author: Wyly, J.

text:
    No. 1437.
    Moses Marx, Appellant, v. J. J. Wheelis, Appellee.
    By the statute law of Mississippi, all obligations, or notes or drafts for money, whether payable to order or not, are assignable by simple endorsement. Revised Code of Mississippi, page 355.
    Where the evidence shows that the drawer of a'draft payable at a future day has notified the drawees not tó pay it, he is not entitled to nofcico of-dishonor.
    One party cannot hold another liable individually, on a contract made with him as agent.
    The transferee of drafts not negotiable occupies no better position than the original holder.
    . A xL PPEAL from Fifth District Court, Parish of Orleans, Beaumont, J.

      Bonner, Goode <& Dillingham, for appellant. Sheldon <& Pardee, for appellee.
   Wyly, J.

Plaintiff has instituted this suit against :the defendant to recover the amount of two draft's or orders drawn by him on Levy & Dieter, which were not accepted. The drafts , were not made payable to order or bearer, but to B; B. Fore, whó.transferred them to plaintiff by his'endorsement in blank. ;

Defendant excepted to plaintiff’s action, because the drafts, pot being negotiable, could not he proceeded on in the name of plaintiff, because the petition does not show that the hills were duly presented to the drawees, were dishonored, and notice of dishonor served upon him. Without waiving the benefit of his exception, the defendant answered, averring that in October, 1865, as agent fór tbe drawees, Levy & Dieter, he purchased from the payee of the bills; B. B. Fore, ia tbe State of Mississippi, a plantation and personal property tbereon for $12,000, paying in cash $7333 54; and for the balance drawing the time drafts sued on; also averring that at the time he purchased said plantation from said Fore, that one Alien B. C. Patrick, of Copiah county, Mississippi, held a vendor’s lion and privilege on said lands, to secure the' payment of a note made by said Fore for $3780, and that said Fore promised to pay off and extinguish this lien and privilege held by said Patrick, so as to give the purchasers, Levy & Dieter, a full and unin-cumbered title to said plantation; also averring that when the drafts were given it was understood and. agreed between the defendant and said Fore that they were not to be. presented and paid until said vend- or’s lien in'fávor of Patrick' was paid or extinguished by said Fore, and that he the “ defendant immediately notified the said Levy & Dieter of tbe condition upon which said drafts were given, and said vendor’s lien still existing upon said lands in favor of said Patrick; when the said drafts upon their face became due they were pot accepted and paid by said Levy & Dieter.” Defendant also averred tliat tile said lien still exists on said lands, and it is for a snm exceeding tlie aggregate amounts of said drafts, and tliat said Patrick is proceeding by bill in chancery in the Circuit Court of Mississippi, to enforce the same.

On the trial thoro was judgment in favor of the defendant, dismissing this suit, and plaintiff has appealed.

The exception was not well taken; the endorsement by the payee to plaintiff was made in Mississippi, where the drafts were drawn, and the statutes of that State offered in evidence show that all obligations or notes, whether payable to order or not, may be assigned by simple endorsement. (See Revised Code of Mississippi, page 355.)

The second ground of exception is also untenable. The defendant in his answer admits that he notified the drawees, Levy & Dieter, for whom he purchased the property, of the conditions upon which the drafts were drawn, of the prior lien existing in favor of Patrick, and that when the drafts became due they were not accepted and paid. Under the circumstances the drawer was not entitled to notice of dishonor ; he knew the drafts would not be paid; he had virtually notified the drawees not to pay them.

The defense on the merits seems to be more effectual.

The drafts not being negotiable, are liable, in the hands of the plaintiff, to any defense which the drawer might' have against them if in the hands of the original payee. Plaintiff, the transferee of the instruments sued on, occupies no better position than B. B. Fore, the payee; and the defendant can set up failure of consideration, or any other defense he may have.

The payee, B. B. Fore, testifies that “there is a suit pending in Co-piah county instituted by sa'id Patrick against said lands, to enforce a vendor’s lion, and I have failed to pay or extinguish the same.”

F. Surgis, who acted as attorney for the parties and drew the drafts in this suit, testifies that it was agreed between the parties that the drafts were to be accepted on presentation, and paid when due. That B. B. Fore was to arrange and settle the difficulty as to vendor’s lien with Patrick prior to the maturity of the drafts, as stated in my direct examination.”

After the purchase of the property, and after the drafts had been drawn, the defendant wrote to the witness, Surgis, stating that he thought it best to get an -indemnifying bond against the Patrick lien, Surgis testifies that he “ read the note to Fore, who said it was useless to give a bond, as he had friends attempting to settle' the matter with Patrick, and he, Fore, thought they would do so long before the drafts would fall due.”

The evidence is sufficient to satisfy us tliat the payee, Fore, promised the defendant, when he sold him the property, that he would pay off or extinguish the outstanding vendor’s lien held by Patrick bearing' on the land.

We are satisfied from the evidence tliat tlie drafts were given to Fore with, the understanding that lie was to settle this lien prior to the iha-turity of the drafts, and he has failed to comply with this important condition. Having failed to comply with the agreement, Fore could not recover from the defendant the amount of the'drafts. Plaintiff, the transferee pf those instruments which are not negotiable, occupies, no better position, and he cannot recover thereon. ■

The evidence furthermore shows that Fore contracted with defendant as agent for Levy & Dieter; the contract which they signed showed that Levy & Dieter were purchasing the property through their agent, who drew the drafts filed in this suit on his principals in payment for the property bought for them, and that Fore must have beon aware thereof. Having dealt with the defendant as agent, We do not see how the payee could have held him liablo individually. The credit must have been given to the drawees, Levy & Dieter. 3 M. 644 ; 10 L. 390.

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

Rehearing refused.


source: Caselaw Access Project

author: Ludelino, C. J.

license: Public Domain

text:
    No. 2023.
    J. Trasimond Landry v. Widow Ursin Landry.
    An appeal taken by the defendant must be prosecuted within the time fixed in the order.
    An appeal will not lie in favor of the intervening creditor after the time fixed by the order for the defendant to appeal has expired; in such-a case the judgment becomes res judicata,

    from the Fifth District Court, parish of West Baton Rouge. Posey, J.

      Pavrot & Bamon, for appellee, Barrow'& Pope, for appellant.
   Ludelino, C. J.

On the fourth January, 1868, the plaintiff obtained a judgment against the defendant for $7784 90, with eight per cent, interest per annum from April 1, 1860, till paid, subject to a credit of fifty dollars paid on eleventh November, 1865, with mortgage oñ the property, specially mortgaged to secure the debt. The defendant obtained an order for a devolutive appeal from this judgment' on the fourth day of January, 1868, returnable ■ according to law. She failed to give bond and bring up the appeal on the next return day for appeals from that district, to wit: the fourth Monday of January, 1868. On the twenty-ninth day • of December, 1869, ■ she gave bond and security, without having obtained any other order fbr an appeal.

On the fourth day of January, 1869, J. B.' O. Hebert presented a petition to the Judge of the District aforesaid, stating that he was a creditor of the defendant, who, he alleged, was insolvent, and that he was aggrieved by the judgment rendered in the suit entitled J. Trasi-mond Landry v. Widow Ursin Landry, and praying for a devolutive' appeal therefrom, which was granted; and he gave bond and 'security on the same day,

A motion to dismiss the appeals of both appellants has been made on the following groundsThat the defendant failed to give bond and bring np the appeal on or before the nest return day, for appeals from that district, to wit: the fourth Monday of January, 1868, and therefore the judgment is final. That tire judgment, having become final and executory between the original parties- to the suit, cannot be revised or amended for the benefit of an alleged aggrieved creditor.

So far as relates to the defendant the appeal must be dismissed on' account of the failure to prosecute the original appeal. 4 La. 41; 3 An. 339; 10 An. 235; 1 It. 100; C. P. 594.

In relation to the intervening creditor, he has lost Ms right of appeal by his laches in not appealing before the expiration of the time in which the defendant’s appeal was to be prosecuted. 7 N. S. 345. The judgment is. res judicata.

It is therefore ordered, that the appeals be dismissed at the costs of the appellants.

liehearing. refused.


author: Howe, ,J.

text:
    No. 1918.
    Burgess, Bennett, et als., v. The City of Jefferson, et als.
    Paragraph twelve of section seven of tlie charter of the City of Jefferson {Laws of 1867, No. 57), requires,that.all contracts for opening, widening, paving, and improving the streets, authorized by the Common Council shall bo adjudicated by the Controller, under regulations prescribed by the'Council, to the lowest 'bidder. An adjudication by direction of thd'Council, * by the Controller, of a contract-for paving one of the streets oi the city with the Nicolsoti pavement to.a .firm tíf company having the exclusive right to mate such pavement within the limits of the Staie of Louisiana is m conflict with this provision of the statute; and the ownors of property fronting on the street paved with this hind of pavement by a company having the exclusive right, cafinot bo compelled to pay the two-thirds of t^e cost of making the pavement. ‘ ‘ '
    * The principle of competition enunciated by the statute must bo observed by the CounciMn let- • ting out contracts f^r the-improvement of the streets, otherwise the owners of property fronting on the streets improved cannot ho compelled to pay the charges assessed against them for makÍDg th& improvement.
    A UL PPEAL from the Second Judicial District Court, parish of Jefferson. jDujplantier, J.

      A. N. II. N. Ogden, for plaintiffs and appellants, J. Sa\o1cins. and Fellows & Mills and II. J. Leovy for defendant? and ap-pellees.
   Howe, ,J.

On the .twenty-second April; 1867, a number of front proprietors on St. Charles avenue, in the City of Jefferson, petitioned the city;for certain .flag walks and for the paving of the street with the “ Kioolson pavenient.’.’ A list, of their property aud its dimensions was annexed, and the City Surveyor certified that the property signed for exceeded one half of all ihc property fronting on the avenue in the-limits of the city of. Jefferson. •

On the twontyrfourth April, the Council adopted a resolution or ordinance,- directing, the Controller to adjudicate contracts lor the paying, and also. for.the curbing, to. the lowest bidder, after advertisement, át §uch place and time a? should he designated by the Controller. As to.-the paying, the resplifripn required Í4® work to he dope in strict accordance yriththe repufren^eMsof tliepatent.

