, commit an act which would justify the forfeiture of its charter, but they caimot make such act the basis of an action instituted by themselves against the minority, for the purpose, of having tho franchises of the corporation declared forfeited.
    A corporate body is a juridical b ung, separate and distinct in its rights aud obligations from the individual members who compose it, and while it exists, tho majority of its members caimot maintain an action against the minority, for the sale and distribution of the proceeds of the property belonging to it*
    Appeal from the Third District Court of New Orleans, Duvigneaud, J.

      T. H. Kennedy and T. W. Gollens, for plaintiffs and appellants. J. Q. -A. JMlowes, and Jicnjamin, Bradford & Finney, for defendants.
   Land, J.

r£he plaintiffs allege that by an Act of the Legislature of this State, approved the 20th June, 1812, and an Act subsequently passed amendatory thereof, the Grand Lodge of Louisiana, a masonic institution, was incorporated, with power to establish through the State subordinate Lodges with corporate capacities and powers as full and complete as those conferred upon tho Grand Lodge itself; with the proviso, however, that the corporate capacities and powers of the Lodges thus to be established, should endure and continue so long only as they should remain under the jurisdiction of the Grand Lodge of the State. That, in pursuance, of the authority so vested, the Grand Lodge established Foyer Maconique Lodge No. 44, on the 15th April, 1839, by issuing in due form a charter or warrant, which, invested said subordinate Lodge with corporate powers, and capacities.

That at a meeting of Foyer Maqoniquo Lodge No. 44, duly called and held the 8th of January, 1857, a resolution was regularly adopted withdrawing said Lodge from the jurisdiction of the Grand Lodge of the State, and dissolving all connection with the same; and that a duly certified copy of the resolution was delivered to the Grand Lodge on the'20th day of January of the same year.

That of the fifty members who composed said subordinate Lodge, forty-two concurred in the resolution; that three of the remaining eight members took no part in the proceedings, and that only five of the fifty members dissented therefrom.

The plaintiffs further allege that the effect of said resolution was to dissolve Foyer Maconique Lodge No. 44 as a corporation, and that they, as a controlling majority of the Lodge, do in this suit insist upon the dissolution of the same. That there exists between them and the other members of the Lodge a difference of opinion as to the management of the property belonging to the corporation, consisting of immovables and personal effects. Wherefore the plaintiffs pray that Foyer Maconique Lodge No. 44 be decreed to bo dissolved, and to have been dissolved from and after the 8th of January, 1857; that its affairs be liquidated, and that the proceeds of'the sale of its assets, after the payment of its debts, be divided equally between them and the defendants severally, and that in the meantime a receiver be appointed with power to take possession of all the property, books and documents of the Lodge subject to the further.order of the court.

The defendants excepted to the plaintiffs’ demand, on the ground that on the face of their petition, they show no right in the property of Foyer Matjoniqne Lodge No. 44, as individuáis or collectively, and have no interest which entitles them to appear in this suit, and to stand in judgment, in which exception the Grand Master of the Grand Lodge, of the State joined by intervention.

Whether this exception was well tafeen, depends on the legal effect of the resolution adopted for the purpose of withdrawing the subordinate Lodge from the jurisdiction of the Grand Lodge. And in determining the legal effect of the resolution, it is necessary in the first place, to ascertain whether a corporate body can be dissolved, ipso faoto, by the adoption of a resolution by a majority of its members; in other words, whether a mere resolution is one of the modes prescribed, or authorized by law for the dissolution of corporations. If not, then the proposition that the effect of the resolution was the dissolution of the Lodge, cannot be maintained.

The modes by which a corporation may be dissolved, as declared in our Civil Code, are: first, by an Act of the Legislature on certain conditions; secondly, by the forfeiture of its charter, when the corporation abuses its privileges, or refuses to accomplish the conditions on which such privileges were granted. And at common law, the modes of dissolution are: by statute; by the natural death of all the members; by surrender of its franchises; and by forfeiture of its charter through negligence, or abuse of its franchises.

It is clear, that if the resolution can be considered a mode of dissolution, it was either a forfeiture of the charter of the Lodge, or it was a surrender of its franchises. But can it be legally affirmed that the resolution, per se, operated either a forfeiture of the charter, or a surrender of the franchises of the Lodge.

In resident to these modes of dissolution, the well established principles of law are, that a corporation is not to be deemed dissolved by reason of any misuser or nonuser of its franchises, vntil the default has been judicially ascertained cmd declcwed; nor is it to be deemed dissolved by the effect of a surrender, until the surrender has been accepted and rendered complete by the act of the government, or of the grantor of its jwivileges. 2 Kent’s Commentaries, 811, 312. And tested by these rules, the resolution cannot be held to be either a forfeiture of the charter of the Lodge, or a surrender of its franchises, for the reason that the resolution is not a judicial decree ascertaining and declaring the fact of forfeiture; and for the further reason, that if the resolution be considered a surrender of the franchises of the Lodge, it has not been accepted either by the State, or the Grand Lodge.

