source: Caselaw Access Project

license: Public Domain

text:
    Mary Ann Leftwitch v. J. G. W. Leftwitch.
    Where a partner in a commercial firm obtained the administration for the liquidation of the concern after the decease of one of the partners, and in five years had not accounted for his administration, upon being sued by the administratrix of the deceased partner, it appearing that the books had been kept by him and were so defectively and negligently kept that it was impossible to make out a satisfactory statement from them of the respective indebtedness of the partners, he will be held accountable for the entries which appear against him, and will be required to furnish satisfactory vouchers for his oifsetts.
    APPEAL from the District Court of Iberville, J. J. Burk, J. W. E.

      Edwards and T. A. Clarke, for plaintiff.

      J. Berry and Race and Foster, for defendant.
   The judgment of tlie court was pronounced by

Preston, J. It appears that a mercantile firm existed, composed of A. T. Lefiuiitch, John N. Wilson and J. G. W. Leftwitch. The two first owned each three-eights interest in the concern, the last two-eighths. It was dissolved by the death of A. T. Leftwitch, in December, 1845. In January, 1846, the defendant, J. G. W. Leftwitch, as surviving partner claimed and obtained the administration and liquidation of the partnership, and it appears during his administration acquired the interest of the partner Wilson, so as to represent five-eighths of the concern. The plaintiff, Mrs. Leftwitch, was appointed administratrix of the estate of her deceased husband A. T. Leftwitch.

In December, 1847, about two years after his appointment, Leftwitch, the administrator, rendered the account of his administration, to which Mrs. Left-witch, the administratrix of her husband, the deceased, filed oppositions on various grounds. The case remained untried for two- years, and then, on motion of the administrator, was referred to auditors. In March, 1850, they made a report accompanied by the following statement:

“Your auditors would respectfully represent that the books were kept by J. G. W. Leftwitch, the defendant in this cause, and one of the partners in said firm, and that they have been kept in such a' manner as to render it impossible to say with any degree of certainty how the firm stood at the close of the partnership. For the following reasons:

“1. No account of stock was kept; hence the most important account and key to the whole business is wanting.

“ 2. Less than half the cash account was found to be posted from the journal. See p. 75 ledger.

“ 3. Many entiles are found in the ledger that have no foundation in the journal; therefore these entries are no evidence either of the receipt or payment of money without other vouchers.

“4. The account of Sheffield and Lithgow, as exhibited on the books, shows them to be indebted to the firm of A. T. Leftwitch Co. in the sum of $3085 52, while accounts current and receipts from Lithgow and Sheffield show that the firm owed them.

“5. The sum of $1474 70 purports to have been charged in a certain memorandum book which your auditors have never seen, and only know that such is the fact from an entry in the journal at the close of each month, setting forth such an amount charged in memorandum book.

“ 6. Each of the partners in the firm are credited with so much stock, and no stock account having been kept, there are no corresponding debits, consequently the books cannot be balanced.

“ Your auditors, therefore, found it necessary to report from the journal the entire business of the firm as there entered. But we regret to be compelled to state, that after all this labor, we were only the more thoroughly convinced that the books were kept in a very loose and careless manner; because the credit side of cash is greater by $3875 than the debtor side, which is impossible when the books are regularly kept. „ See p. 75 reported.

“Your auditors would thereupon respectfully state, that after a careful examination of the books and papers placed in their possession, they are clearly of the opinion that the assets of the late firm of A. T. Leftwitch S,- Co. amounted to a considerable sum more than their liabilities, and would therefore respectfully suggest, that J. G. W. Leftwitch, the defendant in this cause, be held to abide by his own entries in the journal as re-posted m the ledger, and that he be charged with the same; and, also, that he be allowed a credit for all the liabilities of the firm which he may show, by voucher or otherwise, has been paid by him.

“We would also state, that many of the vouchers placed in our hands appear in the books; these we have rejected, because in the following statement (which we respectfully submit as the result of our labors) the balance of each amount, whether a debit or credit, only is considered.

“ Your auditors would also respectfully state, that they have carefully examined the account as filed by the defendant in this cause, and that it is their opinion it ought to be rejected as having been founded in error, and consequently .the conclusions there arrived at are wrong.” . . .

These statements were not controverted in his answer by the administrator. We concur, therefore with the auditors in opinion, that his account should be rejected and the account of the auditors substituted in its stead, subject to all his reasonable objections; and their report, like that of other auditors, should be regarded as correct, until clearly shown to be incorrect by oppositions. We feel the force of this remark peculiarly in the present case, for it is presented by the defendent in his accounts, oppositions and arguments, in such an intricate manner that after giving to it all the consideration consistent with our duty to other litigants, we may possibly do him injustice from not understanding his case. In his capacity of surviving partner and administrator, it was his duty, in one year, to wind up the partnership and render a clear account, accompanied by vouchers, so that it might be easily understood, and to have afforded every facility to close it with the least possible delay. Now that five years have elapsed, a very plain account, extracted with immense labor by the auditors from books badly kept by the defendant, is attacked by objections which, with much labor, we find it very difficult to understand.

