text:
    Mechanics and Traders’ Bank v. J. H. Gordon et al.
    Where a steamboat is in the habit, of charging freight for carrying remittances of money, if a package containing money he handed to the captain without informing him of its contents, there being no charge for freight, the owners of the vessel are not liable for the money in case of its loss. The captain is responsible as depositary merely. C. C. 2508.
    APPEAL from the District Court of St. Landry, Overton, J,

      C. L. Swayze, for the plaintiff,
    contended : The defence set up by defendant, that he was forbidden by the laws of the United States from carrying and delivering letters on board his boat, cannot avail him, because, 1st, it was not such a package as is usually sent by mail.' 2d. Because having promised to deliver the package, he was bound to do it, for he knew that the business wag committed to him with that expectation. Dr. Paley says, in his Treatise on Moral Philosophy: “ Whoever undertakes another man’s business makes it his own; that is, promises to employ upon it the same care, attention, and diligence that he wopld do if actually his own, for he knows that the business is committed to him with that expectation, apd he promises no more than this.” Paley, b. 3, p. 1, ch. 12.
    3d. He was in the habit of taking letters on board his boat and deli vering them to different persons ; this is abundantly sh.own by the, testimony on the record. He cannot profit by his own wrong. Why should this package be made an exception to his habit and rule ? Because it contained money. That is the strongest reason why it should not.
    It is discretionary with the bailee to accept or not accept the trust; but once he has accepted it, by the very act of acceptation, he contracts towards the bailor the obligation of executing the trust, and if he does not do so he renders himself responsible in damages for the consequences. Pothier, vols. 3 and 5, art. 1, No. 38.
    Although mandate is a contract which concerns only the interest of the bailor, one in which the bailee interposes but to confer pleasure in the bailor without having any interest in that which forms th,e object of it, still he is bound to discharge the trust strictly, not only in good faith, but with all the care or dexterity which may be necessary in the discharge of the trust; he is liable for the consequence of errors and for the slightest neglect, levissima culpa. The rule governing such cases is this, that where the objecs of the contract is of a nature to require the greatest care and attention, the bailee is bound to observe or bestow them, and in such cases, he is liable for the slightest neglect, levissima culpa. When, on the contrary, the affair is of a nature to demand but ordinary care, it suffices that the bailee should observe or bestow but ordinary care, and he is liable but for slight neglect or fault. 3 Pothier', p. 124, 125, Nos. 46 to 50.
    The attorney is responsible not only for unfaithfulness in his management, hut also for his fault or neglect; nevertheless the responsibility with respect to faults is enforced less rigorously against the mandatory acting gratuitously, than against him who receives a reward. L. C. 2972, 2277. 6 Toullier, p. 300, No. 288; p. 301, 302, 303. 11 Toullier, p. 46. Napoleon Code, p. 383, art. 1991, 1992.
    Circumstances may occur that would justify a court in enforcing damages with much rigor. The remark in article 2972 of the Civil Code amounts to nothing. It is but a suggestion merely directory and to be varied and governed by the particular circumstances of each case. Napoleon Code, p. 287, art. 1374 ; p. 383, art. 1992. The correct rule is laid down in 3 Pothier, p. 124,125, No. 46 to 50. But Pothier lays down another rule: he says, that it is of the essence of the contract of mandate that it should be gratuitous, that is, that the bailor should undertake the trust as an act of friendship to the bailee, and that the bailee should not oblige bimself to pay money as a consideration or price of the discharge of the trust. 3 Pothier, p. 119, art. 3, No. 22. 10 L. R. 503.
    The ge'neral principle of the civil law is, that though a mandatory is at liberty to reject a mandate, yet if he chooses to accept it, he is bound to perform it according to his engagement. Story on Bailments, 117, 123, 125. Jones on Bailments, 57. 2 Raymond’s Rep. 907. 2 Johnson’s Rep. 92. Pothier, Contrat de Mandat. 1 Domat. Merlin Repertoire Mandat. Pardessus, Droit Commun. Brown’s Civil Law, note, 73. 2 Kent, 443, 443. 5 Tenn. Rep. 143. Joore v. Deas, 4 Johnson, 84.
    Receiving a letter to deliver, or money to pay, or a note by a bank to collect, and by negligence omitting to perform the trust, the mandatoiy, though acting gratuitously, becomes responsible for damages resulting from his negligence. The delivery and receipt, of the letter, money or note, creates a sufficient consideration to support the contract, and is a part execution of it. Durnford v. Patterson et al. 7 M. R., O. S, 460 to 464. Shelleheer v. Glyn, 2 Mees & Webb, 145. 2 Kent, 57.0.
    A merchant is responsible for the loss of money collected by his clerk for one of his customers, if lost through the fault or negligence of the clerk. Wees v. MeMicken, 7 M. R., O. S. 54.
    Carriers are subject, with respect to the safekeeping and preservation of the things entrusted to them, to the same obligations and duties which are imposed on tavern keepers in the title of deposit and sequestration. C. C. 2722. They ar,e answerable not only for what they have actually received in their vessel or vehicle, but also for what has been delivered to them at the port or place of deposit, to be placed in the vessel or carriage. C. C. 2727, 2296, 2297, 2299. 9 L. R. 33. C. N. 1783. Carriers and watermen may be liable for the loss or damage of the things entrusted to their care, unless they can prove that such loss or damage has been occasioned by accidental and uncontrollable events. Abbott on Shipping, 277. Boulay, Patis. tomel. C. N. 1784. C. C. 2725. 1 L. R. 349. 11 L. R. 206. 2 Peters, 150.
    The defence which the defendants set up, that the service to be rendered by them was gratuitous, cannot avail them. Why did they undertake to perform the trust? Had they declined to perform or discharge the trust, Mr. Porter would have sought soma one else who would have performed it. Nor can it avail the defendants that Mr. Porter did not inform Captain Gordon that the package contained money ? He informed him that “ it was of value,” and enjoined upon him to be cautious and careful. It is not only money that is valuable. Suppose the package had contained bills of exchange, land scrip, (which was transferable by delivery,) treasury notes, bills of exchange, or promissory notes, the loss might have been equally as great. Suppose it had been simply a letter containing instruction from a planter to a factor to insure buildings or property to the amount of ten thousand dollars, and Gordon had accepted the trust and promised to deliver the letter, knowing its object and purpose, had failed to deliver from absolute neglect, and the planter’s property meanwhile had been consumed by fire, would not the loss have been occasioned by the negligence of the mandatory? And would he not be responsible ?
    It will be remembered and noted, that Captain Gordon was warned by Mr. Porter that the package was of value, and that he should be cautious and careful with it. Captain Gordon, with this information and under these instructions, accepted the trust. Hbwhashe performed it? By lettiDg the package remain in th.e boat a fortnight; by finally not delivering it at the place he had promised to deliver it; but, by his negligence, causing the loss of the entire sum to the plaintiffs. Are the plaintiffs entitled to no redress. Can one hold himself out to the world as a public carrier, asking the confidence and soliciting the patronage of his fellow-citizens, nay, absolutely undertaking and promising to discharge a trust, then violate his promise, fail to discharge the trust, subject his fellow-citizen to a heavy loss by his negligence, and then take refuge under the plea that he was forbidden by the post-office laws to deliver the package ? Or shall he protect himself by urging that the service to be rendered was gratuitous ? Why did he accept the trust ? Why did he not (if he did not wish to undertake it,) say to Mr. Porter, “I cannot comply with your request. The law forbids it; moreover, I would get nothing for it ?” But no! he undertakes it, promises to perform it, and when the loss is occasioned by his negligence, urges as a flimsy pretext and subterfuge, that the service was a gratuity and that the law forbade him. Is this not “ keeping the promise to the ear and breaking it to the hopes ?”
    A judgment is, therefore, claimed against all the defendants in solido; and if they be not all liable, then against Gordon individually. /

      Lewis and Porter urged the following grounds against the responsibility of the defendants: 1. No contract of affreightment was made so as to make the defendants liable as common carriers, inasmuch as no bill of lading was given and no freight charged, which was necessary in order to make defendants liable as common carriers, or to require of them extraordinary care and diligence; so that even admitting the loss of the money, yet gross negligence must be proved to render defendants liable. L. C. 2972. 2. Gordon being ignorant that there was money contained in the package, cannot be made liable for its loss; this would be manifestly unjust. 3. Admitting that a contract was made by Gordon to deliver the letter to Bell, this contract being in contravention of law, viz : the laws of the United States in relation to the post-office, could give rise to no action whatever. L. C. 1886, 1887, 1889. 4. If any contract was made or can be presumed, which we deny, it was fully complied with by depositing the letter in the post-office in New Orleans. Acts of Congress, 3d March, 1825, sec. 6. 5. Gordon cannot be presumed to have made a contract which would subject him to a fine, which would have been the case here. See Post-office Regulations.
    A jury, on a full investigation of the case, rendered a verdict for the defendants, and, unless upon very strong showing, the court will not disturb the verdict. There is testimony in the record, to wit, of Charles Porter and Samuel C. Bell, both cashiers of the bank, which is specially objected to.
   The judgment of the court was pronounced by

Preston, J.

