text:
    M. P. Adle et als. v. Narcisse Prudhomme and Wife.
    the hypothecary action against the third possessor} who holds in good faith, by a title translativo lit £>roperty> is prescribed by the lapse of ten years. O C. 3442; 111;. R. 236.
    A compromise lias between the interested parties the fordo of the tiling ddjudgetU it iliay be Rescinded, by a direct action, for error in calculation} error in the person or Vftatter in dispute, for fraud or for duress. But it cannot be attacked for Grrür oí latf or for lesion. C. C. 3045, 3046,
    Appeal from the District Court of Natchitoches, Ghaplin, J.
    J", tí. Campbell and H. Safforcl, for plaintiffs and appellants. John

      33. Smith, for defendants.
   Buchanan, J.

Plaintiffs bring this hypothecary action against defendants, third possessors of property formerly belonging to plaintiffs’ father and tutor, Baptiste Adié. They claim that the property is subject to their tacit mortgage, for the sum of about twelve thousand dollars, balance due them by their tutor, as per account of tutorship, and judgment thereupon.

The land on which plaintiffs seek to enforce their mortgage, is the separate property of Mrs. Prudhomme, one of the defendants, by inheritance from her father, Charles Noyrit, deceased. Charles Noyrit purchased the land from Baptiste Adié on the 29th March, 1844,

Defendant pleads;

1.The prescription of ten, fifteen and twenty years.

2.That the account of tutorship, and judgment thereupon, referred to in the petition as the basis of the demand of plaintiffs, were rendered through fraud and collusion of Baptiste Adié and the plaintiffs; that the balance appearing in said account and decreed in said judgment in favor of plaintiffs was not due by tlieir tutor, who neglected to credit himself with debts of the community paid by him, and particularly with a debt of twenty-five thousand dollars due Charles Noyrit, and in part payment of which debt (for which plaintiffs were liable, as heirs, to their mother) this very land was conveyed by Adié to Noyrit; that any sum that may have been due, has been settled by various transactions, and particularly by a notarial act of the second February, 1846.

3.The exception cedenclarum actiorum; that by the acts of plaintiffs it has become impossible for them to subrogate defendant, in case of payment, to their right of mortgage against their tutor.

The cause was tried by a jury, who found in favor of defendant.

The first question to be decided is that of prescription. Defendant relies upon article 3442 C. C., and upon the case of Lanusse v. Minturn, 11 La. 256.

In Lanusse v. Minturn, the Court held the hypothecary action to be prescribed by the lapse of time which bars the petitory action. Judge Bullard, as the organ of the Court, used the following language: “ Independently of all positive authority on the subject, it would seem as clear as that the greater includes the less, that if the plaintiff could not recover the property in a real action, she could not, a fortiori, enforce any real right in it when the prescription Kberandi ccmsa is opposed to him. But the Court contains a positive enactment on the subject, in article 3495.” This Court also quoted 4 La. 326.

It is argued by counsel of plaintiffs, that this case (Lanusse v. Minturn) has been overruled by the case of Bibb v. Union Bank, 3 An. 334. But on examining the report of this last case, we find that Lanusse v. Minturn was not so much as quoted, either in the argument of counsel or in the opinion of tlie Court. Neither is tire article 3495 of the Code, mentioned in the Bibb case; but Judge Rost decided the latter entirely upon a comparison of the article respecting the extinguishment of mortgages in the Napoleon Code (2180) with the corresponding article (3374) of our Code.

As neither the reasoning of the Lanusse decision, nor the authorities cited in support of it are noticed, we have no reason to suppose that it was the intention of the court which decided the Bibb case to overrule that of Lanusse; but may with more reason conclude that had that case and the article 3495 been brought to their notice, they would ha.ve found themselves relieved from the necessity of deciding the case upon the construction of the other article, 3374. As to the other case quoted by counsel of plaintiffs, Maurice v. Douglass, 12 An. 715, it is of no weight; for in that case, it appears that the ten years required for the prescription, relied upon by the defendant, had not run out when that action was brought. In the present case, that period had elapsed between the acquisition of the land by defendant’s father (27th March, 1844) and the service of citation herein' (14th September, 1859). The reasoning of the Court in Lanusse v. Minturn is satisfactory to us; ?md we adhere to the doctrine there established, that the hypothecary action against the third possessor, who holds in good faith, by a title translative of property, is prescribed by the lapse of ten years.

The proof in support of the second ground of defence seems also to justify the finding of the jury.

It is proved that this very land, upon which the plaintiffs now claim to exercise the hypothecary action as heirs of their .mother deceased, was conveyed to defendant’s ancestor, in "payment of a debt of the community of Adié and wife to Noyrit, for which plaintiffs were bound as hems of their mother, and for which Noyrit had instituted a suit. The act of sale expresses that the sale is made in settlement of this suit, which Noyrit, the plaintiff and vendee, agrees forthwith to dismiss. An attempt is made in argument to show that the balance due by Adié to Noyrit was not so much as stated in this conveyance; plaintiffs cannot be allowed to invalidate this compromise collaterally. A compromise has between the interested parties (and these plaintiffs were parties in interest, as we have seen) the force of the thing adjudged. It may be rescinded by a direct action, for error in calculation, error in the person or matter in dispute, for fraud, or for duress. But cannot bo attacked for error of law, or for lesion. C. C. 3045, 3046. There is nothing in the pleadings, or in the evidence before us, which warrants the application of these legal principles in the present case.

We consider it unnecessary to pass upon the third ground of defence (the exception eendendarum actiorum).

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be affirmed, with costs; and it is further ordered, in conformity to the agreement of counsel filed, that this opinion and decree, after being recorded by the Clerk of the Supreme. Court at New Orleans, be forwarded, in original, together with the transcript of the record, to the Supreme Court at Alexandria; that the parties have whatever delay for making their application for re-hearing, they have reserved in their unit-ten agreement.

Vooehies) J., absent.


source: Caselaw Access Project

author: Land, J.

license: Public Domain

text:
    New Orleans Canal and Banking Co. v. J. R. Beard et als.—Mrs. E. Klein, Intervenor.
    Where an intervenor has a legal interest in defeating the plaiutilPs claim, he may properly intervene and even plead prescription or any other defence, if the defendant is insolvent. C. C. 34-29 ; 3 L. 201.
    A change of residence openly and publicly made from one part or State of our common country to that of another, cannot he considered an act on the part of a debtor which suspends prescription, and creates a proper case for the application of the maxim, contra non xaleniem agere nen curnt presanplio; and the fact of his pecuniary embarrassments at the time of such removal, does not per se vary the
    Appeal from the Fourth. District Court of New Orleans, Price, J.

      Hyams, Labatt é Jonas, for plaintiff. Q. P. McPheeters, for interve-nor and appellant. Sum.’I Flower, f6r curator ad hoc.

   Land, J.

This suit was commenced by attachment on the 10th of March, 1860, against the defendant, on two promissory notes which became due and exigible in the year 1849. The defendant being a non-resident, a curator ad hoc was appointed by the court to represent him in the defence of the suit; and he pleaded to the action a general denial, and the prescription of five years.

Afterwards the Louisiana State Bank and one Esther Klein filed separate interventions in the suit, and joined the curator ad hoc in his defence to the action, on the grounds that they were the judgment creditors of the defendant, and had an interest in defeating the plaintiff’s demand, for the reason that the defendant was insolvent, and had no other property except that seized by the Sheriff under the writ of attachment sued out by the plaintiff; and in their separate interventions prayed that the plaintiff’s claim be rejected, and that their judgments be satisfied by preference out of the proceeds of the property seized by the Sheriff under the plaintiff’s writ of attachment.

To the interventions thus filed the plaintiff excepted, on the ground that the intervenors had no such direct interest in the property seized, either as owners, or creditors by mortgage or privilege, or otherwise, as authorized an interference on their part in the suit, by way of intervention.

The plaintiff’s exception was sustained, and the interventions were dismissed. The plea of prescription was held to be no bar to the action on the evidence adduced; and judgment was rendered against the defendant on the promissory note, with recognition of privilege on the property attached.

The first question for our decision is, whether the exception to the interventions was properly sustained. The Code of Practice declares an intervention to»be a demand by which a third person requires to be permitted to become a party in a suit between other persons; either by joining the plaintiff in claiming the same thing, or something connected with it, or by uniting with the defendant in resisting the claims of the plaintiff; and it further declares that in order to be entitled to intervene, it is enough to have an interest in the success of either of the parties to the suit. See articles 389, 390.

Whether the exception was properly sustained depends upon the question whether the intervenors had a direct and legal interest in the success of the defendant in defeating the plaintiff’s suit by attachment.

The exception admitted the truth of the allegations contained in the pe-titlons of intervention; and thereby admitted, first, that the intervenors were judgment creditors of the defendant; secondly, that the defendant was insolvent; and thirdly, that all the defendant’s property was in the hands of the Sheriff under seizure; and was insufficient to pay the claims of the plaintiff and of the intervenors. And besides, the record shows that the intervenors were not only judgment creditors, but had made a seizure of the property attached, under writs of fieri facias issued on their judgments.

Under these circumstances, there can be no doubt that the intervenors had a direct legalinterest in the success of the defendant in defeating the plaintiff’s suit by attachment; for by defeating the suit, they released the property attached from the operation of a superior privilege claimed by the plaintiff, and subjected the property, which was insufficient to pay all the claims upon it, to the satisfaction of their own judgments. And having such interest, the intervenors had the right to join in all the defences pleaded by the defendant’s curator ad hoe, and as the defendant was insolvent, including even the plea of prescription. See Durnford v. Clark’s Estate, 3 L. 201; C. C. 3429.

The authorities cited in support of the ruling of the Judge a quo on the exception, do not appear to us, after a careful examination, to be directly in point. The cases of Brown & Sons v. Saul et al. 4 N. S. 434, and of Emerson v. Fox, 3 L. 183, relied on principally by counsel, are not inconsistent or in conflict with the views taken by us of this case; for in those suits the interventions were dismissed because the intervenors had no direct pecuniary interest in unison with that of the defendants in defeating the claim of the plaintiffs. But in the case before us, the intervenors and defendant have a common and concurrent interest in defeating the plaintiff’s suit by attachment; for by defeating the suit, the liabilities of the defendant, on the one hand, áre diminished and made less onerous; and on the other hand, the property attached, which is insufficient to pay the claims upon it, is released from the operation of a privilege adverse to the interests of the intervenors.