The Cortte'oller advertised the sale to take place on the eleventh May. On the same day A. D. Yoisin enjoined the city from further proceedings, and the sale was postponed.

At a meeting of the Council; May 13, a "petition was read, signed by property holders on St. Charles avenue, among whom were the owners of several hundred feet front, represented in tlie original petition, protesting against the sale of the contract. This petition was referred to' a special committee, who, on the twentieth of May, reported that they had examined the matters complained of, and had ascertained that a majority of the front proprietors had originally petitioned for the improvement, and they therefore reported against the memorial of the petitioners.

On the fifteenth May, Mr. Voisin dismissed his suit and injunction, and on the twenty-fifth May the Controller adjudicated the contract for paving to Messrs. Taylor & Lockwood, at $3 50 per square yard, and the contract for curbing to John Rooney, at $1 per running foot.

On the twenty-ninth May the Council, by resolution, approved these adjudications, and the Mayor was empowered to enter into proper contracts by notarial act.

On the thirty-first May, the Mayor entered' into a contract with Messrs. Taylor & Lockwood for the paving of the street with the Nicolson pavement. This contract is in conformity to and embodies the ordinance. .,

It is probable that a similar contract was entered into with John Rooney for making the curbs, but we do not find it in the record, and as will be seen, its merits are not before us.

On the twenty-fifth June, 1867, the plaintiffs, owners of property fronting on the avenue, and liable under a provision of the charter, hereinafter referred to, to be specifically assessed for their proportion of two-thirds of the cost of paving, and the whole cost of the curb, filed the petition now before us, praying in substanee that the ordinance for the adjudication of the contracts bo decreed to be illegal, null and void; that the City of Jefferson be enjoined from proceeding to collect from petitioners any portion of the contract prico of said works by virtue of nny clause in the charter rendering the petitioners as front. proprietors, separately from other owners of property in the city,' responsible for the cost of making banquettes and paving streets; and that it also be decreed, contradictorily, with the contractors (who were" made parties defendant), that the City of Jefferson has no rights against the property of petitioners in front of which the improvements were being made.

The court rendered judgment in favor of the plaintiffs in "accordance with their prayer, as to the contract for the Nicolson pavement; but against petitioners as to the contract of Rooney for curbing. As to the latter, the plaintiffs have not appealed, and we cannot inquire into that' portion of flic judgment, From the portion of the judgment which concerns tlio paving contract, the defendants, the City of'Jefferson, and tlio Southern Paving Company, subrogated to the rights of Taylor & Lockwood, have appealed. . -• ■

The plaintiffs presented.a number of points in the- court below,.but tlio court based its judgment so far as it was in their favor as to the paving upon one. ground, namely: that the Nicolson pavement is a patented improvement, that the contractors, Taylor & Lockwood, held the exclusive right to lay such pavement in the State of Louisiana, and that therefore the competition which the law intended at an adjudication to the lowest bidder could not take place.

In the view we have taken of the case this is the only point tha t requires decision. ...

By paragraph six of section seven,of the charter of the City of Jefferson (Laws of 1367, No. 57), the Common Council has power to lay an annual tax'of one-half of one per centum for making improvements of streets and public works; by the tenth paragraph it has entire control of all the streets, levees, wharves .and sidewalks of the city; by the eleventh paragraph it may make loa us to pay for necessary ameliorations and improvements within the limits of the city (of which, in this climate and with .our soil, paving is surely an important one), and by paragraph eighteen it has power to .open, widen, straighten, extend or improve any street, road, sidewalk or public placo.

The twelfth paragraph,, of .the .samo section reads as follows:

“When the proprietors of land fronting-, on any public street or avenue, comprising one-fourth, of the front on said street, shall petition the Council therefor,- thp Council shall cause the streets to be opened, widened or improved with banquettes, sidewalks, shell or plank roads, or paved streets, if after thirty days notice in the .official journal a majority, similarly constituted, of front property owners shall not object thereto. The crossings and intersections of the streets and one-third of the roadways in front of the.property shall be at the expense of the city, and the sidewalks or banquettes and one-third of the roadway or street at the expense of the property owners in front of whose property the same shall be made; provided all such work shall be done by contract, adjudicated by the Controller, under the regulations to .be' prescribed by the Council, to the lowest bidder ; and, provided further,. that said contractors shall ■ be subrogated to the rights of tlio city - against the property in front of which such improvements may bo made, releasing the city from any liabilities for the same; and provided', further, that the bills for such work, certified by the City Surveyor, and audited by the Controller, when recorded, shall hayo a lien and privilege in favor of the contractor xip.on said property for five years from the issuing of the bills for the. amount thereof witli interest, over all other claims and demands whatever,, except that of the city,-State,, and-national taxes.” , ...

It will be at once perceived by an examination of this charter that when the City of Jefferson exercises its general powers to improvo a street, it is not bound to advertise for proposals or to adjudicate a contract to the lowest biddei1. These formalities are only required when it proceeds under the twelfth paragraph quoted above.

It has therefore been urged by defendants that under those general powers the city had the right to cause the pavement to be made, and to charge two-thirds of the cost upon the front proprietors as, they allege, was customary in Now Orleans and Lafayette prior to 1850, under powers no more extensive, and this course, they say, was held to be legal by a series of decisions of this court from 1830 to 1850. 1 La. 1; 7 An. 26; 10 An. 57. It is not necessary to decide this point in this case.

..Admitting that the Council had the right under its general powers to cause this pavement to be laid, and of this we think there can be no doubt; and admitting, for the sake of argument, that it had the right to charge two-thirds of the cost,- as an equitable proportion, on the front proprietors, it is plain- that in this case it exercised only the former and not the latter right.

It directed the work to bo done, and under its authority a contract to. do the work was made, and thus far the proceeding was valid, but it did not proceed under its general powers, if such it had, to ordain an equitable assessment on front proprietors in proportion to the supposed benefit derived. On the contrary, as will appear by the ordinances and the contract, it proceeded under the special provisions of the twelfth paragraph, so far as front proprietors were to be bound, and, referring to .these provisions, and not otherwise, took proceedings, which, if they had conformed to the requirements of that paragraph, and not otherwise, would have bound the front proprietors to pay two-thirds of the cost of paving; would by operation of law have subro-gated the contractor to the rights of the city, releasing the city from liability jaro tanto, and created a privilege on the property of the front proprietors'.

In this view the question of the right to advertise for bids for a patented improvement, which can only be used by one person or company in, the State, is, in this case, to be solved by a consideration of the stringent provisions of this twelfth paragraph alone. Upon this point, with this restriction, we do not think the court a qua erred in its conclusion. There could have been no real and practical competition for the work of paving in this case. One of the most intelligent of the defendant’s witnesses admits this, and it would sufficiently appear without his evidence. And that an opportunity for real competition is a condition precedent to rendering effective the peculiar provisions of this twelfth paragraph is too plain to require argument. The power of a small minority to compel initiation of the work, and of a bare majority to permit its completion, and tlie imposition of its burdens, is top grave to be exercised, except with a full compliance with the letter and the spirit of the clause. We are constrained to conclude that in so far as the city seeks through this clause to assess the plaintiffs, the act has been violated. We are 1'ortifi.ed in this conclusion by tlie authority of' the Supreme Court of Wisconsin in the case of Dean v. Charlton, 7 A. M. Law Reg., N. S. 564. In opposition to this view wo have been referred to a recent decision of the Supreme Court of Michigan in the case of Hobert v. the City of Detroit, and to still more recent decisions of the Supreme Court of New York in the cases of Astor v. the Mayor, and Dolan v. the Mayor. In all these cases there was a feature which is not present in the case at bar. The defendants there were absolutely forbidden by their charters from contracting for any work, ‘ or even purchasing any supplies of any kind exceeding $200 or $250 in amount without advertisement and letting to the lowest bidder. In view of a provision which would seem to cut off those cities from the benefit of any patent however desirable, the courts in question seem to have been constrained in the interests of what they believed to be public policy, to adopt a line of reasoning which we do not feel authorized to follow. We are told by our Code, art. 13, that “when a law is clear and free from all ambiguity the letter of it is not to be disregarded under the pretext of pursuing its spirit j” and in this case we are relieved from any temptation toward a construction thus reprobated. The City of Jefferson is not prohibited from laying any sort of pavement in her streets, and may in this regard keep step with the progress of science and inventive skill. It is only when her action is provoked under-the special paragraph we are now considering, that she .is bound .to afford an opportunity for real competition. If this system bo inconvenient it is for the legislator to furnish a remedy.

It will be seen, however, that in one respect the judgment appealed from is erroneous, in so far as it declares the ordinance under which the infract was made null and void. The Council had a right under its general powers to order tlie work to be done and to authorize the Mayor to make the contract for that purpose. There are neither allegations nor proof in the case which would authorize us to pronounce the entire nullity of this action or of the action of the Mayor. So far as appears the ordinance and the contract are valid as between the city' and the contractors. It is only in so far as by necessary intendment the front proprietors are held to the city for two-thirds of the cost and the contractors subrogated to the city’s rights, releasing the city from liability pro tanto, and a privilege on property created, that the ordinance and action under it can be declared void.

The plaintiffs are amply secured and protected by the remainder of the judgment appealed from. It is therefore ordered and adjudged that said judgment as to such portion thereof as declares the nullity and illegality of tlie ordinance in question be reversed, and that in all other respects the' said judgment be affirmed, the defendants to pay the costs of the court below and the appellees to pay the costs of this court.


author: ■Howe, J.

text:
    No. 2007
    John Huddleston v. Mrs. Sarah Coyle.
    Where the signature of a party to a promissory noto is specially denied under oath, tho burden of proof falls upon the holder, who will be bound to produce such evidence as tho law requires to enable him to recovor on the instrument, C. P. art, 325.
    from the Seventh Judicial District Court, Parish of Pointe Coupee. Miller, J.

      Collins, Lealce and Msher, for plaintiff and appellee, Beatty & Yoist, for defendant and appellant.
   ■Howe, J.

This action is instituted to recover from the defendant, the widow of B. R. Coyle, the amount of a noto alleged to have been executed as follows:

$1500. WilliamspORT, La., November 9,1861.