The plaintiffs, however, claim in this suit a judgment dissolving the Lodge as a corporation, against the will of a minority of its members, and against the will of the Grand Lodge. And this claim is founded on the resolution which the plaintiffs adopted for the x>urpose of destroying the Lodge as a corporate body, and presents the novel question whether a majority of the members of a corporation can, by the abuse of its powers, commit an act which'would justify a forfeiture of its charter, and then make such,act the basis of an action instituted by themselves against the minority, for the purpose of having the franchises of the Lodge declared forfeited.

There are two modes of proceeding judicially, at common law, to ascertain and enforce the forfeiture of a charter for default or abuse of power. The one is by scire facias; and the other mode is by information in the nature of a quo warranto. Roth these modes of proceeding against corporations are at the instance or on behalf of the government. And the State, says Mr. Chancellor Kent, must be made a party to the prosecution, for the judgment is, that the parties be ousted, and the franchises seized into the hands of the government. 2 Kent, 313. And this doctrine of the common law, that the State is a necessary party to proceedings instituted to ascertain and declare the forfeiture of the charter of a corporation, was recognized by this Court as forming a part of our jurisprudence, in the case of the Atchafalaya Bank v. Dawson, reported in the 13th volume of the Louisiana Reports. But leaving out of view the doctrine that the State is a necessary party to proceedings instituted to ascertain and declare the forfeiture of the charter of a corporatioii, we are of the opinion that the plaintiffs cannot maintain this suit, for the purpose of having the franchises of the Lodge declared forfeited, for the reason that if the adoption of the resolution by them, be a cause of forfeiture, it was in contemplation of law a wrongful act on their part, and no cause of action arises in favor of a party out of his own wrongful acts, to the prejudice or injury of innocent third persons.

The resolution, which cannot be made the basis of an action by the plaintiffs, was but a cause of forfeiture, and did not operate de jure a divestiture of the corporate franchises of the Lodge, which continued to exist, and does now exist with all its corporate rights, obligations, powers and capacities. And as a consequence of the continued existence of the Lodge, notwithstanding the adoption of the resolution, the property now claimed still belongs to it as a corporate body, considered in law a juridical being, separate and distinct in its rights and obligations from the individual members who compose it. And as a further consequence, the plaintiffs, as individuals, have no such right in the property of the Lodge, as authorizes them to maintain this suit for the sale and distribution of the proceeds of the same among themselves and the defendants.

The exception was therefore well taken to the plaintiffs’ demand, and must be sustained.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiffs’ suit bo dismissed at their costs in both courts.


author: Mebbick, C. J. I)m?3?En, ,1.

text:
    William Fish v. Johnson, Levine et als.
    The appellant is not required to look beyond the record, and cite, on appeal, persons who were not parties to the judgment appealed from.
    Where an obligation is incomplete for want of the signatures of some of the parties who were to become jointly liable with those who signed, no aotion can be maintained on it.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      J. I. Lngenbuhl, for plaintiff. G. L. Bright, for defendants and appelllants.
   On a motion to dismiss:

Mebbick, C. J.

There is a motion in this case to dismiss the appeal, on tlie ground that two of tlio obligors to the instrument sued upon have not been made parties to the append.

The appollants’ eounsel replies, that it was not necessary, beeausc they were never cited or made parties to the suit in the lower court.

This answer is sufficient. The appellant is not required to look beyond the record, and cite persons on appeal who were not parties to the judgment rendered by the lower court.

It is ordered, that the appellee take nothing by his rule.

On the merits:

I)m?3?En, ,1.

The plaintiff's demand is founded upon the following instruments : '

“ S. W. Pass, April 1st, 1857.
“Wo, .the undersigned, do personally agree to pay to, Mr. Win. ffislh two hundred dollars per month, for the j>urposo of building a steamboat for the use of the towing business, and if in case we do not agree about the time of building the boat, or the amount it shall cost, &c., &c., that we bind ourselves to pay to Mr, .Pish the aforementioned sum for five months from this date.
(Signed) “IIenbx Hedejian, for one-eighth of the amount.
“Joseph Wii/d, do do do do
“H. Johnson, do one-fourth do do
“Wir. T. Levine, do one-eighth do do
do do do do.”

The. principal object in view having failed for want of funds and a sufficient number of subscribers, the plaintiff instituted the present action against tlio above-named parties for the whole amount of the penalty, and obtained judgment against Johnson for' ono-fourtli of tlio amount, and against -Levine for one-eighth of the amount, the other defendants having-paid their respective quota.