The second question in the case for our determination, is, whether the Judge a quo erred in overruling, on the evidence, the plea of prescription.

The evidence shows that the plaintiff and defendant were domiciled in New Orleans at the time the notes were made, and at the date of their maturity. That the defendant had been a notary public in this city; and that at the time of his departure for California in 1860, he was involved in pecuniary embarrassments, and had failed to pay over money deposited with him in his official capacity. That it was generally believed that he left this city for the purpose of avoiding the pursuit of his creditors.

On the other hand, the evidence shows that the defendant left this city openly and publicly on a steamer engaged in carrying xJassengers to Cha-gres on their way to California; and that he lived in California openly and publicly, and was engaged in business of a public nature, such as hotel keeping, and in auction sales; was at one time Secretary of the Senate of California, and afterwards Clerk of the Sujoreme Court of the State by election of the people. And further, that it was generally known in this city that the defendant had gone to California, from the time of his departure in 1860.

If the maxim “contra non valeniem agere non curriipresa'ipiio” applies to this ease, it is because the defendant himself has done some act effectnally to prevent the plaintiff from availing himself of his canse of action by the institution of a suit for the recovery of his debt. But can it be affirmed upon the facts above stated, that the removal of the defendant from this city to California, then within the United States, was an act which effectually prevented the plaintiff .from availing himself of his cause of action? In our opinion it was not; for the defendant’s residence in California was open and public, and could have been easily ascertained by the use of ordinary diligence on the part of the plaintiff; and the defendant, from the time of his removal, was subject to suit in the courts of that State, wherein he had established a new domicil.

A change of residence, openly and publicly made from one part or State of our common country to that of another, cannot be considered an act on the part of a debtor which suspends prescription, and creates a proper case for the application of the maxim, contra non vcilentem agere non currii presa'iptio; and the fact of his pecuniary embarrassments at the time of such removal, does not j>er se vary the case.

In the case of Reynolds v. Batson, 11 An. 730, the three different classes of cases in which a suspension of prescription takes place, were stated and considered by the Court, but the present case does not come within any one of the classes mentioned, upon the evidence adduced by the parties.

The judgment of the lower court on the exception to the intervention of the Louisiana State Bank cannot be disturbed, for the reason the Bank has not appealed; and as Mrs. Klein, who has appealed, merely joined the defendant in the defence of the action, a judgment in his favor disposes of her intervention, and she is left to pursue her remedy against the property of the defendant, seized under the execution issued on her judgment.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court dismissing the intervention filed in this case by Mrs.

Klein be reversed; and it is further ordered, adjudged and decreed, that the judgment of the lower court in favor of the plaintiff on the merits of the case, be avoided and reversed; and it is now ordered, adjudged and decreed, that there be judgment in favor of the defendant, with costs in both courts.

Yoobhies, J., absent.


author: Duffel, J.

text:
    Mrs. A. B. Gordon, Executrix, v. L. Millaudon.
    A party cannot1 be controlled in tbe order in which, he chooses to offer his proofs.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      J. McGonnell & O. P: McPheeters, for plaintiff. M. Griffon, for defendant and appellant.
   Duffel, J.

The plaintiff, as testamentary executrix of the estate of her husband, Alexander Gordon, sues the defendant, for $2237 93, balance of account due the Mexican Gulf Bail Boad Company, whose rights, franchises, credits and real estate, were, it is alleged, acquired, by purchase, for account of the sirccession of’Alexander Gordon, after his death.

The defendant pleaded the general issue, the prescription of one, two and three years, and reconvened in a sum of 55840 91 remaining due, after having satisfied, by compensation, what he considered to bo the claims of the plaintiff.

The District Judge rendered judgment in favor of the plaintiff for $2012 93, interest and costs. The defendant appealed.

Our attention is first called to a bill of exception, to the ruling of the Judge, excluding the testimony of M. Musson, on various grounds.

This bill of exception was well taken.

This suit involves a settlement of mutual accounts, and it ivas proper for both parties to reduce their relative indebtedness. The liability of the defendant is charged to the Mexican Gulf Rail Road, and he, consequently, has the right to oppose his account, against the same, in compensation. This the plaintiff herself undertook to do, for she allowed to the defendant, credits, to the extent of $2060 00. The defendant cannot be denied further and additional credits, simply because the succession of Alexander Gordon is open in a different court; for the succession, under the pleadings, is only a creditor for any .balance due.

The objection will however prevail for the amount claimed in recon-vention.

Again, the defendant had the right to show that the notes of $500 00 and $820 00 described in his account, had been taken up by moneys advanced by him for that purpose, and to produce, or account for the notes, should the facts disclosed require it. A party cannot be controlled in the order in which he chooses to offer his proofs. The ruling out of this evidence, necessitates a new trial, and dispenses us with passing on the other points involved in the case and which may be varied in consequence of the new trial to be had.

It is therefore ordered that the judgment of the District Court be avoided and reversed, and that this cause be remanded for a new trial, and further proceedings according to law, and the views herein expressed, the plaintiff paying the costs of the appeal'

Voobhies, J., absent.


author: Dueeel, J.

text:
    John Marks & Co. v. J. R. Reinberg—Julius Freyhan, Garnishee.
    A giirnMiee having aimworod categorically all the questions propounded to him, the penalty imposed by the articles 263 ami 349 or the Code of Practice cannot be applied to him.
    If the plaintiff.-, have; according to articles 261 and 354, successfully contradicted and falsified the answers of the garnishee ; the first of the two articles then opposes its authority and fixes the liability of the garnishee to tho amount proved against him, and by no means to the amount claimed, should it exceed the one proved.
    Where the evidence does not show an indebtedness to any specific amount, but merely negatives or nullifies the answers of the garnishee, ho will not be bound.
    Appeal from the District Court qf West Feliciana, Haralson, J.

      Collins & Leake, for plaintiffs and appellants. Henry Batliffe, for garnishee.
   Dueeel, J.

This suit is a proceeding in garnishment under a writ of fieri facias against Julius Freyhan as garnishee.

In answer to tlie interrogatories on facts and articles, tlic garnishee denied categorically that he was indebted, or had in his hands any effects belonging to the defendant in execution, Julius R. Reinberg.

Thereupon, on motion of the plaintiffs, the garnishee was notified that on a certain day, his answers would be sought to be contradicted. On the trial, William W. Leake, one of the attorneys of the plaintiffs, testified as follows: “When Mr. Ereyhan was answering the interrogatories propounded to him in this case, witness asked him if Mr. Reinberg was not in his employ as clerk, and if he did not owe him anything for his services. He answered that Mr. Reinberg was in his employ as clerk. That he had never made any bargain with him as to what he was to pay him. That Mr. Reinberg had taken goods out of the store, and they might come to as much as he owed him. Witness stated to Mr. Ereyhan that it was his duty to inform himself of the fact whether or not he was indebted to Mr. Reinberg; that he was answering interrogatories under oath, and it was as much perjury if he owed him one dollar, or one dime, as if he owed him one thousand dollars. Ereyhan replied: what I owe him is so small, that it is no matter. Witness replied: very good.” The above testimony is, in the main, corroborated by other witnesses who were present at the occurrence. The attorney of the garnishee, Cyrus Henry Ratliff, says however on his cross-examination: “Thinks he did hear Ereyhan say that if he owed him anything, that it was not much, and that it made no matter, or words to that effect; and that what he took out of the store would balance it, or words to that effect. ”

The plaintiffs contend: “Having successfully contradicted the answers of the garnishee, it is not incumbent on us to show in what amount he is indebted to the defendant. The law very justly makes him responsible for the entire debt. ”

Is this broad proposition a correct exposition of the law of the ease?

The garnishee having, as we have already stated, answered categorically all the questions propounded to him, the penalty imposed by the articles 263 and 349 of the Code of Practice cannot be applied to him.

If it be conceded that the plaintiffs have, as authorized by the same Code, Arts. 264 and 354, successfully contradicted and falsified the answers of the garnishee; the first of the two articles then opposes its authority, and fixes the liability of the garnishee to the amount proved against him, and by no means to the amount claimed, should it exceed the one proved.

Now, in the case at bar, the evidence does not show an indebtedness to any specific amount, but, at best, merely negatives, or nullifies, the answers of the garnishee, thus leaving the plaintiffs’ demand unsupported by any evidence.

The penalty incurred by the garnishee, if any, is of a criminal nature.

The judgment of the District Court was in favor of the garnishee.

Judgment affirmed.

Vooehies, J., absent.


author: Land, J. Land, J.

text:
    James Desban v. Emma Pickett.—M. Stiewell, Intervenor.
    Tho lessor has a right of pledge on the movable effects of tlie lessee, which arc found upon the property leaded, and may even seize them within fifteen days after they are taken away, if they continue to be the property of the Jesssee, and can bo identified, for the payment of bis rent.
    •On a re-hearing — Whenever the provisions in the Code of Practice are contrary or repugnant to those of the Civil Code, the latter shall be considered as repealed, and the former recognized as tho law of the case. 6 N. S. 93. But when laws in pari materia are to be interpreted, that construction is to be preferred which will give eilect to all their provisions, for the reason that the law does not favor repeals by implication. 5. An. 122.
    Article 288 of the Code of Practice may be incorporated into article 2679 of the Civil Code, and be consistent and harmonious with it-? provisions.
    Appeal from the Third District Court of New Orleans, Duvigneaud, J.

      Whittaker'é Fellows, for plaintiff and appellant. Oollens & Wool-ridge, for intervenor.
   Land, J.

The plaintiff, the lessor of the defendant, provisionally seized certain household furniture, after its removal from tho leased jDi-emises, and after its sale to the intervenor, for the payment of rent due him.

Judgment was rendered in favor of the intervenor, and the plaintiff has appealed.

The evidence shows that the plaintiff was aware, that the furniture was being removed and delivered to the intervenor, and although present, neither asserted any privilege on the furniture, nor made any objection to its removal and delivery.

