author: Eustis, C. J. Rost, J. Slidell, J. King, J.

text:
    Blackly et al. v. Matlock et al.
    Where third persons intervene in an action by attachment, basing their claim to the property attached upon a contract of consignment which presupposes the existence of a debt, proof of tlie debt is essential to entitle them to recover.
    A party must be held to the material and substantive allegations of bis petition; nor will he be permitted to derive any advantage from their contradiction or obscurity.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J. The plaintiffs sued the defendants on a promissory note for $2,240, and attached, at New Orleans, on the 16 February, 1846, as defendants’ property, two flat boats, with their cargoes of pork and beef. White, Warner Sf Co. intervened, alleging: That the defendants were indebted to them in or near the sum of $26,000, for acceptances of their drafts, for letters of credit given to them, and for debts of defendants’ which they, the interveners, had become liable for, or had paid ; that the pork and boef had bee'n shipped by plaintiffs to New Orleans, to be there re-shipped to Philadelphia by petitioners, or by their agents, for account of intervenors, in pursuance of previous arrangements with defendants; and that, on the 13th of February, 1846, the intervenors, through one of their firm then in New Orleans, received from defendants a bill of lading for said pork and beef, which, when sold, was to be placed to their account with intervenors upon their aeceptanccs, and for the amount of defendants’ debts paid, or assumed by, said intervenors ; that said bill was assigned to the order of Joseph H. White, one of the intervenors’ firm, and by said assignment the latter became the bond fide owners of the cargoes of the two boats, or sufficiently . so to entitle them to a privilege by preference over all other creditors of defendants ; that all said acceptances for defendants, and their indebtedness to plaintiffs, took place previous to the attachment of said property, and that the shipment was intended as part payment of the same ; that, after deducting the value of said pork and beef, defendants will still be indebted to intervenors nearly $10,000. The intervenors pray for judgment against the defendants, for such an amount as may seem to be due ; that the two flat boats, with their cargoes, may be adjudged to belong to them ; and that they may have privilege, by preference over plaintiffs and all other creditors, for the amount of their acceptances, and of the indebtedness of defendants to them by reason of the payment of the debts of defendants, and of the possession by the latter of letters of credit upon intervenors for $20,000, and other causes to be shown at the time of the trial; and for general relief, &c.” The plaintiffs answered the intervention, by denying generally all the allegations contained in it. They also denied that the intervenors have any privilege or preference over other creditors on the property seized, or that they are owners of said goods or cargoes as alleged. On these pleadings, and on the evidence stated in the opinions infra, judgment was rendered for the plaintiffs against the defendants for the amount claimed, with a privilege on the property attached, and the intervention was dismissed. The intervenors alone appealed.

      1. A. Jewett, for the plaintiffs.
    The first question that presents itself, under the peculiar circumstances of this case, is, whether it can be considered as coming under the general principles of the law of affreightment at all. The intervenors do not occupy the position of holders of a bill of lading. A bill of lading is a contract for the conveyance of cargo, and the master signs it as agent for the owners of the vessel, and by such bill of lading the master engages, as a common carrier, to transport the goods to their destination. 3 Kent’s Com. 207, third edition. Now it is clear that, to every contract there must be two parties. To the contract of affreightment, evidenced by a bill of lading, the parties are; 1st, the owner of the merchandize carried; 2d, the carrier. But if both these characters are united in the same person, as in the present case, the mere formality of a bill of lading being made and signed by the captain of the vessel, does not create a contract in a legal seffse. For, as already stated, the master of a vessel signs the bill of lading merely as the agent and representative of the owner of the vessel'; but if that owner, as in this case, be no other person than the shipper himself, where is that concurrence of two minds — that aggregalio mentium — spoken of in ■ the case of Beat v. Kiernan, in 6 La. 407, 415. The intervenors do not hold a legal bill of lading. The only foundation of the intervenors’ claim thus failing, their claim itself must fail. The endorsement upon the bill of lading is evidently nothing but an order upon a servant or agent, which of itself constituted no delivery in law, but only gave the intervenors a right to require the delivery from the said agent or servant. There is no proof of the acceptance of said order. Such acceptance is necessary to complete a delivery, and to put personal property beyond the reach of an attaching creditor. C. C. arts, 2243, 1316, 1917. A mere order is not a delivery. 4 Mart. 20. 5 Mart. 24.

      We have seen that the intervenors rests their claim for a privilege, upon an instrument which they call a bill of lading. The law on the subject is to be found in Bullard & Curry, 165. Let it be remembered that privileges cannot be extended beyond the letter of the law; that they are stricli juris. C. C. art. 3152. 17 La. 443. 1 Rob. 42. No creditor is entitled to a privilege unless he possess the particular' documents, or is invested with the certain character and capacity, required by law. Now, the instrument upon which intervenors claim a privilege is not a bill of lading in contemplation of law; and the intervenors, in possession of it, can no more enjoy through it the extraordinary right called a privilege, than if they were in possession of a mere naked order by Wm. L. Matlock Sf Co., on their agent, Captain McReady, to deliver the cargo in question to While, Warner Sf Co. This view of the case, if adjudged to be sound, settles the question, and authorizes a confirmation of the judgment appealed from.
    But, even supposing this difficulty out of the way of the intervenors, there is still another objection to their claim. It is clear that they were bound to establish the exact balance of account between themselves and defendants, in order to ascertain the extent of their superior right as holders of a bill of lading over the attaching creditors. Intervenors are considered as plaintiffs, and they must make out a complete case. C. P. art. 392. They are held to the same certainty and completeness of proof with the original plaintiff. This has not been done by White, Warner Sf Co.

    Why has not this been done ? If they are creditors of Wm. L. Matlock Sf Co., why have they not proved to what amount they are creditors 1 Their inaction in this respect leaves the way open to the presumption that, a complete presentation of their transactions with Matlock Sf Co. would be unfavorable to their pretensions in this suit. The plaintiffs in intervention have not made out their case. They have not established a definite claim against the defendants. They cannot invoke the action of a court of justice in their behalf. They have not proved the amount for which they would have judgment. No original plaintiff could ever get a judgment on such pleadings and tesii-" mony; nor can an inlenenor succeed where an original plaintiff would, fail.

    But, supposing all of these material objections removed, there aré still other reasons Why the intervenors’ claim should be rejected, and the judgment of the court a qua sustained. In their petition in intervention, While, Warner Sf Co. claim, by virtue of the assignment of the so called bill of lading, to be owners of the property attached, or sufficiently so to entitle them to a privilege by preference over all other creditors. How a creditor can become sufficiently owner of a thing, to have a privilege upon it, since ownership, according to C. C. art. 3244, is one of the means of extinguishing privileges, remains for the intervenors to show. I shall endeavor to prove that the interyenors were never owners of the property attached, and that they never had a privilege upon it.
    Placing out of view, for a moment, the cargo attached, and considering only the right of the intervenors to the flat-boats. I find that the endorsement upon the bill of lading purports to transfer only the freight or cargo in the boats ; nothing is said about the boats themselves. Now, the boats as well as the cargo, were attached, as the property of Wm. L. Matlock Sf Co. The endorsement therefore, does not convey to White, Warner Sf Co. any right to, or over, the boats. Moreover the privilege contended for, does not ex- ■ tend to the vessel in which goods are transported. It is expressly confined to the goods. C. C. art. 3214. Bullard and Curry, 165. Zacharie v. Beirne, 6 La-402. There can then be no doubt at all of the appellees’ right to a judgment for the value of the said flat boats.
    I now come to the subject of the attachment of the cargo in question, and maintain, in the first place, that White, Warner 4' Co. never were the owners of it. It was seized in the hands of “ Captain McCready, who brought it to the place where it was seized,” says the petition of intervention. It was seized in the hands of defendants’ agent, and was thus legally in the possession of defendants themselves- 6 Rob. 189. Wilson v. Smith, 12 La .376. The cargo was “ to be sold on commission” by White, Warner Sf Co. The testimony clearly shows the intention with which the bill of lading was assigned. It was not to transfer any ownership; it was merely intended to give to White, Warner 4* Co., a right to take possession of the property, to enable them to sell it, and, having deducted their commissions, to account lor the balance of the proceeds, to Matlock 4" Co.
      This conclusion is warranted, not only by the testimony introduced, blit also by the petition of intervention itself, in which the intervenors expressly allege that said cargo, when sold, Was to be placed to the account of Wm. L. Matlock Sy Co. With While, Warner Sy Co. upon their acceptances. The bill of lading had been assigned for that purpose, and no other; such purpose may be proved, and it will govern in any interpretation of the instrument. Walter v. Moss, 2 Washington, C. C, Rep. 290. 8 Pick. Rep. 107,362. 16 Ibid. 476. It is then beyond all dispute, that the claim of While, Warner Sy Co. to be adjudged owners of the cargo attached, has no basis to rest upon. It is not authorized by the proof; moreover, the ownership is claimed by them only in the alternative. In truth and fact, Wm. L. Matlock Sy Co. were owners ol' the property.
    I proceed now, in the second place, to consider the claim set up by the intervenors, to a privilege on the cargo attached. This claim is utterly inconsistent with their claim of ownership. It is also utterly inconsistent with defendants’ denial of ownership. For, if defendants be not owners of the property attached, who are its owners, unless it be White, Warner Sy Co.? but the testimony shows the contrary; and if owners, what becomes of their claim for a privilege ? It is submitted that there is some confusion, inconsistency and duplicity in the intervenors’ and defendants’ pleadings. If not impossible, it is certainly difficult to reconcile the discordant parts with each other, and some very important allegations, while they are incompatible with each other, are absolutely unsustained by any legal proof whatever. This claim has nevertheless been preferred, and its validity must be examined. Let.it be remembered, the intervenors do not allege - that they are “consignees,” “factors,” or “commission agents;” they do not make use of the term, “advances.” None of these expressions are to' be found in the petition of intervention. The intervenors do not allege that they had “received” the cargo, nor that they had received an “invoice ” of it, or a letter of advice, previous to the attachment, or at any time. They do not thus seek to bring themselves precisely Within the terms of the law, as found in Bullard and Curry, 165. They claim merely as assignees of a bill of lading. Now it is respectfully maintained that, although creditors of the consignor,.(if under the circumstances of this case, and particularly the incompleteness of their proofs, they should be deemed such,) yet they are not entitled to a privilege on the goods identified by the bill of lading, if those goods were not originally consigned to the claimants themselves of said privilege. This proposition has. been established by one of the highest tribunals, and I shall presently show that the authority and the reasons for it are directly in point. According to- this authority, an assignment of a bill of lading vests in an assignee merely the right to take possession of the goods therein mentioned, to sell them, and to.account for their proceeds to the owner of the same, after the assignees’ commissions have been deducted. Such an assignment does not confer a privilege upon the assignee. He is made, only so far a consignee of the goods, as to authorize him to act about them as agent for their owner; as the law expressly say's, he is a “ mandatary ” of the consignor; he has no privilege.
    It is well known, that a creditor claiming a privilege, must, before he can be adjudged entitled to it, bring himself precisely within the terms of the law allowing privileges ; they can be claimed for those debts only, to which they are expressly granted by the Code, art. 3152. They cannot be extended by analogy, implication, or construction. They are stricii juris. 17 La. 443. 1 Rob. 22. To entitle a consignee, commission agent, or factor, to the privilege contended for by the intervenors, three conditions are by law indispensibly necessary; if either condition be absent the privilege does not exist. First, a balance must be due the consignee, commission agent, or factor, for general advances ; and secondly, the goods, or an invoice, or a bill of lading of them must have beeu received by the consignee, commission agent, or factor, previonsly to the attachment; and thirdly, the goods must be consigned to him — a lui expedites — who claims the privilege. Bullard and Curry, 165. C. C. art., 3214.
    Now, the intervenors have not had the precaution to place themselves within the last enumerated condition. They claim a certain privilege, accorded by law in certain enumerated conditions, without having complied with tho requirements of the law on the subject of privilege. The goods were consigned not to the intervenors, but to Wm. L. Matlock Co.