Johnson and Levine appealed.

It appears to us clear, that the instrument sued on is, on its face, incomplete, inasmuch as the liability of the signers only covers five-eighths of the stipulated monthly wages and penalty, three-eighths being wanting to perfect the contract with the plaintiff. The object of the plaintiff was, to secure his services, at tlio rate of $200 per month, under penalty of $1000; and it is evident that, until a sufficient number of contributors had been obtained to form tlie entire amount, his services were not engaged; and it naturally follows, that, as the obligation in the present ease is incomplete, the plaintiff cannot call for the aid of the law to enforce an incident. O. O. 1797, 1924; Syndic of Dunbar v. Woods et al., 5 An. 135; Hennen’s Digest, p. 1052, No. 4.

Besides, the evidence does not disclose how the plaintiff came in possession of the document; he was not present when it was signed, and we may, therefore, reasonably infer, that lie obtained it to procure the wanting signatures to its completion.

It is, therefore, ordered and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered and decreed, that tlie claim of the plaintiff, or his assignee, John McLean, against tlio appellants, be rejected, with costs in both courts.


author: Lakd, J.

text:
    Edward Reilly et al. v. A. Smith, Jr.
    Notice of the retirement of a partner from the lirm, published in a newspaper to which the customer of the firm is a subscriber} is not legal notice to such customer of the dissolution of the firm. As to persons previously in the habit of dealing with the firm, actual notice of the dissolution must be brought homo to them, which is usually done by circular letters addressed to the creditors of the partnership.
    Actual notice eaunot bo inferred from the more fact of the creditor being a subscriber to the newspaper in which the notice was published.
    Appeal from tlie Eiftli District Court of New Orleans, Higgles ion, J., presiding.

      T. Gilmore, for plaintiffs. Michel & Koonts, for defendant.
   Lakd, J.

Tlie defendant is sued as a partner of tlie late commercial firm of M. H. Dosson & Co., on a promissory note signed in tlie name of' tlie firm by one of tlie partners, and payable to tlie order of tlie plaintiffs.

Tlie defence is tliat tlie note was made and signed by M. H. Dosson after tlie retirement of the defendant from tlie copartnership, and after notice of tlie dissolution of the firm had been published in tlie public newspapers of this city, the common domicil of all the parties.

It is shown by the evidence that the defendant, Alexander Smith, Jr., became a member of the firm of M. H. Dosson & Co. on the first of November, 185(5; and that on the 24th of January, 1857, the firm was dissolved by his retirement; and that notice thereof was given on the 27th of the same month in the Commercial Bulletin, a daily newspaper published in this city; which paper, the plaintiffs, as subscribers, were in the habit of receiving at their office.

It further appears, that the note sued on was given in renewal of a note signed by Dosson & Co. on the 15th of April, 1857; but that the consideration of the last-mentioned note was the price of goods purchased by Dosson & Co. from the plaintiffs, both prior and subsequent to the date, of the retirement of the defendant from tlie firm.

Although the name of the defendant was not mentioned in the firm, yet, the fact that ho was a partner had boon made laiown by a notice inserted in the newspapers before the plaintiff’s debt, or any part thereof accrued.

The question to be determined in this caséis: Was the notice of the defendant’s retirement, published in the Commercial Bulletin, a legal notice of the fact to the plaintiffs, who had been previously in the habit of dealing with the firm?

The general rule of law is, that as to persons who have not dealt with the firm, notice in a public newspaper of the city or county where the partnership business is carried on, will be sufficient; but as to persons who have been previously in the habit of dealing with the firm, it is requisite that actual notice should he brought home to the creditor, or, at least, that the credit should be giveu under circumstances from which actual notice may he inferred. And this actual notice is usually given by circular letters addressed to the creditors of the partnership.

In the case before us no circular letter was addressed to the plaintiffs, who had previously dealt with the firm; and we concur with the District-Judge, that actual notice eannot be inferred from the mere fact that the plaintiffs were subscribers to the Commercial Bulletin, in which, notice of the retirement of the defendant was inserted, esiiecially as the dealings between tlie plaintiffs' and the firm ceased within a very short period after tho retirement of the defendant.

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


text:
    S. V. Bachemin v. Widow A. Scheixnaydre.—C. Dumaine, Third Opponent.
    Tho answer of one of the parties to the suit to interrogatories on facts and articles may bo made use of as evidence by either party on the first or any subsequent trial of the cause.
    APPEAL from the Third District Court of New Orleans, Duvii/neauU, J.

      G. Du/our and 13. Bermudes, for plaintiff and appellant. P. Soule, for defendants.
   Land, J.

The opponent claims as owner, curtain real improvements situate on Montegut street in this city, and also a slave seized by the Sheriff under an execution issued on a judgment obtained by the plaintiff against the defendant. The plaintiff in his answer to the third opposition, admits the seizure of the improvements, and the slave under his execution, hut avers that the slave claimed is hold by the opponent, under a fraudulent or simulated sale made by the defendant in execution, for the purpose of defeating tho just pursuit of the creditors.