The lessor has a right of pledge on the movable effects of the lessee, which are found upon the property leased, and may even seize them within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified, for the payment of his rent. C. C. 2675, 2679. But in this case, the furniture had ceased to be the property of the defendant before the seizure was made; and the sale and delivery of it to the intervenor extinguished the lessor’s right of privilege. The right of seizure, after the removal, is made to depend on the continued ownership of the lessee.

The evidence is insufficient to establish any fraud on the part of the intervenor, in the purchase of the furniture. The plaintiff had an opportunity of preserving his rights, but by his silence and non-action lost them.

There is no error in the judgment of the lower court; the plaintiff was not entitled to a personal judgment against the defendant, because there was neither a personal citation served on her, nor answer filed by her.

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

Same Case — On a Re-heaking.

Land, J.

In this case, on the authority of Art. 2679 of the Civil Code, we held, that the lessor’s right of privilege for the payment of rent on the movable effects of the lessee, was extinguished by the removal and sale of the effects for a valuable consideration, although fifteen days between the removal by the lessee and the seizure by the lessor had not expired.

This article of the Civil Code reads as follows: “In the exercise of this right, the lessor may seize the objects which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property of the lessee, and can be identified. ”

The plaintiff’s counsel, in his application for a re-hearing, has called our attention to article 288 of the Code of Practice, and insists that it conflicts with article 2679 of the Civil Code, and that the latter article is repealed by it.

Art. 288 of the Code of Practice is as follows:

“The lessor may seize, even in the hands of a third person, such furniture as was in the house leased, if the same has been removed by the lessee, provided he declare on oath that the same has been removed, without his consent, within fifteen days previous to his suit being brought. ”

These articles of the Codes are in pari materia, or upon the same subject matter, and must be construed with reference to each other. If they are wholly repugnant to and inconsistent 'with each other, article 288 of the Code of Practice must be recognized as the law of the case, for by the statute adopting the Code of Practice, it is provided, that whenever its provisions are contrary or repugnant to those of the Civil Code, the latter shall be considered as repealed. Flowers v. Griffith, 6 N. S. 93. But when laws in pari materia are to be interpreted, that construction is to be preferred which will give effect to all their provisions, for the reason that the law does not favor repeals by implication. Succession of Hébert, 5 Annual, 122.

The only question therefore for our determination is, whether the provisions contained in these articles of the Codes are inconsistent and irreconcilable with each other. There is no necessary inconsistency or repugnancy between them; for the provisions of article 288 of the Code of Practice may be incorporated into article 2679 of the Civil Code, and be consistent and harmonious with the provisions of the latter article. And if incorporated, would read as follows:

“In the exercise of this right, the lessor may seize the objects which are subject to it, before the lessee takes them away, or within fifteen days after they are taken away, if they continue to be the property.of the lessee, and can be identified.” “The lessor may seize, even in the hands of a third person, such furniture as was in the house leased, if the same has been removed by the lessee, provided he declare on oath that the same has been removed, without his consent, within fifteen days previous to his suit being brought.”

■And if thus incorporated, the general term “ third person” would apply to depositaries, bailees, pledgees, and all other persons except purchasers of- the effects removed by the lessee, and force and effect would be given to all the provisions of both articles — which could not be done if they were repugnant to and inconsistent with each other; for repugnant laws cannot co-exist and be executed without a disregard of both reason and justice.

The above construction of these articles is in harmony with the policy and doctrine of our laws in relation to the sale or transfer of personal effects, and the release and extinguishment of privileges on the same; and is in pursuance of a well settled rule of interpretation, which, is, “when laws in pari materia are to be interpreted, that construction is to be preferred which will give effect to all their provisions. ”

It is, therefore, ordered, adjudged and decreed, that our judgment heretofore pronounced in this case, remain undisturbed.

Vookhtes, <7., absent.


author: Buchanan, J.

text:
    Succession of John A. Beckham.—John A. Halsey, Opponent.
    Whenever it is necessary to enforce a judgment by a separate and distinct action from the one in which judgment was rendered, the right to such action, it being a personal action, is prescribed, under article 3508 of the Code, by ten years. 14 An. 301.
    The necessity of instituting a separate action to enforce a judgment exists in two cases : — the first, when the judgment is a foreign judgment; the second, when it is a domestic judgment, but the judgment debtor has died and liis estate is under administration.
    The prescription of a foreign judgment commences running from the date of the judgment. 12 An. 728. In the case of a domestic judgment, it commences running from the death of the debtor.
    Judgments are not barred, under (he statute of April BQlh, 1853, before* the lapse of ten years from its promulgation. 35 An. 651.
    Appeal from the District Court of East Feliciana, Mo Vea, J.

      Muse dt Hunter, for appellant, Halsey. Mb Pea & Hunter, contra.
   Buchanan, J.

Opponent Halsey obtained a judgment against the intestate Beckham on the 8th day of April, 1839.

The record does not show when Beckham died, nor how long his estate has been under administration.

The administrator having omitted to put Halsey on his account (filed March 30th, 1860) as a creditor for the amount of his judgment aforesaid, the latter opposed the homologation of the account, and is appellant from a judgment rejecting his opposition.

The case has been argued in this Court entirely upon the plea of prescription of ten, twenty and thirty years, pleaded by the administrator in bar of opponent’s claim.

The counsel of administrator contends:

1. That the prescription of ten years for personal actions, under article 3508 of the Civil Code, applies to a claim by judgment.

2. That opponent’s claim, if not barred by the ten years’ prescription under the legislation anterior to the Act of 30th April, 1853 (Session Acts, p. 250) is at all events barred by the joint action of that statute and of the long prescription of thirty years, which he argues has been fixed by several decisions of this Court as a limitation of domestic judgments.

I. In the case of Kemp v. Cornelius, 14 An. 301, we held that, wherever it was necessary to enforce a judgment by a separate and distinct action from the one in which judgment was rendered, the right to such action, it being a personal action, was prescriptible in ten years, under article 3508 .of the Code.

Now, the necessity of instituting a separate action to enforce a judgment, exists in two cases: — the first, when the judgment is a foreign judgment; the second, when it is a domestic judgment, but the judgment debtor has died, and his estate is under administration.

Li the case of a foreign, judgment, the prescription commences running from the date of the judgment. See Dial v. Patterson, 12 An. 728.

In the case of a domestic judgment, it commences running from the death of the debtor; because then alone does the right of action, the necessity of a separate action upon the judgment, begin. It was thus, that the plea of prescription was well taken in the case of Kemp v. Cornelius, which was an action upon a domestic judgment; for the record in that case showed (although that fact is not mentioned in the decision) that Oady Raby, the judgment debtor, had died more than ten years before the institution of the action of his judgment creditor Kemp, against the representatives of his estate, and of that of his widow in community.

In the present case, as already observed, the record does not disclose the date of Beckham’s death; and, as it is the duty of him who pleads prescription, to make out by proof the facts to constitute a sufficient basis for his plea, we are unable to say that the article 3508 is applicable in this instance.

II. In the case of the Succession of Rice, 15 An. 650, which was, like the present, an action instituted upon a domestic judgment, against the administrator of the judgment debtor, we decided (upon a re-hearing) that the portion of time elapsed since the Act of April 30th, 1853, should not be eked out by adding the time that had intervened between the date of the judgment and the statute, upon the rule of computation recognized by this Oourt in Goddard v. Urquhart, 6 La. 659. We said: “"We are satisfied the Legislature did not intend any judgment should be barred, under the statute, before the lapse of ten years from its promulgation.” 15 An. 651. ' ' .

It is to be remarked, that this case of the Succession of Rice, in 15th Annual, does not at all conflict with that of Kemp v. Cornelius in 14th Annual, but on the contrary, confirms it. Our further examination, elicited by the argument at bar, satisfies us of its correctness.

The appellee has not brought himself within the principle of Kemp v. Cornelius, and the plea of prescription must be overruled.

It is our duty, however, to notice the peculiar position of the opponent. He calls himself, in his opposition, a citizen of New Jersey. Since the appeal was taken, and indeed since this cause was submitted to us for decision, a state of war has arisen between the State of New Jersey, as one of the United States of America, and the Confederate States of America, of which Louisiana is a component part. There is, of course, no plea in the record, that the appellant, plaintiff in the court below, is an alien enemy; for he had only become so, if at all, after the issue was made-up and the cause tried. Had such a plea been made, it is possible that the appellant may have shown that, since filing his opposition, he had ceased to be a citizen of New Jersey.

Under the peculiar circumstances of the case, we will afford the appellant an opportunity of showing this fact, without remanding the cause for a new trial generally.

It is, therefore, adjudged and decreed, that the judgment of the District Court upon the opposition of John A. Halsey to the account of administration filed by Drury L. Smith in the estate of John A. Beckham, deceased, be reversed; that the said John A. Halsey be classed as an ordinary creditor of said estate for the sum of ninety-three dollars and fifty cents, with ten per cent, interest from 1st January, 1838, until paid, and also for twenty dollars costs; the money to remain in the hands of the administrator and appellee until the war now pending between the Confederate States of America and the United States of America is oyer, or until the said John A. Halsey, opponent and appellant, produce to the District Judge satisfactory inoof that he is not an alien enemy. And lastly, it is decreed, that the costs of the opposition and of this appeal, be borne by the estate of Beckham.

Voorhies, J., absent.


author: Mebbiok, C. J.

text:
    Louis Mestier v. New Orleans, Opelousas & Great Western Railroad Company et al.
    The articles of the Code 3501 and 3502 fix the prescription resulting from offences and qnasi-offences at one year from the time when the damage is sustained. The plaintiff can only be entitled to ihe dam- ■ ages actually proven.
    A judgment in a case to which the defendants were not parties or privies, is res inter alios acta, and not admissible in evidence. C. C. 2265.
    The introduction of another suit in evidence does not, in general, make the testimony on which the judgment was rendered, evidence in the new suit.
    Appeal from the Fifth District Court of New Orleans, Eggleston, J.

      Pierre Soulé, for plaintiff. M. M. Cohen, for defendant and appellant.
   Mebbiok, C. J.

This is an action to recover damages. The ease was tried by a jury, and they rendered a verdict for 3510,000 against the defendant Danfear; and he appeals.

The facts necessary to be stated are these: The defendant Danfear, who is a director in the above-named company, is the owner of a tract of land lying upon both sides of the above-named railroad, at a jflace called- les Coteaux do France, in the Parish of St. Charles. Having a dispute with certain persons also claiming lands upon the railroad, he injoined the railroad company in 1854 from receiving or transporting the wood, timber and lumber out or found upon the ridge Icnown as les Coteaux de Prance.