    The point in question, has never been made before any of the courls of this State, so far as the Reports inform us. In all the cases which I have examined, in which a privilege like that contended for has been claimed, the claimant has been the original consignee of the merchandize. But the question has been raised and settled in France, by the Court of Cassation, in an interpretation of art. 93, of the french Code of Commerce, which article is substantially, and indeed, almost word for word, like art. 3214, of our Civil Code. It is to be remarked that, art. 3214 has been amended by the act of February 17th, 1841, found in Bullard and Curry, 165. But the amending act does not change the essential condition found in art. 3-214, corresponding to the condition in art. 93 of the Code of Commerce, to wit: that the merchandize on which the privilege is claimed, must be originally consigned to the very person who claims it; that condition is found in art. 3214, in art. 93 of the Code of Commerce, and in the law of February 17th, 1841.
    I here transcribe art. 93, of the Code of Commerce:
    ■ “ Tout commissionaire qui a fait des avances sur des marchandises a, lui ex-pédiées d’un autre place pour étre vendues pour le compte d’un commettant a privilege pour le remboursoment de ses avances, intéréts, et frais, sur la valeur des marchandises, si elles- sont & sa disposition, dans ses magasins, dans un dépót public, ou si, avant qu’ elles soient arrivées, il peut constaten par un connaissement, ou par une Jettre de voiture, l’expedition qui lui en a été faite.” Now, a question arose in France, in 1824, on the point which I make before this court. As article 3214 of the Civil Code is taken expressly from article 93 of the Code of Commerce, any interpretation of this latter by the highest tribunal in France, will, it is respectfully urged, receive great consideration from this court. The case is to be found in the decisions of the Court of Cassation for July 28th, 1826, and it seems to me to be completely decisive of the question. The principle established, is as follows: “If the assignment of a bill of lading, by means of an order, gives to the bearer the right to pursue the sale of the merchandize, it does not confer upon him any privilege upon this same merchandize, when it has not been consigned to him,, llimself. Articles 73, 95, and 281.
    “ The house of Leseigneur 8f Co. of Havre, proposed to the house of Brindeau Sf Co. at Paris, to accept bills drawn by a gentleman of Callieux, and they gave as guarantee, a bill of lading, evidencing a cargo of sixty-seven barrels of sugar not yet arrived. The house of Brindeau Sf Co. accepted the bills. The house of Leseigneur failed. The' ship arrived at Havre, and Messrs. Martin, Fouehe SfSon, by virtue of the aforesaid bill of lading which had been forwarded to them, took possession of the sixty-seven barrels of sugar. The syndics of the bankrupt Leseigneur, enjoined Martin, Fouehe SfSon, from disposing of the sugars. There was an application by Martin, Fouehe &c Son, in the name of the house of Brindeau Sf Co. of Paris, (whose agents Martin, Fouehe Sf Sow were,) to dissolve the injunction. There was judgment by the Tribunal'of Commerce of Havre, rejecting said application, and declaring null and of no effect, the assignmentof the bill of lading. From this judgment there was an appeal to the court at Rouen.
    The decree of the court at Rouen was in these terms
    “ Consideringthat privileges cannot be extended; that this, claimed by the-house of Brindeau Sc Co. reposes on no text of the law. That they are not commission agents, having privilege in the sense of the article 93, since the' merchandize was not consigned to them at Paris ; that the bill of lading eve tv directs that it is to be delivered to the house of Leseigneur at Havre; that so,, the consignment not having been made by the house of Leseigneur 8f Co. toBrindeau Sf Co., these latter cannot claim a privilege, in virtue of the bill-of lading, of which they are bearers. That indeed, according to article 281, a bill of lading, may be to order and negotiated, but that the negotiation of a bill of lading cannot, more than that of an effect of commerce, give a privilege to him-who is in possession of it. That the bearer of a bill of lading which has been assigned to him by means of an order, is nothing but the mandatary of the proprietor of the merchandize. That the article 93, indeed accords to him the right to sell it on account of the consignor, but he has not a privilege, except in so far as this consignor has made to the mandatary himself the consignment of the objects enumerated in the bill of lading which has been addressed or negotiated to this latter.” From this decree, Brindeau Sf Co. appealed.
    The Court of Cassation affirmed the principles decided by the court of Rouen, as follows;

      “ Attenduque, dans lecohcours des créanciers, on nepeut admettre de privilege que lors qu’ il est établi par laloi; que si Particle 281 du Code de Commerce dispose que le connaissement peut étre á ordre, ou au porteur, il n’en résulte pasqu’il confére au porteur un privilége sur les marchandises mentionnées en ce connaissement; que sa remise entre ses mains l’autorise seulement d poursuivre la veute de ces marchandises, s’il est nécessaire ; que Particle 93 du Code de Commerce, par exception aux régles générales, établit bien un privilége, mais il ne concerne que le commissionaire qui a fait des avances sur la merchandise á lui expedite d’un autre place, pour étre vendue au compte du commettant, et encore faut-il qu’elle soit d la disposition de ce commissionaire, dans ses magasins, ou dans un dépót public, ou que l’ expedition lui en ait élé faite, ce qui ne se rencontre point dans la cause ; d’oü résulte queParrétattaqué, en refusant le privilége par eux reclamé, loin de contravenir aux lois, n’a fait que s’y conformer.”
    I rely with confidence upon this decision, and the general principles and reasoning which sustain it. It is very clear that, if the principle here contended for be not recognised, any consignee of goods, upon which an attachment has been levied, may, by assigning the bill of lading of the goods to a creditor of the owner, and ante-dating the endorsement, though such has not been done in the present case, completely nullify any legal attachment whatever.