The auditors can give no account of the stock of the partnership. They therefore charge the defendant with the accounts found in the journal kept by him to the credit of the firm. They credit him with the monies drawn by the partners and with a large account to the credit of the firm ascertained not to be due. They credit him with all payments for which he has furnished vouchers, and all others ascertained by them to have been paid; and charge him, in favor of the widow and administratrix of A. T. Leftwitch, with three-eighths of the balance.

The defendant opposed the report on the ground that claims of the firm to the amount of $2716 with which he was charged, he had stated in the account rendered by him. two years before, had not been collected, and contends that his statement is to be taken for granted, because not then opposed. The oppositions of Mrs. Leftwitch to that account were broad enough to enable the court, with the statement of the auditors, to reject it entirely. The defendant should have shown, in opposition to the report of the auditors, that he had not yet collected these accounts, and should have accounted for his failure to collect them.

A large item of these debts, amounting to $1290 81, was due by Leftwitch and Wilson, as owners of a sugar plantation. Being the principal partners in the mercantile firm, it is not to be presumed that this debt was collected, but rather that it remained unpaid, subject to the settlement of the concern. Left-witch's half of the debt should be deducted from the balance found by the auditors in favor of his widow and administratrix.

The defendant has further sufficiently shown, that about four hundred and fifty dollars have been paid out of the funds of the partnership on account of individual liabilities of A. T. Leftwitch and his succession. Five-eighths of this amount should be deducted from the balance found by the auditors in favor of his succession. For the same reason we are inclined to think five-eighths of a medical bill paid Dr. Clements, should be deducted from the judgment. Also, three-eighths of an account settled with Nathan Gilbert should be deducted. We are unable to say that any other items claimed by the defendant should be deducted.

The defendant insists that a final judgment should not be rendered against him, because, as appears by the account he rendered in 1847, the firm owed debts to the amount of $1034, for which he is bound in solido with the succession of his deceased partner. He has furnished no evidence of the fact, much less that the debts are still due. And even if they are, it is not a sufficient reason that he should retain any longer the funds of the representative of his deceased partner.

On the trial of the case he unsuccessfully applied to the court for permission to withdraw some of his claims, and took a bill of exceptions, and now contends that at all events judgment of non-suit alone should have been rendered as to those claims. The controversy as to these accounts has been pending five years, and it is but just and reasonable that Mrs. Leftwitch should have them finally closed, and a decree for the balance due her as administratrix of her husband’s estate.

It is therefore decreed, that the judgment of the district court be reversed, and that Mary :Ann Leftmtch, in her capacity of administratrix of the succession of A. T. Leftwitch, recover from lessee G. W. Leftmtch, the sum of one thousand one hundred and twenty-one dollars and eighty-five cents, with legal interest from this date, and that he pay all costs in the district court; the appellee to pay the costs of this appeal.


author: Rost, J. Slidell, J. Preston, J.

text:
    L. F. Rogers v. Rachel Chandler et al.
    Where the vendor takes a mortgage, to secure the payment of the price of sale, upon other property than that sold, in order to be entitled to the vendor’s privilege, if the act itself be not recorded in full, the inscription of the act must state the existence of the privilege, so as to show the intention of the creditor to inscribe it.
    A vendor who signs an act of sale made by the vendee, warranting the property free from all incumbrance, is estopped from claiming the vendor’s pyivilege upon the property so re-sold.
    APPEAL from the District Court of Jefferson, Clark, J.
    This case came up on an appeal from a judgment against Edward Brown, the intervenor.

      Durant and Hornor, for the plaintiff, made the following points:
    1st. No act has been done by plaintiff, Rogers, in any way showing an intention to renounce his privilege as vendor. Hence this privilege still exists on all the slaves sold. 2d. The act of sale from plaintiff to defendant is properly recorded, and in accordance with law. A simple inscription, without transcription of the contract of sale in the office of mortgages, suffices. 10 Duranton, (Brussells Ed.) sec. 207, p. 330. 1 Troplong, Priv. et Hyp., sec. 285, p. 435. 1 Persil, Régime Hypothéeaire, 232, 236. On transcrit les actes de mutation de propriété: On inscrit les actes emportant privilege et hypothéque, lb. 232. Webster’s Dictionary, verbo, Transcribe and Inscribe. See also 3 L. R. 112. 11 L. R. 264. 3 R. R. 217. 12 R. R., 279. Boner v. Mahle, 3d Ann. 600. Bacchus v. Moreau, 4th Ann. 315. L. C. 3238, 3361, 3362, 3364 and 3373.