In 1857 the plaintiff acquired certain lands lying outside of the lands in controversy, between Danfear and others on les Coteaux de France, but sufficiently near to make it profitable to deliver lumber for transportation and sale upon the line of the road; and he entered into a* contract to deliver the railroad company ten thousand cross-ties at sixty-five cents each. He employed a large number of laborers to get out cross-ties, staves, heads, pickets and wood. His most convenient way to reach the railroad was to transport his wood, &e., in flats upon a bayou called Bayou Crocodile, which either runs through, or is a boundary of the defendant Lan-fear’s land.

The plaintiff, after progressing with his work for some months, found himself obstructed in delivering his wood and cross-ties to the railroad company, and sending his staves and pickets to market, by the refusal of the company to receive the lumber; (as alleged by the company, on account of the injunction.)

The plaintiff thereupon applied to the defendant’s counsel in the injunction suit for permission to deliver his lumber and to transport it to market. This consent was given, without opposition from Lanfear, on the 14th of J anuary, 1858, in these words:

1 ‘ I have no obj oction that the New Orleans, Opelousas & Great Western Bailroad Company should transport, until further notice, staves, pickets, clapboards and cord-wood from the land of Louis Mestier on the ridge, notwithstanding the injunction in the case of Lanfear and Louis Banson v. The Company and others. New Orleans, Jan. 14, 1858.” Signed, &c.

The plaintiff placed a quantity of cord-wood upon the line of the road and sent off some lumber.

On the 12th day of February, 1858, the defendant Lanfear sent to the President of the Bailroad Company the following letter:

‘ ‘ New ObueaNS, 12 Feb. 1858.
Dear Sir: I beg hereby to notify you that I revoke and annul the suspension in favor of Louis Mestier and J. E. Boutté, granted by my attor: ney, Mr. Henry St. Paul, of the injunction issued by the Third Judicial District Court, Parish of St. Charles, against the removal of timber from my land extending along the line of the New Orleans, Opelousas & Great Western Bailroad Company, in township fourteen, south, range twenty, east, in the Southeastern Land District of Louisiana, west of the Mississippi river. I remain always, dear sir, yours respectfully,
(Signed) Ahb’be Laneeab.
“ Wir. G. Hewes, Esq., President New Orleans, Opelousas & Great Western Bailroad Company. ” '

A similar note was sent to the plaintiff and J. E. Boutté, with this added: “T require you to discontinue hauling over or depositing on my said land, lumber or any other article, under the penalty of the law against trespassers. ”

The plaintiff then applied to Lanfear in person to relieve him from the effects of the injunction, and offered to give security, but he was repulsed with rudeness.

In the spring of 1858 the well known Bell crevasse took place, and in May the -Labranche crevasse followed and inundated the railroad and swept off and destroyed the lumber and wood of the plaintiff.

This suit to recover the damages thus occasioned, was not instituted until the fifth day of March, 1859, more than one year after the date of the letter of Lanfear to the plaintiff and the President of the Bailroad Company.

The defendant has interposed the plea of prescription, and the record contains bills of exception.

It is contended on behalf of the defendant, that inasmuch as the last act done by Lanfear, viz., delivering the two letters above referred to, occurred more than one year previous to the institution of the suit, the demand is barred by prescription, for it is assumed it is the wrongful act, and not the consequential damages resulting from it, that give rise to the action. Several authorities are cited in support of this position, and among others, the case of Wartelle v. King, 10 An. 655. These authorities do not appear to be in point. In Wartelle v. King, the injury was occasioned by the act.of the party complaining, whose agent removed his own fences in consequence of a letter threatening a civil action and a criminá-prosecution, and that lie would cause the fences to be removed.

This Court concluded by saying: “Under these circumstances, the act of destroying the fences is not to be viewed as the act of defendants, and the prescription mentioned above commenced running from the 13th day of April, 1852,” (the date of the letter.)

The articles of the Code 3501 and 3502 fix the prescription resulting from offences and quasi-offences at one year from the time when the damage is sustained. The law seems to be clear; and where there is a continuation of a wrongful act, there is no reason why prescription should not be considered as commencing to run from the date of the sustaining of the damage.

Take an example: my neighbor wilfully undermines the party wall between us without my knowledge, and á year afterwards it falls. Shall he escape by proving that he did.the act which occasioned the damage more than a year previously?

A man secretly saws nearly asunder the beams of a bridge: a year and a day afterwards, a traveler is maimed by the falling of the bridge from that cause. Shall the wrong-doer escape by pleading the prescription of one year; .and does the stranger lose his action the moment it has occurred?

It seems to the Court to be quite clear that the article C. C. 3502 should be construed (in such cases) as it reads, and the prescription should be held to commence running from the time the damage was sustained. The plea of prescription is therefore no bar to such damages as are proven to have happened after the 5th day of March, 1858.

The first bill of exception to which our attention is called by defendant’s counsel is to the-reception in evidence of the record of the case of Lanfear v. Hunley, for the purpose of showing that the District Court had therein rendered judgment against Lanfear, and that the same was on appeal to the Supreme Court. The objection to th'e'record was that it was res inter alios aeta.

The decision in the case of Lanfear v. Hunley was adverse to Lanfear’s title. In testing the admissibility of the evidence, we must confine ourselves to the bill of exceptions, and we cannot look into the record to see if it does not contain admissions in the pleadings or documents annexed which would have been admissible oil other grounds. The question is, was the record admissible for the purpose offered, to wit, to show a judgment against Lanfear? The authorities are quite clear that the testimony was inadmissible, because Mestier was neither a party nor a privy to that suit. C. C. 2265.

The reason which excluded the record in the case of Lanfear v. Hunley operated with equal force against the right claimed by plaintiff’s counsel in his closing argument to read to the jury a portion of the evidence in that case; and defendant’s bill is well taken on the ground stated in the same, viz., that the introduction of another suit in evidence does not, in general, make the testimony on which the judgment was rendered, evidence in the new suit. 3 An. 174; 5 An. 6; 13 L. R. 270.

As it is impossible to know what influence the record of Lanfear v. Hunley may have had on the verdict of the jury, which seems to be high, we deem it our duty to remand the case for a new trial. The plaintiff can only be entitled to the damages actually proven.

It is, therefore, ordered, adjudged and decreed by the Court, that the judgment of the lower court be avoided and reversed, and that the case be remanded to the lower court for a new trial, with instructions to be governed by the views herein expressed; and that the plaintiff pay the costs of the appeal.

Vqobhtes, J., absent.


author: Mebkiok, C. J.

text:
    The City of New Orleans v. Charles Odier & Co. et als.
    Where the record shows that there was no answer or judgment by default against one of tho sureties, and is otherwise defective, the ca^e will be remanded for further proceedings.
    Appeal from the Third District Court of N. Orleans, Bwvignecmd, J.

      J. J. Michel, for plaintiff and appellant. Benjamin, Bradford & Jñnney, for defendants.
   Mebkiok, C. J.

This suit is against Charles Odier & Co. and their sureties on account of an alleged breach of covenants of their lease of certain wharves of this city.

On looting into the record, the case does not appear to have been put* at issue, as we perceive, either by answer or judgment by default as to one of the sureties. Neither has the ordinance of the city, made a part of the contract, and referred to by counsel on both sides, been copied into the record.

Under the circumstances, we think that justice requires that the case should be remanded.

It is therefore ordered, adjudged and decreed by the Court, that the judgment of the lower Court be avoided and reversed, and that this case be remanded for further proceedings and a new trial, and that the defendants pay the costs of the appeal. ■

Voobhies, J., absent.


text:
    Succession of Sargent Pratt.
    The surety is entitled to the benefit of all the seouritics in the hands of the creditors, and if any of them is lost by his acts, neglect, or want of due diligence, he is, to that extent, discharged.
    A surety on a tutor’s bond has a right to demand the canceilation of tho bond, when, without his consent, any of his co-sureties are released by a judgment homologating tho proceedings of a family meeting which consented to the erasure of the name-of the co-surety from the bond.
    The discharge of the surety, under article 3030 of the Code, only takes place to the extent to which the acts of the creditor have prejudiced the recourse of the surety for reimbursement of what he may be ouliged to pay under his contract of suretyship.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      Bea & Bratt, for plaintiff and appellant. Burctnt <& Bornor and Paxton, Bonford et als., for defendants. .
   Duffel, J.

This suit commenced by a rule taken by John Pasley, against Ann O’Brien Pratt, late widow of Sargent Pratt, and now wife of Richard Ryan, also against said Ryan and the legal heirs of Sargent Pratt, to obtain his release as surety of Ann O’Brien Pratt, on her bond as usu-fructuary of the property which constituted the community between her and Sargent Pratt. This bond was given in compliance -with a decree of this court rendered in the same succession and reported in 12 An. 457.

The conditions of the bond are substantially those required by the Code, Art. 551, with the addition “that the usufructuary will well and truly return in Icind the said estate to the heirs of the deceased. ”

The District Judge dismissed the rule.

The only questions which this case presents are: lo. Is the surety of an usufructuary discharged by the fact that the slaves subject to the usu-fruct were sold, on a rule taken by the usufructuary, against the owners, the surety not being a party to the rule, and it not appearing that the sale was provoked to effect a partition or to satisfy the charges affecting the property subject to the usufruct ? 2o. Can .the surety sue immedi:,;. - ly for his discharge, or must he reserve his plea, as a means of defence, when sued on the bond ?

On the first point. The usufruct in this case was of two kinds, perfect and imperfect. C. C. 526.

The obligation of the usufructuary was, under the law, C. C. 527, to restore the objects comprised under the perfect usufruct, to the owners, at the expiration of the usufruct.

The surety is presumed to. have signed the bond with a knowledge of the law under the title of usufruct, use and habitation.

Had the slaves in question been sold under a private contract between the usufructuary and the owners, the surety would, without doubt, have-been thereby fully discharged, unless he had been a party to the contract, and had given his assent to the change in the condition of the bond.

If this affirmative proposition be sound law, and we hardly think that it will be contested, it then logically follows that a sale of the slaves, made without proof of its necessity, and, apparently, under a consent judgment, must likewise carry with it the discharge of the surety.