      C. A. Jones, for the appellants.
    1. The property attached was assigned to the intervenors by a transfer of the bill of lading, three days previous to the attachment by plaintiffs. The property was seized befored it arrived in New Orleans by the sheriff of the parish of Jefferson, which prevented the master from delivering his cargoes^ They were slopped in tran,situ. It is clear that, after the seizing of the bilC of lading; the right of Matlock Co. to stop the property in transitu, ceased. Their creditors could not have a greater right than they themselves possessed. See Stubbs v. Lund, 7 Mass. 453. lllsly v.» Stubbs, .9 Mass. 65. Waller v. Ross, 2 Washington Cir. C. R. 283. Summervill v. Elder, I Binney, 106. Cunard v. Atlantic Insurance Company, 1 Peters S. C. R. 386. Wood v. Roach, 2 Dali. 180. Hartley. Smith, 1 Bos. & Pull. 563. Abbott on Ship. pp. 367 to 390. 2 Rob. 342. Rybergv. Small, 2 Wash. Cir. C. R. 294, 403.
    2. An attachment before delivery, cannot defeat or destroy the lights of a consignee, or his assigns, lor value. The delivory was complete, in a legal sense, by the transfer of the bill of lading, and would be so even if the bill could only be considered as a mere order. Hollingsworth v. Napier, 3 Caines, 162. W.hiiehouse v. Frost, 12 East. p. 14. Abbott on Shipping, 375.
    3. The property attached was shipped to intervenors to cover large advances and acceptances. They are, by the laws of Louisiana, entitled to a privilege upon it; they have received a bill of lading and letters of advice, all of which are upon record; they are thus brought within the provisions of the act of February 17th, 1841, amending art. 3214 of the Civil Code.
    4. The intervenors, in their petition, claim the-boats as well as the cargoes, but brought no proof to show that they belonged to ' Matlock Sf Co., having found that were owned by the captain (McReady), who brought them to New Orleans.
    5. It was impossible for the intervenors to show a final account between themselves and defendants. Their bookkeeper, Voight, states that, at the time his deposition was taken, no property had been received. The intervenors were forced to take out commissions immediately, and could not wait for the arrival of the different shipments. The court will at once see the difficulty under which they labored. If any importance is attached to this objection, they are prepared, upon a new trial, to show an exact statement of their affairs; their loss by their transaction with the defendants has been more than $10,000, after crediting them with every shipment.'
    6. It is alleged that the bill of lading cannot be considered as such, because the consignor and consignee are the same. This is a very common form of a bill of lading. One half the produce shipped to New Orleans, has no further protection than is afforded by such bills. It is a form recognized by all the works that treat upon the subject. On the same principle a bill of exchange, or note payable to the order of the drawer or maker, would not be recognized as a negotiable instrument. By the assignment to White, Warner Co. this bill was clothed with all the formalities necessary to a contract.
    7. The exact amount of Matlock Co’s, indebtedness to White, Warner <$' Lb. is dearly made out, so far as regards the acceptances. Butin addition to this, they were entitled to commissions for selling the property when received; these commissions could not beset forth until the sale of the property. Their not being able to settle this part of the case cannot interfere with the indebtedness already shown to exist, and destroy their claim upon the property.

      Grymes, on the same side.
    In this case the judges being equally divided in opinion, the judgment of the court below, under art. 68 of the constitution, was affirmed.
   The judges delivering their opinions separately.

Eustis, C. J.

The plaintiffs attached, as the property of the defendants, two flatboats, with their cargoes of beef and pork, for a debt of $2,240. The attachment was levied on the lGth of February, 184G, in the parish of Jefferson, While, Warner ¿SfCo., of Philadelphia, intervened, and claimed the beef and pork attached as the holders of a bill of lading, which came to their hands previous to the attachment, viz. on the 13th February. There was a judgment for the plaintiffs against the intervenors, and they have appealed.

The defendants, who were the shippers and owners of the cargoes, were also the owners of the boats, and the district judge considered that the document under which the intervenors claim, though in point of form a bill of lading and signed by the masters of the boats, was not, under the commercial law, a bill of lading possessing the privileges and effect of such an instrument, inasmuch as there were no competent parties to the contract of affreightment, -the captain or master signing it as the agent or representative of the owner. But to this it is to be observed, that, there is a personal contract, between the owner who ships goods on board of his vessel and the captain, by the bill of Jading, and that by transferring the bill of lading the owner binds himself, and makes the contract with the person to whom it is assigned. The district judge was also of opinion that, the intervenors had not established their debt with proper certainly, and that, under the allegations of their petition of intervention, their right to hold the property under the bill of lading could not be supported.

Had we this ease before us on the qn estion of property, as presented by the bond fide possession of a bill of lading for produce on transit from the place of shipment to that of its destination, we then should have to determine on tho right of the creditor to interfere with and break an ordinary mercantile transaction, while in progress towards its completion. But as we understand the issues which the intervenors have thought proper to set their claims upon, their right to hold and retain the property attached is based upon a debt which they undertook to establish, and of which evidence was adduced, and which was due before the trial of the cause. There were various transactions between the intervenors and the defendants, and other shipments made, besides this, of western produce, which was sold on commission by the intervenors in Philadelphia. We have no clue to the state of the accounts between the parties, and non conslat that the defendants owe the intervenors, their factors, a dollar. In the issues tendered by the intervenors, the plaintiffs joined, and under them the testimony adduced was taken by commission, and at the trial, though the bills accepted by the intervenors were long since over due, they were not produced, and no evidence of their payment by the intervenors was given.

Under this state of facts, as presented by the intervenors themselves, we are bound to pass judgment. Can we adjudge this case solely on the apparent rights of While, Warner ^ Co. under their bill oí lading, as they existed on 'the day of the attachment, or on their rights as they have placed them before us on the trial of the cause, and under their own evidence? We do not understand that a party is permitted to escape from the consequences of his own substantive allegation, made in his pleadings, even if it should defeat his right to recover absolutely. The right -of property which the intervenors claim in this shipment is, by themselves, based upon the contract of consignment or of pledge, which presupposes the existence of a debt; and, if that debt has ceased to exist, what becomes of their right? Suppose the property itself were under the control of the court, instead of being, as it is, represented by the bond — - we should not be at liberty to give it to the intervenors, under the evidence. They being merchants, and their insolvency not being even intimated, and the drafts being overdue, it is obvious that they have been paid, but not by the intervenors, or they could have produced them. The intervenors are actors ; their case must be determined as they have presented it by their allegations and their evidence.

They ask, in their intervention, for judgment against the defendants for such sum as may be due, and by preference over the attaching creditors. It is true, that there is also an allegation that, 'by the assignment of the bill of lading, they became the owners of the cargoes consigned to them, and that there is an alternative prayer in their petition, “ that it be adjudged that the two flat* boats, with their aforesaid cargoes belong to your petitioners intervening, or that they have privilege” over the plaintiffs, &e. But it is equally clear that the alleged ownership is based exclusively on their being in advance by their letters of credit and acceptances to the defendants; and that it depended exclusively upon that condition, and, if there was no debt, there was no ownership. This again is a question of practice, and one of those which never ought to be presented to bile court. The rules concerning the requisites of petitions and pleadings ought by this time to be understood. The party intervening in this case must be-held to the material and substantive allegations of his petition, and can be permitted to derive no advantage from their contradiction or obscurity, to the detriment of .other parties, who have followed in all respects the regular and usual mode of proceeding. Barrett v. Zacharie, 2 Ann. R. 655. De l' Homme v. De Kerlegand, 4 La. 360. Code of Practice, arts. 149, 172, 393, 394.

Rost, J.

I concur with the Chief Justice, for the reasons given by him.

Slidell, J.

Before stating the material facts in this case, a brief notice of the pleadings is necessary. After the levy of the attachment by the plaintiffs, merchants of Cincinnati, White, Warner 8f Co. filed their petition of interrvention, in which they allege that they are the bond fide owners of the property attached, by virtue of a bill of lading transferred to them before the attachment; that they came under acceptances a-nd liabilities for Matlock dj* Co. for about the sum of $26,000, in pursuance of a previous agreement and letters of credit, by which the intervenors were to pay $6000 for the defendants, and also accept bills for them, and be covered by shipments; that the property attached was shipped in fulfilment of such agreement, and, having been received at New Orleans by White, one of the intervenors’ firm, was to have been forwarded to Philadelphia to them,' for sale, the proceeds to be placed to account of the advances ; that the intervenors are the owners of it, or at least are entitled to a privilege upon it. The prayer is alternative, that they be adjudged the owners of the property attached, or that they be recognized as privileged creditors. Such I consider the fair substantial purport of the petition of intervention, although it is inartifieially drawn. The answer of the plaintiffs, who made no exception to the intervenors’ pleading, accords with this view. They not only deny that the intervenors are creditors of superior rank, “but also expressly deny that they are owners of the property.” Under these pleadings I think the intervenors entitled to have their rights considered upon both points: first, had they at the date of the attachment such an ownership as placed the property, on its transit through N.ew Orleans to Philadelphia, beyond the reach of an attaching creditor of Matlock By Co.; and secondly, if not entitled to have the property discharged from the attachment, are the intervenors entitled to a decree of privilege upon the property in the hands of the sheriff. I am of opinion that, under our rules of pleading, such an ¡alternative prayer is admissible; it seems to me not a case of inconsistent pleading, within the intendment of the Code of Practice. 'The case is different from that of He L’ Homme, curator v. He Kerlegand, 4 La. 360. There the court said: “ The suit is brought to recover certain property, and at the same time to enforce the payment of a note due by the defendant ¡to the deceased. It appears very clearly in evidence that this note was given in payment of the property sued for; and it is equally clear that two such demands cannot be cumulated in the same petition ; they are inconsistent, and by an express provision of law, one excludes the other. Code of Practice, art. 149.” Iu .the case of Barrett v. Zacharie, the reason for remanding was that, the plaintiffs’ pleadings had not presented his real grounds of attack, and the defendant, having been taken by surprise, was not permitted to suffer by an obscurity of pleading for which his adversary was in fault.

Being of opinion, therefore, that the intervenors are not excluded by defective pleading from an examination of the full merits of their cause, I proceed to state briefly the case, as presented by the evidence.

It appears that Matlock By Co. and White, Warner By Co. had commercial dealings with each other, on previous occasions. The former were western dealers in pork, raising funds by drafts on the intervenors, which were provided for by shipments to them. The attachment was levied on the 16th February, 1846; on the 13th February, White, Warner By Co’s house, by their partner then present at New Orleans, got the bill of lading for the property attached, and was making arrangements for its shipment to Philadelphia. This transfer of the bill of lading was in pursuance of a previous agreement, as follows: In October, 1845, the defendants, in Indiana, addressed the intervenors at Philadelphia, informing them that they were collecting large supplies of live stock, and wanted funds; that they had a debt of $6000 to pay to parties in Philadelphia, which they desired the intervenors to pay for them ; and also desired letters of credit for $15,0.00 or $20,000, to be covered by promised shipments, as on previous occasions. The intervenors acceded to this proposal, gave the letters of credit, accepted drafts in favor of the Philadeldhia creditors for $6,000, which they subsequently paid, to wit, in the spring of 1846 ; they also accepted bills of the defendants, drawn upon the letters of credit, to the amount of $21,000. At the time when the testimony was taken under commission by the intervenors these latter acceptances had not matured; but it is proved that they had been given, and that the acceptors had made arrangements to meet them. No provision was made for them by the defendants, save by shipments of produce not sold at the time of taking the testimony; but the value of which, including that in controversy, it is satisfactorily proved would not cover the acceptors.