The cashier of the Branch of the Mechanics and Traders’ Bank at Opelousas, testifies, that on the 12th of June, 1847, at the steamboat landing in Washington, he delivered to Captain John U. Gordon, of the steamboat Bois d’Arc, a package containing $10,000 in bank notes, with a letter and a scroll, all of which were directed to the cashier of the Mechanics and Traders’ Bank in New Orleans, with a request that he would deliver the same to Samuel C. Bell, the cashier, on his anñval in New Orleans; further, that he stated to him that the package was valuable, and that he should be careful with the same and deliver it to Mr. Bell; and that the captain replied that he would. The money was never received by the bank in New Orleans. The witness did not, at the time of delivering the package, state the amount of money it contained, promise to pay freight, or to make compensation to him as master of the boat for taking charge of the package.

The clerk of the boat proves, and it is not contradicted, that the charge in favor of the boat for carrying money as freight was a half per cent, whether it was in bank notes or specie; the charge being made no doubt more on account of the risk than the trouble of transportation. He further leads us to conclude, that when money was received for transmission on freight or otherwise, it was locked up in a chest kept for that purpose. If the money had been delivered to the master of the boat as a common carrier, he would have charged for the owners of the boat, fifty dollars for its transportation to New Orleans, his care of it, and the risk with regard to it; and the cashier would, in the exercise of common prudence, have taken a bill of lading or receipt for so large an amount. We are satisfied, therefore, that there was no contract made which bound the defendants as common carriers, and rendered them responsible as such for the loss of the money. The authorities quoted by the defendants’ counsel from Story on Bailments, articles 498, 495, 499, 500 and 530, are conclusive on this part of the case. See also 9 L. R. 84.

The plaintiffs do not charge Gordon individually, as a bailee for hire. Indeed, it would have been improper to have made such a contract with him, being master of the boat and bound by his employment to obtain all freight in his power for the owners of the boat, and not for himself. It is not pretended, that a bailment for hire was made with him individually.

The question remains, can the defendants or John H. Gordon be charged as depositaries or mandatories of the plaintiffs ? for, as they took charge of the letter not as carriers for hire, they must be regarded in this light. Indeed, it is proved, aDd is a matter of notoriety, that all letters and packages handed to the master and clerk of the boat were received and carried to New Orleans, and vice versa, and were gratuitously delivered to the correspondents if convenient, or deposited in the post-office. And this custom and accommodation, as observed by plaintiff’s counsel, no doubt originated and has been kept up in consideration of the business and patronage which the city and country extended to the boat in carrying freight and passengers. The custom and accommodation is entirely gratuitous.

Sir William Jones held, that a gratuitous bailee was responsible only for gross negligence amounting to a breach of good faith, or fraud. Judge Story adopts the principle without the qualification of a breach of good faith or fraud. — p. 21 art. 19. Our code declares, that the depositary is bound to use the same diligence in preserving the deposit, that he uses in preserving his own property. Code, 2508. The diligence required of a mandatory acting without reward we suppose to be the same. Code, art. 2972. And, as it would not be permitted to men to plead, that they were more negligent than men ordinarily are, the true rule is, that gratuitous bailees are required to exercise the diligence which men of common prudence ordinarily use. The owners of the boat are excused from liability for the loss of gratuitous deposits on their boat, because they entrusted their own property to the officers, and it is not suggested that they were reputed to be more than ordinarily careless or unskillful.

The most difficult question remains, as to the individual liability of Captain Gordon ; for the plaintiffs contend, that the money was specially entrusted to his care, with an injunction to be careful, as it was valuable; and that he agreed to deliver it personally to Samuel C. Bell, the cashier of the bank in New Orleans on his arrival, and was guilty of gross negligence in not doing so.

The cashier does not state that he informed Gordon of the amount of money contained in the package. Soon after its delivery, he declared to the witness Taylor, that he concealed the amount purposely, because a stranger was standing by and he did not wish to make the amount public. He subsequently stated the same thing, as proved by other witnesses. Moreover, we are led to the conclusion, that he did not inform Gordon that the package contained money at all, because he does not say so, and yet would have proved it if he had so informed him,and not have left so important a fact in this case indoubt. Besides, the reason given for concealing the amount, was equally a reason for concealing the fact, that the package contained money at all. Moreover, two witnesses standing by did not hear him tell the captain that the package contained money.

Gordon was, therefore, simply the depositaiy or mandatory of a letter, or package in the form of a letter, and did not know whether it contained money or not. It was notorious, that the letters and packages of those who patronized the boat were put into the letter-box or clerk’s desk. This was the ordinary care always given or expected, however valuable the letters or packages were to the correspondents. It is urged, that it was expressly stated to the captain that this package was valuable. All correspondents regard their communications as valuable, and the officers of the boat were bound so to regard all letters and packages entrusted to their care. They often contained bills, orders or money, and often did not; they were all entitled to the same care, and the care to be exercised was known to the public. If the packages contained money or were of great value, the means of insuring greater care was palpable, by taking a receipt or bill of lading for them as freight, and thereby securing their deposit under lock and key in a chest provided for money or packages, the certain value of which was known.

There was no information communicated to Gordon which should have induced him to distinguish'this package from others. Indeed, it is proved by a witness who was present when the package was delivered to the master, that the remark of the cashier to him was, that the package was important to the bank; and if so, giving him no reason whatsoever to suspect that it contained the large and, to him, unknown sum of money for which he is sued. He therefore handed it to his clerk to take the same course which other letters and packages took. As the cashier did not commuicate to him that the packages contained money, he could not communicate it to his clerk. The scroll was too large to go into the letter-box, and therefore the clerk put all together into his desk. After this the captain depended on his clerk to deliver them like all other letters or packages, or put them in the post-office, and heal’d nothing more of the package until he learned that it was lost. The evidence renders it probable that the package was purloined, and exonerates the captain from the least suspicion of unfaithfulness with regard to the money.

The promise to deliver the package to the cashier in New Orleans is relied upon as a special undertaking to do so personally. The master of a coasting boat, necessarily much engaged at her points of departure and arrival in his appropriate duties, cannot be supposed to undertake to go about personally to deliver the letters and packages entrusted to him, even if informed that they are valuable. The well understood meaning of his promise to deliver them to whom they are addressed, is, that he will give them in charge to his clerks, to be taken care of and delivered by them in the usual manner.

To charge Gordon with the loss for not having delivered the money in person, the cashier of the bank should have shown to him that the packagage contained $10,000, and to have obtained from him an agreement, with that knowledge, to take the risk of carrying and delivering it in person to Bell, and not to deliver it at the post-office, or entrust it to the clerk of the boat. Considering the very large amount of money, it is not at all probable that the master engaged in all the exigencies belonging to the trip of a coasting boat, would have undertaken a gratuitous mandate attended with so much risk, and the considerable trouble of hunting and delivering the package to the cashier of a bank, when he might more properly, in his situation, have refused, and according to the usual charge of a half per cent, received fifty dollars for the service on account of the boat, and subjected her owners to the risk. At all events, if he undertook such a mandate with a full knowledge of the amount given him in charge, and his risk and responsibility, he would have undoubtedly exercised more care and solicitude, and would not have given the package to the clerk to be thrown promiscuously with the other letters and packages belonging to the boat, in the letter box or clerk’s desk. It would, at least, have been safely put in the iron chest under lock and key, and the loss would not have occurred.

The judgment of the district court is therefore affirmed, with costs in both courts.


source: Caselaw Access Project

author: Preston, J.

license: Public Domain

text:
    Thomas Kellar v. F. Belleaudeau et al.
    Under the act of 25th of March, 1831, the judge is hound to reduce his charge to writing, When requested to so do by counsel. He cannot refuse to do so upon the ground that he did not charge upon the facts, when the counsel allege he did so.
    APPEAL from the District Court of St. Landry, Voorhies, J.

      C. L. Swayze, for appellant.

      C. Green, for appellee.
   The judgment of the court was pronounced by

Preston, J.

On the trial of this cause the plaintiff’s counsel tendered a bill of exceptions to the charge of the court to the jux-y, which the judge refused to sign. The following is the bill of exceptions, and the reasons of the judge for not signing the same :

“ Be it remembered, that on the trial of this case, the plaintiff, by his counsel, excepted to the charge delivered by the honorable the judge presiding to the jury, on the gx-ound that they conceived the said charge taken together to be an argument on the facts and law of the case, and requested the judge presiding to reduce the whole of his said charge to writing, in order that the Supreme Court might judge of said objection ; and the plaintiff further objected to said charge on the ground that the judge presiding had not abstained from recapitulating the facts of the case, so as not to influence the decision of the jury, but alluded to several facts detailed in the testimony, which allusion, in the opinion of the plaintiff, had some influence with the jury in making their decision, and requested the court to reduce its whole charge to writing, in order that the Supreme Court might judge as to this objection as of the other; but the honorable the judge presiding refused to reduce the whole of said charge to writing, on the ground that the said charge contained no arguments on the facts of the case, and the judge presiding had not alluded to the facts in the case, so far as to influence the jury in their decision, but had only alluded to one or two facts for the purpose of illustrating his views of the law; and the said judge offered to charge the jury on any point requested by the parties, and did charge them upon every point upon which he had been l-equested to chai-ge, and further stated to the jury that it was the duty of the court to abstain from all comments on the facts of the case.
“To which refusal of the judge px-esidingto reducé the whole of his said chai-ge to writing as requested, the plaintiff by his counsel excepts, and prays the court to sign this his bill of exceptions before judgment, and it is signed accordingly, this 26th day of May, 1849. The facts alluded to in this bill of exceptions are fully set fox-th in bills of exceptions to thé opinion of the court in this case, and no other facts were alluded to.”