“ Six months after date we, or either of us, promise to pay to the order of Wright, & Allen, at the office of Wright & Allen, in New Orleans, fifteen hundred dollars, value received, with interest at eight per cent, per annum from maturity until paid, being for supplies furnished for the use of my plantation, and payable out of the first shipment of my cotton, which is hereby pledged to this amount.

“ B. R. COYLE, “SARAH COYLE.”

The plaintiff, indorsee, alleges that Mrs. Coyle executed the note by authorization of her husband, from whom. she had been separated in property, and that the note was given for supplies furnished to her plantation.

The defendant denied under oath that' she ever signed the noto, or authorized the signing in any way, and averred that her alleged signature was forged.

There was judgment for plaintiff, and defendant- has appealed.

As stated by counsel for both parties in this case, the issue is narrowed to one point, the question whether the defendant, Sarah Coyle, signed the note in suit.

i “ The law has expressly provided tho kind of evidence which may be produced to counterbalance the express denial of a signature or tho averment that it is counterfeited.” 9 La. 562.

In such case the plaintiff must prove the genuineness of such signature, either by witnesses who have seen the defendant sign the act, or who «declaro that they know it to be his signature, because they have frequently soen'lmn write and sign his name. But the proof by witnesses shall not exclude the proof by experts, or by comparison of writing, as established by the Civil Code.” C. P. 625.

When the defendant, sued as maker of a note, denies his signature under oath, tlio testimony of 'witnesses who never saw tlie defendant write or sign his name, and who express their belief in its genuineness merely because it resembles other signatures which ‘'hoy presumed to be his, would not satisfy the requirements of the law. 15 La. 262.

The charge that a private writing lias been counterfeited has some weight, and imposes upon the party seeking to enforce the obligation the burden of producing the counterbalancing evidence required by law in such a case. 18 An. 445.

The plaintiff in the case at bar has not produced such evidence. The two witnesses who state, on Ms behalf, their belief of the genuineness of the signature of Mrs. Coyle, speak of botli signatures to the note, and base their belief upon their resemblance to signatures they had before seen in the course of their business, which they presumed to have been genuine. The first says:

“ I recognize said signatures as being genuine, having paid many drafts bearing the same signatures, and never disputed by either party.”

The second says:

“I recognize said signatures as being genuine on the ground that I have often and often seen said signatures.” But when interrogated as to whether both signatures to the note were not written by the same person, he replies, “ I cannot say.”

Nor has the plaintiff furnished any “ proof by experts or by comparison of writing, as established by the Civil Code.” It results, then, that he has not complied with a single requirement of art. 325 C. P.

The wisdom of the rules established by law on this' subject, and the necessity for their observance, appear at once from an inspection of the original documents attached to the record. The two signatures to the note are evidently written by the same hand, while the signature óf Mrs. Coyle to a bond executed in 1858, and admitted to be genuine, is totally unlike the signatures to the notes. In the absence of proof that she signed the note of authorized any one to attach her name to it, we are at a loss to see how she can bo made liable as a party to the instrument.

It is therefore ordered that the judgment appealed from be reversed, and that there bo judgment in favor of defendant, with costs in both courts.


author: Ludeling, C. J.

text:
    No. 1902.
    Succession of Jacob Weigel, opposition of Helena Betz to the Inventory.
    Where an appeal is granted on motion in open Court, the names oí the appellees must be inserted in the appeal bond, otherwise tho appeal will be dismissed for want of proper parties. • 14 An. 315, 383; 19 An. 197.
    from the Second Judicial District Court of .Louisiana. Pardee, J.

    If. Commander and IT. B. Hyman, for appellants, IF. O, Denegre, l'or appellees.
   Ludeling, C. J.

A motion to dismiss tliis appeal lias been made, on tlie ground that all the parties interested in maintaining the judgment of tho District Court have not been made parties to this appeal. The order for an appeal was granted in open court. The bond is in favor of “ the succession of Jacob Weigel, Ids executors, administrators and assigns.'1’

The administratrix caused an inventory to be made of the property of the succession; and Helena Betz filed an opposition to the inventory, claimed to be tho owner of certain real estate, which had been placed,on said inventory, and prayed that said real property be stricken from the inventory. This case having been tried in the lower court, was brought before this court by appeal; and our predecessors remanded it back to tho lower court in order that the heirs might be made parties. Tho heirs, all of age, having been made parties, there was judgment in their favor, recognizing them as the owners of the property in dispute, and from this judgment an appeal was taken.

Tho bond is defective in not naming tho heirs or using such terms as would clearly embrace them. 5 An. 574; 10 An. 232; 12 An. 71; 14' An. .315, 688. “An administrator is. the trustee of the creditors.” 2 An. 923. The heirs were necessary parties to the suit. C. P. art. 123; ',C. C. 1049.

The appeal is therefore dismissed.


author: Howe, J.

text:
    No. 2051.
    Jane V. Fletcher v. A. F. Dunbar & Co., John Fletcher, Intervenor.
    Tlie filing of an answer by defendant, and trial on tlie merits, does not waivo his right to, nor preclude the judge a quo from, considering and deciding a peremptory exception (filed the same time with the answer) founded on law,
    Tho exception that tho petition discloses no cause of action will bo sustained in a case where, if all the allegations are truo, no judgment can be pronounced thereon.
    from the Thirteeuth District Court, parish of Concordia, Hough, J.

      Geo. 8. Sawyer, for plaintiff and appellant. Mayo & Spencer for defendant and appellee.
   Howe, J.

The plaintiff in her petition avers that her brother, John Fletcher, and herself are the solo heirs of their father and mother; that their mother who died before their father, left an estate in community with him amounting to $25,000, consisting principally in the Fletcher plantation, in the parish of Concordia; that on the twelfth December, 1859, their father — having previously acquired the son’s fourth part— sold the undivided three-fourths of this plantation to Yorke and Hoover for the price of $37,000, leaving her fourth interest undisposed of; that her father died on the twenty-ninth January, 1862, leaving an estate valued at $30;000; that on the twenty-ninth July, 1862, her brother, John Fletcher, was appointed her guardian by the Probate Court of Adams county, Mississippi; that her brother established his residence in the parish of Concordia, and continued to act as her tutor, or as an intermeddler with her Louisiana property, appropriating its revenues to a largo amoynt to his own use; that on the sixteenth of May, 1866, he repurchased from Yorlco and Hoover the three-fourths of the Fletcher place, and gave up to thorn their notes they had executed, for the price, amounting to $25,000, a half interest in winch belonged to her; that her brother lias become insolvent and has rendered-her an account of Ms acts in Louisiana; that on the thirtieth November, 1867, having become of age she had a formal settlement with her brother on account of his guardianship, in the Probate Court of Adams county, Mississippi, by which she was adjudged to have one-half interest in three-fourths of the Fletcher place purchased by her brother from Yorke and Hoover, to date from said purchase, which, with the one-fourth interest previously owned by her, gave her an interest of ñve-eighths in that plantation; that in said'settlement she obtained a decree against her brother for $5,800 for the rent of her interest in this plantation for the years 1866 and 1867, and that the rents of her fourth interest therein for 1862, ’63, ’64, ’65, ’66, were worth $1000 per annum ; and that on the thirtieth November, 1867, she obtained judgment in the District Court of the parish of Concordia, rendering executory her judgment of the Probate Court of Mississippi, for the sum of $5,800, and decreeing in her favor a tacit mortage on all her brother’s property to date and take effect from the first January, 1867.

She further complains that on the twentieth September, 1867, her brother mortgaged one-half of the Fletcher place and other property to A.F. Dunbar and John C. Baker, of Now Orleans, for $12,000, in fraud of her rights, and she claims the right ,to have this mortgage canceled so far as the same affects her mortgage and concludes with the prayer that she have judgment against Dunbar and Baker, decreeing her tacit mortgage for $58,000 valid, and giving the same priority and precedence over that of the defendants, and decreeing the property to bo sold free from all incumbrance in consequence of the latter mortgage.

The defendants prefaced their answer by a peremptory exception that the plaintiff’s petition disclosed no cause of action, and prayed that the suit be dismissed, and with a protestando proceeded to plead to the merits. The case was tried on the merits, and the judge a quo gave judgment sustaining1 the exception, and dismissed the suit as in case of non-suit. From this judgment the plaintiff has appealed.

It is urged by plaintiff that by going to trial upon the merits the defendants waived their peremptory exception, and the judge a quo had no right to consider and maintain it after the trial. TMs view may bo correct when the exception is to matters of form, but it is incorrect when applied to such .an exception as the one now before us. Martin v. McMasters, 14 L. 422.

Nor do we think the court below erred in sustaining the exception. Admitting tlie trutli of all tlie allegations in tlio plaintiff’s petition, we can perceive in them no cause of action. It appears that in September, 1867, when John Fletcher mortgaged one-half of the Fletcher plantation to the defendants he was the owner of at least one-lialf.

No fraud is charged against tho defendants. It is not averred that they knew tho plaintiff to be equitably entitled to five-eighths of the' place instead of one-half. It is not alleged that they obtained tho mortgage by evil practice, or that the sum secured by it was not a just debt, or that any dishonest preference was sought to bo obtained by them, or that they are seeking to enforce their mortgage to tho prejudice of her rights. It does not appear even that they claim a lien prior to that of plaintiff. Indeed, if wo are to believo tho allegations of the petition, her mortgage is prior to their’s, dating back, as it purports to do, to January 1, 1867. We cannot see therefore any foundation for the prayer that the mortgage of the defendants bo canceled so far as it affects her mortgage.

For similar reasons there is no foundation for the prayer that tlie plaintiff’s mortgage be declared prior to that of the defendants’. It is not necessary to decide whether, under tho allegations of the petition, it is really prior or not. It is enough to say that if by tho effect of tho judgment of November 30, 1867, it be prior, there is no necessity for the relief invoked; if it bo not prior as matter of fact and law, there are no allegations in the petition which, if taken for true, would justify a court in now adjudging a preference.

In brief, we have sought diligently in this caso, to discover a cause of action, but without success. When the mortgages are sought to be enforced a proper occasion will arise to settle preferences and distribute proceeds.