In order to establish the alleged fraud and simulation in the sale of the slave, the plaintiff propounded interrogatories on facts and articles to the opponent. These interrogatories were answered, and tho fraud and simulation were not only positively denied, but the reality of tho sale, and the good faith of the opponent, were established by the testimony thus elicited by the plaintiff in execution.

In the proceedings in tho lower court, a now trial was granted in the case, and on the second trial, the plaintiff reserved a hill of exceptions to the ruling of the Judge, admitting in evidence the answers of the opponent to the interrogatories on facts and articles. On tho second as well as the first trial, judgment was rendered in favor of the opponent, and the plaintiff on his appeal, insists that his bill of exceptions was well taken to the admissibility of the answer in evidence oil tho second trial of the case.

Tho bill of exceptions was not well taken. The answers were evidence which either party had the right to offer on the first trial of the cause; and evidence admissible on tho first, is also admissible on the second or any subsequent trial between the same parties in the same case.

The plaintiff introduced testimony for the pingoso of impeaching the opponent’s answers; but we concur with the District Judge in the opinion that the answers are not disproved by tho testimony adduced for that purpose.

In respect to the improvements seized under the execution, tlie ovi-, den.ee shows that they were made under a contract with the opponent, and that she had paid a part of tlic price, and was indebted for the balance remaining unpaid at the time of the trial of her opposition in tho lower court.

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


author: Bttqhanan, J.

text:
    Nicholson’s Heirs el al v. D. N. Hennen.
    Whore tho object oí' a contract of mandate made in the city of No.v Orleans, was tho collection of debts due by a debtor residing in another State, or whose succession had been opened in another State ; and to effect that object, the mandatory was empowered to purchase lands in the State of the debtor’s residence, for the account ol tho principals — the titles to bo taken in the name of tho mandatory, and conveyances to bo by bun subsequently made to tho principal — Held: That in a suit here by tho principals against the agent, for an account of his agency, the conveyance of the lands by the agent to his principals, as provided for in the contract, is clearly an incident of the account to be rendered, and as such is a proper matter for a decree of tho Louisiana court, which being competent to entertain the actio mamlati directa, is competent to pass upon all incidents and accessories of that action.
    In a suit against an attorney in fact, for an account of his agency, all the principals in the contract should be joined in the action. Tho attorney cannot be held to render as many accounts of his agency as there are principals in a joint contract.
    Appeal from the Hixtli District Court of New Orleans, Howell, J.

      Hunton <& Miller and li. W. Ogden, for plaintiffs. Duncan H. Hennen, in pro. per., defendant and appellant.
   Bttqhanan, J.

The estate of Samuel Spotts was indebted as follows:

To John Nicholson.$ 7,283 11

To J. M. Kennedy. 240 00

To D. N. Hennen. 2,137 50

To Paul Tulaue. 1,624 80

To E. Beckman. 5,892 66

To A. Hodge. 1,407 16

To Purdon & Brother. 1,019 68

Total.119,604 91

These parties all resided in New Orleans, and them debtor’s estate was possessed of lands in Illinois. The six other creditors empowered Hennen to collect their claims, specially authorizing him to buy or take in payment lands, and stipulating to allow him 15 per cent, commission on what lie should collect, to be taken out in lands.

Hennen accordingly bought in nearly all the lands, at administrator’s sale, and received the proceeds of the lands that were bought by other parties. He has still in his hands the lands bought by him, with the exception of some portions which he has sold, and of which he has received the price. He has also expended moneys for taxes aud costs.

The present action is brought by five out of the six principals in tho mandate aforesaid, against the mandatory, Hennen, for a money balance of account, and for the lands acquired by Hennen from Spotts’ estate, which remain unsold in his hands; which lands the petition prays that defendant be decreed to convey to petitioners, or to such person asa majority of them may designate.

Defendant excepts to tho jurisdiction of the court, because, as the exception alleges, this is an action of partition of lands in Illinois. The counsel of defendant relies upon the decision in Mussina v. Ailing, 11 An. 568, as conclusive upon this jjoint. But an examination of the reasons for judgment in that case will show that it was not decided upon the exception to the jurisdiction alone, or even principally; in addition to which, this action is entirely different from that of Mussina v. Ailing. The present is the action mandati directa, given by law to the principal against his attorney to render an account of his agency, and to pay over what lie lias received in virtue of Ms agency. La. Code, 2973, 2974; Merlin, Rep. de Jurispr., verbo Mandat.