The articles 516 and 517 C. P. prescribe that: “ In his chax-ge the judge must limit himself to giving the jury a knowledge of the laws applicable to the cause submitted to them, and he shall abstain from saying anything about the facts, or even recapitulating them so as to exercise any influence on their decision in this respect.” Art. 516. “ If when the judge shall have finished his charge to the jury, one of the parties believe that the judge has mistaken the law which he has stated to the jury, or in the application which he has made of it, he may require the judge to give his opinion in writing touching this mattex, and on his refusal he may take an exception in the manner and form heretofore set forth.” 517.

The 8th section of the act approved the 25th of March, 1831, prescribes that “in all cases appealable to the Supreme Court, it shall be the duty of the judge to deliver his charge to the jury in writing, if the counsel of either party require the same.” Bullard and Cuiry, 525.

The counsel of the plaintiff was of opinion, that tlxe judge in his charge spoke of and recapitulated facts in the case so as to have exercised an influence upon the decision of the jury. The judge is of opinion that he did not do so, but only alluded to the facts so far as it was necessary to explain the law to the jury, which was his undoubted right and duty. Still, we think, that the judge should, as directed by the act of 1831, have reduced his charge to writing, and have signed the bill of exceptions to it, so as to have enabled us to judge in this diversity of opinion.

If it were cleax-, as the district judge thinks, that the plaintiff has no cause of action, we would not remand the cause because his charge was not reduced to wi’iting and the bill of exceptions signed ; but we are not prepared as at present advised, so to decide.

It is therefore ordered and adjudged, that the judgment in this case be reversed, and that the cause be remanded for a new trial; and it is decreed, that the appellees pay the costs of appeal.


author: Rost, J.

text:
    Coralie Provost et al. v. P. Delahoussaye et al.
    Where the wife claims property acquired after the marriage as her separate property, and does not show her right to acquire separate property, it will be presumed that the property belongs to the community.
    APPEAL from the District Court of St. Landry, Boyce, J.

      Splane, for plaintiff.

      Olivier, for defendant.
   The judgment of the court was px-onounced by

Rost, J.

Under an execution issued in the suit of Simeon Patou v. Barthélémy and Villéré Buroché a tract of land was seized as the property of the defendants. The plaintiff, who is the wife of Villéré Buroché, enjoined the sale on the ground that the land was her separate property; After hearing, the injunction was dissolved by the district court with twenty per cent damages: the plaintiff appealed.

The plaintiff was married to Buroché on the 18th of July, 1842; the sale under which she pretends to claim bears date the 23d of March, 1843 ; it was made pending marriage; and as there'is nothing in the record to show her right to acquire and hold separate property, the presumption is that the property purchased fell into- the community. The plaintiff having failed to show title in herself, the judgment must be affn-med.

Judgment affirmed, with costs.


author: Slidell, J.

text:
    Nicholas Young v. Notley Young.
    A wife may acquire separate property by the bond fide investment of her paraphernaj funds of which the husband had not the administration; so property purchased by the husband with his separate funds, under circumstances manifesting a clear intention to purchase it for his separate account, may be regarded as his separate property.
    As a general rule, property purchased by either husband or wife during the existence of the community belongs to the community; and if the price be paid out of the separate funds of either, that one becomes a creditor of the community for the amount.
    Children born of slaves which are separate property do not enter into the community of' acquests.
    When slaves are purchased by a husband in a State where they are personal property, with the intention of bringing them to Louisiana, where he and his wife are domiciliated, their respective rights must be decided by the laws of Louisiana.
    APPEAL from the District Court of Yermillion, Voorhies, J.
    J. W. Walker, for plaintiff.

      E. C. Brent, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff is the son of the defendant and of Eliza Qradinigo, who were married in 1814 or 1815. The mother died in 1821. In the inventory made of her succession, the slaves which have given rise to this controversy were not included.

The defendant owned, before his marriage, a negro girl. She was sold during the marriage for the sum of $600, which sum the defendant some months after-wards gave to his agent, who purchased for him at Washington, in the District of Columbia, by verbal sale and delivery, the slave Rachel, and her two children Eliza and Lucy. The plaintiff now claims an interest in these slaves and their natural increase, as constituting part of the acquests and gains of the community.

The defendant owned other female .slaves previous to his marriage. Their increase born during marriage is claimed as community property.

The articles 64 and 67, p. 336, of the Code of 1808, are, with a slight change of phraseology, the same as the articles 2371 and 2374 of the Code of 1825. It may be conceded, that although the general rule established by these Codes is, that purchases made during marriage, by either of the spouses, belong to the community ; yet, that a wife may acquire separate property by the bond fide re-investment of her paraphernal funds, of which her husband had not the administration. See Broussard v. Her Husband, 11 R. R. 446. And it may also be conceded that, upon principles of equably and reciprocity, property purchased by the husband, with his separate funds, and under circumstances manifesting a distinct and clear intention to invest them for his separate account, should be considered his separate property. But if this be the proper rule, the defendant has not brought himself within it; for the intention to re-invest for his separate benefit does not appear. The defendant, however, is entitled to charge the community with the $600.

It was argued, that as the purchase was made at Washington, the rights of the defendant should be controlled by the law of that place. The slaves were personal property at the place where they were purchased; so was the money used in their purchase.' The rights of the husband and wife touching the money and the acquisition were, in our opinion, controlled by the law of Louisiana, the place of this matrimonial domicil, to which also the slaves were intended to be and were immediately brought.

With regard to the children born during the marriage from female slaves, the separate property of the defendant, we are of opinion that they did not fall into the community of acquésts and gains.

We recently had occasion to consider this question, in a case controlled by the Code of 1825. Childers v. Patten, 5th Ann. . The course of reasoning there adopted must lead to a similar result in the present case. Indeed the point is involved in less difficulty under the code of 1808 than under that of 1825, as may be seen by referring to article 62, 334. After what was said in Mrs. Patten's case, it is sufficient to refer to the articles of the Code of 1808 pertinent to the question, without citing them at length or enlarging upon them. See art. 24, p. 40; art. 4, p. 102; art. 12, p. 112; art. 50, p. 332. See also Gonor v. Her Husband, 11 R. R. 527. Frederic v. Frederic, 10 M. R. 188.

The judgment of the district court is therefore affirmed, with costs.


text:
    Heirs of Landry v. Heirs of Duaron.
    Where, upon the death of the husband, the wife retains possession of the entire community, (there being.no issue of the marriage,) she is responsible to the heirs of the husband for the rents and profits of their share of the community from the date of his decease.
    APPEAL from the District Court of Lafayette, Overton, J.

      C. H. and E. Mouton, for plaintiffs.

      Crow and Greig, for defendants.
   The judgment of the court was pronounced by

Rost, J.

Jean Landry, the husband of Ursule Duaron, died without children or descendants, in 1835 ; his wife remained in possession of his succession, which was composed exclusively of community property, until April, 1839, when an inventory was made in presence of his heirs. After this inventory, Ursule Duaron still retained possession of the entire succession until her death, which occurred on the 13th of March, 1842. An inventory of her succession was then made, and all the property in her possession was sold by consent of the heirs of Jean Landry. An administrator was subsequently appointed to her succession, who, in the course of his administration, filed a tableau of distribution among the heirs of Jean Landry and of Ursule Duaron, dividing the assets in his hands, after payment of the debts, in two equal parts.

To this an opposition was made by the heirs of Jean Landry; they aver that at his death they became seized in full property of his share of the'communify; that his widow took possession of it, and enjoyed the revenue thereof; in consequence of which her succession is accountable for the rents and revenues during her possession. They ask to be credited, 1st, for one half of the proceeds of the property. 2d. For the rents and profit of their share from the death of Landry until that of Ursule Duaron in 1842. 3d. That the sum of one thousand and sixty-seven dollars and ninety cents, credited to the heirs of Duaron as brought into marriage by the deceased Ursule, be disallowed. 4th. That the sum of one hundred dollars, credited as paid by her in her lifetime, be rejected. The district court sustained the opposition, and the administrator has appealed.

It is contended, on behalf of the heirs of Ursule Duaron, that by the last will of Jean Landry, made in 1829, his widow was entitled to the usufruct of all the property left by him during her natural life, and that her title to the same has been acknowledged, acquiesced in, and assented to by the heirs of Landry. They further urge, that if the disposition of LcSndry is not valid as a will, it is valid as a donation inter vivos. They plead the prescriptions of one, three and five years. .

A testament is without effect until it has been duly proved, and the execution ordered by competent authority. L. C. 1637. Stewart, Curator, v. Row, 10 L. R. 533. The will alleged in this case never was probated; it can therefore have no effect upon the rights of the parties in this suit. It was not intended as a donation inter vivos, was not accepted, and never took effect as such. It is true that no particular form is required to create a usufruct ; but when it is created by will, the form of wills and the mode of their execution will be followed.

We are satisfied from the evidence in the record, that the will was null; but if it had been in due form, its non-execution during the lifetime of Ursule Duaron would be fatal to the pretensions of her heirs. She retained possession of her legacy of her own authority, and she is bound to restore the fruits received by her. L. C. 1622. The district judge allowed one hundred and thirty-three dollars and fifty-eents, proved to have been brought into marriage by Ursule Duaron. There is no evidence to sustain the claim of one thousand and sixty-seven dollars and ninety cents, made by her heirs; and the district court properly rejected it. We are satisfied that there is no error in the judgment appealed from.