Our deductions are taken from the principles of the' law of suretyship, that the surety is entitled to the benefit of all the securities in the hands of the creditors, and that if any of them is lost by his acts, neglect, or want of due diligence, the surety is, to that extent, discharged. C. C. 3030; Saulet v. Trépagnier, 2 An. 428; McGuire v. Wooldridge et als., 6 Rob. 47, Hereford v. Chase, 1 Rob. 212.

On the second point. ¥e held in the case of Bradley v. Trousdale ef als., 15 An. 206, that a surety on a tutor’s bond has a right to denand the cancellation of the bond, when, without his consent, any of his co-sureties are released by a judgment homologating the proceedings of a family meeting which consented to the erasure of the name of the co-sxirety ’from the bond.

The reasons assigned for judgment in that case authorize the present, suit; and it is evident that the decision of the question now, is in the interest of the owners themselves, as they may at. once require of the usu-fructuary a new bond and security, and take^ in the meantime, proper steps to prevent the payment, to the usufructuary, of such portion of the price of said slaves as may yet be due. Tlj.e surety is not, however, entirely exonerated; for bis obligations, in so far as tliey do not refer to the slaves sold as aforesaid, or to their price, remain the same. Percy’s Administrators v. Barrow, 11 An. 179.

It is therefore ordered, that the judgment of the District Court be reversed. It is fm'ther ordered and decreed, that the bond of eight thousand dollars furnished on the 2d of July 1857 by Ann O’Brien Pratt as principal, and John Pasley as surety, be now reduced, as to the said surety, to the sum of six hundred and fifty dollars, and that he be fully discharged for the excess which represented the interest of the heirs of Sargent Pratt in the slaves belonging to his succession. It is further ordered and decreed, that the defendants on the rule pay the costs of both courts.

Voobhies, J., absent.


text:
    The Ursuline Nuns v. Michael Fresch.
    By extending the privilege of breaking up ilatboats on a certain part of the lovoe it docs not follow that the prohibition todo so in any other part of the city has been withdrawn.' Vide Acts of the Corporation, 1852,1853 and 1858 ; p. 345 Leovy’s Digest. An extension of a privilege in one place does not yield it in another.
    Appeal from the Second District Court of New Orleans, Morgan, J.

      A. Bobert and J. J. Michel, for plaintiffs. El/more & King, for defendant and appellant.
   Buchanan, J.

Defendant claims the right to break up flatboats opposite plaintiffs’ plantation, under the city ordinances. He contends that, inasmuch as the lessee of the sixth section of the port has given him permission to land his flatboats at this place- (as he was authorized to do by the last paragraph of the 30th section of the city ordinance, approved June 21st 1858,) he is therefore authorized to bréale up his flatboats there. But this does not seem to follow. The city ordinance of March 5th 1853, (Leovy’s Digest, p. 345,) prohibits, under a penalty, flatboats from being-broken up except within the space included between Sixth street and the upper limit of the city; and the same ordinance designates another portion of the levee as a landing for flatboats. The counsel of defendant argues that this ordinance of 1853 has been repealed by the ordinance of June 21st, 1858: for the latter ordinance appropriates the whole space between Sixth street and the upper line of the city as a landing for the shipping. But it does not follow, because the shipping wñl interfere with the breaking up of flatbeats in the space at the upper limit of the corporation appropriated by the ordinance of 1853 for that puipose, that therefore the prohibition to break up flatboats in any other part of the city has been taken off. That prohibition appears still to exist. And as the defendant relies entirely upon a supposed authorization from the city for the occupation of plaintiff’s property to break up flatboats, the absence of such authorization entitles plaintiff to have the injunction perpetuated.

We are thus dispensed with the decision of the questions raised by the pleadings and argument of counsel, concerning the public use of the battuxe and levee, of which. the naked ownership is in the riparian proprietor.

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

Yoorhtes, J., absent.


text:
    Joseph Shepherd v. Asa Payson.
    A party cannot be made to answer interrogatories it his answer will expose him to any criminal punishment oí’penal liability.

    Appeal from the Fifth District Court of New Orleans, JEggleston, J.

      Q. L. Bright, for plaintiff. Gollens & Wooldridge, for defendant and appellant.
   Land, J.

The plaintiff, claiming to be the assignee of certain Branch Pilots, sues the defendant for the recovery of the sum of three hundred and thirty-nine dollars and fifty cents, with legal interest from judicial demand, and states his cause of action as follows:

That the defendant Asa Payson not being a Branch Pilot for the Port of New Orleans, piloted vessels over the bars at the mouths and passes of the Mississippi River, and from the Mississippi River to the Gulf of Mexico, in violation of the Act of the Legislature of 1857, entitled an “Act relative to Pilots.” That the 7th section of said Act provides, “If any person not appointed a Branch Pilot, shall pilot any ship or other vessel when a Branch Pilot offers, he shall forfeit and pay to said Branch Pilot twice the amount of the pilotage paid to and received by him. ” That the defendant piloted the ships Lexinton, J. W. ■ White and Oarraclc, at three different times, when Daniel B. Morgan, a Branch Pilot, offered to pilot the ship Lexinton, and Y. J. Vanderslice, a Branch Pilot, offered to pilot the ship J. W IVtdte, and Luke F. Higgins, a Branch Pilot, offered to phot the ship Garraeh.

And that these Branch Pilots have transferred to him, the plaintiff, the forfeitures due to them respectively by the defendant under the Act of 1857 above mentioned.

The plaintiff concludes his petition by propounding interrogatories on facts and articles to the defendant, for the purpose of proving the alleged forfeitures under the Act of 1857.

The defendant filed an exception to the interrogatories, on the ground that the plaintiff had no right to compel him to give testimony against himself for the purpose of proving a forfeiture which had accrued, as alleged, in consequence of his violation of a penal statute, and thereby to compel him to criminate himself.

The exception was overruled by the Judge a quo; and the interrogatories having been answered by the defendant, were afterwards, on a rule by plaintiff, taken for confessed, and judgment rendered in favor of the plaintiff for the amount claimed in his petition.

The defendant 'has appealed, and complains that the Judge erred in overruling Ms exception to the interrogatories, and also in ordering the interrogatories to be taken for confessed, and in rendering judgment on the evidence before him in favor of the plaintiff.

The Judge erred in overruling the defendant’s exception to the interrogatories; for when a party to a suit is interrogated, he is entitled to the privileges secured by law to witnesses in general; and it is now well settled, that a witness is not bound to answer any question, either in a court of law or of equity, if his answer will expose Mm to any criminal punishment or penal liability; and the object of the interrogatories was to establish by the testimony of the defendant a penal liability against himself; and his exception to the interrogatories was well taken, and should have been sustained. See 1 Starkie on Evidence, 165; Gxeenleaf on Evidence, l 453.

. For the reason stated the Judge also erred in ordering the interrogatories to be taken for confessed.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower Court overruling the defendant’s exception to the interrogatories, and ordering the same to be taken for confessed, together with the judgment on the merits, condemning the defendant to pay to the plaintiff the amount claimed with interest and cost of suit, be avoided and reversed, and that this cause be remanded to the lower Court for further proeeedmgs according to law, the plaintiff and appellee paying the costs of this appeal.

Voobhies, J., absent.


text:
    Nathaniel Amacker v. Smith, Harris & Co.
    A jury trial will be refused in cases of executory process on an injunction sued out under articles 739 and 740 of the Code of Practice.
    Appeal from the Dist. Court of the Parish of St. Helena, Wilson, J.

      P. Pond and E. P. T. G. W. Ellis, for plaintiff and appellant. A. .Addison, McVea & Hunter, and Q-. W. Martin, for defendants.
   Buchanan, J.

This is an injunction against an executory process sued out upon an act importing confession of judgment, against the property hypothecated by said act to secure the payment of a note of the plaintiff in injunction, defendant in the executory process, for seven thousand dollars.

The principal ground alleged in the petition of plaintiff .for injunction, is fraud on the part of the mortgagees; that the mortgage was granted upon promises of indulgence which were fraudulent and deceitful.

More than a year after the filing of the petition for injunction, and after the contestatio litis had been formed thereupon, the plaintiff filed a supplemental petition praying for a jury, and appended thereto his affidavit, that he expected to prove that’ the consideration of the note and mortgage herein had totally failed, and that the said note and mortgage were obtained from plaintiff by fraud and by promises on the part of the defendants in injunction, which they never 'complied with. .

The District Court refused tlie jury trial; considering tliat this was a summary case, within the provisions of articles 739 and 740 of the Code of Practice.

The Court did not err in this ruling.

The injunction is sued out upon a ground sx>ecified in paragiuph six of Art. 739 of the Code of Practice.

The exceiDtion that plaintiff was xu'oceeding via ordinaria for the same cause of action, — which xu’oceeding is x>ending, — does not seem to be well taken. The consolidated suits of Smith, Harris & Co. against the present x>laintiff were based ux>on sundry accounts between the parties. The present action is upon a note. ‘

The judgment of the Court below, upon the facts, seems to have done justice between the parties.

Judgment affirmed, with costs.

VooRBXes, J., absent.


text:
    Prudence Campbell v. John Myers.—James H. Myers, Garnishee.
    A garnishee cannot interfere in. the controversy between the original parties, nor plead other defences than those necessary to protect himself. No seizure in his hands can be made under the execution against him without notice to the defendant, who must, after notice, oppose the seizure, or lose all recourse against the garnishee for the payment made by him under the order of the court.
    Appeal from the District Court of East Feliciana, BatUff, J.

      J. B. & J. J. Smith, for plaintiff. Bowman, Hardesty & Kernan, for garnishee and axsisellant. S. E. Hunter, for John Myers. v
   Buchanan, J.

The plaintiff having obtained judgment against defendant, took out a fi. fa., and sued out garnishment x>rocess against the ax> X>ellant, according to the Act of 1839 (Phillips’ Revised Statutes, id. 93), accompanied with interrogatories. The garnishee having neglected or evaded answering several of these interrogatories, they were taken for confessed, and judgment was entered uxj against him for the amount of the plaintiff’s judgment against defendant. The garnishee axapeals, and urges before this Court the following points for a reversal of the judgment:

1.That there were not x>rop>er xsarties before the court, for the judgment obtained against the defendant.