It is ordered and adjudged that tho judgment appealed from be affirmed with costs.


author: Howell, J.

text:
    No. 1964.
    State of Louisiana, ex rel. of W. & H. Stackhouse, v. The Judge of the Fifth District Court for the Parish of Orleans.
    An appeal will be from a judgment dissolving an injunction taken out against an order of seizure and sale. The amount of tho appeal bond to entitle the plaintiff in injunction to a suspen-sive appeal is one-half oyer and above tho amount of the judgment dissolving the injunction.
    A Buspensive appeal from a judgment dissolving an injunction against an ordor of seizure and sale will suspend tho execution of the ordor until tho judgment is affirmed by tho Supreme Court.
    After a suspensive appeal has been granted and the'bond is signed and filed tho Judge of the court a qua has no jurisdiction of the cause further than to ascertain that the security ifr good and solvent.
    for a writ of prohibition. Judge Leaumont, in per-sonam.

      Boselius and Philips, for relators.
   Howell, J.

The relators allege that on the thirty-first January, 1867, James E. Zunts obtained an order of seizure and sale on two notes lor $25,000 each, with six per cent, interest from February 1, 1864, to February 1, 1866, the date of their maturity, and eight per cent, thereafter, and secured by mortgage on a plantation in the parish-of Plaquemines; that on petition they obtained an injunction upon giving bond with security for $7000; that Zunts filed an answer to said petition, praying for the dissolution of the injunction with costs and for the maximum damages, interest and attorney’s fees against petitioners and tlfoir sureties in solido; that on the trial of said suit judgment was rendered against petitioners, dissolving the injunction and condemning them to pay twelve per cent, damages and eight per cent, interest on the amount of the judgment enjoined, together with costs oit suit, which damages and interest amount to $13,300 ; that within ten days they applied for and obtained a suspensive appeal from the same, on giving bond and security in such sum, and conditioned as the law directs; that they furnished a bond with good security for $25,000, being more than one-half over and above the judgment rendered against them ; that afterward said Zunts took a rule on them to show cause why said suspensive appeal should not be set aside and execution issue, on the grounds that the surety on the appeal bond was not good and solvent, and said bond not sufficient in amount for a suspensive appeal, which rule was made absolute and the appeal dismissed on the second ground; and that' said Zunts is about to execute his order of seizure and sale and the judgment for damages, and they pray for a writ of prohibition commanding the Judge of the Fifth District Court for the parish of Orleans not to j>roceod any further in said suit, and to allow the transcript of appeal to be sent up, the same as if the order of dismissal had not been rendered.

To this the Judge answers, in substance, that the appellants failed to give an appeal bond, as the law directs, for a sum exceeding by one-half the amount of the judgment debt, interest and costs under article 575 C. P.; that the bond on which the injunction issued, not being authorized by law, is no protection to the plaintiff in the seizure and sale, and to have said writ suspended during an appeal from the judgment in the injunction suit, a bond for a sum exceeding by one-half the amount so enjoined and the damages, interest and costs also, is necessary; that executory process can be enjoined only for the causes prescribed in art. 739 C. P., in which no bond can be required, and that the cause or ground for the injunction in this case being fraud and other unlawful means, no bond should have been required, and consequently the surety on said bond could not be made liable; that it is only in cases where a party is bound by law to give an injunction bond that he can obtain a suspensive appeal from a judgment dissolving the injunction without giving security for the debt enjoined; that art. 575 C. P., making no distinction as to the amount of the bond fora suspensive appeal, the court can make none, and he refers to the case of the State v. the Judge of Third District, 18 L. 444, as authority.

The merits of the injunction suit cannot he inquired into in this proceeding, and hence it is unnecessary to determine whether or not the causes set out in the petition for injunction are such'ás article 739 C. P. authorizes. . The only question is, whether or not the relators are entitled to a suspensive ■ appeal on the bond furnished by them, and here it is pertinent to inquire from what judgment the appeal is taken. Certainly not from the order of seizure and sale. If is only from fho judgment rendered in the injunction suit. ' This judgment dissolves the injunction and condemns the relators, plaintiffs in injunction to pay $13,300 and costs-, and for a suspensive appeal therefrom a bond for an amount exceeding by one-half such sum is, by art. 575 C. P., sufficient if taken in time. This is the only and legal inference from the terms of the order of the- Judge granting the appeal. The relators and appellants have complied with said order. Whether or not this appeal suspends the executory process depends alone upon the question whether or not it was. suspended by the injunction; for if it was suspended by that writ it remains legally suspended until the judgment dissolving the injunction becomes final, and bylaw said judgment does not become final until affirmed on appeal duly, and properly taken. That the executory .process was suspended by the writ of injunction is not denied. The proceedings thereon by the plaintiff in the seizure and sale admit and confirm this. The sale is arrested by the injunction and the appeal maintains the case in statu quo until, the judgment dissolving the injunction can be reviewed by the appellate court. On the appeal what judgment can be rendered against the appellants ? Not one for the debt enjoined, but at most one affirming that appealed from with, possibly, increased damages and costs. The injury caused by the delay is covered by the judgment for damages, which is secured by the appeal bond. The debt enjoined is secured by the property under seizure or mortgage.

We do not deem this the occasion to pass on the necessity and validity of the injunction bond or the liability of the surety thereon; but we consider it proper to state that the reasoning in the case in 18 L. 444 does not satisfy us that a bond for the mortgage debt and the damages is necessary for a suspensive appeal in an injunction issued without bond under arts, 739 and 740 .0. P. The authority of that case is greatly weakened by the reasoning in the one of the State v. The Judge of the First District, 19 L. 167, which we believe to be more consonant with the' principles of law relating to the question before us. We know of no law which requires such a bond-. The plaintiff in injunction in either case is entitled to, the protection of the court so long as the matter in controversy is undetermined. And besides, it is well settled that after a suspensive appeal is once granted and the bond is signed accordingly, the Judge of the first instance has no. jurisdiction of the cause further than to ascertain that the surety is good and solvent, 19 L. 173, 178, and cases there cited.

Our conclusion is tliat tlie appeal taken by tlie relators is suspensive and that they are entitled to tlie writ applied for in this proceeding in order to have the merits of their injunction examined in this court.

It is therefore ordered that the prohibition issued herein be made perpetual, and the Judge of the Fifth District Court for the parish of Orleans ordered not to proceed any further in the suit of W. & II. Stackhouse v. James E. Zunts, No. 18,850, on the docket of this cotfrt, and to allow the transcript of the record thereof to be sent to the-Supreme Court as if the order dismissing the suspensive appeal had not been rendered.


author: Howell, J. Howe, J.

text:
    No. 1768.
    B. L. Mann & Co. v. C. W. Norton, C. Reilly, third opponent.
    Notice of seizure and demand are necessary to interrupt prescription in a proceeding by exec-utory process.
    When the notice has not been served until alter prescription has accrued, the plea will he maintained. 20 An. 192,
    from the Third District Court, of New Orleans, Theard, J. of Fourth District Court of New Orleans, presiding.

      John McKee for appellants. Breaux & Benner for appellee. JS. T. Bellotees, curator ad hoc, for C. W. Norton.
   Howell, J.

The only question- presented in this proceeding is, whether the institution of suit by executory process interrupts prescription'?

The plaintiffs and appellants rely on the case of Walker v. Lee, 20 A. 192, and the cases therein cited, to sustain the affirmative of this question. But the interruption of the prescription in those cases was based entirely on the fact that notice of demand and seizure was served before prescription was acquired, likening -such notice to the citation required by Articles 3484, 3516 and 3517 C. C. In this case the requisite notice was not served until after prescription had accrued, and there was therefore no interruption.

Judgment affirmed.

On Motion to Dismiss.

Howe, J.

A'motion has been made to dismiss the appeal in this case on the ground that the matter in dispute does not exceed five hundred dollars. The matter in dispute is a note for $337 50, on which an aggregate of interest to the'amount of fifty-eight per cent, was due at the institution of the suit, and therefore exceeds five hundred dollars ; and the motion to dismiss must he denied. Schlenker v. Taliaferro, 20 An. p. 565.


text:
    No. 1701.
    State of Louisiana v. Clinton and Port Hudson Railroad Company.
    Where a judgment rendered in favor of an opposing creditor on opposition to a liquidator’s ac-oount has become final, and forms res judicata, the liquidator will not be allowed, in answer to a rule to show cause why it should not be paid according to its rank and privilege, to go behind the judgment and set up defenses that might have been pleaded before judgment.
    J. from Fiftli District Court, Parish of East Feliciana, Posey,

      Hunter, for appellant. Me Vea, for appellee.
   Wyly, J.

On the opposition of H. Hawford to the final account of B. Haynes, liquidator of the Clinton and Port Hudson Railroad Company, there was judgment for said Hawford on the twenty-sixth November, 1858, for $500, with'eight per cent, interest from fifth August, 1847, "to be ranked as one of the privileged law charges against said corporation.”

On the seventh June, 1867, a rule was taken on the present liquidator of said company, Charles McVea, to show cause why said judgment should not be allowed and paid as a privileged claim. This rule was made absolute, and the defendant has appealed.

The defendant, Charles McVea, liquidator, etc., sets up that when L. Sanders and others, commissioners of' said Railroad Company, filed their account, the plaintiff in this rule opposed the same, on the ground that no interest was allowed on his claim, and on the eleventh February, 1854, there was judgment on that opposition, dismissing the same and homologating the commissioner’s account.

This seems to be merely a contest about the interest on the claim of plaintiff in the rule.

The liquidator contends that the payment of interest is not warranted by law, and claims that if either judgment should be paid it is the one rendered on the opposition to the commissioner’s account, on the eleventh February, 1854.

This rule is based upon a judgment rendered contradictorily with B. Haynes, the former liquidator, on the twenty-sixth November, 1858, wherein the plaintiff recovered judgment for $500, with eight percent, per annum interest thereon, from the fifth August, 1847, with the rank of one of the privileged law charges against said corporation. No appeal has been taken, and that judgment is now “ res judicata."

The judgment of the eleventh of February, 1854, might have been used as a defense against the allowance of interest on the trial of the opposition to the liquidator’s account in 1858 It cannot be set up now.

The defendant will not be permitted to go behind that judgment and urge the defense which should have been made at the time.

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


author: Taliaferro, J.

text:
    No. 2052.
    James Porter Parker v. Alfred Davis, Executor.
    If the appellee reside in another State, citation is to he made on the Advocate, not the agent or attorney in fact. C. P. 682 ; 4 L. 317.
    from the Thirteenth Judicial District Court, Parish of Ten-sas. Farrar, J. '

      Shaw ,tfe Aroni, for defendant and appellant. Farrar & Feeves, for plaintiff and appellee.
   Taliaferro, J.