Judgment affirmed, with costs.


author: Rost, J. Preston, J.,

text:
    Executors of L. B. Compton v. John Compton.
    Where a party sells an interest in a plantation for $100,000, payable in twenty annual installments, with interest at seven per' cent, and takes notes for the principal and also for tlie interest, the interest runs after the maturity of the notes only on the notes for the principal sum; and does not run on the interest notes. A stipulation that the interest notes shall bear ten per cent interest after maturity does not render the original contract usurious.
    There is no distinction as to whether interest be usurious or not, between the interest stipulated upon the price for which property is sold and the interest which may be stipulated for the loan of money.
    Payments are to he imputed to the debts which the debtor has the greatest interest in discharging, and to those which hear interest in preference to those which do not.
    APPEAL from the District Court of Rapides, Cushman, J.

      Hyams, for plaintiff.
   The judgment of the court was pronounced by

Rost, J.

Leonard B. Compton and John Compton were partners in planting, and owned in common several tracts of unimproved land.

On the 3d of February, 1836, they dissolved the partnership. Each retained a certain number of slaves ; and Leonard sold to John the undivided half of the remainder of the property. The act states, that the sale is made for, and in consideration of, the sum of $100,000, payable in twenty equal payments, from the 1st of March, 1837, with interest at the rate of seven per cent per annum, payable in advance.

The purchaser gave his notes, forty in number, for the annual installments of the principal and the stipulated amount of interest due each year. The gross amount of these notes for the principal and interest was $173,500. They were payable to the order of the vendor, stipulated on their face to be payable for value received, with interest at the rate of ten per cent per annum from maturity if not then paid, and were secured by a special mortgage on a portion of the property sold.

Leonard B. Compton received payment of five of these notes, and a part of another. Some years after his death, his executor instituted the present action upon the notes which had matured at the time. He prays judgmenton the notes due for the principal and interest, with interest thereon at the rate of ten per cent per annum from their maturity; and further, that the property specially mortgaged be sold under the mortgage, and the entire property conveyed, under the vendor’s privilege, to meet the amount due and the notes not matured, according to the terms of the contract.

The defendant resists the claim, and avers that he is only bound for the principal of the price, without any interest, the whole balance of the indebtedness charged being made up of compound, illegal and usurious interest.

He further avers, that he has made large' payments on his purchase, some of which were through error made on account of the illegal interest. He asks that those payments be imputed on the capital of the price, and that the interest notes be avoided and cancelled.

The district court sustained the plea of usury, cancelled the interest notes, and gave judgment on the notes for the principal of the price, with legal interest from their maturity, deducting therefrom such of the payments made in relation to which there had been no imputation. The plaintiff has appealed.

It is shown, that if nothing was paid on this contract before the maturity of the last installment, the aggregate sum then due for the purchase of the property would be $379,405, and that the interest on the price stipulated would be at the rate of very near fourteen per cent per annum.

The plaintiff urges, that although in the act of sale the word interest is used, and the act, speaks of the payment of interest annually and in advance on the principal, the notes purporting to be interest notes were not given for interest, in the usual’acceptation of that word, but formed an integral part of the price ; that a term of twenty years was given for the payment, and the real price agreed upon was $173,500.

That the seven per cent installments were not for a loan of-money or other movables, and did not come under article 2894 C. C., nor were they for damages dueffor delay in the performance of an obligation to pay money, which could alone bring them under article 1929. But that they were allowed as a consideration for the time given for the performance of the obligation, or if not for this, for the use and enjoyment of the property before the purchaser was required to pay for it; and that in either view those notes were not for interest, but for a part of the price.

That the stipulation in the contract of sale that John Compton should not be at liberty to pay at any time more than the annual payment due without the consent of the vednor, conclusively shows, that in the intent of the parties, the contract was entire, and the sum of $173,500 was constituted the price of the property sold.

That if any portion of the interest is illegal, it is only the stipulation to pay ten per cent on the interest notes, and that the plaintiff is entitled to recover the amount of all the notes subscribed by the defendant, with ten per cent interest on the notes given for the principal since they respectively became due.

If it be true that the seven per cent installments are not interest, they are, of course, subject to none of the rules which govern interest; so that if the rate agreed upon, instead of being seven per cent had been twenty or fifty per cent, the plaintiffs’ counsel must be prepared to maintain that the contract would have been equally lawful.

To show that in a contract of sale the interest stipulated during the term granted is a part of the price, we are referred to Troplong, de la Vente, and the authorities he cites. That author says that under the denomination of price is included everything expended by the purchaser, which passes into the hands of the seller, whether under the name of the principal sum or of interest. In another place he says, that the word price has a very extensive signification, and includes everything which the purchaser disburses to obtain the enjoyment of the thing sold, wherefore, he continues, the following are included in the word price : 1. The sum of money stipulated as principal to serve as an equivalent to the thing sold. 2. Whatever may be added to maintain equality between the parties. 3. The interest of the price when any is due, &c. &c. Troplong, de la Vente, 161, 596. He does not say that interest in' such a case differs from other interest, or that it forms an integral part of the price ; but, on the contrary. expressly makes the distinction between the principal and the interest of the price. This distinction exists in the nature of things; to say that interest is not interest, or that it is principal, is a contradiction in terms. Interest is a part of the price for certain purposes. For instance, the vendor has for the interest the same privilege he has for the principal, and his right to claim the resolution of the sale for the non-payment of the price may be enforced in case of non-payment of the stipulated interest. But for all this, the interest does not form an integral part of the price. If, at the time of the sale, there had been dangers of eviction known to the purchaser, and after paying all the notes given by him he had been evicted, he would have been entitled to recover the price paid, under article 2481 C. C. The word price, in that article, means the principal sum, and does not include the interest. Again, if the property sold had been the dotal property of the vendor’s wife, he would have been bound to re-invest the price in real estate, and would have discharged that obligation by re-investing $100,000.

To show that the interest in this case is a part of the price, because it was given for the use and enjoyment of the property during the term granted, the plaintiffs’ counsel relies on the authority of Pothier.

Under the laws of France, at the time Pothier wrote, the lending of money on interest, no matter at what rate, was prohibited, and all such contracts were held to be usurious. Merlin Rep., Verbo Intérét.

Pothier, in the paragraph cited, writes in reference to that prohibition, and is discussing the question whether the interest accruing or stipulated under a sale of productive property is usurious; he states, that several doctors of the law cited by Fachin held it to be usurious, on the ground that usury consists in the profit derived from the loan made, or the credit given to the debtor; that the interest in such a case is stipulated as the price of the credit which the vendor gives, and that the purchaser does not owe it by the nature of the contract, because, having a term to pay, he is not in mora, and can therefore owe no interest by virtue of it.

Pothier answers, that it is not from the failure to pay that interest arises in the contract of sale ; that interest in such a case is not a profit made by the vendor on the credit he gives, but rather the price of the enjoyment of the thing sold, and that it originates in this enjoyment and in the rule of equitj’’ which will not permit the purchaser to enjoy at the same time the thing and the price. Pothier, Contract of Sale, paragraph 285.

He holds that those interests are not usuree lucratoriee, which are illicit, but usuree compensatoriee, which all admit to be authorized. He does not say that the interest accruing on the price of the productive property is not interest, in the common acceptation of the tei'm, he only decides that it is not usurious interest.

The distinction between usuree lucratoriee and usuree compensatoriee, was resorted to by civilians for the pui'pose of moderating the injustice of the usury laws then in force; it may have been a justifiable evasion of an absurd prohibition, but it is unknown to our laws, and has no foundation in reason or truth.

The allowance of interest ex-mora on the price of productive property, while none is allowed on loans of money, without a stipulation to that effect, took its source in the idea that money is a barren thing which can produce no fx’uits. It is now admitted by all that the distinction is arbitrary, and that capital invested in other pui'suits of human industry produces fruits as well as what is termed productive px'operty. Thex’e is, therefore, no reason whatever to extend the distinction and to recognize between interest stipulated on the price of productive properly and other interest, differences which our laws do not contemplate.

It has been ui'ged, that the intei’est installments wexe not stipulated for intex-est as technically known to our laws, but were established for the term, that is, for the time given for the performance of the obligation.

If this were true, there would hardly be such a thing as interest known in contracts. Loans of money are always made on time, and, according to this doctrine, the interest stipulated during the term agreed upon would be a portion of the loan, and not interest, properly speaking. It is evident that in a legal point of view, the nature of the interest stipulated does not vaxy with the consideration of the contract in which it arises, and that in all contracts the consideration of which is money, the interests stipulated are not less interest because they may be viewed as a compensation for the term given by the creditor.

The only claim of the vendor in this case was a sum of money, and the only damages he could stipulate or receive for the term he gxanted was the interest authorized by law. Whether the delay in the performance of an obligation to pay money is stipulated in the contract or not, the interest accruing on that obligation is governed by art. 1929, C. C.

Interest stipulated on sales, and other synalagmatic contracts, is classed by Toullier with interest accruing on loans. See Toullier, Obligations, 265. This principle is not an innovation in jurisprudence, it has descended to us from the Roman law. “ Papinianus respondisse se referí, si converit, lit ad idem pretio non soluto, venditoxi duplum proesturetur, infraudem constitutiorum videri adjeetum quod usurara legitimam. excedit.” L. 13 ff de act empt.