I consider these facts as establishing in the intervenors such an ownership of the property attached, acquired by them iu good faith and in the usual course of mercantile dealing, in pursuance of a fair antecedent agreement, as placed the property beyond the control of the defendants, and beyond the reach of attachment upon its transit. The intervenors were entitled to have it all pass undisturbed to its destination. If property could be thus arrested on its transit, and an acceptor, whose name is out on the faith of the shipment, be left to meet his acceptances out of his own funds, while the property is locked up in transitu by the process of a foreign court, into which the distant consignee is dragged to litigate, commerce would become so dangerous that no prudent man would engage in it. I do not conceive that the absence of proof that the acceptances have been all paid, changes the nature of their case. The intervenors made themselves primarily liable by accepting the bills; by this agreement, and the transfer of the bill of lading, the property fell under their qualified ownership, to enable them to meet the acceptances. They have proved a payment of Í6000, and their liability for the residue is not shown to have been removed. Even if White, Warner Sf Co. have not taken up those bills, yet, in the absence of proof that the defendants have themselves taken them up, we must consider the acceptances as outstanding, and the intervenors still primarily liable. Moreover, the agreement entitled them to have the selling of the property in Philadelphia, and thus earn their commissions, which formed part of the consideration for putting out their names.

It is proper to add that, there is no proof of a fraudulent combination to cloak the property, nor do I see any reason to suspect it*

On the first point, therefore, I think the case is with the intervenors, and that there should be judgment in their favor setting aside the attachment. It is not necessary, if the above views be correct, to examine the second point.

King, J.

I concur in the foregoing opinion, prepared by Slidell, J., for the reasons by him stated* Judgment affirmed.


source: Caselaw Access Project

author: Slidell, J.

license: Public Domain

text:
    Bordelais v. Maugars.
    Where, in an action on aforeign judgment, the petition alleges that a note, which was the original evidence of the debt, is merged in the judgment, and the action cannot, under the evidence, he maintained upon the judgment, the petition must be dismissed. The’ action cannot, under the pleadings, he sustained on the note.
    APPEAL from the Parish Court of New Orleans, Maurian, J.
    Sigurand Bonford, for the plaintiff.

      Pillé and LeGardeuf, fertile appellant*
   The judgment of the court was pronounced by

Slidell, J.

The petition alleges that, in-1823, the plaintiff was the holder of a note of the defendant’s, payable in that year. That it was protested at the town of Clermont-Ferrand in France, where the parties both resided; that, in 1824, the plaintiff brought suit against the defendant upon it, before the Tribunal of Commerce at that place, being a court of competent jurisdiction; that, after due citation, such proceedings were had that, in that year, the defendant was condemned to pay the amount of the note, interest, and costs; ■which judgment, petitioner avers, is still in full force and effect, not in any wise satisfied, reversed, or annulled; that execution was taken out on the judgment, and returned; and that signification thereof, at the 'defendant’s domicil, was duly made.

At, the trial of the cause a transcript of the proceedings of the french tribunal iip to judgment, was offered and received. Certain documents were also offered, some of which purported to be the signification or notice of the judgment, and demands of payment. The latter documents wóre properly rejected. They were not attested by an american consul or vice-consul, residing in France, nor by any certificate under the great seal of France, or other competent authentication.

The judgment having been rendered by de fault, and there being no evidence before us of its execution, the defendant contends that it Was of no effect in that country, and cannot be the basis of a judgment here. Both parties have assented that We should take notice of the frefich law, as exhibited by the french Codes and commentators.

Article 156 of the Code de Procedure Civile, declares: “ Tous jugements par défaut contre une paríie que n’apas cOnstitué d’ávoué, seroat sigaiBés par un huissier eommís, soit par le tribunal, soit par le juge dtbdomieile du défaillant que le tribunal aura désigüé; ils seront eJtécutés dans les six mois de leur obtention, sinon seront répufés non aVentis.” This provision is stated by Pailliet to be applicable to judgments by default, rendered in commercial matters. Manuel de Droit Franqais, p. 572, note. And so it is also expressly provided by the 643d article of the Code' de Commerce. Néanmoins, les art. 156, 158, et 159 du méme Codeqrelatifs aux jugements par défaut rendus paries tribunaux inférieurs, seront applicables aux jugements par défautrendus par les tribunaux de commerce.

The plaintiff’s counsel admitsin his brief that, the peremption de jugement, arising under these provisions of the Codes, destroys the judgment; but contends that, it leaves the “instance,” or proceedings before judgment, in full force and effect. That consequently, even if the judgment sued upon be eonsidered as perirhé under article 156, yet the action or procedure would still subsist, and would serve as a continuous interruption of prescription on the note up to the present day. If this be true, it does not enable us to sustain the plaintiff’s action ; for under the allegations of his petition the note was merged in the judgment, and the suit was not upon the note, but upon a judgment. As the action cannot be maintained upon the judgment under the evidence, the petition must be dismissed as in case of non-suit.

Judgment reversed, and petition dismissed as in case of non-suit, with cosh', in both courts,


author: Slideil, J.

text:
    Greiner v. Prendergast.
    An attachment will not lie in an action for damages ex delicio.

    APPEAL from the First District Court of New Orleans, McHenry, ,L

      Gi'einer, pro se.

      Pitrel, on the same side.

      Robinson, for the appellant,
   The judgment of the court was pronounced by

Slideil, J.

This action is for damages alleged to have been sustained by ihe plaintiff, in consequence of the sale of plaintiff’s property seized under a fi. fa., which it is averred was Wrongfully issued, pending an appeal, on a judgment obtained by Prendergast against Gi'einer, the present plaintiff. The defendant pleaded the general issue, and prescription.

That the fieri facias was illegally taken out results from the decision of ihe Supreme Court in Greiner v. Prendergast, 2 Rob. 235. Nor was the issuing of the execution, under which the sale was made, expressly authorized by an order of the District Cou-vt.

The plea of prescription was properly disregarded by the court below. The defendant Was absent from the State. Although-there was a debt due to Prendergast by Greiner which might have been attached for an ordinary indebtedness, and even if it be conceded that the existence of attachable property within the State would form an exception to the rule Contra non valentem, &c., yet the exception would not apply in the present case. Greiner's claim is for damages ex delicto. An attachment will not lie in such a case. Prewitt v. Carmichael, 2 Ann. R. p. 943.

We think the injury sustained was less than was assessed by the court below; and that, under the evidence, an allowance of $360 would be ample.

Judgment reversed, and judgment for plaintiff for $360, and costs in tho court below; those of this appeal to be paid by the plaintiff.


author: Seidell, J.

text:
    Huntington v. Lowe et al.
    Where a quantity of pork in hoghsheads is sold, without any express stipulation, or exelK' sion, of warranty, and the purchaser, after examining some of the hogsheads, on the assurance of the broker employed to make the sale that every piece had been examined by an experienced and skillful agent and found to he' sound, makes no farther inspection, the vendor will be bound by an implied warranty as to the quality. C. C. 2457. And though an implied warranty may not extend to apparent defects, this exception cannot be extended to a case in which a representation was made calculated to quiet the vigilance of the purchaser, with regard to merchandize the inspection of which would be attended with inconvenience.
    Where a purchaser of a quantity of pork in hogsheads discovers, after the purchase, that a part of it is unsound, he may retain the sound hogsheads, and return the unsound. The rule that the redhibitory vice of one of several things sold together gives rise to the redhibition of all, does not apply to such a case.
    Appeal from the Fourth District Court of New Orleans, Slrawhridge, J.

      W. D. Hennen and W. H. Hunt, for the plaintiff.
    It is clear that the plaintiff has property limited his action t'o the -redhibition of that portion of the pork which was unsound, and that he was eve.n compelled to affirm the contract as to the other portion which was not effected with the redhibitory defect. For in the sale of several things together, which being independent of each other do not form a whole, and do not derive any increase of value from their union, the redhibitory action will lie only for the things found defective, and the contract must be carried into effect as to the rest. Such is the clear inference from art. 2518 of the C. C. Ledoux v. Armor, 4 Rob. p. 3S1. 6Mart.696. 15Mart.l00. Pothier, Vente, 528. Troplong, Vente, t. 2,p.46,578. It has been shown that the things purchased were affected with a redhibitory vice at the time of the sale, and that defendants, or their agent, knew that the defects exisited at the time. That defendants are responsible for the acts of their agent. See Story on Agency, 452. 15 La. 170. 10 Rob. 167. It is pretended by the defendants that the defect was apparent, 'and one therefore against which they did not warrant under the 2497th art. of the-C. C. which declares, that, “ apparent defects, that is, such as the buyer might have discovered by simple inspection, ave not among the number of redhibitory vices.” But the simple inspection here meant is that, which can be made by every ordinary purchaser, and in which the detection of the redhibitory defect does not require any particular skill, or difficult or inconvenient operation : as in the sale of « horse that has lost an eye, or a negro-that. has lost a hand. The circumstances of this sale fall precisely within art. 1841, no. 4, of the C. C. A false assertion of the quality of an object will'constitute such an artifice as will invalidate an agreement, if the object be one that requires any difficult or inconvenient operation to discover the truth or falsity of the assertion. Sales of any article by a false sample of goods in packages or bales, which cannot without inconvenience be unpacked or inspected, are referable to this rule. The defects in the pork were- not apparent defects within the- meaning of art. 2497.