There is a motion to dismiss the appeal taken in this case, on the ground that no legal citation of appeal has been given to the appellee. It seems that the counsel for the appellant, assuming that James Porter Parker, the appellee, when the order of appeal was rendered, resided in the State of Mississippi, caused a curator ad hoc to he appointed to represent him, and upon the curator ad hoc the citation of appeal was served — the person appointed being the attorney who represented the plaintiff in the case from the judgment in which the appeal was taken.

We think the citation clearly defective. Article 582 of the Code of Practice is express that “ the sheriff shall serve the petition and citation on the appellee, if he reside within the State, or his advocate if lie do not, by delivering a copy of the same to such appellee, or to his advocate, by leaving it at the place of their usual domicile.

It is therefore ordered that the appeal be dismissed at the costs of the appellant. 4 L. R. 317.


text:
    No. 2083.
    State of Louisiana v. E. Elder.
    In providing against the crime of ars ju our statute makes no distinction in reference to the a ownership oí the house or building destroyed by lire, whether belonging to the accused or to a third person. And the only object of the allegation of ownership of property in the indictment is to describe and identify ,tho object of the crime.
    The possession, occupancy and control of a house or barn and stable that has been destroyed by lire, may be shown by parol evidence in the prosecution of a party charged with the crime of arson.
    Under the statute of 1855, page 137, providing against the crime of arson, the State will be allowed to amend the hill of indictment in all matters relating to the form thereof.
    After the jury was cmpannelod and the trial commenced, the District Attorney moved to amend the iudretment by inserting the words “ the aforesaid barn and stable being,” which was allowed by the court. Held — That this amendment does not alter the substance of the indictment, or create a new or different charge.
    from tbe Fifth Judicial District Court, Parish of East Baton Rouge. Fosey, J.

      Stafford, for appellee. Burgess, for appellant.
   Howe, J.

This case comes before us on three bills of exceptions, reserved by tbe defendant, who was indicted for feloniously, willfully and maliciously sotting fire to and burning “the barn -and .stable, not adjoining to a dwelling bouse, the property of W. J. Sharp,” and was convicted and sentenced to imprisonment at hard labor.

First — On the trial, after the jury liad been empanneled, the District Attorney was permitted by the court to amend the indictment so as to pjftke the clause quoted above read as folio ws: “ The bam and stable, not adjoining to a dwelling house, the aforesaid ham and stable being tlie property of W. J. Sharp.” To this permission the defendant reserved an exception.

Second — On the trial the State offered parol evidence to prove-title to the bam and stable attached to and partaking of the reality to be in W. J. Sharp,” and the court overruled the objection of defendant thereto, on the ground that it was only necessary to prove possession suo jure on W. J. Sharpe at the time of the burning, which could be done by parol; and to this defendant excepted.

Third — The State further offered evidence to prove that the property burned was the property of Mrs. Sharp, wife of W. J. Sharp, and the court overruled the objection of defendant thereto, on the ground that the witness, W. J. Sharp, had stated in his testimony that he resided with his wife on. the plantation upon which the property burned was situated, and that he was in possession of said plantation, and that it was controlled and managed by him, and to this the defendant excepted.

The prosecution seems to have been instituted under the forty-ninth section of the act of March 15, 1855; but, as this was amended and reenacted by the act of March 18,1858, the case is governed by the third section of the latter statute.

As to the amendment we see no error in the ruling of the court. The indictment was good, by a reasonable construction, before the amendment ; no real change was made; and it seems impossible that the defendant could have been in any way affected .by an addition of words which the State, through abundant caution, was permitted to make.

The questions presented by the second and third exceptions are somewhat complicated by the manner in- which the bills are drawn, but .taking the two together we suppose that on the trial the State proved* by parol that W. J. Sharp was in the possesion, occupancy and control of the buildings destroyed, and further proved, by showing the legal title in Mrs. Sharp, that the possession, occupancy and control by Mr. Sharp were lawful.

Under our statute it was not necessary to aver and prove the ownership of the property, as at common law, to be in some person other than the accused; (8 An. 114; 12 An. 382); and the only object of the allegation of property in Sharp was to describe and identify the object of the crime. The possession, occupancy and control by Sharp could be proved by parol, and, when proved, fully supported the allegation of property in him. Greenleaf on Ev., vol. 3, p. 49; State v. Lyon, 12 Conn. 488; Glanfleld’s casé cited in Russell on Crimes, vol. 2, p. 565.

The evidence that the legal title was in his wife seems to us, in this case, to have had no other object or effect than to show his possession, occupancy and control to have been rightful, and the defendant has no cause to complain if the State introduced more evidence on this point than was absolutely necessary.

We cannot perceive that the court erred in its ruling, and it is therefore ordered and adjudged that the judgment appealed'from be affirmed.


author: Howel, J. Howe, J.

text:
    No. 1407.
    James A. Lusk v. Graham & Cole.
    Where one of three partners selis his interest in the partnershii) to the other two, who execute their agreement in writing signed in their individual capacity, which ho terms a counter letter, and he afterwards brings suit for a liquidation and settlement of the partnership affairs, and,to recover his share of the profits according to the terms and stipulations of the counter letter, any amount that may be found to bo clue by them on ar count of the purchase or profits must be borne jointly, and not in solido, each paying one-half thereof,
    The rule to bo observed in. malting a settlement of partnership transactions is to ascertain the valuó of the assets, coimposed of the property, credits and roeoipts belonging thereto, and from the aggregate amount' deduct tho debts and* expenditures; the balance remaining to bo divided in accordance with the terms and stipulations of tho partnership.
    from the Fourth District Court of New Orleans, Theard, J.

      G. Hoselius and. Ii. II. Marr, for plaintiff and appellant, Glande d; Bayne and P. Soule, for defendant and appellee.
   Howel, J.

In 1855 the plaintiff and defendants, as partners under the style of Graham & Co., had a contract with the city of New Orleans for the collection of t|ic revenues of two sections of tho wharves, for three years from the first of October of that year. On the twenty-seventh of October, 1857, the plaintiff, hy contract under private signature, afterwards made authentic, sold his interest therein to the defendants for tho sum of $8,813 94, retaining the following agreement which ho terms a “ counter letter.”

“Whereas, James A. Lusk lias this day transferred to ns his interest in the wharves and in the firm of Graham & Co., for tho sum of eight thousand eight hundred and thirteen and ninety-four one hundredth dollars, we agree, after the affairs of Graham & Co. connected with the wharves, are all liquidated, in case one third of the profits amounts to more than the above sum, to pay tho said Lusk or anybody he may assign this to, one third of the amount of profits over and above the amount specified above, reserving tbe right to deduct any amount that may be due, or for which we are responsible for J. A. Lusk, L. Y. Lusk and Lusk & Co., either to Josiah Cole or D. S. Graham.

(Signed) “JOSIAH COLE,

“D. S. GRAHAM.”

In December, 1858, J. A. Lusk brought this suit for a liquidation and settlement of the partnership and to recover his share of the profits, upon the theory that the above instrument continued tho partnership as it was before the transfer. After the proceedings in the lower court had advanced to a certain stiige, the plaintiff took an appeal from the rulings of the judge a quo to this court, when the opinion was expressed, that the parties had acquiesced in the ruling of the lower court, to the effect that the plaintiff had no right, as a partner by virtue of the counter letter, to demand a liquidation and settlement of the partnership affairs, hut that as a creditor of the firm he had the right to demand the. rendition of an account, for the purpose of ascertaining, the surplus of one third of the net profits, if any, to which lie might be entitled under the agreement, in addition to the fixed price of $8,813 94; and that tho account thus to be rendered should embrace the business of the partnership from the date of the partnership contract and not from the date, of the counter letter, as contended by the defendants; and it was decreed that the auditors to whom the accounts between the parties had been referred, “pass upon and state the accounts between the plaintiff and defendants, from the date of tho contract of partnership,” and the cause was remanded for further proceedings.

This aj>peal is taken by plaintiff from a judgment homologating tho report of tho umpire upon said reference, tlie two auditors representing the parties not agreeing.

This report professes to be in conformity to the order of the Supremo Court and proceeds upon the basis that the accounts between tho parties were adjusted at the date of sale and counter letter, and as the books of the concern had been destroyed by fire prior to said date, tho examination was confined to the accounts subsequent thereto, taking the price then agreed on ($8,813 94) as the measure of plaintiff’s interest in the profits to-said date, and which sum is stated as the amount then duo by plaintiff to defendants, to be deducted from tho profits subsequently accruing to plaintiff.

To this report, which finds a balance due by plaintiff, he-filed objections, which he calls exceptions, asserting its nullity as to forms of proceeding, and denying its correctness in substance.

As we are called on to dispose of tho case on the record before us, we deem it unnecessary to express an opinion upon the question of form, and will use the report so far as supported by evidence and admissions, as an aid in coming to our conclusion.

According to the counter letter, the plaintiff sold his one-third interest in the wharves to the firm of Graham & Co. for $8,813 94, with the understanding that if, upon a final settlement of the affairs of said firm connected with the lease of the wharves, one-third of the net profits should exceed said sum, such excess should be paid to him as a further consideration or price, deducting therefrom any indebtedness of J. A. Lusk, the plaintiff, L. Y. Lusk and Lusk & Co. to the vendees, Colo & Graham. The sum of $8,813 94 was fixed and paid, with a contingency that it might bo increased, if the wharf contract with the city should turn out so far successful as to make one-third of the net profits upon the whole contract exceed that sum. If it should prove unsuccessful or unprofitable in its total result, plaintiff would still have realized that sum by his connection with it.

We think the process of ascertaining the profits, in principle, a simple and easy one, the assets, composed of the property, credits and receipts to be ascertained, and from the aggregate deduct the debts and expenditures. If one-third of the balance exceeds $8,813 94, this sum must by the terms of the counter letter be deducted, and the remainder paid to plaintiff.

This course, however, has not been pursued by any of-the auditors, who have all investigated only the accounts subsequent to the twenty-seventh of October, 1857, except two items (cash on hand at that date, and sundry bills then existing but afterwards paid by the vendees, Graham & Cole), which make no material change in the result.