Tlie contract of mandate, wMcli is the basis of the present action, was made in New Orleans, between parties all residents of New Orleans. The object of the contract was the collection of debts due by a debtor residing in another State, or whose succession was opened in another State; and to effect that object, the mandatory was empowered to iDurchase and acquire lands in the State of the debtor’s residence, for the account of the principals — the titles to be taken in the name of the mandatory, and conveyances to be by him subsequently made to the principals. The conveyance of lands prayed for by plaintiffs in their petition in this case was, therefore, clearly an incident of the account to be rendered of the gestión of the mandatory, and, as such, a proper matter for the decree of the Louisiana court, which, being competent to entertain the actio manidati direc-ta, is competent to pass upon all incidents and accessories of that action.

Defendant excepts, that all the principals, who are joint obligees in the contract of mandate, have not joined in this action; that Purdon & Brother are not parties thereto.

This exception was well taken, and the proceedings should have been stayed until all the obligees were before the court. The attorney in fact cannot be held to render as many accounts of his agency as there are principals in a joint mandate. Douglas v. Edwards, 9 La. 234; Overton v. Overton, 10 La. 474; Allard v. Orleans Navigation Company, 14 La. 29.

The conclusion at which we have arrived upon the exception of the want of proper parties, precludes us from passing, at this time, upon the other points made in argument.

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that the cause be remanded, with leave to make Purdon & Brother parties to the same, and for further proceedings according to law; the plaintiffs and appellees to pay costs of appeal.


author: Voobhtes, J. Doteeii, J.

text:
    Succession of John Twibill.
    The admiuistration of tlic estate of one of the partners of a commercial ilrm, who had acted as liquidator of the partnership alliurs, has only to account for and pay over to the new liquidator the funds which had come into the hands of the former liquidator.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Olarlc & Bayne and G. A. Breaux, for appellant. Durant & Iloriior, for appellee.
   On a motion to dismiss:

Voobhtes, J.

The New Orleans Gas Light Company moves to dismiss this appeal, on the ground that it has not been made a party to the appeal, and also that two judgments, one of which is not appealable, are illegally embraced in the same appeal, although entirely different and distinct.

Carleton Hunt, in the capacity of liquidator of the partnership affairs of the firm of John Twibill and William Aitkins, took a rule upon J. M. Demarest, administrator of the estate of Aitkins, for the purpose of obtaining an account of the administration of Aitkins, deceased, who had been appointed liquidator of that firm previously to his death. M. B. Dubuis-son, as curator of the estate of John Twibill, deceased, and the attorney of the absent heirs, were made parties to this proceeding.

The curator denied the right of J. M. Demarest, administrator, to render an account of Aitkins’ administration of the affairs of the partnership; but this opposition was overruled by the court, and the rule taken by the liquidator made absolute.'

An account was filed by Demarest, which was opposed by, among others, the New Orleans Gas Light Company, who claimed an amendment of the account so as to be allowed interest on its claim.

The case, upon being tried in the court below, resulted in a judgment dismissing the oppositions and homologating the account. The curator and the attorney of absent heirs appealed, and executed a bond in favor of “ J. M. Demarest, administrator of the estate of William Aitkins et als. executors, administrators and assigns. ”

The proceeding by which the administrator of the estate of William Aitkins proceeded to classify the passive debts of the firm of John Twibill and William Aitkins, was unauthorized. His duty was merely to account for the funds, which had been left in the hands of Aitkins, and to pay the same over to the liquidator. This was not the proper time or occasion to discuss the merits of the claims of the creditors of the firm under charge of the liquidator. It follows, therefore, that the New Orleans Gas Light Company is not a necessary party to the appeal. Had it intervened for the purpose of inquiring, as a creditor, into the question of the assets to be handed over to the liquidator, its interest might then have been such as to make it a necessary party on appeal. Such is not the case, however.

The other objection is untenable. The interlocutory decree, ordering the administrator to file an account, necessarily comes up with the judgment homologating the account.

Motion dismissed.

On the merits:

Doteeii, J.

On the 24th of May, 1859, Carleton Hunt, liquidator of the late commercial partnership of Twibill & Aitkins, on suggesting to the Judge of the Second District Court of New Orleans that on the death of John Twibill, his surviving partner, William Aitkins, was appointed liquidator; that said Aitkins is also dead, and that his administrator, John M. Demarest, oiues Mm an accoimt, took a rule on said Demarest, on the curator of the succession of said Twibill, on the widow of the deceased, and the attorney of the absent heirs, to show cause -why said account should not be filed, and the administrator ordered to pay over the amount in his hands belonging to said concern.

The rule was made absolute, and ordered “Demarest, administrator of the succession of William Aitkins, to file an account of his administration of the succession of John Twibill, and to pay over to the liquidator whatever money he may have in his hands belonging to the late partnership of Twibill & Aitkins.”