      R. IV.,-and A. N. Ogden, for the appellants.
   The judgment of the court was pronounced, by

Seidell, J.

This case'presents a reelamation-by plaintiff, arising out of'a purchase of pork made by him from the'defendants. Of the quantity purchased, about one-half proved to be unsound.- The plaintiff claimed the difference in value exhibited by an auction sale of the'unsound, made about three weeks after the sale, as compared with the alleged market value of a sound article ; and also- damages for the charges and expenses incurred by its shipment to his correspondent in Mobile;- who sold w small part of the lot there, and upon discovering the unsoundness reshipped it to* the plaintiff. The total claim was for $480. The-district judge-gave a judgment for $180 73; and the defendants appealed-.

The purchase was made on the 21st January, 1847. The plaintiff immediately shipped the pork to Mobile, and, on the 30th January, sold a few hogsheads to a party, who bought without examination, on the representation of plaintiffs agent; but, on opening it a day olf two afterwards, the purchaser discovered it to be in very bad condition, and an allowance was made to him of about seventy-five per cent. The agent reshipped what was unsold to plaintiff, who had it-examined, and finding about half of it to be unsound, tendered the unsound portion to the defendants, and demanded- the proportional return of the price. This offer the defendants refused, unless plaintiff would return the whole. A very great advance in the market value had taken placa- in th&interval. The plaintiff then had-the-damaged-portion-sold at auction, and it produced a prise a little below what he paid the defendant.

There were several- witnesses examined before the district judge, two of whom say that the pork had been offered to-them before the plaintiff bought, and they refused tb buy, being dissatisfied with its condition. One of them declares expressly that, it was a very bad lot and-unsound. Another, that he found several'pieces damaged, and refused for that reason to buy. It results conclusively from the evidence that,-the unsoundness existed at the time of the sale; an® that even if some portions might not have been actually unsound at that time, they ultimately became so-from bad curing.

The defendants have placed their principal reliance on- the testimony ef their broker, who was- called as a witness by the plaintiff. He states that the pork-was in hoghsheads, which were headed up, except those which were examined-by himself and the plaintiff’s clerk. They tried these, and found their con-tents sound. He represented, at the time, that every piece had been- examin-ed by an experienced and skilful agent for the defendants, with the view of its-being shipped to England, and every piece was sound and in order. He also-slated to the plaintiff, as one reason why the defendants had- been prevented from shipping the pork, the high rate of freights. The witness further stated that he offered the plaintiff's clerk to open as many hogsheads as he desired, but he declined having any more opened, and expressed himself satisfied with what he liad seen, saying that he was a good judge. He further deposed that, on Iiis statements and the clerk’s examination, the plaintiff purchased without further guarantee, and that there was no attempt on his part, or those of his principals, to conceal or misrepresent.

There is no reason to doubt that his representation did have the effect of discouraging further examination; and, although there was no express stipulation of warranty, it is clear that there was no exclusion of it. We consider the representation as excusing the plaintiff' from a more thorough examination of the article; and we attach more weight to the representation acknowledged to have been made, from the fact established by another witness that, the broker who made the sale to the plaintiff had offered the lot to another pauty, who declined the purchase because he found some pieces damaged.

As there was no express exclusion of warranty, the warranty implied by thp law attached to the contract. The doctrine of caveat emptor, as known to the common law, even if it would go so far as to relieve a vendor from the effects of such a representation as was made in the present case, cannot be invoked against our own express legislation and jurisprudence, which recognize the implied warranty of quality as well as of title. Civil Code, 2451. It is said, however, that the implied warranty does not extend to apparent defects, which are defined by our Code to be such as are apparent by simple inspection.” This is true. But the enquiry remains, what are apparent defects? How far is it to be considered applicable to the sale of merchandize packed in such a manner, or otherwise so situated, as to make its thorough examination inconvenient? See upon this point, Duranton, vol. 16, lib. 3, tit. 6, §310, and the opinion of Judge Watts in Millaudon and Morgan v. Price and Frost. We do not however, think it necessary to say whether, under ordinary circumstances, the defective character of the merchandize in question, which was in closed casks, was an apparent defect within the fair intendment of the Code, that is to say, whether it was the buyer’s duty to protect himself by having the casks opened, and then to notice not only the patent unsoundness of portions of the pork, but the defective curing which would ultimately result in unsoundness of other portions. It would clearly be carrying the exception as to apparent defects too far, to extend it to a case in which a representation was made calculated to quiet the vigilance of the .purchaser with regard to merchandize packed in casks, and the inspection of which was attended with some inconvenience. A witness, who was in the employ of the defendants, states, that he had examined the merchandize before the defendants bought, that he rejected some portions, and that the lot, as selected, was sound, and was all carefully repacked with additional salt. This testimony relieves .the defendants from any moral imputation, but cannot destroy the legal effect of the representation made to the plaintiff by their broker. Nor can we consider that the witness’ opinion as to the quality of the pork overbears the testimony of the other witnesses as to the unsoundness of a portion of it, which, we think, is conclusively established.

But it is said that, when the plaintiff was dissatisfied- with the sale, he should have tendered the return of the whole, and had no right to keep the sound part, reaping the profit of an improved market, and returning only the unsound. The rule that the rehibitory vice of one of several things sold together gives rise to the redhibition of all, applies to a limited class of cases; those where one of the things would not have been bought without the other. The illustrations given in our Code are, a pair of matched horses or a yoke of oxen. The rule is obviously a reasonable one, and we have.borrowed it from the roman law. Quvtm autem jumenta paria veneunt, edicto expressum est ut, cfim alterum in e& eausk sit ut redhiben debeat, ulrumque redhibeatur; in quá re t&m emptori quam venditori consulitur, dum jumenta non separantur. But when the things are independent of each other, the redhibitory action lies for that which ' is affected with the redhibitory vice. The example given by the civilians is, a •lot of unmatched horses or a flock of sheep. If one proves to have been the partial dissolution of the sale is permitted. See Duranton, vol. 16, § 319. Troplong, Vento, 578. Voet, lib. 21, tit. 1, de J2dil. edict. It is to be observed, however, that this is not strictly an action of redhibition, but of quanti minoris. The plaintiff desired to exercise the right of redhibition, but was prevented from doing so by the refusal of the defandants.

The plaintiff' has asked an amendment of the judgment in his favor, but as the application was not.seas.onably made it .cannot be considered. C. P. 890.

Judgment affirmed.


author: King, J.

text:
    Featherston’h v. Compton.
    The proceedings authorized by seo. 13 of the stat. of 20 March, 1830, which provides that where a plaintiff has applied for a fi.fa,, and has reason to believe that a third person has property, or effects, in his possession, or under his control, belonging to the defendant, or is indebted to him, he may cause such third person to be cited to answer under oath interrogatories touching said property or debt, may be resorted to in all cases where a fi fa. lias been issued; andas aJi.fa. may issue from the court of the parish in which the judgment was rendered to any other in the State where the debtor has property (C. P. 042), the right of propounding interrogatories to third persons is accessory to and accompanies the writ to the parish in which it is to be executed, giving to the court of that parish jurisdiction over the proceedings against such third personunder the fi.fa.

    A garnishee, or third person, to whom interrogatories are propounded under a fi,. fa. under the statutes of 20 March, 1839, sec. 13, and 18 March, 1S40, cannot interfere in the controversy between the original parties, nor plead other defences than those necessary to protect himself. He will be protected by the judgment of the court against him, as no seizure in his hands can be made under the execution 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 a competent court. But a judgment and fi.fa. are necessary to support the proceedings against such garnishee or third person, and they may require proof of their existence as a pre-requisite to any judgment against them.
    APPEAL from .the- First District Court of New Orleans, McHenry, J.

      Redmond, for the appellant.

      Stockton and Steele, for the defendant.
   The judgment 'of the court was pronounced by

King, J.

The plaintiff presented to the judge of the First District Court of New Orleans a petition, in which he alleged that, he had obtained a judgment against the defendant, Compton, in the parish of Concordia, .and that he had caused a fieri facias to be issued thereon, directed to the sheriff of the parish of Orleans, in virtue of which a seizure had been made iu the hands of W. G. Kendall, and he prayed that process of garnishment be issued against Kendall, and that the latter be required to answer the interrogatories annexed to the petition. Kendall’s answer, it is contended, disclosed an indebtedness to the defendant. He, however, filed a plea to the jurisdiction of the court, on the ground that no other tribunal than that which rendered the judgment against the defendant could take cognizance of the proceedings in garnishment authorized by the act of 1839; and further denied that, the alleged judgment had keen rendered against the defendant. The judge considered that the plaintiff' ’* proofs were defective, no evidence having been adduced that a fi. fa. had actually been issued, and that the plea to the jurisdiction was well founded. The proceeding was dismissed, and the plaintiff has appealed.

The acts of 20 March, 1839, and 18 March, 1840, (B. & C’s Dig. 458, 459,) authorize a plaintiff who has applied for a fieri facias against the defendant, to cause any third person whom he has reason to believe has effects of the defendant’s in his hands, or to be indebted to the latter, to be cited, and to require him to answer interrogatories touching his indebtedness. This process may be resorted to in all cases in which writs of fieri jadas issue. It is well settled that a fieri facias may issue from the parish in which the judgment was rendered, to any other in the State in which the debtor has property. C. P. art 642. 3 La. 475. The right of calling on third persons to disclose what property or effects of the debtor they hold in their hands, is an accessory to the writ; and, there being no limitation in the acts, necessarily accompanies it to the parish in which it is tobe executed, giving to the court of that parish jurisdiction of the proceeding in garnishment, when resorted to.