After a careful examination of all the facts and figures, we have concluded, as the only course authorized by the record, to adopt the hypothesis, that at the date of the transfer by plaintiff to defendants, the former had received from the concern $8,813 94 (the price stipulated) more than his share of the actual cash profits realized, without reference to the stock of materials, etc., then on hand, and that'at the end of the lease the excess of one third of the net profits over said sum is due to him. The fact as shown, that this sum is the exact amount he then owed the partnership, and the small amount of cash on hand at the time sustain this view, which will enable us to effect an equitable adjustment of the rights of the parties, without the expense and delay of another reference to auditors, and without a specific'and detailed account of all the business prior to said transfer, which would be more satisfactory and in accordance with the former decree of .this court.

We have availed ourselves of the calculation made by plaintiff’s counsel in “statement No. 1,” making such corrections as we think the record supports.

The first correction is in the.item of cash received from “wharfage dues,” which plaintiff takes from the bank book of deposits, and the defendants from the “collection books.” It is shown that the rovenues of the wharves wTere the only source of income of the partnership business, and that, as collected, they were regularly entered in the “collection books,” and we therefore consider these books rather than the bank book, as the correct evidence of said receipts. These various books are not before us, but we may presume that items of cash in the account of defendants with the bank, such as price of a steamboat, dividends on stocks, sums checked out and returned, etc., may constitute some of the dejmsits and account for the alleged discrepancy in the several books. We do not consider plaintiff in the situation to avail himself of any presumptions against defendants as to tliis matter. His opportunities to make it clear seem to be little less than those of defendants. We include $120 dividend on stock of Bank of America, contained in the report of defendants’ auditor, but not in the-statement of counsel. Of the disbursements, to the item for materials, labor, expenses, etc., as proved by Starke, plaintiff’s auditor, we add the two 'sums $466 and $200, for the omission or rejection of which we see no good reason. They are evidently a part of the transactions of the concern and rest upon the same basis as similar items.

We limit the salaries of the parties to October 1, 1858, when the lease terminated and tlieir reciprocal contract as to this matter expired. Having assumed plaintiff’s obligations to the city, the defendants were bound to bim to put the wharves iu good order, and if they delayed doing so until after the expiration of the lease, they cannot properly charge him a salary for superintending such work. Por the cost of these repairs we adopt the figures of plaintiff’s auditor as correct.

' We thus have the following statement:

ASSETS.

Cash on hand October 27,1857. $3,191 35

Wharfage dues from October 27, 1857, to October 1,1858... 143,428 30

Price of steamer Grenada. 4,000 00

Dividend on stock of Bank of America. 120 00

Received for labor in September, 1858. 150 00

Wharfage of steamers Bluff City, Eclipse, America and Trabue. 489 40

Materials, labor, etc., taken to account by Graham & Cole. 5,850 51

Sale of 20 shares Bank of America stock and dividends- 2,360 00

Dividends on stock of Texas Steamship Company. 2,670 00

Sale of tools, machinery, etc., to city. 3,140 50

Use of same after October 1, 1858 (in report of umpire)... 405 00

Total assets.:.$165,805 06

disbursements.

For materials, labor, wages, price of steamer

Grenada.$29,517 16

Por Bank of America stock.. 1,916 97

Por rent notes to the city. 51,346 18

For salary of J. A. Lusk from November 1, 1857, to October 1, 1858. 1,375 00

For salary of D. S. Graham from November 1, 1857, to October 1, 1858. 1,833 33

For salary of J. Cole from November 1, 1857, . to October 1, 1858. 916 67

For rent of office eight months... 120 00

For repairing wharves (Starke’s report). 19,000 75

For sundry bills incurred before and paid after October 27, 1857. 4,638 &

Total disbursements.. .$110,665 02

Balance, profits. 55,140 04

- $165,805 06

CK.

Profits brought down.$55,140 04

Lusk’s one third thereof.$18,380 01

Lusk’s salary, unpaid, to October 1, 1858. 625 00

Rent of office to Lusk.. 120 00

$19,125 01

DR.

Amount paid Lusk, October 27, 1857,.$8,813 94

Amount paid Lusk by G-rabam, September, 1858 . 7,500 00

Amount paid Lusk by Cole, September, 1858_ 1,260 00.

Amount wharfage of Bluff City, charged to Lusk. 220 00 Amount wharfage of Eclipse and America, charged

to Lusk. 184 40

- $17,978 34

Balance due Lusk with five per cent, interest

from October 1, 1858. $1,146 67

From these figures it will be seen that the price actually received by Lusk for his interest in- the lease of the wharves, $19,125 01, besides what, upon the hypothesis adopted by us, he realized prior to the date of his transfer to the defendants — twenty-seventh October, 1857. The presumption is, from the character of the business, he drew his profits1 as they accrued, and that at said last date, he had overdrawn his share to the amount of $8,813 94, and during the remaining eleven months he received from his former partners $8,760 besides his salary.

It is therefore ordered that the judgment appealed from be reversed, and that the plaintiff recover from the legal representatives of the defendants in solido the sum of eleven hundred and forty-six and sixty-seven one hundredth dollars with legal interest from October 1, 1858, until paid and costs of suit in both courts.

ON REHEARING.

Howe, J.

A rehearing was granted in this case upon the single question whether or not the defendants are bound in solido.

We are of opinion that the obligation of the defendants was joint, and not solidary.

It is therefore ordered that the judgment heretofore rendered by us be set aside. It is further, ordered that the judgment appealed from be reversed, and that the plaintiff recover from the legal representatives of the defendants the sum of eleven hundred and forty-six and sixty-seven one hundredth dollars with legal interest from October 1, 1858, ■until paid, and costs in both courts. One half to be paid by the representatives of the defendant Graham, and one half by the representatives of the defendant Cole.


text:
    No. 2086.
    Jefferson Thomas v. Oran Hacket, Administrator.
    When the record shows that a twelve months’ bond has been given for the price of slaves sold under execution, payment thereof cannot be legally enforced, nor will the purchaser be permitted to recover back any portion of the price ho may have paid. The doctrine in the case of Wainwright v. Bridges, 19 An., page 234, reaffirmed.
    from the Fifth Judicial District Court, parish of East Baton Rouge. Posey, J.

      Pavmt & Bamon, for appellee, Burgess <& Chaney, Buqua & Caliham, for appellant.
   Howe, J.

On the twenty-sixth March, 1861, Andrew Matta recovered judgment in the Sixth (now Fifth) District Court, parish of East Baton Rouge, against William Thomas and Richard Thomas in solido. A writ of fieri facias was issued and the defendants surrendered three slaves, which after an ineffectual attempt to sell for cash, were on the third August, 1861, sold on twelve months’ credit, and adjudicated to one of the defendants, William Thomas, who, with the other defendant as co-principal, and the plaintiff in this case as surety, executed a twelve months’ bond for the judgment debt. On the ninth October, 1865, a writ of fieri facias was issued on this bond, and by process of garnishment the sum of $945 95, due the surety, plaintiff in the case at bar, was collected. On the seventeenth June, 1867, the plaintiff herein filed the petition now before us against the defendant as administrator of the succession of Andrew Matta, praying that the bond be canceled and the mortgage resulting from it erased, and demanding also the recovery of the sum collected from garnishees for the reason substantially that the consideration of the bond was the sale of slaves. The defendant pleaded the general denial, a special denial that the sale of slaves ionned the consideration of the debt on which the judgment was rendered, and for which the bond was executed, and the prescription of one year.

’ The court a qua gave judgment that the bond be canceled and annulled, so far as the plaintiff, the surety, is concerned, respecting the claim for the recovery of the sum already collected, and the defendant appealed. We find in the record no answer to the appeal or prayer by appellee for an amendment of the judgment, and it is therefore unnecessary to consider the suggestion in the brief of appellee that the judgment should be amended so as to permit the plaintiff to recover the sum collected by garnishment.

The consideration of the bond in question was clearly the sale of slaves of William Thomas and Richard Thomas, to the former under the first writ of fieri facias. Under the authority of Wainwright v. Bridges,- 19 An. p. 234, and the numerous cases which have followed that decision, we are of opinion that the court a qua did not err in its judgment.

It is urged by defendant that there was no sale of slaves in this case because the property of the debtors was bid in by the debtors themselves, and that the defense, that the consideration of the bond was the Side of slaves, cannot therefore be set up by plaintiff.

We do not feel called on to decide what might he the rule if this view of the facts of the case were correct. But we think it fully established that the slaves of the judgment debtors were sold not to themselves hut to one of them. The defense of proscription appears to have been abandoned.

For the reasons given, it is ordered and adjudged that the judgment appealed from be affirmed with costs.


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    No. 2103.
    Benjamin Butman v. Peter Forshay, et. al.
    A motion to dissolve an injunction on the face of the papers may he made after issue joined, in trying which, all the allegations of the petition are taken as true.
    An execution cannot be enjoined oj; grounds that might have been pleaded before judgment.
    The District Court that rendered the judgment, alone has jurisdiction of the action to annul it. C P. 608 ; 2 A. 493.

      j\ A PPEAL from the Sixth District Court, parish of St. Helena, Mlis, J.

      F. F. Bussell and Julius F. Wilson for plaintiff and appellant. F. J. Fills for defendant and appellee.
   Wyly, J.

Plaintiff has enjoined the defendant and' sheriff of the parish of St. Helena from selling his property seized to satisfy a judgment recovered against him by the defendant in the parish of St. Tammany.

He avers that said judgment was illegally and improperly rendered against him on'the following grounds, to wit: Being absent from the Stale at the time said judgment was rendered, he knew nothing of the filing of said suit and made no defense; that lie had a good defense; “ that the transaction or sale by the defendant to him for which the notes sued on were given was made in June, 1863, at a time when the almost exclusive currency of. the country was in Confederate treasury notes; that said treasury notes were the real consideration both in the contemplation of the petitioner and the said Forshay, and that the cash payment at the time of said transfer was really and actually made in said treasury notes; that the notes given for the balance of the five' hundred dollars were made payable at the office of Captain Warren A. Grice, the notary before whom said act of sale was passed; that petitioner deposited the full amount due on said notes in said Confederate treasury notes at the office of said Warren A. Grice, for the full payment of said notes before their maturity, ’which deposit was made iu strict conformity with the agreement made between said Forshay and petitioner at the time of said transfer.”