      Thomas Allen Clarke made the following points for the intervenor:
    The act of sale, so far as any vendor’s privilege is concerned, has not the claim de non alienando, and therefore the plaintiff cannot seize in the hands of a third person. But the privilege has been waived.
   The judgment of the court (Slidell, J. and Preston, J., giving separate opinions) was pronounced by

Rost, J.

On the 20th of August, 1849, Edward G. Rogers, representing himself as the agent of the plaintiff in this suit, sold certain slaves to Mrs. Rachel McKinney for the total price of $1456, for which the purchaser gave her note, payable on the 1st of July, 1850. Nothing was said in the act about the vendor’s privilege, and no mortgage was retained on the slaves; but to secure the payment of the note the vendor specially mortgaged, in said act, two houses and lots belonging to her.

The vendor did not record the act of sale in full in the office of the recorder of mortgages, but contented himself with inscribing a memorandum which, after stating the terms and conditions of the sale and the'note given by the purchaser, reads as follows: “And to secure the payment of said note and interest, the said purchaser does by these presents specially mortgage in favor of said vendor;” then follows a description of the property mortgaged.

On the 6th November, 1849, before the note was due, Mrs. McKinney sold one of the slaves to the defendant, Eckvard Brown, for the price of $600, cash. The plaintiff intervened in the act for the purpose of ratifying the sale made by his agent to Mrs. McKinney, and did ratify said sale in every particular.

Mrs. McKinney did not pay her note at maturity, and the plaintiff now seeks to subject the slave purchased by Brown to the vendor’s privilege, which he contends the law gives him without any express stipulation, and has caused the slave to be sequestered under his claim, in a suit against Mrs. McKinney.

No exception appears to have been taken to the form of the action, but Brown intervened, denying the plaintiff’s right, and averring his ownership of the slave to the knowledge of the plaintiff, he having been a party to the sale by Mrs. McKinney.

The case is before us on the appeal of the intervenor from a judgment enforcing the privilege. The first question for our consideration is, whether the privilege was properly recorded in the office of the recorder of mortgages. Art. 3332, C. C., provides that the inscription of acts on which privileges are founded shall be made in the same manner as that of mortgages.

It has been held in relation to the inscription of mortgages, that although the law requires a copy of the act offered for record to be presented to the recorder of mortgages, it is not indispensable to the validity of the inscription that the entire act should be copied in the books of the recorder; and that a declaration that the mortgage exists, with a statement of dates and amounts and a full description of the property, are sufficient. This is as liberal an interpretation as can be given to art. 3330 of the Code, without defeating the object of the registry laws; and no court of justice should be asked to go farther. I take the rule to be, that when the act itself is not recorded in full, the inscription of the privilege or mortgage it contains must expressly state the existence of the mortgage or privilege, so as to show the intention of the creditor to inscribe it. The inscription of the mortgage in this case was properly made. But it is manifest that it was made with exclusive reference to the mortgage.

The vendor’s privilege was not thought of by the plaintiff, and there is nothing in the inscription from which the existence of that privilege necessarily results. Its existence under the act of sale should have been stated in the inscription. The recorder of mortgages considered that the privilege was not inscribed, and simply certified, at the time of sale to the intervenor, that there was no mortgage standing in the name of the vendor. The plaintiff was a party to this act, and could not have been aware that he had recorded the privilege, or, I am bound to presume, he would have pointed out the error of the certificate. Had the intervenor inspected the books of record before signing the sale, he must have been deceived as the recorder was.

I conclude, therefore, that the inscription was defective, and that the privilege has not been preserved by it to the prejudice of the intervenor.

It is therefore ordered, that the judgment in this case, so far as it condemns the intervenor to deliver up the slave James to be sold by the sheriff under the execution of the plaintiff against Mrs. Chandler, or in default thereof to pay the plaintiff the full amount of his judgment against Mrs. Chandler, be reversed. It is further ordered, that the sequestration issued against the slave James be dissolved, and that there be judgment against the plaintiff and in favor of the intervenor, with costs in both courts.

Slidell, J.

I wish to be considered as not expressing an opinion as to the sufficiency of the inscription of the vendor's privilege.