It is true that the garnishee is regarded as a stakeholder, and cannot interfere in the controversy between the original parties, or plead other defences than those which are necessary to protect and prevent an improper decision as far as relates to his own interests. 14 La. 514. 10 Mart. 568. In such cases he will be fully protected by the judgment of the court against him, as no seizure in his hands can be made under the execution without notice to thé defendant; and the latter, upon receiving such notice, must oppose the seizure, or lose all recourse against the garnishee for the payment made by him in obedience to the mandate of a competent court, however erroneous the judgment under which the writ issued may have been. But a judgment and a fieri facias thereon are necessary to support the proceeding in garnishment. They form the foundation of the plaintiff’s right to resort to that remedy, and the garnishee may require that their existence be proved as a pre-requisite to a judgment against him. No proof either of the judgment or of the fieri facias was .adduced on the trial, although the existence of the former was expressly put at issue by the pleadings. We think that the district judge erred in his view of the question of jurisdiction, but correctly considered that the evidence before.him did not authorize a judgment against the garnishee. The proceeding was, in our opinion, properly dismissed, without prejudice to any rights which the plaintiff had acquired by his seizure. The judgment has only the effect of a non-suit, and is no bar to the plaintiff’s renewing the proceeding, if his interests should require it.

■Judgment affirmed.


text:
    The City of Lafayette v. Preston, Executor.
    Property of a succession offered for sale at twelve-months’ credit under a fi. fa., may be purchased hy the executor, for the benefit of the succession, with a view to obtain an extension of time for .the payment of the debt; and a twelve-months’bond, executed by him fortheprice, will he valid. The effect of the adjudication was not to acquire for the succession property it did not previously possess, nor to change the nature of its title. The heirs alone can complain of the purchase. If they repudiate the act on the ground that the price offered hy third persons for the property was adequate, the only consequence will be that they may insist on the executor’s taking the property, and accountingto them for the price.

      A judgment is not satisfied, nor novated, by the taking of a twelve-montbs’ bond fot the. price of property sold under a fi. fa.

    APPEAL from the District Court of Lafayette, Clarke, J.

      Michel, for the appellants,
    cited 8 Mart. N.. S. 451. C. C. 1672, 1673.

      Preston,, pro se.
   The judgment of the court was pronounced by

King, J.

The plaintiffs issued an execution on a judgment obtained against the defendant as executor of Robert Layton, deceased, in virtue of which a lot of ground was seized, and,.at .the second exposure, was adjudicated to the defendant, Preston, in his capacity of executor, who gave his twelve-months’ bond for the price of adjudication, with surety, the sufficiency of which is not questioned. The plaintiffs declined receiving this bond from the sheriff, and took a rule upon the defendant to show cause why the adjudication should not be set .aside, on the ground that, in his capacity of executor, he was not empowered .to purchase the ¡property, nor to execute .a bond by which the succession he represents would be bound. The rule was discharged in the court below, and the plaintiffs have appealed.

The district judge did not, in our opinion, err. 'The effect of the adjudication has not been to acquire for the succession of the testator property which it did not previously possess, nor to change the nature of its title.. Nor does the bond given in virtue of it impose a new, or more onerous obligation, on the estate. The debt was due by a judgment, which was not satisfied, nor novated by the ifodnd, and which still exists in full force against the succession. It is not pretended that the defendant purchased for his individual use and benefit. He appears to have availed himself of the right accorded to judgment debtors by the 688th article of the Code of Practice, to purchase in the property for the benefit of the succession he administers, With the view of .obtaining an extension of time for the payment of a debt wliieh he was not prepared to meet. Neither the object nor .the effect of the adjudication was to acquire property, nor increase the obligation of the succession, but to prevent a sale to third persons, and to obtain time for the payment of its debts. The heirs alone can oomplain. If they repudiate the .act on the ground that the executors should have permitted the adjudication to a third person, the price offered being adequate, the only consequence will be that they may insist on the executor’s taking the property, and accounting to them&r the price of adjudication. But the succession will be still bound for the debt; and, in any event, the plaintiffs may proceed to seize and sell the-property, in satisfaction of their bond. Bank of Louisiana v. Dijean, 12 Rob. 17, 19.

Judgment affirmed.


author: JSustis, C. J.

text:
    In the Matter of the Merchants Bank of New Orleans.
    Under the stat. of 6 April, 1843, see. 2, the commissioners for the liquidation of banks were entitled to compensation at the rate fixed by that section, until superseded by the appointment of a liquidator under the stat. of 4 May, 1847. The salaries allowed by the stat. of 1843, were not limited to the period .of four years, mentioned in sec. 25 of the stat. of 14 March, 1842.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Elmore and W. W. King, for the appellant.
    Schmidt, Lockett and Goold, contrfu
   The judgment of the court was pronounced by

JSustis, C. J.

In the act of 1842, under which the commissioners of this bank were appointed, provision was made for their compensation, under the condition that, in no case the compensation should exceed $3,000 a year, for each commissioner, for each and every year not exceeding four years, during which the liquidation shall continue. By an act of 1843, the yearly salary of the commissioners of the banks in liquidation was reduced to $1,000 each, free from the expenses of office and others, which were limited to $500 per annum.

The commissioners of the Merchants Bank ■ were superseded by the appointment of a liquidator under the act of 4th May, 1847, and the commission terminated as it existed under the laws of 1842 and 1843.

The liquidation of this bank has continued for more than four years, and is not yet terminated. The appeal is taken in this case by the liquidator under the law of 1847, from a judgment allowing two of the commissioners their salaries, at the rate of $1,000 per annum, up to the time of his entering on the duties of his office. The appellant objects to any allowance of salary beyond the term of four years, fixed by the law of 1842 for the liquidation. We cannot say that, the construction given by the district, judge to the act of 1843 is erroneous. Judgment affirmed.


author: Siideli,, J.

text:
    Succession of Macarty.
    An opposition to a tableau of distribution of the effects of a succession, presented after the decree for its homologation had been rendered, is too late. The fact that the opposition was presented a few moments after the decree was rendered, does not change the case.
    The law fixes a period within which an opposition to a tableau of distribution of the effects of a succession must be made; it can only be made afterwards, where the proceedingshave been suspended. But when judgment of homologation has been pronounced, creditors who deem themselves injured by it cau only be relieved by a new trial; and this cannot be allowed, where the opposition has not been filed until judgment of homologation bad been pronounced.
    A decree for distribution among the heirs of the proceeds of a succession, will not be binding upon them without citation; nor will they be bound, without citation, by an allowance of commissions' to the executor made in a tableau of distribution.
    Appeal, by the opponent, from a judgment of the Fifth District Court of New Orleans, homologating a tableau of distribution, Buchanan, J.

      L. Janin, for the appellant.

      Buisson, Eyma and Pitot, cóntrft.
   The judgment of the court was pronounced by

Siideli,, J.

The court below did not err, in refusing to permit Mrs. Lalaurie, to file her opposition to the tableau', and also in .refusing her a new trial, so far as the judgment of homologation authorized the. payment of ereditors. When the opposition was presented, the decree of homologation had been rendered. That the opposition was presented on the same' day, and, but a few moments after the rendition of the decree, does not change the case. It would throw the business of courts into extreme confusion and make the administration of justice almost impracticable, if a decree made could be rendered nugatory by the subsequent appearance on the same day of a party, who had seasonable legal notice, and an opportunity to appear and present his case before the rendition of the decree. So far also as concerns the motion for a new trial upon the tableau generally, we must hold the refusal of the new trial to be correct. We are not insensible to the force of the reasoning presented by the appellant’s counsel, deduced from the general provisions of the Code on tho subject of new trials, and from the analogy of ordinary judicial proceed, ings ; and, if the matter were res nova, we might perhaps hesitate with regard to the affirmance of the opinion of the district judge. But that opinion is very fully sustained by the decisions of the Supreme Court. The case of Lang et al. v. Their Creditors, 14 La. 237, is directly in point; it has beep generally followed by the courts and the profession; and has never, so far as we are aware, been overruled. It was there said: “ The law fixes a delay within which opposition to a tableau'of distribution is to be made. This delay is not, however, fatal, as long as proceedings are suspended; but when judgment of homologation is pronounced, creditors who deem themselves injured by it cannot be relieved otherwise than by a new trial; and this cannot be obtained by a party who has neglected to file his opposition until the judgment of homologation be pronounced.” On looking into the reasons given for that opinion, by which the proceedings upon a tableau are certainly distinguished in some respects from ordinary actions, it will be found that they have much force. The distinction seems to have originated from the necessity of the case, and the probable impracticability of conducting the distribution of estates among creditors, if provisions of the Code of Practice, not embracing eo nomine insolvent and probate proceedings, which are the subjects of special legislation, should be indiscriminately and unqualifiedly applied to such proceedings. Hence the court, after giving the opinion just cited, observed, very forcibly: “ Were it otherwise, the final homologation of the tableau could be indefinitely protracted by creditors coming one after the other, and claiming a new trial till judgment be actually signed.” If there be hardship in the application of the doctrine in this case, it is to be regretted; but it does not authorize us to break down a well settled and convenient rule.