Plaintiff also alleges that lie offered to pay the defendant Forshay in United States currency the value of the Confederate notes at the time the notes sued on fell due. He also avers that the judgment on which the execution issued was not rendered in accordance with the provisions of organic law in so much as the reasons for the judgment are not set. forth,” and lie asks that said judgment he annulled.

The answer is a general denial, an allegation that the injunction was obtained wrongfully and illegally in a court without power to grant the same, and prays that the injunction be dissolved with damages.

The defendant Forshay subsequently moved to dismiss the injunction on the face of the papers; first, because plaintiff’s petition shows no cause of action; second because the bond is worthless, the surety being insolvent; third, because of the insufficiency of the affidavit, and fourth, because his judgment cannot be attacked in this way by plaintiff.

There was judgment dissolving the injunction with fifty dollars damages, and plaintiff has appealed.

The motion to dissolve the injunction on the face of the papers can be made after issue joined. In trying the motion all the allegations of the petition aré taken as true.

Are the allegations in the petition sufficient to warrant the injunction? We think not. The grounds for the injunction are more properly a defense which should have been pleaded at the trial of the suit in the parish of St. Tammany.

This court has often held that an execution cannot be enjoined on grounds which might have been pleaded before judgment. 8 L. 101; 6 A. 282 ; 8 A. 489. In the case of Monroe v. McMiken, 8 N. S. 513, this court said causes would never terminate, if injunctions could stop execution and try matters over again which might have been offered in defense before judgment was given.” •

• The District Court of St. Helena parish Could not entertain the action to annul the judgment of defendant, Forshay, rendered in the District Court of the parish of St. Tammany. Where judgment has been pronounced by a District Court no other District Court has jurisdiction to annul it. C. P. 608; 2 A. 493.

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


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    No. 2099.
    Martin Haney v. S. C. Manning.
    All contracts and transactions between parties in aid of the Confederate struggle in the late conflict between the United States and the so-called Confederate States, are contrary to good morals and public policy, and cannot be judicially enforced. In all such cases the parties engaged will be left where their conduct has placed them.
    from the Sixth Judicial District Court, parish of St. Helena, JSIKs, J.

      13. J. Ulttis & T. O. W. milis for plaintiff and appellee. T. G. Davidson and m. F. Jiussell for defendant and appellant.
   Taliaferro, J.

The plaintiff sues to recover from the defendant the value of services rendered to him during the latter part of December, 1863, and the greater part of the year 1864; for the use of two horses and a mulé tarnished by him for defendant’s benefit, in the performance of tlxe services stated, and for the value of a buggy loaned to defendant and never returned. The answer contains a general denial with the averment that the services alleged by plaintiff to have been performed by him for defendant were rendered in carrying on an illicit 'and illegal trade during the late war between parties residing within the opposite linos of the contending parties. He avers that plaintiff cannot recover upon his demand and prays judgment in his own behalf. The jury before whom the case was tried awarded a verdict of $520 with interest, in favor of plaintiff, and defendant appeals.

The evidence abundantly shows that the declarations of the defendant however creditable to his candor, are true in point of fact.

The plaintiff in his petition avers “that in pursuance of his employment he was required to pass, repeatedly, near the lines of the contending forces of the United States and of the Confederate States, that he was exposed to imminent danger often times — that he was engaged within the parishes of St. Helena, Livingston and East Baton Rouge in the purchase of goods and cotton, the profits of which inured to said Manning,” &c.

Edward Manning, son of the defendant, sworn as a witness- says: “ I know that in March, 1864, my father, S. C. Manning, entered into a contract with the so-called Confederate States Government for the purpose of supplying "said government with arms, ammunition, medicine, clothing, &c., for which he was to receive, in return, cotton and permits and guards to transport said cotton to points near the Federal lines. In furtherance of this object and this alone, tlie following parties were employed in and for considerations hereafter mentioned.” The witness then speaks of the conditions upon which one Andrews was. engaged, and further on says: “ The -said Martin Haney (meaning defendant) and myself started to Magnolia to report. When near there we met S. C. Manning returning from Meridian, Mississippi, who stopped us and to whom we stated our object.” Witness then details the conversation that ensued. Manning said: “I have be.en to Meridian, seen General S. D. Lee, and arranged all matters relative to the contract. He granted me many privileges in choosing my own men,” &c. Mr. Haney then said: “Can’t you get me one of these papers signed in. my name relieving me from reporting- to the board and to conscript officers. If you will do that for me I will work in this contract the same as Ned and Andrews are working.” Manning told, him “ yes.” After Manning, the defendant, made a trip to Liberty, Mississippi, he delivered to J. M. Andrews, Martin Haney and myself each a passport through all outposts and pickets of the Confederate forces. These papers were used by us all more than once — by Mr. Haney for his own benefit, in trading at Bayou Barbara, at Parcut’s, with com delivered and salt and flour broiight back in return. The buggy was borrowed with the. free consent of Haney to be used in the contract above mentioned, and was lost by Manning on Amite river, where he was captured by Federal forces, and by which he lost his own horses, and valuable medicines, &c., that were in the buggy.”

Wilder, a witness, testifies that the defendant bought goods of him at Bayou Barbara for the plaintiff, and appends to his testimony bills of the goods sold to him. These bills sufficiently disclose the character of the traffic that was going on at Bayou Barbara.” Among the items are clothing, shoes, medicines, salt, coffee, whiskey, flour, hats, &c., &c.‘

This court lias repeatedly announced that it will not entertain suits founded upon engagements involving a violation of law and in derogation of public morals. The plaintiff’s action in this case, grounded as it is shown to be, on engagements and acts reprobated by law, must share the fate of its predecessors of the same character in this court.

It is therefore ordered) adjudged and decreed that the judgment of the District Court be annulled, avoided and reversed. It is further ordered that the plaintiff’s action be dismissed at his costs in both courts.

Rehearing refused.


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    No. 2125.
    Susan T. Flynn, Tutrix, et al. v. E. W. Flynn.
    Where a party plaintiff to a suit gets married while the suit is pending, the supplemental petition making her husband a party need not be served on the defendant.
    from the Fifth Judicial District Court, parish of East Feli-ciana, Posey, J.

      John MeVea for plaintiff and appellee. IF. P. Kernan for defendant and appellant.
   Howe, J.

The plaintiffs sue upon a promissory note given by defendant as part of the purchase price of land, and claim the vendor’s privilege. The defendant, residing in a different parish, claims in reconvention a large sum for board and lodging, &c., furnished the plaintiff’s family.

Upon the trial, Sarah Flynn, one of the parties plaintiff, filed her supplemental petition averring that she had [since the institution of the suit as it appears] intermarried with Benjamin Smith, and asked to continue party plaintiff in the case aided and authorized by her said husband, and adopting all the allegations originally made in said petition and praying for the same judgment.”

It appears from the bill of exceptions, reserved by defendant, that the plaintiff’s counsel thereupon moved to make the said Sarah and her husband parties plaintiff, and to proceed with, the trial of the cause. The defendant objected to proceeding .with the trial of the cause on the ground that the supplemental petition ought to be served, with citation, and the case continued. The court overruled the objection, and, proceeding with the trial, gave judgment in favor of iflaintiff, as prayed for, and rejected the reconventional demand.

We do not think the court erred in its ruling. The minor was already a party plaintiff through her tutrix, but in consequence of her marriage, pendente lite, it became proper to put tlie fact on record and to join her husband as a party. This was done, as appears by the bill of exceptions. Tlie amendment was formal. Tlie substance of the plaintiffs’ demand was in no way altered. In such a case we do not think it necessary to have the supplemental petition served with citation and tlie cause continued.' 3 M. 393; 12 R. 138.

The reasoning used by this court in Locquet’s Heirs v. Pierce, 5 L. 361, does not apply to this case.

Upon the merits, we do not feel authorized to disturb the judgment. The plaintiff’s demand is practically admitted. The roconvcntional demand is vague in itself, and tlie evidence is contradictory. Under such circumstances the decision of the judge who heard the witnesses and rejected the claim will prevail.

It is therefore ordered and adjudged that the judgment appealed from be affirmed.


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    No. 2153.
    B. C. Ernst et al. v. Mary Montigudo, Appellant.
    Plaintiff acquired title to a tract of land in the parish of East Feliciana, in 1849, and occupied it until 18G2, when he left it in consequence of the operations of the war. In 1866 defendant entered upon it. In 1867 plaintiff brought n petitory action for the land and to recover rents, etc. Defendant in possession set up title founded on a Spanish grant, and a probate salo made in 1831, of a tract of land of seven hundred and twenty acres, alleging that tho tract in controversy was included within that tract. The evidence shows that plaintiff proposed to buy defendants claim, and that defendant refused to sell, but notified plaintiff that suit would be brought for; the laud. Suit never was brought. Under this state of facts it was held by tho Ccbrt, that defendant, not having shown a better title than plaintiff, that tho • proposition to buy defendant’s claim never having been accepted, nor any suit brought as threatened, was not a reeogniiion of the claim, and that plaintiff must recover.
    from the Fifth District Court of the parish of East Feliciana, Posey, J.

      Me Vea & Kilbourn, for Plaintiff and Appollee. IfcVca iff Hunter, for Defendant and Appellant.'
   Howell, J.

This is a petitory action to recover certain lands and their revenues, to which the defendant pleaded the general issue.

It is shown that F. C. Ernst, through whom plaintiffs claim, bought a tract of forty acres, described in the act of sale, from J. J. Freeman, on 2d July, 1845, and an adjoining tract of thirty acres from S. II. Cole on 11th February, 1847, which constitute the property in controversy; that said Ernst moved on the land with his family in 1849, and occupied it without interruption until his death in 1855 ; that his family remained there until December, 1862, when they wore compelled to leave bo-causé of the fortifications erected by the Confederate forces around Port Hudson, and tho operations of the war, by which all the buildings, fences and other improvements were destroyed; that in January, 1866, the defendant went upon tlie land, put up buildings, which she, as a witness, estimates at $1500 or $1600, and has since held possession. In her testimony, she says that, in- 1850 and subsequently, F. C. Ernst offered to buy her claim, which she refused to sell, and notified him that she intended to sue for the land; that her said claim rested on a Spanish grant and a probate sale made on the 29th November, 1831, by John Reid, executor of Sarah Rowell, to D. J. Green (first husband of defendant) and R. W. Walker, of a tract of seven hundred and .twenty arpents, which, she says, includes the land in dispute, and that she derived her title from her said husband, who left a son now living. This act of sale is in evidence, and it shows that the succession, of Sarah Rowell does not warrant the title of two hundred and ninety-eight acres of the aforesaid tract of land, sold by the sheriff for taxes.”