It may be conceded, for the purpose of the present inquiry, that the vendor’s privilege was not waived in the conveyance of the slave made by E. G. Rogers as the agent of L. F. Rogers to Mrs. McKinney, and that it was duly recorded. I think the plaintiff is estopped by his concurrence and participation in the sale made by Mrs. McKinney to Brown. The case is this: E. G. Rogers sold the slave, as agent of L. F. Rogers, to Mrs. McKinney on a credit of one year, and took a special mortgage on land from Mrs. McKinney to secure her note for the price. This was on the 20th August, 1849. On the 6th of November, 1849, Mrs. McKinney sells the slave by notarial act to Brown for $750 cash paid by him. The act contains the usual guarantee against incumbrances. It states the acquisition of title by the act of 20th of August. It refers to the mortgage certificate annexed to the act, by which the recorder certifies that there is no mortgage standing in the name of the vendor, Mrs. McKinney, against the slave. The certificate is silent as to the vendor’s privilege now claimed by Rogers. After the reference to the recorder’s certificate comes the following clause: “And now to these presents personally came and appeared and intervened the said Rogers, who declared that he has examined the said sale made by his attorney in fact, E. G. Rogers, to said vendor for the slave herein conveyed, (with other slaves) and that he hereby ratifies and confirms said sale in every particular.”

The language here used shows that Rogers had taken cognizance of the antecedent portion of the act. He sees therefore .that Mrs. McKinney is selling ’ the slave to Brown for cash, and that the purchaser is evidently acting under the conviction that the property is unincumbered, although it is time that the recorder’s certificate speaks only of the non-existence of any mortgage. Then it seems to us that Rogers is equitably estopped 'from denying the truth of this supposed freedom from incumbrances, upon the faith of which he suffered Brown to act, knowing at the time, as the surrounding circumstances compel us to presume, that Brown’s conduct was materially influenced by a reliance upon the truth of such supposed fact. Rogers was silent when he ought to have spoken, and cannot now be permitted to exercise his vendor’s privilege. Fraus est celare fraudem See Watson’s Exec. v. McLaren, 19 Wendell, 563. Jacobs v. Butler, ante p.274. Hides v. Cram, 17 Verm. 449. Thompson v. Sanborn, 11 N. Hamp. 201, cited in U. S. Dig. Sup., verbo, Estoppel. Story’s Equity Jurisp. § 394. Domat, Book 3, tit. 1, sec. 7, § 15.

Preston, J.

I concur with Mr. Justice Slidell.


author: Preston, J. Slidell, J.

text:
    John Warren v. E. B. Saltenberer.
    The declarations of the wife are not admissible in evidence against tbe husband.
    A person in possession of movable property may be sued personally for the same, although the defence sets up that the defendant is administratrix and holds the property as a part of the succession.

      APPEAL from the District Court of Carroll, Richardson, J.

      A. W. Caldwell and H. Short, for the plaintiff, contended:
    The plaintiff sued to recover a lot of household and kitchen furniture whilst in the possession of the defendant, or at least from the time they were demanded; and in case the defendant did not restore the furniture, then that she be decreed to pay the value of it.
    The defendant plead the general denial, and the case was submitted to a jury on the 14th December, 1850; and on the 16th, after two full days investigation, they rendered a verdict for the plaintiff for the furniture, with twenty per cent per annum as rent for the use of the furniture from the time of the demand made for it, or for the value of the furniture as set forth in the petition; and by the judgment the defendant has her choice, either to hand over the furniture or to pay for it. It was proven that the use of such furniture was worth twenty per cent on the value of it (for the use of it) per annum, and we think this estimate was very reasonable, and fully sustained the finding of the jury in this respect. Upon the question as to the ownership of the property in dispute, there is some confliction in the statements of the witnesses. But this disagreement amongst the witnesses can easily be accounted for when we look to the nature of the suit, and find, further, that some of the witnesses are intimately connected with the defendant; and it is frequently a matter of astonishment to see how excited, sometimes, the members of a family become, when detailing the circumstances connected with a legal controversy, even for a small amount. The manner in which these witnesses gave their testimony could not be put in the record, so as to enable this court to see through one of the clearest mediums, the true character of the testimony and the weight that is to be given to it; and we think it would be difficult to find twelve men, taken from the body of any community of even ordinary intelligence, who had the witnesses before them, who would not be able to give to such testimony its due weight, and to do substantial justice between the parties in a controversy like the present; and when the testimony is examined, enough will be found to sustain the verdict of the jury, and to free them from the reflections cast upon them in the defendant’s brief.
    The defendant contends that the testimony of Mrs. Me Queen, should have been admitted, and that the judge “erred in excluding it upon the ground that it was hearsay, after the plaintiff had cross-examined her, with a view to the rejected testimony.” When the elerk went to take the testimony of Mrs. Me Queen, who was sick, the counsel for the plaintiff remained in court, and the question as to the admissibility of the testimony when taken, was expressly reserved, as will be seen by the bill of exceptions.
    But great complaint is made, and weighty reasons present themselves to the defendant’s counsel for reversing the judgment, upon the ground that the defendant is called on to give up the furniture, or to pay for itin other words, that the demand is set forth in the disjunctive, and that the verdict and judgment are disjoined; now, if the petition had been for the furniture and the price, and the verdict and judgment had been in the conjunctive, then, indeed, the defendant would have had something to complain of. The different and conflicting issues, says the defendant, are well calculated to produce confusion, mistakes and injustice in the finding of the most laborious and conscientious jury. When a man has my horse, and I say to him give me my horse or pay me his value, the proposition is a plain one, it seems to me, and if he refuses to do either, and is condemned to do the one or the other and it is left to his election, how can he complain. C. P. 149, 344 and 345. 4 L. R. 360. 15 L. R. 20. 11 R. R. 87.
    We did not sue the defendant as administratrix of MeMullin’s succession; the plaintiff found her in possession of that which belonged to him; and she could not properly administer on Warren’s property. It seems to us that there is no ground to reverse this judgment.