It is recognized by many decisions of the courts of France, and by the following French commentators : Chardon, Traité de l’Usure, No. 20. Traité de la Fraude, No. 480. Duvergier, Traité de la Vente. Dumoulin, question 27. Merlin Rep. verbo Intérét, and the authorities he cites.

• Merlin says, that parties to a contract of sale may fix the price as they please. But when they are once agreed! as to what the price is, they cannot stipulate on it a higher rate of interest than the law authorizes. In this case the parties have agreed to fix the price at #100,000, and have minutely described in the sale each note given in payment of it, and also every note given for interest.

The stipulation in the act that the purchaser shall not anticipate the payment of the notes given for the principal is subsequent to this, and totally unconnected with the agreement about the price. So far from changing the price from $100,000 to $173,000, it expressly keeps up the distinction between the price originally agreed upon and the interest upon it, placed as it is at the close of the act; the only inference to be drawn from it is that the creditor viewed the contract as a safe investment, and was unwilling to receive the price before it became due. Similar stipulations often take place in contracts of loan, and ought not to affect the character of the transaction.

We are satisfied that the vendor’s representatives, so far as the question of interest is involved, occupy precisely the same position which they would occupy if he had loaned the defendant one hundred thousand dollars, to be refunded in twenty yeai’s, and had taken from him for the principal and interest during that time the notes which he received, and stipulated that the defendant should not anticipate the terms of payment by the conti’act. In that case as in this the contract would be entire, and it would be equally true to say that the sum of $173,500 was constituted the consideration of the loan.

The intei’est of seven per cent stipulated in the sale, not being a part of the price, the next question is whether it has become tainted with usury by reason of the promise to pay interest at the rate of ten per cent upon all the notes given after maturity; and in solving that question, if the facts of the case and the law applicable to them present two aspects, under one of which the contract for interest would be entirely avoided, and under the other only avoided in part, the last intei'pretation must prevail.

It is urged, that even if the interest notes are not a part of the price, the contract is not usurious, because a disposition of the code authorizes interest to be charged upon interest. Article 1934, in which this provision is found, isas follows : “ Interest upon interest cannot be recovered unless it be added to the principal, and, by another contract, made a new debt. No stipulation to that effect in the original contract is valid.”

The corresponding article of the Old Code, identically the same as article 1154 Nap. Code, is as follows: “Interest on capital may produce interest, either by a judicial demand or by a special agreement, provided, that either in the demand or the agreement the interest in question be due at least for an entix’e year.”

Under this article it is a controverted question among the jurists of France whether the capitalization of interests can be stipulated in the original contract, or whether the interest must be due before the stipulation is made; eminent commentators maintaining the first proposition, and the French tribunals holding the second to be the correct interpretation of the law. Toullier’s Obligations, Nos. 270 and following. 10 Duranton, Nos. 494 and following. Maurin v. Robert, 27 Sirey, 2d part. p. 128. Old Code p. 270, art 54.

To put an end to all doubt on this subject, the framers of the Code of 1825, inserted in it the provision that no stipulation in the oi’iginal conti’act to pay interest upon interest should be valid.

This, as well as the other prohibition in the article, are founded on motives of public policy. They are intended to prevent the unjust advantage which conti’acts in this foi'm would give to the designing over the simple and ignoi'ant, and the utter l’uin of imprudent or unfortunate debtors, who, sleeping on the faith of such a conti'act, might suffer interest to accumulate upon intei'est indefinitely, until their indebtedness far exceed their means. This case offei's a striking instance of the wisdom and policy of the rule.

The stipulation to pay interest upon interest is contained in the original contract. It is therefore void, and stands as if it had never been written.

It has been finally urged in argument, that if the defendant is entitled to relief, it can only be decreed to him by his replacing the plaintiff in the position in which he was at the time of the contract, that is by restoring the property and fruits.

Such a decree would not be warranted by the pleadings. The plaintiff might have sued for the resolution of the sale, on account of the non-payment of the price, and if he had, the property and fruits would have been restored to him. But he sues in affirmance of the sale, and claims the price. That only is the price which is a lawful consideration. The portion of it which is unlawful is as if it had not been written, and can produce no legal effect.

The contract before us is one in which damages for the delay given for the payment of money have been stipulated at a higher rate than the law authorizes.

But the stipulation to pay ten per cent on the interest notes after maturity, being void, the contract is not usurious. The conventional interest stipulated in the notes given for the capital of the price may be recovered ; and the interest notes remain valid ; but the plaintiff can recover no interest upon the interest notes. The disposition of the Old Code already referred to, that interest upon interest could be recovered after judicial .demand, having been left out in the New Code, it can only be recovered under art. 1934, when there has been a contract to that effect, after the interest became due.

The defendant has paid $8,757 without any imputation being made. The appellant complains that the district judge imputed that amount on the notes given for the principal, and asks that the imputation be made pro rata on those notes and the interest notes which fell due at the same time.

There is no error in this part of the judgment; the payments were properly imputed to the notes which bear interest.

This ease was submitted to us without argument, on the part of the defendant ; this circumstance has contributed to delay the decision.

It is ordered, that the judgment in this case be reversed; it is further ordered, that there be judgment in favor of the plaintiff, and against the defendant, for the sum of seventy-four thousand and seventy-three dollars fifty-one cents, with interest at the rate of ten per cent per annpm on tne following portions thereof, from the following dates, to wit: on $1306 95, from the 26th of May, 1841, until paid; on $5000, from the 4th of March, 1842, till paid ; on $5000, from the 4th of March, 1843, till paid; on $5000, from the 4th of March, 1844, till paid ; on $5000, from the 4th of March, 1845, till paid; on $5000, from the 4th of March, 1846, till paid; on $5000, from the 4th of March, 1847, till paid ; on $5000, from the 4th of March, 1848, till paid. It is further ordered, that all the property purchased by the defendant be seized, under the vendor’s privilege, and the property specially mortgaged under the mortgage; the mortgage and privilege bearing date 3d day of February, 1836, and having been duly re-inscribed on the 22d day of November, 1845, and that both be sold to satisfy this judgment, and the other installments of the price which had not matured when the present action was brought, according to the terms of the contract; to wit, the sum of $57 600, as follows: $5000, with ten per cent interest per annum, from 4th March, 1849, till paid; $2800, due 4th March, 1849, without interest; $5000, with ten percent per annum interest, from 4th March, 1850, till paid ; $2450, due 4th of March, 1850, without interest; $5000, with ten per cent per annum interest, from 4th March, 1851, till paid; $2100, due 4th March, 1851, without interest; $5000, with ten per cent per annum interest, from March, 1852, till paid; $1750, due 4th March, 1852, without interest; $5000, with ten per cent per annum interest, from 4th March, 1853, till paid ; $1400, due 4th March, 1853, without interest; $5000, with ten per cent per annum interest, from 4th March, 1854, till paid; $1050, due 4th March, 1854, without interest; .$5000, with ten per cent per annum interest, from 4th March, 1855, till paid; $700, due 4th March, 1855, without interest; $5000, with ten per cent per annum interest, from 4th March, 1856, till paid ; $350, due 4th March, 1856, without interest; $5000, with ten per cent per annum interest, from 5th March, 1857, till paid. It is further ordered, that the defendant pay the costs in both courts.

Preston, J.,

dissenting. The authorities cited and reasoning presented by Judge Rost, bring me to the conclusion which he has adopted, that the prim cipal of the price of the property sold in this case was $100,000, and that notes, the aggregate sum of which amount to $73,500, were given by the defendant, for interest for the delay or terms of payment granted by the act of sale.

For the principal of the price, twenty notes of $5000 each were given, payable at from one to twenty years. And as the purchaser agreed to pay seven per cent interest on the price, - payable in advance, notes for this interest were given, to fall due at the beginning of each year, and were an indemnification for the delay of payment only in case the installments of the principal were punctually paid. Therefore, the purchaser agreed in the notes given for the installments of the principal, to pay ten per cent interest after their maturity, until they were paid.

At the time the contract was made, our laws admitted the stipulation of ten per cent conventional interest. There was nothing illegal, therefore, in agreeing to receive seven per cent interest upon the price of the property, if punctually paid, according to the terms of sale, and ten per cent interest on the installments, if not paid at maturity, until payment. Indeed, it is very common in sales, or in other obligations, to contract for a higher interest, if the obligor should be in default in complying with his obligations, than the rate of interest for the terms of payment agreed upon. Thus, the Union Bank is allowed by her charter to charge seven per cent interest upon her loans; but to exact ten per cent if the borrower is in default in paying up his installments.

The notes given for the price of the property must, therefore, bear interest at the rate of ten per cent from maturity until paid, as expressed on the face of them; because the agreement to pay the same is not prohibited by law.

The notes given for interest at seven per cent, payable in advance, must in like manner be paid, because there was nothing illegal in contracting for it.

But these notes given for the interest, were also to bear ten per cent interest, if not paid at maturity. Our code declares, that interest upon interest cannot be recovered, unless it be added to the principal, and by another contract be made a new debt. The interest upon the interest notes cannot, therefore, be recovered.