2.That the petition of garnishment and interrogatories to garnishee, have not disclosed to garnishee the amount of the judgment against the defendant, nor is it disclosed in any other manner.

3.That there was no notice to defendant of the seizure in the hands of garnishee.

Upon the first and third grounds, it is sufficient to say, that the defendant, cited as appellee, appears in this Court, and prays that the judgment of the District Court be affirmed. This is an acknowledgment on his x>art that the original judgment is correct, and that the x>roceedings under the fi. fa., so far as defendant is concerned, are regular. 3 An. 380, and cases therein cited.

Upon tlic second ground, tlie last interrogatory discloses the amount for .-which the plaintiff seeks to hold the garnishee liable. 4 An. 521.

Judgment affirmed, with costs.

Voobhies, J., absent.


author: Merrick, C. J.

text:
    Julie S. Bonvillain v. Aubin Bourg, Sheriff, et al.
    The force and effect of a judgment is to he determined by reference to the state of tliiugs existing at the time of its rendition.
    The plea of res judicata is to be decided by reference to the matters put at issue by the pleadings. So a general and pHma fade absolute judgment against the defendants is to be construed secimdum allé-gala., and where they are sued as attorneys in fact, such judgment does not bind them personally. 7 N. S. 432; 4 N. S. 496. In like manner a general judgment against parties sued as commercial partners is virtually one in solido. 3 L. 282 ; 5 L. 287. A judgment against a third possessor is not a judgment inpersonain. 4 L. 400, and other authorities herein cited;
    Where a causa supet'veniens, the severance of the marriage tie occurs, property (dotal) previously inalienable will be subject, like all other property of the defendant, to seizure and sale under execution. 8 Rob. 457.
    Appeal from the District Court of Terrebonne, McVea, J.

      Connelly & Bighlor, for plaintiff. F. ¡S. <& J. S. Good, for defendants and appellants.
   Merrick, C. J.

This suit is commenced by injunction. The important facts are these: In 1848 the plaintiff, then a widow lady possessed of a. small plantation and four slaves, married one N. B. Beal, who had no property. Before the marriage a contract was authenticated in due form, by which the land and slaves owned by the plaintiff were settled in dower. In 1854 Bodley & Co. and Lobit & Charpentier, defendants in this suit, obtained by confession judgment against Beal and wife in solido, on what are alleged to be debts of the husband Beal.

In 1855 Bodley and Lobit & Charpentier issued execution on these judgments, and among other things seized the tract of land and slaves settled in dowry. Beal and wife in June injoined the executions, made the judgment creditors parties, and prayed that the judgments might be annulled as to the wife, and injoined as to the dotal property, In October, 1856, the following judgment was pronounced, on the construction of which this controversy mainly depends, viz:

“N. B. Béal et al. )
v. >• 3d Dist. Court, Parish of Terrebonne.
“Joseph A. Gagné, Sheriff, et al. J
“ This case having been fixed for trial, was taken up, and after hearing the evidence and the argument of counsel, and by reason of the law and the evidence: It is ordered, adjudged and decreed, that the demand of plaintiffs, that the judgments numbered 1275 and 1239, described in their petition be annulled and set aside, that said demand be rejected. It is further ordered and decreed, that the injunction sued out against defendants, on the first day of June, A. D. 1855, be, and is hereby confirmed- and perpetuated against all said defendants, so far as to restrain and inhibit them from any further proceedings under the judgments 1275 and 1239, on the docket of this court, against the land and slaves Mistress Julie Sidloi Bonvillain described in her petition, and that of Napoleon B. Beal, to wit, a certain tract of land having seven and a half arpents front on the right bank of Bayou Black, and containing three hundred superficial arpents; as also the slaves George, then, in 1848, aged 35 years; Joe, aged 20 years; Sarah, aged about 25; and Agey, aged about 45 years. And it is further ordered, that the claim of defendants for damages on account of the issuance of the injunction be rejected, and that they be condemned to pay the costs of this suit. Thus done, &c., &e., Oct. 16, 1846.”

■ Subsequently the marriage was dissolved by a divorce, and Beal has contracted a second marriage.

Thereupon Bodley & Oo. and Lobit & Charpentier issued new executions upon their judgments, and they have seized the same property settled in dower and levied upon under the former executions, which were injoined.

This therefore is a second injunction to restrain the sale of the same property. Both parties rely upon the judgment above recited. The plaintiff contends that it is a perpetual bar to the seizure of this property, and even if it be not so considered, that dotal property cannot, after the dissolution of the marriage, be made responsible for judgments which could not be enforced during its existence.

The defendants plead the same judgment as the thing adjudged, and they have also filed in this Court the pleas of prescription to the action of nullity against their original judgments.

An attentive examination of the judgment of October, 1856, will show, first, that the two judgments in favor of Bodley & Co. and Lobit & Charpentier, then injoined, were recognized as binding upon the plaintiff, and the court refused to annul the same; and secondly, that the specific property injoined was exempted from seizure under the judgments, and the defendants were restrained and inhibited from any further proceedings under the said judgments against the particular property described, thus leaving the judgment creditors free to seize any other properly of their debtors upon their judgments.

The judgment, although absolute in its terms, is somewhat inconsistent with itself, and the District Judge has not enunciated any of the grounds upon which he based his decision. Hence the difficulty of its interpretation. The plaintiffs in injunction in that action demanded the nullity of the two judgments and the perpetuation of the injunction, on the ground that Mrs. Beal could not be bound for the debts of the community, and also on the ground that the property described was dotal, and was inalienable during the marriage. The Judge might, if justified by the proof, have affirmed both grounds of injunction. Instead of so doing, he refused to annul the original judgments, and yet he perpetuated the injunctions and restrained the defendants from proceeding against the property seized. If it is not permitted us to look into the evidence in the suit in order to determine how the facts ought to have been decided, and thus to judge of the motives which have influenced the Judge in arriving at his conclusions, we may do so under our system of practice, perhaps in order to learn the issues before him. At all events, we can, in the absence of reasons given for the decree, examine the pleadings and ascertain what matters were presented for adjudication at the time the decree was rendered; for it is elementary, that the force and effect of a judgment is to be determined by reference to the state of things existing at the time of its rendition. On referring to the petition, we find that the plaintiff and her husband alleged tha-t the debt was a debt of the husband, and that the property seized was dotal, and that it “could not be alienated or hypothecated during the existence of the marriage.”

If the first of these positions had been found to be true by the Judge, the law would have required that the judgments injoined should have been annulled; for the action of nullity and injunction had been brought within the year. But this was not done.

If the second ground of injunction were established by proof, then the plaintiffs in that action were entitled to their injunction, and to have the inalienability of the dotal property during marriage recognized, according to their allegation in the petition. The decree, by reason of its general terms, goes beyond the allegation, and the question arises, shall the general language of the same be restrained to the issue made and the subject matter under consideration at the time it was pronounced?

The authorities, we think, admit of an affirmative answer. In the case of Saul v. His Creditors, this Court said that the plea of res judicata was to be decided by reference to the matters put at issue by the pleadings. 7 N. S. 432. Só a general and prima facie absolute judgment against the defendants is to be construed secundwm allegata; and where they are sued as attorneys in fact, such judgment does not bind them personally. 4 N. S. 496. In like manner, a general judgment against parties sued as commercial partners is virtually one in solido. 3 L. R. 282, 283, Prall v. Peet’s Curator; 5 L. R. 287, Rochelle’s Heirs v. Cox. In the case of Trepagnier v. Williams, 4 L. R. 400, a judgment in these words was considered, viz: The plaintiff has proved the signature of the drawer and endorser of the note sued on; has exhibited the act of mortgage and a judgment against the mortgagor. This entitles Mm to judgment against the third possessor. It is therefore ordered, that D. C. 'Williams do recover of the defendant Trepagnier the sum of ten thousand dollars, with interest until paid, and costs of suit, and that the mortgage property be sold to satisfy the same;” and it was held that notwithstanding the general terms in which the decree was couched, the judgment against Trepagnier was not in personam, but against him as third possessor only. See also 6 Savigny, p. 361, et seq., and 378 II, Berlin ed.

If we apply the principles contained in these decisions to the case at bar, it relieves the judgment in question of its seeming inconsistency. It is left to apply to the state of facts then existing, and to protect the dotal property of the wife so long as it remained inalienable. The causa super-ueniens, the severance of the marriage tie, occurring since the former decree was pronounced, has impressed another character upon the property seized, and it ought to be considered now subject (like all other property of the plaintiff) to alienation. It would therefore be somewhat absurd to hold that the judgments held by the defendants are valid against the plaintiff, and that they may, under the statute, be perpetually revived against the plaintiff, and after her death against her heirs, and be enforced against any other property she or her heirs may own, and even against the proceeds of the plantation and slaves, if they should be sold by the plaintiff or her heirs, and yet that she might live with impunity upon the property in question; and that with reference to this debt, she and her heirs might enjoy the same in perpetuity. Perhaps we might, without much impropriety, apply the language of Julian to this case: Bvidenter enim miqwssimwm esl, profieere rei judiealce exeeptionem ei contra quern judieatum est. Dig. Lib. 44, T. 2, Lex 16. Law 17 of the same title may also be cited as somewhat analogous to the present ease: Si rem mea/m a tepetiero, tn a/nlem ideo fueris absolulus, quod probwoeris sine dolo malo te desiisse possidere; delude postea cosperis possidere, ei ego a tepetam, non noeebit mild exeeptio rei juMcatce. See also Dig. Lib. 16, T. 2, Lex 7, gl.

We conclude, therefore, that the judgment of October, 1856, does not prevent the defendants from issuing execution and seizing the property in question.

The judgments rendered in 1854, as well as that herein recited, are no longer open to the action of nullity, and the plea of prescription to a de^ mand in nullity must be maintained. 7 Rob. 92, Farier v. Peyroux; also 7 Rob. 94, Griffing v. Bomner; 3 Rob. 115.

We have already intimated that dotal property, after the dissolution of the marriage, ceases to be out of commerce. Quernin v. Rivarde, 8 Rob. 457.

The judgments injoined bear eight per cent, interest, and this does not appear to us to be a case in which more than nominal damages should be allowed., ■ The ¿jase is by no means free from difficulty, and the plaintiff’s counsel undoubtedly believed she had good grounds of injunction.