It is said that that the case here is to be distinguished in this respect: There was a premature decree of homologation entered on the 19th November, the first advertizement of the tableau having been made on the 9th. On the 20th, the error was suggested by the counsel of the executors, and thereupon the decree of the 19th was cancelled, and anew decree of homologation was rendered. 'The argument is that, this decree fixed the rights of the parties : that it affected all of them, and could not be set aside without notice to the person to be affected by it. But the counsel himself asserts that the decree of the 19th was premature and illegal; and such it clearly was. We think it was a proper exercise of the power of the court to set it aside, upon discovering the error; and of this the appellant, who herself acknowledges the illegality of that decree, ought not to complain. If the informal decree of the 19th had led the appellant into error and had influenced her subsequent action to her detriment, it might have afforded equitable ground for relief; but it is obvious that such was not the case. It appears from the statement of facts adopted by the court as part of the bill of exceptions, that the appellant’s counsel acknowledged that he had not seen, nor had cognizance of, the decree of the 19th November, when he asked leave to file his opposition on the 20th, after the rendition of the new decree.

The court properly opened the decree so far as related to the distribution of the nett proceeds of the estate among the hoirs, upon the ground that, the-appellant had not been cited, following the authority of Millaudon v. Cajus, 6 La. 225, et seq.

The court also opened the decree so far as concerned the fees of the counsel of the executors, and we do not understand this to be objected to by the appellees.

We are of opinion also that, the decree should have been opened as to the commission of the executors so far as opposed, to wit, their commissions on $28,100. Under the authority of Baldwin v. Carleton, 11 Rob. 112, an heir is not to be considered as concluded upon sucha charge, without citation.

It is, therefore, decreed that the judgment of the court below, rendered on the 18th December, 1847, be so amended as to open the decree of homologa-, tion rendered on the 20th November, 1847, so- far as concerns the item of $702 50 charged for commissions on the sum of $28,100 ; and it is further decreed that the decree of 18th December, 1847, so amended, be affirmed; tho said estate paying the costs of this appeal; and the personal liability, if any, of said executors, for said costs, being reserved.


text:
    Lacoste, for the use &c. v. Harper et al., Executors.
    Though a bill was accepted for the accommodation oí the drawer, yet if he have funds in the hands of the acceptor at maturity, though insufficient to pay the whole amount of tlie bill he is entitled to notice of dishonor. It is not enough to relieve the holder from the necesl sity of giving notice, that the acceptance was for the accommodation of the drawer; there mast he something equivalent to an express agreement to waive notice.
    APPEAL from the District Court of Concordia, Mayo, J.

      Shaw, Stacy and Sparrow, for the plaintiff,
    cited Story on Bills, ss. 310, 312. Bailey on Bills, 302.

      T. P. Farrar, for the appellants,
    cited Bloodgood v. ’Hawthorn, 19 La. 128. 12 Rob. 231.
   The judgment of the court was pronounced by

Slidell, J.

This action is brought to recover from the succession of R. L. Smith the amount of a protested bill of exchange for $2,277, dated Natchez, 11th October, 1836, drawn by the deceased on Brander, McKenna and Wright of New Orleans, and by them accepted, payable fifteen months after date, in favor of William Harris, and by him endorsed. It is credited with $600, paid by the acceptors on the 10th August, 1838.

■ This case was before the Supreme Court some years since, and is reported in 12 Rob. 232. It was then held that Smith was not duly notified of the protest for non-payment. But, under the evidence then presented, the court was of the opinion that the drawer was not entitled to notice. The bill was considered purely as an accommodation bill; and, although it appeared that, in 1836 and 1837, -the relation of planter and factor had existed between Smith and Brander, McKenna and Wright, the court considered it as proved that he had no funds in their hands at the maturity of the draft, although he had undertaken to provide funds. The court also observed that, it had not been shown that the commercial dealings between them were kept up to the' maturity of the bill, so as to justify or render probable the expectation that they might possibly have any funds belonging to him to any amount. The court, therefore, concluded that the drawer was not discharged for want of notice, but remanded the cause mainly on account of a plea of prescription, which was first set up in that court. In doing so, however, the whole case was left open, as was expressly stated.

At the second trial an account was offered in evidence by the plaintiff which establishes the fact that, on the 1st July, 1837, there was a balance in the hands of Brander, McKenna and Wright, to the credit of Smith, of $883 24. In this account the acceptance of this bill of $2,777 77, thon not due, is both debited and credited, and, at the foot of the account, after striking the cash balance of $883 24 in favor of pontiffs, as of 1 July, 1837, is added a memorandum: To amount draft outstanding, due 24 January, 1838, $2,277 77. So that there were on that day funds in the hands of the drawees to the amount of that balance, which, if not subsequently absorbed, would go, pro tanto, towards paying tjie bill. There is nothing before us to authorize the belief that this fund of $883 24 was withrawn before the bill-matured. On the contrary, the plaintiff has produced a witness who states that, on behalf of Brander, McKenna and Wright, he presented this very account-to Smith, in December, 1840, or January, 1841.

We are not aware of any authority, extending the exemption of the necessity of notice, to cases where the drawee had funds in his hands at the maturity Of the bill. Even if the funds be insufficient to cover the bill, the drawer is entitled to notice of dishonor-. To-relieve the holder from the duty of notice in such a case, we should require something equivalentto an express agreement to waive notice. It certainly is not enough to show that, in its inception, the bill was accepted for the accommodation of the drawer. Story on Bilis, § 311. Chitty, 478.

We do not wish, however, to be considered as saying that we regard this bill as having been, in its inception, purely an accommodation bill. The drawees were the factors of the drawer, a cotton planter. It seems that shipments of cotton were made by him before and after this bill was drawn ; and, on the other hand, several remittances were made, by them to him, of plantation supplies. An interest account was kept, commissions were charged, and the case presents the usual features of the relation of planter and factor.

Evidence was offered to prove acknowledgments of his liability by Smith, and promises to pay after the maturity of the bill. This testimony is, in many respects, loose, is not free from inconsistency, and as a whole, is unsatisfactory to our minds, and has left us in doubt as to the true merits of this cause. But as it appears to have produced conviction in the mind of the district judge, we have determined to remand the cause for a new trial, and will leave the whole case-open.

Judgment reversed, and cause remanded for a.new trial; the appellees paying the costs of the appeal.-


author: Kino, J.

text:
    Smalley v. His Creditors.
    The acceptance by the judge of the cesswbonorum made by an insolvent does not vest the property absolutely in the creditors, so as to confer on them a right of ownership, or do» minion over it. The property remains in their hands only as a pledge, which they are bound to have sold, in order to distribute the proceeds among themselves, and to pay the surplus, if any, to the ceding debtoi;. The cession is not* a giving of property by the insolvent in payment to his-creditors, by which interest is arrested. The interest forms a parfc’of the debt, which the creditor has a right to exact till the entire payment of his demand ; conse. qnently where the property surrendered is sold on a credit interest is due, not to the date of the sale only, hut to the time of the distribution.
    Where' a judgment has been obtained on a note, the note itself becomes merged in the judgment, and can only he severed from it by the reversal or recisioii of the judgment.
    Where a debt, originally evidenced by a note, but subsequently merged in a judgment, is placed on the schedule of an insolvent, the debt, whether described in the schedule as a judgmentor a note, will vest in the syndic in the form in which it existed at the date of the cession. If the erroneous description of the debt, as being by note instead of judgment, was fraudulently made, and injured the sale, the creditors alone cat) complain.
    It- is-the duty of syndics to administer estates confided to .them with economy, and, in case of any abuse of their trusts in this respect, the creditors will be relieved.
    APPEAL from the District Court of-Concordia,-Barry, J.

      T. P. Farrar,

    for the appellants,
    cited C. -P. 988, 989. Stat. of 1836, B. and C.’s Dig. p. 495, s. 2. C. C.2173. 2 Lá. 354.

      Shaw, for the-syndic. Stacy and Sparrow, pro se, and for certain creditors of the insolvent. Frost, for other creditors;
    cited C. C. 2171. 3 La. ,158. 9 La. 266.11 La. 41-2. 12 La. 404, 594.
   The judgment of the court was pronounced by

Kino, J.

The firm of PerMns, Hopkins and White have appealed from a judgment homologating a tableau of dislribution, presented by the syndic of Smalley, a ceding debtor. ' They complain that the judgment is erroneous: '.1st* Because it allows interest on the claims of the creditors bearing interest, up to the 1st of February, 1844, the date of the sale.,of the insolvent’s property, instead of the 18th February, 1841, the date of the acceptance of the surrender, 2d. Because the claim of Samuel Cotton is allowed as a judicial mortgage, whereas, it is contended, it should rank .as an ordinary debt. 3d. Because a sum of $250 is allowed to Stacy and Sparrow, for professional services. 4th. Because a sum allowed to Oalcey and Cotton as costs, is unsustained by proof. 5th. Because the judgment decrees the^ tableau to be final and discharges the syndic,‘which was not prayed for by the latter. 6th., Because the sum allowed for taxes is unsupported by proof. And finally, .because the tableau is imperfect and informal.