It is urged, that this stipulation for compound interest vitiates the whole contract for interest. Our statute does not say so, but merely refuses an action for the compound interest. “It cannot be recovered.” “No stipulation to that effect in the original contract is valid.” That is, the contract for interest upon the interest is invalid; plainly implying, that the contract for the interest itself is valid. And indeed, if the contract for interest upon interest be made after it becomes due, the contract may be enforced in our courts. This shows that there is nothing immoral or unconscionable in the contract, for it cannot be immoral or not according to the time of making it. It could be enforced in England, though made in the original contract, notwithstanding the statutes of England prohibited all degrees of usury; and considered it a most unconscionable and sinful practice. 2 Hen, Black. 144. 47 Rep. 613. I cannot see any reason of public policy or interest militating against enforcing such a contract, as far as it is legal on its face.

It is urged, that the whole contract conflicts with article 2895 of the code, declaring that the amount of conventional interest cannot exceed ten per cent. But the contract and notes enable the court clearly to see by the writing itself, those parts which are legal and equitable, and which should be enforced ; and that part for which the law gives no action. And in this respect the case is entirely different from that of Heed against Duncan, 1st Ann. 265; in which this court held that the convention for usurious interest being a whole, the nullify resulting from a prohibitory law covered the whole contract.

In my opinion, therefore, the notes given for the principal, or price of the property, should, in pursuance of the contract on their face, bear ten per cent interest from maturity, until paid.

The notes given for the interest should be recovered, but without the interest of ten per cent stipulated on their face, which the code declares cannot be recovered.

      Hon. George Eustis, C. J., was not present during this term.


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    Baptiste Adle v Melite Anty, f. w. c.
    Where the probate judge in making a sale of succession property, got one of his clerks to act as crier at the sale, and afterwards made the adjudication and passed the acts of sale in his own name, it does not amount to such an informality as to annul the sale; especially as the administrator had received the proceeds, partitioned them amongst the heirs and had his account homologated five years previous to the institution of the suit.
    APPEAL from the District Court of Natchitoches, Olcolt, J.

      F. B. Sherbourne, for appellants.

      John B. Smith, for appellee.
   The judgment of the court was pronounced by

Preston, J.

The succession of Susanne Metoyer, a free woman of color, was opened in the parish of Natchitoches in the year 1838. An inventory of her property was made ; the appraisement amounting to the sum of §35,904. Some of the heirs being minors, a family meeting was convened, which recommended that the succession should be accepted on their behalf under benefit of inventory, and that the property should be sold at the time and upon terms and conditions which they specified. The succession was thus accepted, the proceedings of the family meeting homologated, an administrator appointed, and the property sold on the 15th of February, 1839, for the purpose of making a partition among the heirs. The administrator rendered his account, not only of his administration, but making a partition among the heirs of the estate amounting to upwards of sixty thousand dollars; thereby showing the sales to have been extremely favorable to the heirs. The account and partition, after due publications, was approved and homologated, and the heirs, including the intervenors, were paid their respective portions of the estate early in the year 1840.

The intervenors in this suit seek to annul the sales, not because they were unfavorable to them, and to rescind the partition, not because there was any error in it, but because the probate judge, who made the sale, employed a person to cry off the property at auction, and did not mount the stand and perform that duty himself, which they contend was a clear violation of article 2600 of the Civil Code, defining a judicial sale of succession property to be one made by the judge or clerk of the court to which this jurisdiction is specially confided. We think this was strictly a ministerial duty which the judge might employ a confidential person to perform for him.

At all events, his formal approval of the adjudications, the judgment homologating the administrator’s account of the proceeds of the sales, and their partition among the heirs, the receipt of their portions of the estate by the heirs, their acquiescence for seven years in all the proceedings ; and the prescription of five years against all informalities in public sales, cures so unimportant a want of formality as that upon which this intervention is based.

It is therefore dismissed, and the intervenors condemned to pay the costs of this appeal, and of their intervention in the district court.


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    Michael Boyce v. Michael Welch.
    "Where a steamboat loses a portion of her cargo in consequence of being snagged, the loss is considered as one falling within the perils of the river, and the vessel is not liable.
    APPEAL from the District Court of Rapides, Cushman, J.

      James S. Edelin, for plaintiff.

      Elgee and Hyams, for defendant.
   The judgment of the court was pronounced by

Slidell, J.

The plaintiff shipped forty bales of cotton by the defendant’s steamer', thirty-four of which was delivered to the consignee, and six never came to hand. The steamer, on her trip from the foot of the raft in Red River to New Orleans, struck a snag in the Rigolet de bon Dieu, filled rapidly, careened and sunk. By the exertion of much labor, and at much expense, the captain succeeded in saving the great mass of the cargo, and forwarded it to New Orleans. An average adjustment was made there, and settlement of salvage, &c., to which adjustment and settlement the plaintiff’s consignee became a party, and permitted them to be carried into effect without objection.

The defendant comes before us with the verdict of a jury in his favor. Under the evidence, the inference was admissible that the missing bales had been lost by the careening consequent upon the snagging, filling and grounding of the steamer- — perils of the river for which the defendant was not responsible under the circumstances; and we do not feel authorized to disturb the verdict upon a review of the evidence.

There are some objections made to items charged to plaintiff in the adjustment at New Orleans, which it is not material to reconsider. The plaintiff’s consignee was a party to the adjustment, made no objection at the time, and paid over the amounts in question to the adjuster.

Judgment affirmed, with costs.


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    D. C. Clark, Administrator, v. Succession of L. Briggs.
    Where the property has been sold under an execution against the purchaser so that he can no longer return it, he cannot demand a rescission of the sale upon the ground of eviction from the greater portion of the property; his only remedy is for a reduction of the price A claim for the diminution of the price cannot give rise to the action of warranty, for in such a case it is the vendor who is evicted of a portion of the price.
    The heirs cannot release a debt due to the succession so long as there are debts due by it and the estate is in a course of administration in the hands of an administrator,
    APPEAL from the District Court of Avoyelles. Farrar, J.

      H. Taylor, for appellant, made the following points.
    1. The heirs of Alexander Grimball, being all majors (but one) could accept the sucession either expressly or tacitly. La. Code 878, 983. They could not dispute their acceptance, Ibid. 1003; and bound themselves for the debts of the succession. Ibid. 1006. They must be considered as heirs until they renounce. Ibid. 1007,1008, 1029, 1030. The order of administration. Ibid. 1035, 1039. The moment acceptance is made the law gave them the estate. Ibid. 1048, 1049. 3d. Ann. 502.
    These provisions of our law manifestly show, that when heirs accept a succession absolutely, they take it as they find it; and in such case no administration is necessary. If debts exist, creditor's have the same right to enforce their payment as if the estate were duly administered upon.
    If this position be correct, it applies under all circumstances, whether the succession be under administration or not, if the heirs are present. If absent, the administrator can require security to the extent of the debts. See C. P. 1000, 1003, 974 to 979, et seg. Act 25th March, 1828.
    The next fact for enquiry is, whether any debts existed against the succession; and this is answered by an examination of Clark's final account and the petition of homologation. This account consists entirely of charges in the nature of lawyer’s fees, and costs uselessly incurred by Clark, and greatly prejudicial to the succession. No debts appear to have been paid, nor any collected, but the estate is encumbered with a long list of law charges amounting to some $1800, and apparently for the benefit of no one except the attorney of Clark. The petition for homologation admits the fact, but yet, to cover the laches and grossly negligent administration of Clark, these extravagant charges have been fished up and their payment attempted to be enforced against Brigg's estate some five or six years after he and all the parties having any interest in the succession of Grimball, supposed he was released.
    The truth is, that in 1844, Clark left the Parish of Avoyelles, has never returned to it, and is wholly and entirely insolvent; and this suit wears the appearance of a suit carried on in the name of Clark, but ostensibly for the interest of his attorney. See 3d. Ann. 502. 2d Ibid. 464.
    He, the attorney, can never obtain one cent from Clark, and Briggs’ estate is to be made the scape-goat. Will this court permit it ?
    2d. The estate of Briggs was clearly entitled to their warranty against the heirs of Alexander Grimball. See La. Code, 2482, 3602, 3021, 2195, 2196, 2197, and other provisions as to warranty.
    3d. The third and last point has been touched upon, and the only remark to he made here is, that no debts have been shown to exist against the estate of Grimball, except the law charges and costs figuring in the account of Clark, administrator. And, to conclude, the court is called upon to disturb a security debtor reposing in good faith on a release made and observed in'good faith by the only parties having an interest in the matter. Parties who were heirs, and as such had the right to accept unconditionally and take possession of the succession, against whom creditors have their recourse as fully as against the administrator.
    The minor, J. P. Grimball, having also accepted, and being fully represented in the answer of the warrantor, no reservation could be made as to him; and if the warranty claimed exists, it extends to him also.