To rebut the effect of this evidence, the plaintiffs introduced the record of the suit of D. J. Green v. His Creditors, instituted in August, 1839, from the proofs of which before us, it does not appear that the insolvent proceedings are yet closed.

We agree with the District Judge, that the title of the plaintiffs is not invalidated by the evidence for the defense. The proposition of F. C. Ernst to purchase the claim of defendant, stated as vaguely as it is, does not admit the reality of the claim, particularly as the defendant never instituted any legal proceedings to recover, as threatened. Her claim seems to be stale and without real foundation in law.

There are several bills of exceptions in the record, but as we have not been called on to do so, we will not pass upon them.

■ Judgment affirmed.


author: Ho well, J.

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    No. 2110.
    A. C. Taylor and Husband v. Boedicker & Badenhausen, and S. D. Moody.
    When a want of identify of the note with the act of mortgage hy which it is secured is shown to exist, the holder cannot proceed by executory process to seize and sell the property mortgaged. Ricks v. Birnstein, 10 An. 141.
    from the Fifth Judicial District Court, parish of East Feliciana, Posey, J.

      Me Vea <& Hunter for appellees. Kernan & Lyons for appellants.
   Ho well, J.

This is an appeal by a third possessor from an order of seizure and sale, in which the only question presented, as stated by. counsel for appellees, is, whether the evidence before the District Judge was sufficient to authorize the issuance of the order of seizure.” The error assigned is that the note annexed to the petition does not correspond with and is not the one described in the act of sale, in this :

First — “The note sued on is a joint and several note, and the other note described in the act is a joint note.

Second — The note sued ou is signed hy Emil Boedicker and Julius G. Badenhausen, in solido, and the note described in the act is signed by Emil Boedicker, Julius G. Badenhausen and Charles H. Allyn, jointly.”

These discrepances are manifest, and according to the settled jurisprudence of the State the evidence was not sufficient to authorize the order.

Tbe three parties last above named, were the vendees of the plaintiffs, and the act of sale declares that they gave their joint note for the stun set forth in the petition, and they are the vendors of the appellant, who assumed to pay the balance stated to be due on the said joint note. The one annexed to the petition is a joint and several note signed by only two of said parties. There is therefore a want of identity between the said note and the one described in the authentic act, and the judge erred in granting the order. See the case of Ricks v. Birnstein, 19 An. 141, and authorities there cited.

It is therefore adjudged and decreed that the order of seizure and sale issued in this case be set aside and annulled, and that plaintiffs pay costs in both courts.


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    No. 2131.
    Lafitte, Dufilhoe & Co. v. Ackley Perkins.
    In order to bind tbe drawer or indorser of a protested draft, notice must be directed to his postoffice. Notice sent to another postoffice than that of his domicile will not avail.
    A party will not be permitted to prove what he has not alleged in his petition.
    from the Seventh District Court, parish of West Feliciana, Miller, J.

      Winter <& Butler for appellant. Wielcliffe & Fisher for appellee.
   Wyly, J.

In June, 1865, the defendant drew his draft ón J. & H. Perkins, of New Orleans, payable on first November following. It was accepted by tbe drawees; it was again presented for payment and protested for non-payment.

On the trial the testimony showed that the notice of protest was sent to the postoffice at Baton Ronge, and not to the defendant's postoffice at Bayou Sara.

There was judgment for defendant, dismissing the suit, and plaintiffs have appealed.

The evidence clearly shows that the conditional obligation herein declared upon was not rendered unconditional by notice of protest not being duly served on tbe drawer of tbe draft.

Our attention is called to a bill of exception taken by tbe plaintiffs to tbe ruling of the court iu not permitting them to compel the defendant to answer their interrogatory inquiring whether the defendant had funds in the hands of the drawees at the time the draft was drawn, -and at the time it was protested for non-payment.

We think the District Judge did not err in refusing the testimony sought by plaintiffs because they had made in their petition no allegations to warrant the' same. It is well settled that a petitioner cannot he permitted to prove more than he has alleged.

We see no error in the judgment.

It is therefore ordered that the judgment appealed from he affirmed with costs..

Rehearing refused.


author: Howf.ll, J.

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    No. 2119.
    Mrs. E. A. Myers and Husband v. the Sheriff et. al.
    "When the seizing, creditor of the husband is confronted by the wife's claim-to the property, seized, founded on a judgment of separation of property, and the authentic act*of sale, and, purchase of the property seized, from a third party to the wife, made after the judgment, of separation and pripr to the date of seizure, the creditor, to maintain the seizure; must." allege and show.fraud and simulation in obtaining the judgment of.separatiOn,
    from tlie Fifth. District Court, parish of East Feliciana, JPosey, J.

      Kernan & Lyons and F. Hardesty for plaintiffs and' appellees. Haee,. Foster• <£• F. T. Merriclc and Gross é-Horan,’for -defendants and appellants.
   Howf.ll, J.

The plaintiff, Mrs. Myers, as owner, by. purchase, on-the eighth May, 1866, enjoined the sale of certain land,- seized, on the nineteenth day of October, 1867, under an execution against her husband, and asked to be declared the legal owner thereof. The defendants pleaded a general denial, admitting the seizure, which they justify and hold to he legal and proper. They specially deny that plaintiff has any legal judgment against her husband, but aver that the pretended judgment relied on by her was.obtained, virtually on.his confession and .by collusion with him. That he was not- in such insolvent circumstances as to justify judgment, and the plaintiffs hád no claims against him. That the said judgment is invalid and has no legal effect and they- pray for the dissolution of the injunction, and for damages.

There was judgment in favor of plaintiff and the defendants appealed.

The proof, as admitted by defendant’s counsel, establishes the .correctness of the amount of Mrs. Myer’s judgment against her husband,. and we think also his embarrassed condition at the time; and .'as .the sale from the husband to Wm. Myers, in 1859, and that by the. latter to the plaintiff, Mrs. Myers, in 1866, are not attacked as simulated or many other manner, we do not feel authorized to infer from the facts, and.circumstances developed in the record, that the property seized is really, the property of the judgment debtor. The .wife here was not, as in the case of Campbell v. Bell, 12 A. 193, relied on by defendants, required by the pleadings to establish the validity of her purchase from Wm. Myers and show that she paid for said property with her paraphernal funds or that, after the dissolution of the community, she had a separate industry by which to realize the money paid. It is true that most of her moneyed judgment against her husband seems to have been satisfied prior to her purchase of the property in controversy, hut it is not impossible that she may have been able, if called on,-to show that she had other means. The evidence in this respect, which was admissible on the' question of the husband’s embarrassed condition, raised by the answer, at most only creates a suspicion that the- husband may have furnished her with the money which the authentic act of sale in evidence declares she paid to the vendor, whose unassailed title is also in the record.

However unwilling this court may be. to sanotiom any-devices or proceedings intended to. cover up or screen property from the -pursuit of creditors, we must adhere to the ordinary rules of pleading-and not presume fraud or simulation when not charged.

Judgment affirmed.


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    No. 2140.
    Henry Schorten v. H. C. Davis and Brother.
    To entitle the creditor to the remedy hy attachment against a resident debtor, it must be shown that he is about leaving the State permanently:
    A añd-B> were engaged as partners-in the-planting business < in I860. O, a merchant, furnished their supplies. In 1867, they continued their account with C, who continued to supply them as partners. Held — That they were bound to C., as ordinary partners, for the supplies iurnished, notwithstanding- they may have dissolved the partnership as between themselves.
    XJl PPEAL from the Fifth Judicial District Court, parish of East Fe-liciana, JPosey, J.

      Wedge & Lyons, for plaintiff and appellant. Me Vea & Hunter, for defendants and appellees.
   Howell, J.

This is an attachment suit hy a merchant, in the town of Baton Rouge, against the defendants, as agricultural partners in the parish of East Feliciana, for plantation supplies furnished. The defendants severed in their defense. The ease was tried before a jury, who found a verdict dissolving the attachment, releasing John Davis from liability, mailing H. C. Davis responsible for the entire debt, and condemning plaintiff to pay all costs; and from a judgment thereon the plaintiff has appealed.

T wo questions are presented hy him for our consideration:

1. Was the attachment properly sued out ?

2. Are the defendants liable ás ordinary partners ?

I. The facts do not, in our opinion, authorize the writ of attachment. There is no proof of any intention at the time of leaving the State per-manetly. On the contrary, they were making preparations for planting another crop.

II. As to the question of partnership, it seems that they had raised a crop as partners in 1866,’ and obtained supplies from plaintiff, for which a considerable balance remained unpaid, which constituted the first item of the account sued on; that on second February, 1867, they entered into a written agreement, hy which II. C. Davis agreed to pay John Davis $250 to labor and superintend the farm of the former during the year; that plaintiff continued as usual to furnish supplies, charging them in his journal to H. C. Davis and Brother; that they sometimes went together with a wagon and sometimes separately to get the supplies ; but it does not appear that plaintiff was ever notified of the dissolution of the partnership. On the contrary, he, his clerk and.neigk-boring merchants seem to have considered the defendants still to he' partners, and plaintiff dealt with them as such.

Under these circumstances he was-clearly justified in believing them to be partners, and they are both. as such to him whatever may have been the agreement between themselves. See Story on Partnership, §§ 54, 103;"4 R.'300‘; 5 L. 409; 14 A."529'; 18 A. 631.

It is therefore ordered that the judgment appealed from he reversed and the verdict set aside; and proceeding' to give such judgment as' should have been rendered, it is ordered that there he judgment against plaintiff dissolving the attachment herein at his costs; and that he recover of defendants jointly the sum of $1040 51-100, with legal interest from December second, 1867, with costs of the main action in the lower court, and the costs of appeal.