The'administrator, in compliance with the order of the court, rendered and filed an account of the administration of Aitkins and of his own administration of the partnership of Twibill & Aitkins, without discriminating the acts of Aitkins from his own, and assigning as a reason that “ when be entered upon the duties of Ms office, the partnership affairs of Twibill & Aitldns were found inextricably mixed up with the private affairs of Wm. Aitldns, so as to render any accurate separation impossible, and it was entirely out of the power of the administrator to make any identification whatever of the partnership property,” and besides, that the whole effects being perishable, and deteriorating in value', were ordered to be sold by the court, and the sale produced much less than the estimated value contained in the inventories made before and after the death of W. Aitldns, this loss being fully twenty-five per cent, below the appraisement made immediately after the death of John Twibill.

The account contains:

1. A list of the debts of the partnership, paid, say. $ 6,285 17

2. A list of the outstanding debts, say. 3,742 07

3. The following privileged claims:

Durant &Hornor, professional services.$500 00

J. M. Demarest, preparing tableau. 250 00

Half costs salary as clerk to Aitkins, 6 months, at $75. — $450, the half thereof. 225 00

Mrs. John Twibill, at sundry times. 298 50

- 1,271 50

4. List of bad debts.2,048 21

5. Loss on sale of stock on hand, 25 per cent, on $8,745 88 2,186 47

Total debt. ■$ 15,534 02

Ce.

1. Stock in trade, appraised. $8,745 88

2. Open accounts due the firm. 4,781 17

3. Cash in hand. 2,006 97

Total credit. $15,534 02

Notice of the filing of the account was given according- to law.

It was argued here by the administrator, that the liquidator was satisfied of the correctness of the account; he has not, at least, filed any opposition.

But various oppositions were made, among which we will only notice two: the one filed jointly by the attorney of the absent heirs and the curator of the estate of John Twibill, and the other by the New Orleans Gas Light Company.

The Gas Light Company was put down in the account, as unpaid creditor, for $1,265 12, and claim in the opposition legal interest on said amount, from 1st November, 1857, till E>aid.

The curator and attorney of absent heirs ask judgment in their favor, against the succession of 'William Aitkins, for $7,767, with legal interest from the 2d May, 1856, being the one-half of the gross assets of the part-nersMp of Twibill & Aitkins, on the ground that Aitkins received the whole, as liquidator, and never paid any debt of the concern; they also oppose, seriatim, all the items of the account.

The District Judge dismissed all the oppositions, and homologated the account; the curator and attorney of the absent heirs appealed, both from the judgment of homologation and the judgment making the rule taken on the 24th May, 1859, absolute.

The plea of res juilÁcata relied on by the administrator, is not tenable, being an attempt to impose on tlie representatives and creditors of J., Twibill, and on the creditors of the partnership, an account which was then in litigation between the parties to this suit, by mating it a component part of Ms account of the administration of the succession of William Aitkins.

As all the parties to this protracted and unprofitable litigation, have, in argument, expressed a desire to see this matter terminated, if possible, by a definitive judgment; and as the creditors of the partnership of Twi-bill & Aitkins, and the widow and legal representatives of the succession of John Twibill, have all had an opportunity of contesting the account herein filed, and some of them have joined issue with the administrator on all the items of the account, we will, in the interest of all the parties concerned, endeavor to do justice to each party, having due regard to tlie evidence.

It appears from the evidence that Aitkins, during his administration, paid all the claims charged in the account as satisfied, say.$6,285 17

It further appears that Aitkins collected on the open accounts due the firm.$2,732 96, leaving uncollected the sum of $2,048 21, represented as bad debts.

It further appears that Aitkins received in cash, as per public inventory. 2,006 98

We will therefore assume that, to make up the amount disbursed, he must have realized on the stock in trade. 1,545 23

-$6,285 17

Thus we have a balance, representing the stock in hand, of $7,200 65, and we are satisfied, from the evidence, that all those goods were, at the demise of Aitkins, in store, and that they were subsequently sold, by an order of court, in order to prevent their deterioration, at a loss of at least twenty-five per cent on the original appraisement. The fact, that those goods were confounded and mixed up with other goods of Aitkins, must have added to their value, as the private goods of Aitkins were fresh. Nor can it be charged that Aitkins should have disposed sooner of ah the stock in trade, for he had, under the law, a year to do so, and the evidence shows, that he was qualified as liquidator on the 26th of June, 1856, and died on the first of November, of the same year. In the absence of any proof that the sale of the goods was prejudicial to the creditors, or that the proceeds would have been larger had they been sold separately from those belonging exclusively to the succession of Aitkins, we will, the evidence authorizing it, in order that the firm may not enrich itself at the expense of one of its members, allow the fair deduction of 25 per cent, on $7,200 65, say $1,800 16, thus leaving a balance to be accounted for of $5,400 49.