      Flint, for Edelin, in behalf of appellee,
    made the following points. The defendant claims a discharge from the debt sued for, on two grounds: 1st. Because Alex. Grimball had not, and consequently could not give, a valid title to all the land he sold to the defendant McNeely, the principal of the defendant’s intestate. 2d. Because McNeely and Briggs were both released from this judgment by all the heirs (except one) who had exercised acts of ownership, which was equivalent to a simple acceptance of the estate.
    I. The vendee’s surety can in no case demand a rescission of the sale on account of deficiency in the quantity of land; because it is at the option of the vendee himself whether he will claim a rescission of the sale or a diminution of the price. In this case, however, the vendee could not have obtained a rescission of the sale, because he could not return the land to which he did receive a good title. All, then, that could be reasonably demanded by either vendee or security is, that there be a diminution of price in proportion to the deficiency of quantity. This has been done in the judgment.
    II. At the lime of the release, and long prior to it, the estate was in the hands of an administrator regularly appointed. The release then could only operate an abandonment of the interest of those who signed it; that interest was nothing but their respective shares in the surplus after the payment of the debts of the estate. The proposition, that the heirs of an estate which is in a regular course of administration can by illegally intermeddling with it, acquire' the right or power of placing the effects belonging to it beyond the reach of the creditors, is so preposterous and is opposed by objections so numerous and so obvious that its serious refutation is deemed unnecessary. The defendant or his counsel seems to suppose that one cannot subject himself to liabilities without acquiring legal rights and powers. It may be true, that these heirs, by the acts offered in evidence, made themselves liable for the debts of the succession; but it would be strange if by their wrongful acts they could acquire the legal power to defeat the rights of third persons. The only mode by which they could have acquired the authority requisite to make their acts binding upon others was by a formal application to be put in possession of the estate, and giving security for the payment of the debts if required. If the sanction of the law could be obtained for the course pursued in this instance, or for the doctrines advanced by the defendant, the rights of creditors would never be safe, nor could any one with prudence or safety incur the expense and trouble of an administration.
    The debt due by the estate of Briggs is the only fund now belonging to the estate of Grimball, out of which the debts still due by it can be paid. These were nearly all due before the so called release. .
    The defence in this case is so absurd that damages, we think, ought to be allowed for a frivilous appeal.
   The judgment of the court was pronounced by

Rost, J.

The syndic of the creditors of the succession of E. L. Briggs, having filed a final tableau of distribution, the plaintiff, as administrator of the estate of Alexander Grimball, filed the petition in this case as an opposition to said tableau. He asks that the succession he represents be placed thereon as a judgment and mortgaged creditor for the sum of $4000 besides interest. This judgment against Briggs was rendered upon a note subscribed by him and one McNeely in solido, for a tract of land purchased by McNeely from Alexander Grimball.

The defence set up against this opposition is, 1st. that Alexander Grimball had not, and consequently could not give a valid title to a large portion of the land sold to McNeely, and that the want of title was not discovered by McNeely or Briggs until after the judgment had been rendered against them for the price; 2d, that McNeely and Briggs have been released from this judgment by all the heirs of age of Grimball, after a tacit and unconditional acceptance on their part of the succession of their relative. John Paul, one of the heirs, was a minor and did not sign the release.

The defendant in his answer also prayed, that the heirs of Alexander Grim-bull might he called in warranty, and for such a judgment against them as might be rendered in favor of the plaintiff against him. Theheirs of Grimhall answered, denying their liability as warrantors or otherwise.

The district court sustained in part the plaintiff’s claim, and ordered the succession of Alexander Grimhall to be placed on the tableau as a creditor for the sum of §1630 90 besides interest, with mortgage from the 8th of December, 1842, the date of the recording of the judgment. The court further ordered, that if the aggregate of the debts of the estate of Grimhall should be less than the amount of the judgment and interest, and the share of John Paul Grimhall, the minor heir who did not sign the release, on payment of the debts and of that share, the judgment should be deemed fully satisfied. The call in warranty was dismissed at the cost of the defendant. From this judgment the defendant has appealed against both plaintiff and warrantor.

The want of title in Alexander Grimhall to a large portion of the land sold to McNeely, and the fact that the defect in the tide was discovered after judgment had been obtained against the purchasers for the price, are satisfactorily , established; but it is also proved, that the portion to which the vendor had a good title was seized and sold under execution as the property of McNeely, and passed to the purchaser free from incumbrance, Grimhall having retained neither privilege nor mortgage upon it. After the sale, McNeely being no longer able to return the land, neither he nor his surety could have claimed a rescission of the contract. The only remedy was for a diminution of the price. We understand this to be the relief asked by the defendant, and the district court has granted it fully by reducing the original debt of §4000 to $1630 90. A claim for the diminution of the price cannot, of course, give rise to the action of warranty, which the law gives to the purchaser against the vendor in case of eviction. In the action quanti minoris, it is the vendor who is evicted from a portion of the price, and the purchaser receives the full consideration of what he is made to pay.

If the responsibility of the heirs of Grimhall arose from the subsequent release which some of them gave the defendant, it does not give rise to an action of warranty, and should be ascertained in a separate suit.

The judgment against Briggs and McNeely for §4000 was obtained by the present plaintiff in his representative capacity, and the only question left for our consideration is, whether that judgment could be released by the heir's of Alexander Grimhall, without the consent or knowledge of the administrator while the administration continued. It is urged that it could be; because at the date of the release there were no creditors of the succession of Grimhall, and that the debts which now appear against it are expenses of administration subsequently incurred without necessity or advantage to the succession.

The only evidence before us on this part of the case is the account filed by the plaintiff, and homologated by a judgment of court, showing debts due by the succession to the amount of $858 75. So long as this judgment stands unappealed from and unreversed, it is prima facie in evidence of indebtedness. We must consider it proved, therefore, that there are debts due by the succession of Grimhall. To the extent of those debts it is clear thatthe release relied on by the defendant cannot avail him. The judgment having been obtained against Briggs by the present administrator, he knew that it must still be in his possession and under his control, unless it had been transferred to the heirs; and as he made no enquiry, and no such transfer ever took place, he cannot be considered in good faith, and the release thus obtained did not affect the right of tire administrator to recover the amount due, so far as it may be necessary to pay the debts of the succession and the share of the minor heir, who, not being liable to the defendant as warrantor, and never having released him, is clearly entitled to recover.

"We are of opinion, that there is no error in the judgment appealed from; and it is the opinion of the court that it be affirmed.

Judgment affirmed, with costs.


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    William Long v. Joseph T. Robinson et al.
    A compromise cannot be annulled on account of lesion. C. C. 3045.
    A party cannot get a new trial, upon the ground of newly discovered evidence which would prove a fact not alleged by him in his pleadings, and of which he must have been aware before the trial.
    APPEAL from the District Court of DeSoto, Olcott, J.

      William Long, propria persona.

      J. G. Campbell, for defendants.
   The judgment of the court was pronounced by

Preston, J.

On the 18th of September, 1837, William Long and Joseph T. Robinson entered into a partnership in lands and negroes, situated in the then parish of Natchitoches, now DeSoto, for the purpose of cultivating cotton and other crops. They subsequently acquired other tracts of land and increased their force of slaves, and .their transactions became very complicated. Most of the property had been placed in the name of Robinson, and had been sold under executions to satisfy claims against him of his minor sou, and was purchased by the under-tutor on account of the son.

In April, 1848, Long instituted a suit for a dissolution and settlement of the partnership and partition of its effects. He filed a supplemental petition in the fall, asking for the sequestration of the crop of that year, which was granted.

The son of Robinson, by his under-tutor, was made a party to the suit, and the plaintiff demanded that the sales to him should be annulled on the ground of collusion and fraud.

On the 25th of May, 1849, the parties entered into a compromise before a notary public, substantially as follows : “Whereas, a suit in which the said William Long is plaintiff, and the said Joseph T. Robinson and others are defendants, is now pending in the District Court for the parish of DeSoto, and numbered on the docket of said court as 199, they do by this act, and in the presence of their respective attornies, make and agree to the following compromise of said suit: In consideration of the said compromise, the said Robinson agrees to pay unto the said Long three thousand dollars payable in drafts.” (on terms specified.) “On the payment of the said drafts, the said Long agrees that a final judgment shall be entered up in favor of the said defendants in the said suit, recognizing said defendants fully and completely in their rights of the property contested in said suit, and a final dissolution of all the affairs of the firm of Long 8f Robinson.”

As early as the 7th of June, 1849, the plaintiff gave notices to the parties interested that, according to his understanding, he compromised only as to the supplemental petition in said suit, claiming.half the crop of 1848. But subsequently, in October, 1849, he instituted the present suit to annul the whole compromise on the ground already mentioned, and also on the ground of error and fraud practised upon him in obtaining his signature to the act.

The compromise, in express terms, embraces the whole suit No. 199, and the plaintiff 'agrees that a final judgment shall be entered up in favor of the defendants in said suit, recognizing the defendants fully in their rights to the property contested in said suit, and a final dissolution of all the affairs of the firm of Long $f Robinson. To set it aside, it was incumbent on the plaintiff to have proved that it was made in error or procured by fraud.

The plaintiff seems to rely to establish both, by the large amount of his claims compared with the small sum of $3000 for which they were compromised. But the code expressly provides, that a compromise cannot be annulled on account of any lesion — art. 3045; because it is an agreement to put an end to a lawsuit, and which the parties prefer to the hope of gaining, balanced by the danger of loosing. Code 3038. The plaintiff is therefore not only unfounded in the opinion that the sacrifice he made in the compromise is cause for its rescission, but the district court also properly refused to admit testimony of the value of the property and claims compromised by him.

The suggestion made by the plaintiff in his brief, that the compromise is not binding upon him, because all the parties interested in it did not sign it, cannot avail him. All signed it who were expressly made parties. It was indeed intended not only to benefit Robinson, but also to quiet the titles of his son. The minor son had no interest in the suit but to defend his titles. An act between parties which is beneficial to a third person, certainly cannot be annulled between the parties, because the third person is not a party to the act.