      Louis Selby, for the defendant:
    This case is appealable, for more than $300 is sued for. The demand is for property whose value is estimated at $295 05, and twenty per cent a month on that estimation from October 4, 1849; and this suit was filed April 30, 1850; so that the twenty per cent a month was claimed for nearly seven months when the suit commenced; which twenty per cent a month added to the estimation, then made about $700 in the aggregate. And the verdict and judgment is for every item sued for, valued by the plaintiff and the jury at $295 05; and for twenty per cent a year on that valuation, from April 30, 1850, which makes the verdict when rendered for more than $330; Sind this twenty per cent cannot be considered as interest, for interest cannot exceed eight per cent a year. C. P. 91. 5 N. S. 647. 4 L. R. 462. 5 R. R. 90. 2d Ann. 792 and 911. ',
    The prayer of this petition is, in the alternative, for stated items in all valued by the plaintiff at $296 05, and twenty per cent a month rent of the articles, from October 4, 1849, until delivered to the plaintiff’; or for the $296 05. The verdict is likewise in the disjunctive, for “all the household and kitchen furniture and other property described in document “ A,” or its value as set forth in the petition, with twenty per cent per annum on the value of the same as rent, from plaintiff’s demand until restored.” This verdict indicates that the jury looked at the plaintiff’s petition, rather than at the evidence to find it. Had they compared the evidence with the petition, they must have learned that the plaintiff had not proved, precisely two hundred and ninety-five dollars and five cents, that value he himself placed upon the trumpery; and that the defendant was in possession of every item charged to her. The judgment is also disjoined : “ for all the household and kitchen furniture, and other property described in document “A,” with twenty per cent on the value thereof, from June 8, 1850, until delivered up, and in case defendant refuses or fails to deliver the said articles, then the said plaintiff shall have execution for $295 05.” The different and conflicting issues here presented, are well calculated to produce confusion, mistakes and injustice in the finding of the most laborious and conscientious jury. It is suggested also, that the laws do not authorize the bringing and trying suits before juries, as here done, in the disjunctive. The plaintiff only can get the property or the price; the one precludes the other. And will a writ of possession issue upon this judgment? — C. P. 630, et seq. and 634 and 635 — or a fieri facias1— C. P. 641 et seq —or both at once ? and leave the final decision of the cause, whether the defendant complies with the order to restore the items in plaintiff’s document “A” to the sheriff? This would be leaving a dangerous discretion with him. I suppose that one branch of the suit was intended as a possessory action for personal property. And what kind of an execution could or ought the clerk to make out from this judgment ?
    It is also contended that the defendant has been sued as administratrix of her deceased husband, Dwight McMullin, and that a personal judgment was erroneously taken against her. The petition, answer and evidence show, that the defendant was in possession of the items sued for, not taken to Kentucky by Warren and his wife themselves, only, as administratrix, and that she never pretended to have any personal ownership or claim to them. As representing the deceased, the law made it her duty to keep possession of them; for they were found in the possession and ownership of him when he died, and as his were put upon his inventory and appraised with his other property; and for their appraised value, as well as in the value of his other property promiscuously inventoried with them, the widow administering her dead husband’s property, has given the required security for the faithful performance of the trust; and upon her bond, she and her securities are held .liable to the heirs of McMullin, her late husband, when they present themselves, for this as well as other property left by him. This personal judgment against her would not be a bar to a suit by the heirs of the deceased for this same property, as estimated upon his inventory against her and her sureties as administratrix. And by turning this suit into a personal one, the plaintiff deprives her or the succession of McMullin of her testimony; and she, above all persons now alive, except the plaintiff and his wife, would be most likely to know most relative to the ownership of this property sued for. 1st Ann. 227. Therefore, for these reasons, the judgment below-should be reversed, and this suit dismissed.
   The judgment of the court was pronounced by

Preston, J.