We are also satisfied that Aitkins must’ have used due diligence to collect, in four months, out of a number of open accounts, making in the aggregate, $4,781 17, the sum of $2,732 96; and the evidence justifies the deduction of the remaining accounts, say, $2,048 21, as bad debts. To attempt their collection, by legal process, would entail the concern with heavy costs to no purpose.

The evidence also shows, that the ordinary debts, amounting in tlie aggregate to $3,742 67, are all partnership debts, so charged in the books of the concern; their payment will therefore be ordered, with the addition of legal interest, should the partnership be solvent, from 1st November, 1867, till paid, on the $1,265 12 due the New Orleans Gas Company.

It is proven that Durant & Hornor were the legal advisers of Aitkins, liquidator, and the amount charged for their services does not appear to us to be extravagant.

The services of J. N. Coit, as clerk of Aitkins, as liquidator, are also sustained by the evidence. -

The claim of J. M. Demarest will be reduced to $135, being two and a half per cent on the amount which came in his hands, say, on $5,400 49.

The amount paid to-Mrs. John Twibill, $298 50, will be rejected as having been paid without any warrant in law, reserving to the administrator his right of action against said widow Twibill, to recover back said sum on a proper showing.

The succession of Wm. Aitkins not being in default, cannot be charged with interest on the amount received by his administrator; and the opponents, conceding that the administrator acted in good faith, and asking no interest, by way of damages, against him individually, none will be allowed in our decree.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be avoided and reversed; and it is further ordered, adjudged and decreed that the account of the administration of 'William Aitkins, as liquidator of the commercial partnership of Twibill & Aitkins, be amended as follows :

Total amount of assets.$15,534 02

Deduct, amount of bad debts.$2,048 21

Deduct, loss on stock in trade.1,800 16

-$ 3,848 37

Net proceeds.$11,685 65

CHARGES.

Debts paid creditors, as per detail in the account... .$6,285 17

DueB. J. Byle.$ 216.97

Meade, King & Co. 522 50

Tashan & Bros. 244 91

A. Brady, two notes. ..:. 1,061 00

E. V. Hanghewont. 228 00

W. T. Daley & Co., Bee. 204 17

New Orleans Gas Conrpany. 1,265 12

(with 5 p. c. int. from 1st Nov. 1857, till paid, the payment of the interest to depend on the ability of the partnership to pay all its debts.) - 3,742 67

PRIVILEGED CLAIMS.

Due Durant & Hornor, attorneys..$ 500 00

J. N. Coit, clerk..... 223 00

Detained by J. M. Demarest, his comm... 135 00

- 858 00

Total amount of charges, less int. on claim N. O. Gas Co.$10,885 84

It is further ordered and decreed, that all the other items of the account not herein included be rejected, and that the account, remodeled as above, be, and the same is hereby approved and homologated.

And whereas it appears irom the above account, that the administrator ol the succession of Wm. Aitkins has still in his hands, after deducting his own commission, the sum of $5,205 48; and whereas it further appears from the evidence, that the administrator has paid, in deduction, the following- amounts, to wit:

To J. N. Ooit, his salaries as clerk.$ 223 00

To Meade, King & Co., their claim. 522 50

To the present liquidator, Carleton Hunt. 3,970 17

Thus leaving in his hands to be accounted for. 549 81

$5,265 48

It'is, therefore, further ordered and decreed, that John M. Demarest, as administrator of the succession of Wm. Aitkins, late liquidator of Twi-bill & Aitkins, be condemned to pay to Carleton Hunt, as liquidator of the commercial firm of Twibill & Aitkins, the said remaining balance of five hundred and forty-nine dollars and eighty-one cents (549 81).

It is further ordered, that the right of action of the administrator to recover back from Mrs. John Twibill the sum of two hundred and ninety-eight dollars and fifty cents, unduly paid to her, as a charge against the partnership, be reserved.

It is further ordered, that the costs of both courts be paid out of the partnership funds.


author: BuohaNAN, J.

text:
    Reese & Ellis v. B. Couyers & Co.
    The failure to make a garnishee a party to an appeal taken from a judgment rendered in favor of third persons claiming by intervention the funds in the hands of the garnishee, is a sufficient ground upon which to dismiss the appeal.
    Where a married woman, who lias heou assisted and authorized by her husband in bringing a suit, is cited alone in appeal, her husband not being mentioned in tbe citation of appeal, it is insufficient'
    Appeal from the Fifth District Court of New Orleans, Fggleston, J.

      Benjamin, Bradford c6 Finney for |>laintiffs. J. M. Davidson, for defendants and appellants.
   On a motion to dismiss :

BuohaNAN, J.