' It is, therefore,, ordered, adjudged and decreed by the Court, that the judgment of the lower court be avoided and reversed, and that plaintiff’s .demand be rejected and said injunction dissolved; and that the plaintiff in injunction and her surety in solido on the injunction bond, Lovinski •Bonvillain, pay ten dollars damages and the costs of both courts.

VooBHnás, J., absent.


author: Merbiok, C. J.

text:
    Albert Pack and Wife v. Elisha Chapman.
    The oath appended to an answer demanding a jury trial on a promissory note, is"not proof, and does not change the character of the pleadings.
    It is incumbent for a party, on pleading the want of consideration, to prove it. The onus is not upon the plaintiff.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      Michel <& Koontz and A. W. Jourdan for plaintiffs. P. Soulé and L. Olm-vet, for defendant.
   Merbiok, C. J.

This is a suit brought upon a promissory note payable to the defendant’s order for the sum of $1000.

The answer admits the signature to the note, but denies the consideration, and alleges that the note was obtained by duress.

The answer was sworn to, but the jury fee not being paid, the case was tried by the Court.

The defendant’s counsel makes two points in this Court as the grounds for the reversal of the judgment.

1st. That the Court erred in rendering judgment against defendant -without proof of consideration, the same having been specially denied under oath. _

2d. That the District Court erred in refusing a new trial on the grounds stated by defendant under oath, and that justice required a new trial.

I. On the first ground it must be observed that the oath of defendant to his answer is required to entitle him to a.trial by jury. It is not received as proof, and hence does not change the character of the pleadings. The point therefore simply presents the question whether the denial of consideration of a promissory note throws the burden upon the plaintiff to prove it in the first instance.

There is indeed a dictum in the ease of Tresott et al. v. Bowles, 18 L. R. 29, which sustains the affirmative of the question, but the judgment in that ease was against the defendant, and the current of decisions is the other way.

In Livaudais' Heirs v. Fon, 8 Martin, 161, Judge Matthews said “The execution of the note raises a presumption of a just consideration which must be defeated by proof to the contrary on the part of the defendants.” In the case of West v. Wilson it was held that the burthen of proof was upon the defendant to show the want of consideration in a note. 4 L. R. 220. The same doctrine was in effect admitted in the cases of Harrison v. Poole, 4 Rob. 196, Wooton v. Harrison, 9 An. 234,- and tire, recent ease of Martin v. Donovan, 15 An. 41; See also RAscq&,óíh''Evi-''/ dence, 167, and Chitty on Bills, 661, and note. /' ,/y'

Aside from the peculiar character which the commercial law confers upon promissory notes and bills of exchange, if they be regarded as^ordinary contracts, the burden of proof will still be upon thé> Hefendant, to-' impeach the consideration under the construction which his b^en'-given by this Court to article 1888 C. C. That article declares that an agreed ment is not the less valid though the cause be not expressed. If the contract be valid without expressing the cause, the courts should give it effect ^without requiring the plaintiff to allege or prove it; and such was the conclusion of this court in the case of Barrow v. Cazenave, 5 L. R. 78, where the Court, quoting from Toullier, said: a just cause is always understood unless the contrary be proved, andif the cause expressed is proved to be a bad one, then the obligation is null and void unless the creditor shows that there were other just considerations for it. It was therefore, (the Court proceeds,) for the party promising in this case, after the promise was proved, to discharge himself from its effects by showing that it was made without a just and legal cause. See also Marcadé, 6 vol., p. 5, III Art. 1315; Brashear v. Hazard, 12 Rob. 329; Kathman v. Gen. Mutual Ins. Co., 12 An. 37.

The case of Copeley v. McFarland, 9 Rob. 148, 149, does not sustain the Reporter’s note of the case, and it is not in conflict with the other decisions on this point.

The cases in 2 L. R. 466, 6 N. S. 566, 9 Rob. 257, and 3 An. 294, relate to the allegations and proof where the good faith of the transferee of a note is put at issue. V. Chitty on Bills, 662.

II. On the second ground. The unavoidable detention of defendant in another court at the time this case was called for trial is not an excuse for the non-attendance of his witnesses. He had counsel, and it was his duty to communicate the names of his witnesses and what he expected to prove by them to Ms counsel, in order that the latter might have those attached who had been summoned, and prepare an affidavit for a continuance on account of the materiality of the testimony of those witnesses who had not been served with a summons.

The defendant has therefore failed to show due diligence.

The affidavit for a new trial is also defective in not disclosing the names of the witnesses and what the defendant expected to prove by them. See Kennard v. Gustine, 9 Rob. 170; Riley v. Louisville, 2 An. 965; Doat v. Maliby, Ibid 583.

Judgment affirmed.


text:
    Succession of Joseph P. Moreira.—Edward Lenussi, Opponent.
    The extinguishment of a debt by payment must bo shown by reasonable certainly.

    Appeal from the Second District Court of New Orleans, Morgan, J.

      T. J. ds A. Gr. Semines, for opponent and appellant. John Culbertson and JB. Bermudez, for defendant.
   Land, J.

The opponent claims a balance of account against the succession of the deceased, amounting to $1787 45. Of this amount the District Judge allowed the sum of three hundred and forty dollars; and in other respects dismissed the opposition.

In the account is an item of $1050 for seven months’ services rendered to the deceased, at the rate of $150 per month. This item is fully proved by the evidence in the record; and must be allowed in the absence of proof of payment.

The circumstances on which the executor relies, for the purpose of showing payment, are too uncertain and remote to authorize the rejection of the claim for wages. The opponent proved the existence of his demand; and if it had been extinguished by payment, the executor should have shown it by evidence of reasonable certainty — which, in our opinion, he has failed to do.

It is therefore ordered, adjudged and decreed, that the judgment of the lower Court be amended; and that instead of three hundred and forty dollars, the opponent be recognized as a creditor of the succession o£ J. P. Moreira, for the sum of one thousand three hundred and ninety dollars, and as such that he be paid by the executor in due cornse of administration. And it is further decreed, that the judgment of the lower Court thus amended be affirmed; and that the succession pay the costs of this appeal.


author: Laud, J.

text:
    Mrs. Sarah L. McMurphy, wife of Oscar Roubien, v. Bell & Haggerty et als.
    Where an injunction was sued, out by the plaintiir restraining the defendants from selling her separate . property, seized as community property, for her husband's debt: and'where a legal separation of property had taken place, charged to have been obtained by collusion — Held: That the schedule of insolvent proceedings of her husband against his creditors, was proper evidence to show his embarrassed circumstances, and the' validity of her judgment against him.
    Appeal from the Sixth District Court of New Orleans, Howell, J.

      M. M. Reynolds, for plaintiff and appellant. G. P. MePheeters, for appellee.
   Laud, J.

This suit was commenced by injunction, to arrest the sale of a slave seized under an execution against the plaintiff’s husband, upon the ground that she had been separated in property from her husband by a judgment, and was the owner, in her own separate right, of the slave seized under the writ.

' The answer of the defendants denies the legality of the separation, and charges that the judgment had been obtained by collusion, and on insufficient evidence, for the purpose of próteeting the husband’s property from the pursuit oí his creditors. It likewise denies the plaintiff’s separate title; and further charges, that the slave is community property, and subject to seizure and sale for the satisfaction of her husband’s debts.

We are unable to pass upon the merits of the case, by reason of a bill of exceptions taken by the plaintiff to the ruling of the Judge on the trial in the court below. The plaintiff offered in evidence the schedule in the insolvent proceedings of her husband against his creditors, in the Fourth District Court, which was rejected by the Judge, upon the grounds that the schedule was res inter alios acta, and irrelevant to the issues under the pleadings. ‘The Judge erfeLin rejecting this evidence. The answer imposed upon the'plaintiff the b'ui'd&r.of establishing by proof the validity of her judgment; and for this purpose it was necessary for the plaintiff, under the pleadings, to prove the facts which entitled her to a judgment of separation in property from her husband, that is to say, to prove his embarrassed, circumstances at the date of her judgment. And in making this proof, the plaintiff had the right to offer the schedule which had been iiled in court as prima fade evidence of her husband’s insolvency at the date of his surrender; and then to trace his embarrassed circumstances by testimony back to the date of her judgment. The plaintiff could not be controlled in the order of introducing her testimony, and the fact that the surrender was subsequent in point of time to the rendition of the judgment, was no objection to the introduction of the schedule in evidence. Whether the schedule would have sustained the validity of the judgment, was a question relating to its sufficiency as proof, and not to its admissibility.

Under the pleadings in the ease, the only question of fact material, in respect to the judgment, is, whether the circumstances of the husband at the date of the judgment were so embarrassed as to entitle the plaintiff to a separation of property; for if so, the judgment is valid, and enabled the plaintiff to purchase property in her own name and right, and to hold it free from the debts and liabilities of her husband. The plaintiff is not seeking to enforce the money part of her judgment on her husband’s property adversely to his creditors, but to maintain her title to a slave purchased in her own name, and on her own personal credit, since the date of her judgment; and consequently, the question which lias been raised as to the amount of paraphernal property received and used by her husband, and for which the plaintiff has a judgment, is wholly immaterial to the merits of this case.

It is, therefore, ordered, adjudged and decreed, that the judgment of the lower court be reversed, and that this case be remanded for a new trial and further proceedings according to law, with instructions to the District Judge to receive in evidence the schedule in the insolvent proceedings of Oscar Roubien against his creditors, offered by the plaintiff on the trial of the case; and that the defendants pay the costs of this appeal.


author: Buohanak, J.

text:
    H. W. Smith v. Mr. and Mrs. Porter.—Wm. Kelly, Tutor, Intervenor.
    Where letters of tutorship set forth that the party had “ complied with the requisitions of the law to entitle him to loiters of tutorship,” it is evidence that bond had been given.
    The origin of the title and the relationship of the vendor and vendee are matters of genealogy ; which is a proper subject of perol evidence.
    Appeal from the Sixth District Court oí New Orleans, Howell, J.

      Durant & Ilornor, for plaintiff and appellant.' Bradford & Dan-caster, for defendants. Race <£• Foster, for intervenor.
   Buohanak, J.