The plaintiff next alleges, as a ground of error and fraud, that Robinson having agreed to compromise his claim for half the crop of 1848, and give him $3000 for the same, fraudulently and clandestinely caused an act entirely different in its nature to be prepared by a notary; that when the act was read by the notary in presence of the parties thereto, he did not hear what was read, owing to his hearing being at the time very much impaired ; and he alleges that he did not read the act before he signed it, thinking it was in accordance with his previous agreement with Robinson.

Parsons, the notary who drew the act of compromise, testifies that he was instructed by the attornies of the plaintiff and defendant as to the terms of the compromise, and agreeably to those terms the act was drawn. After it was written, he read it in an unusually audible voice, having heal'd that the plaintiff was somewhat deaf at times. He inserted the names of the attornies of the parties because he knew they were engaged in great and expensive litigation, and they signed the act with the parties. The room was small, and he has no doubt every line and word of the act was understood by every person in the room. The parties were present when the attornies gave the instructions as to the drawing up of the act,

Hamilton, the attorney of the plaintiff, states that the plaintiff read the act, and it was afterwards read to him by the notary, and that matters were thoroughly discussed by the parties before going to the notary.

Sebastian, a witness to the act, saw the plaintiff read it. Quarles, the only other witness examined, went in but for a moment to attest the act as a witness, and does not contradict the other witnesses. The plaintiff’s most essential allegation is, therefore, entirely rebutted by the evidence.

The testimony of Hamilton was objected to, on the ground that he was the plaintiff’s attorney, and could not disclose confidential communications. He did not disclose confidential communications. The plaintiff asked fora new trial, on the ground that he could prove by Hamilton, Jones and Bullard, that there was such a degree of violence exercised towards him to make the compromise, ns justly inspired him with fear of great injury to his fortune, and which induced him to make said compromise against his interest and his wishes ; and he made oath that he did not know until after the trial that the evidence was of great importance to him.

The violence charged was not alleged in the plaintiff’s petition, and, indeed, is somewhat inconsistent with his allegations of error and fraud. Pie does not pretend to have discovered the evidence subsequently, to the trial, and indeed from its nature must have known of it before. There was not, therefore, sufficient ground for granting a new trial. C. P. 561. 10 M. R. 83. 3 N. S. 125. 4 N. S. 419.

It was the plaintiff’s misfortune to have conducted his cause without the aid of counsel, but it is one against the consequences of which we are unable to afford relief.

The judgment of the district court is affirmed, with costs.


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    Willis Bonner v. Mrs. W. Gill et al.
    Tbe increase of animals inure to tbe benefit of tbe community of acquests.
    The conversion of property which renders a widow liable for tbe debts of tbe community, must be fraudulent and done with tbe view of appropriating to her own use property which she knew belonged to tbe estate of her deceased husband.
    This conversion must have also occurred prior to her renunciation of tbe community to render her liable for tbe debts of tbe community; if done after the renunciation she incurs no greater penalties than other persons would who had done tbe same things.
    APPEAL from the District Court of Rapides, Cushman, J.

      W. Ryan and O. N. Ogden, for plaintiff.

      Hyams, for defendants.
   The judgment of the court was pronounced by

Preston, J.

The plaintiff sues the defendant as the surviving widow of Henry Bonner, to render her responsible for debts due to him by the estate of the deceased. He alleges that she concealed and made way with effects of the community of acquests and gains ; that she intermeddled with the estate of her late husband; that she retained and converted to her own use a portion of the property of the estate, and illegally sold and disposed of a part of its effects.

The husband died in October, 1841; the widow renounced the community of acquests in October, 1842. He left a large property, but greatly involved in debt. With many others in like circumstances, he was deluded into the belief that he was rich, left a will directing that his property should be kept together, and managed to the best advantage, and his debts paid out of the proceeds of the crops, and that his widow should keep the property together until his two grand-children became of age, and divide it between them. He appointed executors, two of whom, Eli M. and William Justice, qualified. His hopes were delusive; his estate is substantially exhausted and has paid but seventy cents on the dollar of his debts.

As the acts upon which the defendant is charged are not specified in the petition, we are led to the conclusion, from the evidence and arguments of counsel, that they consisted in having used and not caused to be sold by the executors: 1. A carriage and pair of horses. 2. A gang of hogs. 3. A stock of cattle.

The testimony leaves no doubt on our minds, that the carriage was a present from her son-in-law to the defendant. His wife having died, leaving two female children, he confided them to the care and affection of their grand-mother, with whom they still live ; and about the same time presented her with the carriage and horses. Bonner returned the horses, saying his son-in-law was unable to make so large a present; but the latter persisted and sent them back, saying the carriage would be of no service to his mother-in-law and children without the horses. Bonner, some months afterwards, sent him four mules, whieh a witness thinks were worth more than the carriage and horses. That may be. Mutual presents are generally the most onerous kinds of exchanges; nevertheless they are presents. The mules appear to have been sent rather to replace the horses than the cairiage; and it is to be observed that one of the hoi'ses died, and the other was given up to be sold by the executors, on their first demand from the widow.

In pursuance of the testamentary direction to work the plantation and pay the debts of the estate out of the proceeds of the crops, the executor’s gathered and inventoried the crop standing at the decease of the testator, and made and gathered another crop for the creditors, as the slaves were not sold until the latter part of January, 1843. Most of the hogs, it is proved, and much of the stock, in all probability, was consumed in securing these two crops for the creditors; and it does not appear that any creditor opposed the course pursued, or that it proved prejudicial to the estate.

The stock of cattle was not concealed by the widow. They, as well as the hogs, were appraised and inventoried, but were not sold by the executors.

Gray, the overseer of the plantation Immediately before Bonner's death, testifies that they were his cattle ; marked with his brand; considered as such on the plantation, and that Mrs. Bonner never pretended to claim them. Dawson and Lasser, witnesses, considered them the cattle of Mr. Bonner.

The defendant used some of these cattle ; and sold fourteen head to Dr. Cruilcshanlcs, picked out of a stock of fifty, and at SI 2 a head. But it appears that the defendant, in good faith, claimed them as her own cattle and paraphernal property. Pollit testifies that Bonner always spoke of the cattle branded H B (the brand the widow claimed,) as belonging to his wife and daughter. William Justice, one of the executors, and Mr. Burney, a brother of the defendant, give a history of the stock and prove that it originated from cattle given to the defendant and her deceased daughter; that Bonner always spoke of them as the stock of his wife and daughter; and Burney further says, that he assisted in branding and delivering the cattle to Dr. Cruilcshanks, and knew them to be the cattle that had belonged to Mrs. Manadieu.

Our impressions are, that the increase of animals inure to the benefit of the community of acquests, and that the stock of cattle, except some which belonged to the grand-children of the defendant, did belong to the community of acquests. And had this case been first presented to us, we might have come to a different conclusion from the jury. But they evidently gave full credit to the testimony of the executor of the husband and brother of the defendant, though subject to objections as to its weight and credibility, and we cannot say the jury erred, supported as their testimony is by that of Pollit.

The defendant, therefore, evidently claimed the carriage, horses and stock in good faith and believing they were her own. It does not, therefore, become absolutely necessary for us to decide, whether they were her paraphernal property, or belonged to the community of acquests between her and her husband. For we concur in the legal points made by the defendant’s counsel: 1st. That the conversion of the property to render the widow liable to the debts of the community must be fraudulent, and done with a view to dispose of, or appropriate to her own use, effects which she knew belonged to the estate. Pothier lays down this principle expressly. Traite de Communauté, No. 552, 553. See also 19 L. R. 505, 506. Vol. 24 Journal du Palais, 746. Ib. vol. 10, p. 205. Paillet Annoté, No. 5, art. 801. If the widow believed the effects to be her own, concealed nothing, meddled with the property only because she thought she had a right to it, she did not thereby render herself liable to the debts of the community. We are of opinion, from the testimony, that Mrs. Bonner concealed nothing; believed she had a right to the carriage horses and stock of cattle so far as they were used by her. Moreover, that she offered no impediment, much less any that was unreasonable to the creditors, heirs or executors of her husband, in taking possession of his estate. She gave up the surviving horse to be sold as soon as demanded; she gave up a watch which she might have thought her own, having been given to her to replace her own, which the husband had lost. She made no opposition to the sale of beds, chairs, tables, carpets, and all kinds of furniture which married ladies often imagine their own. The executor does not doubt that she would have given up the stock she claimed, had he have asked it, but that knowing its origin, and believing that it belonged to her and her grand-children, he did not do so.

If these effects in reality belonged to the estate, the executors are accountable for them ; and it belongs to the creditors to enforce the accountability of the executors. After the renunciation of the community of acquests, the defendant could not even call for an account or exercise any control whatsoever over the executors.

We are of opinion, moreover, that the concealment, conversion, or intermeddling of the widow with the effects of the community, must have taken place before her renunciation of the same, to render her liable for the husband’s debts. The abstraction of effects after her renunciation, subjects her only to the liabilities or penalties to which it would subject any other person. This is a reasonable inference from article 2387 of the code, and is expressly laid down by Duran-ton, vol. 8, p. 219, Nos. 442, 443. If it should be said that she used the carriage and participated in the possession of cattle and hogs during the year before she renounced, this pleasure and their subsistence were very possibly compensated by the services and care an experienced lady, long acquainted with the slaves, might render, especially to the females and children, by her superintendence and advice as to their health, clothing, support, and generally as to their domestic concerns.

The judgment of the district court is therefore affirmed, with costs.