The judgment appealed from was rendered upon third oppositions to a seizure, by process of garnishment, under a writ of fieri faeias.

The defendants in the suit, Oouyers & Co., recovered judgment against lteese & Ellis, in reconvention. They cited as garnishees J. C. & B. S. Ricks & Co., to whom they propounded interrogatories.

The garnishees answered by acknowledging to have in their hands a draft, and an amount of cash, deposited with them by one of the defendants in execution ; but which they were informed belonged to other persons, to wit: the draft, to Mary C. B. Ellis, wife of S. Percy Ellis, as her separate property; and the cash to the said Mrs. Ellis, and to her brother and sister. T. L. Ellis, and Juez R. Ellis.

The persons named in garnishees’ answers, intervened as third opponents.

Conyers & Co. took a rule upon garnishees and defendants in execution, to show cause why the draft and money should not be delivered to them, in satisfaction of their execution.

The oppositions were set for trial and onnmlated with, this rule.

On hearing in presence of ah parties, the court decreed “that the bill of exchange or the proceeds thereof in the hands of the garnishees, be paid over by said garnishees to Mary O. B. Ellis, (one of the opponents); and that the cash in the hands of the garnishees be paid oyer by them, one-fourth to Mary O. B. Ellis; one-fourth to Juez R. Ellis; and the remaining- one-half to T. L. Ellis; that the said funds are not liable to seizure as the property of S. Percy Ellis; and that the garnishment served on Ricks & Co. be dismissed as well as the rule.”

Couyers & Co. appealed by petition, praying that plaintiffs and inter-ven ors be cited.

A bond of appeal was given in favor of Reese & Ellis, Mary C. B. Ellis, and Juez R. Ellis; citations of appeal were directed to Reese & Ellis, T. L. Ellis, Juez R. Ellis, and Mary C. B. Ellis, and were served.

The motion to dismiss the appeal is based upon the grounds:

1st. That the garnishees, although a necessary party to the appeal, have not been made a party thereto, and that there is no bond in their favor.

2d. That S. Percy Ellis, husband of the intervenor Mary C. B. Ellis, is not made a party to the appeal for the purpose of aiding his wife.

3d. That T. L. Ellis, one of the intervenors, cited as appellee, is not a party to the appeal, no bond having been given in his favor.

I. The garnishees were necessary parties to this appeal. Copley v. Snow, 3 An. 623.

II. The intervenor and appellee Mary C. B. Ellis, is a married woman, who was assisted and authorized by her husband in filing- her intervention in the cause. She was cited alone in appeal, her husband not being-mentioned in the citation of appeal. This was insufficient. Lanoue v. Reed, 7 L. R. 112.

III. This ground ought, perhaps, to have been urged by T. L. Ellis, himself, inasmuch as he has been ■ cited. The two former grounds, however, are sufficient to sustain the motion.

Rule absolute, and appeal dismissed.


author: BuchanaN, J.

text:
    Clarke & Co. v. W. Y. L. Gormley et al.
    Where the certificate of the clerk of the inferior court showed that documentary and record evidence which the parties were to furnish was not embraced in the transcript, because it was not furnished to the clerk, and a portion of the omitted evidence was offered by the appellant — Bdd: That the appellants were in fault for not furnishing a complete record, and on motion of the appellee, the appeal was dismissed.
    APPEAL from the Sixth District Court of New Orleans, íloioell, J.

      Durant <fi Hbrnor and G. A. Breaux, for plaintiffs and appellants. ' J. B. Cotton, II, Strain, and II. W. Spofford, for defendants.
   BuchanaN, J.

A motion to dismiss this appeal is based upon deficiencies in the record.

The Clerk of the District Court certifies that the transcript contains all the proceedings had, all the documents filed, and all the evidence adduced on the trial of this canse, except:

1. The mortuary proceedings of Mr. and Mrs. Gormley.

2. The record of the suit of Pemberton v. the Heirs of Gormley.

3. Tlie record of the suit of Dunlap & Clarice v. The Heirs of Gormley.

4. Two records, numbered 9,743 and 10,014, of the docket of the Fourth District Court of New Orleans.'

5. A plan marked (A), and an act of mortgage and note dated June 30th, 1856.

Tho above enumerated missing documentary and record evidence in the cause, are certified by the clerk not to have been furnished him by the parties to the appeal; which is given as the reason for their not being copied into this transcript. A portion of the omitted evidence seems to have been offered by the plaintiffs, who are appellants. It is evident that they are in fault for not furnishing- a complete record. The motion to dismiss must therefore prevail. Hennen’s Digest, page 76; Harris v. Hays, 8 An. 433; Wallace v. Smith, Opinion Book 29, page 354; Morton v. Steamer Chalmette, Opinion Book 32, page 4.

Appeal dismissed, with costs.