Plaintiff claims a slave boy named John, as his property by virtue of a purchase made of one Mrs. Ealer. Mrs. Ealer purchased of one of tlie defendants, Mrs. Porter. The suit was brought by sequestration of the slave in possession of defendants. William Kelly, dative tutor of two minor children of a former marriage of the defendant Mrs. Porter with James S. Jones, intervenes and claims that the slave John belongs lo Ms wards by inheritance from their father. The first question which the record presents is raised by a bill of exceptions of plaintiff to the admissibility of a transcript of mortuary proceedings in Jones’ succession, on the ground that said transcript is not complete. It consists of a petition and order for a family meeting to appoint a dative tutor to the minors; the proces-verbal of deliberations of the family meeting, and judgment of homologation thereof; an inventory; letters of dative tutorship to the intervenor; and a petition and decree for the recognition of the minors as the heirs of James S. Jones. It seems that this record is sufficiently complete for the purpose for which it is offered, namely, to establish the quality of tutor and of heirs in the intervenor, and the minors represented by him. There is another objection stated in tbis bill of exceptions: that it does not appear the tutor gave bond, as required by law. But the letters of tutorship set forth that the intervenor had “complied with the requisitions of the law to entitle him to letters of tutorship.” This formula implies that bond bad boon given.

It is proved by two witnesses that the mother of the slave John formerly belonged to the grandmother of James S. Jones and Robert O. Jones, his brother. Robert O. Jones made a title to his brother. Abill of exceptions was reserved by plaintiff to the depositions of these witnesses, as establishing title to a slave by parol. But a written title is produced in connection with them, to wit, a notarial sale from Robert to James Jones; and the origin of the title, and the relationship of the vendor and vendee, are matters of genealogy, which is a proper subject of parol evidence; and is most generally, if not always, only susceptible of proof by parol.

We agree with the District Judge, that the slave John was the separate estate of James S. Jones; and that plaintiff’s vendor acquired no title by the axjparent sale made by the defendant to her. It is therefore unnecessary to examine the grounds of the argument of intervenor’s counsel against the reality of that sale.

Judgment affirmed, with costs.


author: Merbick, C. J.

text:
    The State v. The Judge of the Second District Court of New Orleans.
    Tho Judge, in grantiug an appeal demanded, shall state the amount of the surety to be given by tin* appellant, and the dajr on which the appeal shall bo returned. 0. W 574.
    ON the relation of Ernest Putnam, Ex’r, &e., praying for a mandamus.

      George L. Bright, for petitioner.
   Merbick, C. J.

The relator, as executor of the last will of Gideon Foster, deceased, filed an account and tableau of distribution. The same was opposed by John Culbertson, who claimed to be a creditor for $250; and also by another, who claimed to be a creditor for $25. Both oppositions were sustained, and the two sums were by the judgment of the court awarded the opponents. The court also struck from the tableau the legacies proposed, to be distributed to such of the heirs as are alien enemies, reserving to the Confederate States whatever right they might have to the same. The executor, the widow of tho deceased, and Samuel H. Kennedy, as agent and attorney in fact for certain of the heirs, filed a petition for a suspensive appeal.

The appeal was granted them, on giving bond and security ‘ ‘ as required by law. ’

They gave bond in the sum of two hundred dollars only. Thereupon, a rule was taken upon them by the opponents to show cause why the sus-pensive appeal should not be set aside on the ground of the insufficiency of the bond. On the trial, the rule was made absolute.

The present opposition is for a mandamus to compel the District Judge to grant relators a suspensive appeal on the bond they had filed.

The judgment rendered in favor of the opponents was for money, and amounted, as already said, to two" hundred and seventy-five dollars. Eor a suspensive appeal in such case, the law has fixed the amount of the appeal bond at a sum exceeding the above by one half, viz., $412 50. C. P. 575.

This, then, was the sum fixed by the order of the Judge, and the rela-tors could only perfect their appeal by complying with the order. Instead of so doing, they chose to give bond in a sum fixed by themselves (viz.) $200. Now, to allow parties to appeal on giving bond in such sums as they might please to fix, would abrogate article 574 of the Code of Practice, which grants the appeal only on the order of the Judge, whose duty it is to state the amount of the surety to he given by the appellamt. We are aware of no law which exempts successions (against which judgments have been rendered) from this rule. The cases in 16 L. B. 515, and 10 An. B. 345, do not make such exception. See the case of Keenan v. Whitfield, 15 An. 333.

It is, therefore, ordered, that the application for a writ of mandamus in this case, be dismissed at the costs of relators.


author: MebRick, O. J.

text:
    C. H. Allen v. L. H. Rodgers.—Thompson & Redwood, Intervenors.
    Where a salt was commenced by attachment, intervenors claimed certain rights, and their intervention was dismissed, and thereupon said intervenors in open Court appealed — Held; That as they gave the bond only in favor of the plaintiff, the appeal must be dismissed ; the defendant must be named as an obligee thereon. He was a necessary party to the proceeding in the lower court and equally so to the appeal. 11 An. 409.
    Appeal from the Fourth District Court of New Orleans, Price, J.

      Meld & Shackleford, for plaintiff. D. Q. Campbell, for intervenor. JS. Wooldridge, attorney ad hoe.

   On a motion to dismiss.

MebRick, O. J.

This suit was commenced by attachment, and fifty-three bales of cotton were seized as the property of Rodgers.

The intervenors claimed certain rights upon the cotton, and made the plaintiff and defendant, through his curator ad hoc, parties to their petition of intervention. On the trial of the case the petition of intervention was dismissed, and thereupon the intervenors, by motion in open court, appeal. They have however given bond only in favor of the plaintiff, Allen.

The awrator ad hoc, who filed the answer for the defendant in the lower court, appears in this court and moves to dismiss the appeal, on the ground that the defendant is not named as an obligee in the bond.

The defendant was a necessary party to the proceeding in the lower court and equally so to the' appeal. He ought therefore to have been named as an obligee in the bond, and the objection taken by the curator ad hoc is fatal. V. Robert, Ex’x, v. Ride et al. 11 An. 409.

It is therefore ordered, that the appeal in this case be dismissed, at the costs of the appellant.


author: Lamd, J.

text:
    Wm. H. Abrams v. Wm. and James Jay.
    Where a rule is taken to set aside an order of seizure and sale, and dismissed — Held: That where the plaintilT assented to the rule by going to trial, without objection, on its merits, the time occupied by such proceedings interrupts the delay allowed by law to the defendants to prosecute a suspensive appeal.
    Appeal from tlie Sixth District Court of New Orleans, Ilowel l, J.

      Thomas Gurry, for plaintiff. Hace & Foster, for defendants and appellants.
   On a motion to dismiss.

Lamd, J.

This case comes before us on a suspensive appeal taken by the defendants from an order of seizure and sale granted on certain mortgage notes.

The plaintiff moves to dismiss the appeal, on the ground that it was granted after the lapse of more than ten days from the notification of the order of seizure to the defendants.

The facts are these: The order of seizure and sale was granted on the 28th of May, 1861, and was on the same day notified to the defendants; three days afterwards, to wit, on the 1st of June, the defendants took a rule on the plaintiff to show cause why the order should not be set aside on certain specified grounds. On the 8th of June following, the rule was discharged; and on the 17th thereafter a suspensive appeal was granted by the Judge from the order of seizure of the 28th of May. Three days elapsed from the notification of the order to the taking of the rule to set it aside; and from the discharge of the rule to the granting of the appeal, nine days elapsed, including however two Sundays.

It may be observed, that if the days during which the rule was pending be not' computed, then the appeal was taken on the tenth judicial day from the notification of the order, and was in time to suspend its execution. The District Judge appears to have considered the rule as suspending further proceedings in the case; and consequently as interrupting the delay allowed by law to the defendants to prosecute a suspensive appeal.

As the plaintiff assented to the rule by going to trial, without objection, on its merits, we must for the purposes of this case, consider the proceeding as authorized by the rules of practice, and as having the legal effect given to it by the District Judge in granting to the defendants a suspen-sive appeal.

It is therefore ordered, adjudged and decreed, that the motion filed by the plaintiff to dismiss the appeal in this case, be overruled.


author: Voorhies, J.

text:
    George Cronan v. The City of New Orleans.
    Presumptions are consequences which the law or the Judge draws from a known fact to a fact unknown. Presumptions, not established by law, are left to the judgment find discretion of the Judge. C. 0. 2263,2267. Presimptfa clicitur ex eo quod pUrumque fit.

    Appeal from tlie Sixth District Court of New Orleans, Iiowell, J.

      -T. Livingston, for plaintiff and appellant. J. ,T, Michel, for defendant.
   Voorhies, J.

The plaintiff’s demand for the value of services rendered pursuantly to contract, is met on the part of the defendant with the plea of payment.

The defendant exhibited, on the trial below, a warrant purporting to have issued for that purpose, and which was found among the papers of the City Treasurer. This document, however, does not bear the plaintiff’s endorsement, although former warrants are by him endorsed; nor do the books of the Comptroller and of the Treasurer show any entry concerning the warrant in question.

These facts would seem to indicate that this warrant had never been in the plaintiff’s possession; but when it is kept in view that several years elapsed without any claim being pressed by him against the City; that a subsequent and last installment, amounting to 13000, was duly paid over; and that nothing short of fraud and collusion between two officers could account for the fact that the warrant had never been held by the plaintiff, we cannot but adopt the conclusion of the District Court, that the fact of payment is substantiated. C. C. 2263, 2267.

Judgment affirmed.


text:
    Rorert Hagan v. J. R. Cox, Syndic.
    Where a transcript is incomplete by the fault of the plaintiff and appellee, who has withdrawn tbo instrument on which was founded the action, and which was annexed to and made part of the petition, the canso must be sent back for a new trial.

      Appeal from the Third Dist. Court of New Orleans, JDuvigneaud J.

      J. 0. 'Bolling, for plaintiff. Durant & Hornor, for defendant and appellant.
   Duffel, J.

The transcript in this case being incomplete by the fault of the plaintiff and appellee, who has withdrawn the instrument on which was founded the action, and which was annexed to and made part of the petition, the cause must be sent back for a new trial, as we cannot revise the judgment of the lower Court.

It is therefore ordered and decreed, that the judgment of the District Court be avoided and reversed; that this cause be remanded for a new trial, and that the appellee pay the costs of the appeal.