We have carefully examined the evidence in this case, and all concur in opinion that the verdict should not be disturbed'nor the judgment reversed, if the action of the plaintiff can be sustained against the defendant personally.

A bill of exceptions was taken to the rejection, as evidence, of declarations of Mrs. Warren. They were not only hearsay evidence, but the declarations of a wife, who could not be admitted as a witness for or against her husband, and were therefore properly rejected.

The only question in the cause with regard to which we have any difficulty is, whether the defendant is liable to the plaintiff personally, or should have been sued as administratrix of her husband’s estate.

The suit is brought for the specific delivery of movable property, which the plaintiff alleges belongs to him, and which the defendant contends belongs to the estate of which she is administratrix. She included the property in the inventory of the estate, but the plaintiff was present at the making of the inventory, and claimed that the property belonged to him, and that it should not be placed on the inventory. The recorder described the property in the inventory as being in dispute. The plaintiff has fully proved that the property belonged to him, and that it should not have been inventoried as belonging to the deceased. Could he do so in a suit against the defendant personally, or shall he be compelled to resort to a suit against her as administratrix!

There are some reasons, special to this case, for refusing to reverse the judgment on the ground that the defendant is not personally liable. She did not except to the action on the ground that she should be sued in her capacity of administratrix, but answered to the merits. She did not oppose the trial by jury on the ground that it was a suit against a succession. She was also a widow in community, to whom half the property belonged if she successfully defended it. Even after verdict, she did not endeavor to set it aside for the reason now urged. We should be reluctant to subject the plaintiff to the expense of this long suit for a small matter, and the vexation and delay of another suit, unless compelled by the clear principles of law.

Our Code of Practice is extremely meagre in its provisions as to actions for movable property, although they are so numerous. By the 11th article, actions with regard to their object are divided into two classes: those by which movables and those by which immovables are claimed. In defining, shortly afterwards, personal actions, it is with difficulty the definitions can be construed to embrace a suit for a specific thing. Arts. 26, 27, 28, 29, 30, 31, 32.

We must be governed, therefore, very much by usage and analogy in deciding against whom the action should be brought. The code prescribes that the real action shall be brought against the person in the actual possession of the immovable claimed, without reference to the title by which he possesses. C. P. art. 43. There is no reason why the same principle should not apply to movable property. The detention of the thing from the owner is the injury he suffers and which he seeks to redress by suit, and that is a personal detention by the possessor. It is by his act that the owner is deprived of his property, and this act imposes on him an obligation to deliver it up.

It is immaterial to the owner and plaintiff by what title the defendant possesses ; it is the possession itself which he claims. So it is unimportant to the defendant by what title he defends himself. If he is owner, that defeats the plaintiff’s claim; if he is bailee of the true owner, the plaintiff is equally defeated; or even if he is naked possessor, the plaintiff cannot recover without showing that he is true owner. It is his sole business to show that, and when shown it is the actual and personal possession of the thing by the defendant which injures him, and for which he is entitled to redress. The title by which the defendant possesses is matter of defence, and he can avail himself of any title but that of the plaintiff.

If, therefore, the property in controversy belongs to the plaintiff, the defendant has no right to detain it from him as administratrix, and such capacity should not screen her from delivering it to the plaintiff. The defendant, as administratrix, could take and keep possession of the property of the deceased alone. That quality does not authorize her to detain the plaintiff’s property, but that of the intestate.

If the defendant bona fide took possession of the property ns administratrix, and defended it as such, the estate would be liable for her expenses and the damages recovered from her. She not only created an obligation based upon a quasi contract to that effect, but the estate was bound to warrant her in the personal action against her. C. P. 379. But suppose the estate entirely insolvent, must the plaintiff suffer all the loss and damage caused by the defendant’s detention of his property, the estate being inadequate to afford indemnification ?

A wealthy man is appointed administrator of an insolvent succession and, as such, takes possession of valuable but perishable movables belonging to me. I show good titles and put him in default. He answers, sue the estate; I sue the estate for the things themselves, and during the pendency of the litigation they are destroyed by fire or otherwise. The irretrievable loss is mine, if I was obliged to sue the estate ; but he would be responsible if I had a right and had sued him for the personal detention of my property.

Therefore, in this State, the action for movable property has generally been brought against the possessor of the property, and although the defendant might undoubtedly be sued in the capacity by which he holds the property, yet the plaintiff is by no means obliged to pursue that course. Thus we sue the keeper of the livery stable for the horse stolen from us, and not the purchaser from the thief, and many similar cases might be mentioned.