I. The appellees, whose claims bear interest, pray that the judgment bo amended, by allowing them interest up to the day of distribution. The counsel for the appellants contends'that, the property ceded by the insolvent vested absolutely in the creditors, in consequence of which interest ceased -from the moment of the acceptance of the surrender.' This question can no longer be considered" open. In the case Of Rivas el al. v. Hunstock et al., 2 Rob. 192, 194, it.was held that, the acceptance of the surrender by the -judge did not vest the property absolutely in the creditors, so,as to confer on' the latter, a right of ownership or dominion overi t; that it remains in their hands, only as, a pledge, which they are bound to have sold in order to distribute the'proeeeds among the’ creditors, and to pay the surplus, if any, to the ceding debtor. The surrender is not regarded as the giving of, property by the Insolvent in payment to his creditors, by which the course of interest is arrested. • It has been -repeatedly decided that, interest does hot cease on the cession 'of property by the insolvent. It forms a part of the debt, which the creditor has a right to exact until the entire payment of his demand. 3 La. 159. 9 La. 267. 11 La. 412. The" judge, in our opinion, erred in allowing interest on the claims of the appellees up to the date -of the sale only, the sale not having been made for cash, but upon extended terms of credit. It should have bepn allowed-to the time of the distribution; and, in this respect, the judgment must be amended in accordance with the prayer of the appellees,

II. Colton,' obtained a judgment against the insolvent on a promissory note, and subsequently was declared a bankrupt in the State of Mississippi. Among the assets sold by his assignee was the note upon which this judgment had been previously obtained, and Coüo» himself, after his discharge, became the purchaser. It is contended by the appellants that, Cotton assigned to his creditors only the note, which was a voluntary remission of the judgment, and that by his subsequent purchase he acquired only the note as an ordinary claim, without the privilege or mortgage resulting from the judgment. The note given by Smalley merged in the judgment obtained against him by Cotton, and could only have been again severed from the judgment by the reversal or recision of the latter. The assignment of the demand by the bankrupt, whether described in his schedule as a note or a judgment, vested it in the assignee in the form in which it existed at the date of the assignment. The note and the judgment being one and the same demand, the pretended remission of the judgment would have been a remission of the debt, and no such intention was evinced by the bankrupt.. The erroneous description of the demand may have impaired its value at the sale, and, if fraudulently given, would be a just cause of complaint against the bankrupt, on the part of the creditors. They alone can take advantage of it, and they have not interfered or claimed protection. The demand is still a subsisting judgment debt of Smalley, and whether due to Cotton or his assignee, it is still entitled to its rank as a judicial mortgage on the tableau of distribution. Cotton appears as the owner of the claim, and to him the distributive share ■applicable to it was properly awarded.

III. Messrs. Stacy and Sparrow opposed the tableau on the ground that, they were not recognized as creditors for professional services rendered as attornies to the syndic. Their opposition was sustained, and the amount of their demand ordered to be paid. The appellants contend that the syndic imposed an unnecessary charge upon the estate of the insolvent by employing additional counsel, the services of an able attorney having been previously engaged, and that the creditors ought not to be taxed with this sum. ■ It appears that the greater part of the property of the insolvent was, for several years, involved in two suits, which were much contested both in the District and Supreme Courts; that Mr. 'Stacy argued the causes in both courts, and rendered efficient and important services; that the judgments in both cases were in favor of the syndic, and that the fee claimed is very moderate. It Is the duty of syndics to administer estates confided to their charge with strict economy, and from any abuse of their trusts in this respect the creditors should be relieved. But it cannot be considered, under the evidence in the present case, "that the syndic has been guilty of an extravagant expenditure, or that he has exceeded the bounds of prudence in procuring such additional legal advice as he deemed necessary to protect the interests of the creditors. The opposition was, in our opinion, properly sustained.

IV". The credits placed on the tableau of §¡>200, on - each of the judgments in favor of Cotton and of Oakey, were properly stricken off by the district judge. Four hundred dollars was made by a sale on execfitions issued under these judgments. The sale was subsequently set aside, at the suit of the syndic. The property reverted to the.estate of the insolvent, and the sheriff, who retained the price in his hands pending the litigation in regard to the validity of the adjudication, returned the money" to the purchaser. The right of the purchaser to reclaim the sum paid by him, was expressly reserved in the decree annulling he sale. See Lawrence, syndic v. Bowman, 6 Rob. 21

V. The items for costs in the suits of Oakey, and Cotton v. Smalley, and for taxes .for the years 1840, 1841, 1843, and 1844, are unsupported by evidence. These must be stricken from the tableau, reserving to the syndic the right of placing them upon a future tableau, and to the parties in interest the right of supporting them by evidence. We do not understand the judgment appealed from as granting a final discharge to the syndic, butrmerely a discharge so far as .-regards payments made under the authority of the decree itself.

It is, therefore, ordered that, the judgment of the District Court be amended, by allowing interest at the rate therein specified up to the day of the distribution of the proceeds of the property surrendered, on the sums decreed to be paid respectively to S. W. Oakey and Co., to Samuel Cotton, to Gasquet, Parish and Co., and to Lambeth and Thompson. That so much of said judgment as decrees $85 to be paid as the costs in the suit of Oakey y. Smalley, and $67 as the costs in the case of Cotton y. Smalley„ and $104 34 as taxes, be reversed, and that said claims be rejected; reserving the right to the parties interested of causing them to be placed upon a future tableau. In other respects the judgment appealed from is affirmed; the costs of this appeal to be borne by the insolvent.


author: SliiuEijL, J.

text:
    Greiner v. Prendergast.
    Where plaintiff enjoins the execution of a judgment-atthe same time that he sues to annul it, and, on a judgment being rendered dissolving the injunction with damages and interest appeals therefrom, giving bond with surety to pay such judgment as may be rendered on the appeal, the surety will be bound, in case of the judgment being affirmed, only for the damages. interest, and costs of the^iction of nullity, and not for tbe amount of the original judgment. ^
    APPEAL, by Durell, from a judgment of the Fifth District Court of New Orleans, Buchanan, J.

      Greiner, for the appellant.

      Robinson, for the defendant.
   The judgment of the court was pronounced by

SliiuEijL, J.

Greiner instituted suit to annul a judgment rendered against him in favor of Prendergast, on the ground that it was obtained through fraud. During the pendency of the action of nullity, an injunction issued at the instance of the plaintiff inhibiting the execution by Prendergast of the judgment which Greiner sought-to annul. The District .Court dissolved the injunction, and condemned Greiner and his surety in the injunction to pay Prendergast $27 damages, and ten per cent interest upon the judgment enjoined and costs. Greiner appealed from that judgment, and gave Levy, and afterwards, upon Levy's becoming a bankrupt, Durell, as his surety on the appeal bond. This court affirmed the judgment. A rule was then taken on the surety, Durell, and he was condemned to pay $500, the amount of the appeal bond, the judgment to be discharged on payment of $271 and interests and costs, the amount of the original judgment in favor of Prendergast against Greiner, and the sum of $27 damages and ten per cent interest, less certain .credits for amounts paid upon writs of fieri facias.

The condition of the appeal bond signed by Durell was, that Greiner should pay such judgment as was rendered on appeal, otherwise that Durell should pay it in his stead. The judgment appealed from and which this court affirmed, was the judgment dissolving the injunction, and condemning Greiner to pay $27 and ten per cent interest upon the original judgment; Dwell, therefore, bound biraseIf conditionally for the pay/nent of the $27, and the ten per cent interest and the costs of the action of nullity, and nolhing more. To hold him to the payment of the original judgment, -would be to hold him beyond the terms of his bond, which cannot be done.

The damages, the ten per cent interest, and a portion of the costs, have been already paid by Greiner himself. There -is a portion of the costs not yet paid, and for those unpaid costs Dwell is conditionally responsible. We have not the means of ascertaining the amount.

Judgment reversed, and rule dismissed as in case of non-suit, with costs in both courts.


author: Eustis, C. J.

text:
    Stockton v. Stanbrough, Curator.
    Decision in Dv/pay v. Bemiss, 2 An. R. 509, as to the jurisdiction of the courts of the United States touching-successions under administration, affirmed.
    A sale under execution of promissory notes, made without appraisement, is void. C. 3?. 671 to 680.
    A sale of promissory notes belonging to a debtor, made under ají. fa., without their having been taken possession of by the marshal, is void.
    APPEAL from the District Court of Madison, Selby, J.

      Stockton, appellant, pro se.

      Steele, -on the same side. Thomas and Snyder, for the defendant.
   The judgment of the court was pronounced by

Eustis, C. J.

The plaintiff prayed for an injunction against certain hypothecary proceedings, under an order of seizure and sale granted at the instance of the defendant, who is curator of the succession of Jesse Harper, on two certain promissory notes secured by mortgage. He claims the ownership of the notes under an assignment from Louis A. Collier, who, it is alleged, purchased them at a sale made by the marshal of the United States, under an execution issued from the Circuit Court of the United States, in the case of The Farmers Bank of Virginia v. David Stanbrough, curator of Jesse Harper. The judgment, execution, and marshal’s sale were appended to the petition, and, on motion, the district judge dissolved the injunction, on the ground that they made out no proper case for that remedy; and the plaintiff has appealed.

A question has been raised concerning the jurisdiction of the Circuit Court of the United States, in the case under which the notes were sold. As far as the views of this court are expressed in the case of Dupuy, curator v. Bemiss, 2 Ann. R. 509, in relation to the jurisdiction of the courts of the United States touching successions under administration, we have no reason to doubt their correctness. But the question of jurisdiction it is not necessary to decide. For, if the court of the United States had jurisdiction, we are of opinion that the decision of the district judge was correct.

It does not appear that any appraisement was made of the property sold. Phelps v. Rightor, 9 Rob. 531. Code of Practice, 671 to 680. Collier v. Stanbrough, recently decided in the Supreme Court of the United States. Nor does it appear that the marshal ever took possession of the notes, nor that Collier, or the plaintiff, ever had them. They appear to have remained in the possession of the defendant. These objections are fatal to the plaintiff’s application for relief. Judgment affirmed.