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

Slidell, J.

dissenting. This is an action to recover certain furniture or its value, also monthly rent by way of damages for its detention. The petition prayed for the citation of Mrs. Saltenberer personally. It, however, was alleged in the petition that she was the administratrix of Dwight McMullin, and that the property had been placed in his possession by Warren, under a contract of deposit: McMullin undertaking to take care of it for Warren during his absence and to restore it to him upon demand. The petitioner further alleged in substance that it remained in McMullin’s possession under this contract, until his death, and that it was inventoried as part of his succession by the administratrix, notwithstanding the opposition of Warren. Under the allegations of the petition and the evidence in the cause, Mrs. Saltenberer, it seems to me, must be considered as having received and as being in possession of the properly in her capacity of administratrix. The possession was held by the deceased under a contract with the plaintiff, and passed under that contract to his succession. The plaintiff’s claim, therefore, was a claim against the succession for the fulfillment of the contract by the restoration of the property, and not against the defendant personally. The suit was therefore, I think, improperly brought against her personally, and the judgment condemning her personally seems, to me, erroneous.


author: Rost, J.

text:
    James S. Rhodes et al. v. Elihu Hooper et al.
    Where property is held in common hy the mother and her six children, the interest of all of the children cannot he sold on an execution against the mother and two only of the children.

      The possessor of slaves who was ab initio in bad faitli is bound to account for the hive of the slaves from the time his possession began. G. G. .3415, 495.
    If a party instigates the issuing of an execution for the purpose of seizing property which he knows does not belong to the debtor, and at sheriff's sale becomes the purchaser of the property, he will be regarded as a possessor in bad faith from the date of his purchase.
    In the estimation of the value of the services of slaves which have been in the possession of a party even in bad faith, the expense of clothing, taxes, medical attendance, and probable loss of time should be considered.
    A party who has acted in bad faith will not be allowed to set up the plea of compensation founded upon another transaction.
    A party who urges the defence, that the suit is based upon the purchase of a litigious right, must tender the price given by the plaintiff, and cease all contest as to the validity of the original claim.
    APPEAL from the District Court of East Baton Rouge, Burk, J.

      A. M. Dunn, for plaintiffs.

      G. S. Lacey and J. M. Elam, for defendants.
   The judgment of the court was pronounced by

Rost, J.

John Rhodes died in 1830, leaving Sarah Rhodes, his widow in community, and six minor children, James, Armislead, John, Benjamin, Alexander and Theodore B. Rhodes. Two of these children have since died; namely, Alexander, in 1843, and Armislead subsequent to the institution of this suit.

It appears that the widow and minors were the owners in common of several slaves, some of whom were purchased by the widow after the death of her husband, and that upon an execution issued in the case of Skolfield v. T. B. Rhodes, Sarah Rhodes and E. Hooper in July, 1845, these slaves were seized, and Hooper became the purchaser at sheriff’s sale at the price of $4175. This action is brought by some of the children of Rhodes against Hooper, for the purpose of recovering the negroes, a reasonable sum for their hire since they came into the possession of Hooper, and their value if not restored. Sarah and Theodore B. Rhodes were not made parties by the plaintiffs, nor has the defendant attempted to bring them into the cause.

Hooper in his answer set up title as a purchaser in good faith under the sheriff’s sale, and also pleaded that in June, 1845, the slaves were mortgaged to the Union Bank by Mrs. Rhodes, as widow and tutrix, for the security of a loan; that he paid the bank, and being subrogated to its rights, is entitled to set off that amount against any claim the plaintiffs may have against him.

It is obvious that the sheriff’s sale upon execution against two only of the owners, Sarah and Theodore B. Rhodes, did not divest the title of the other co-proprietors, — the plaintiffs in this cause. It operated only upon the interest of Sarah and Theodore, — the debtor’s and defendants in execution.

The plaintiffs, then, are entitled to be recognized as owners of their interest or undivided shares of these slaves, and to be restored to possession, or, in default of such restoration, to recover the value of their slaves. They are also entitled to compensation for the lost services of the slaves, of which Hooper and his heirs have had the benefit.

The first question which presents itself for our consideration is, from what date this hire or compensation is to be allowed, — from the date when Hooper took possession under the sheriff's sale, or from the inception of this suit? This point depends upon the question whether, quoad the interest of the plaintiffs in the property so bought at sheriff’s sale, Hooper was a purchaser in good faith. For if he bought in good faith, that is to say, if he had just reason to believe that it belonged entirely to Sarah and Theodore Rhodes, the defendants in execution, he is bound, under articles 3414 and 3416, to account to the true owners only from the time of the claim for restitution. But if he was ah initio a possessor in bad faith, that is to say, if he knew, when he bought, the defectiveness of his title, he is bound to account from the date of his purchase. O. C. 3415, 492. A witness testified that Hooper knew, at the date of the sheriff’s sale, that the property was owned in part by the plaintiffs, and that he and the sheriff were warned at the auction of their rights. This testimony is not contradicted by any other witness, and on the contrary, is corroborated by the fact that Hooper made an agreement with Skolfield, by which he was induced to have the slaves seized, and gave the sheriff a bond of indemnity, to induce him to levy upon and sell them.

In the estimation made by the court of the amount to be paid for hire, we are of opinion that a sufficient allowance was not made in favor of the defendant for the expense of clothing the slaves, taxes, medical attendance and loss of time; which are just elements in calculating the compensation to be paid even by a possessor in bad faith. The true owner, if his possession had not been disturbed, would have incurred these expenses and drawbacks, which are incident to this class of property.

There is a controversy with regard to one of the slaves sold at the sheriff’s sale, named Hager. This slave was bought by Mrs. Rhodes in her own name. She was at that time tutrix of her children; the community had not been settled, and was under her administration. A witness, the son of Mrs. Rhodes, testifies that she paid for this slave, to use his expression, with the proceeds of the crops in community between witness, his mother and her children. The rule which, under certain circumstances, is recognized in the equity jurisprudence of England and our sister States, is perhaps one which would be recognized here, to wit, that where a person.who is acting in a fiduciary capacity uses the trust fund to make a purchase for himself, the beneficiary may, as between himself and the trustee, elect to take the property. But aside from other difficulties which would, perhaps, interpose -themselves to the application of the principle to the present case, it is not clear from the evidence that the latent equity now invoked was known to Hooper.

After a careful consideration of the evidence, we have found it necessary to reduce the estimate of the value of some of the slaves made by the district judge. As the defendant was instrumental in obtaining the seizure and sale of the entire property in disregard of the partial ownership of the plaintiffs, and obtained possession in bad faith quoad their interest, we cannot allow him to set up in compensation the Union Bank claim against the amount due by him to the plaintiffs. See Nolan v. Shaw, ante p. 40. McKee v. Amonett, ante p. 207. His lights, however, under the bond, mortgage and subrogation will be reserved by our decree.

It is conceded in the brief filed by the counsel for the defendants that the interest of Alexander and Armistead Rhodes, deceased, has passed to their surviving brothers and mother. And as it appears to be the desire of the parties-that this court should terminate the litigation as far as possible, we will frame, our decree with reference to the inheritance of the shares of the deceased persons by the plaintiffs T. B. Rhodes and Mrs. Rhodes respectively.

One of the plaintiffs, Janies S. Rhodes, after the suit was commenced, transferred his interest to Chapman, who then appeared, filed his deed of assignment, and became a party in the cause. It is said that this was the purchase of a litigious right, and consequently that the defendant is entitled to be released from all claim on account of James' interest, by paying to the transferree the price of his purchase. He cites the 2622d article of the Code. But the defendant cannot avail himself of its provisions, because, after being informed of the transfer and its price, he did not tender the money, but continued to contest the claim and protract the litigation. See Leftwitch v. Brown, 4 Ann. 105.

It is therefore decreed, that the judgment of the district court be reversed. And it is further decreed, that the plaintiffs, to wit, James S. Rhodes, John Balcer Rhodes and Benjamin F. Rhodes, recover, as the owners in common, from the succession of Elihu Hooper an interest amounting to 437-1280 in the following slaves, to wit, Peggy, Rose, Betsey and her two children, Phillis and Sam, Sarah and her two children, Mary and a young child, (name unknown,) Malinda, Milly, John, Mary, Wyatt and Caroline, being the slaves described in the plaintiffs’ petition, and any increase born of any of said female slaves since the institution of this suit; and that the possession of said interest be delivered to the said plaintiffs by the defendant, administratrix of said succession and tutrix of the minor children of said Hooper within twenty days from the rendition of this decree. And that in default of such delivery, the said administratrix do pay to the said plaintiffs the value of said interest in said slaves, to wit, the sum of $2660 62, with interest from the date of this decree. And it is further decreed, that the said plaintiffs do recover from said succession of Hooper, by said administratrix represented, the sum of $1448 68, as a compensation due to said plaintiffs, James, John and Benjamin, for the services of said slaves from the 6th September, 1845, with interest on said sum of $1448 68, from the date of this decree until the same be paid. And it is further decreed, that the rights of said succession of Hooper, by reason of the obligation and mortgage executed by said Sarah Rhodes, for herself and as tutrix of her minor children, in favor of the Union Bank, and the subrogation thereto, whereof copies are on file in this cause, be reserved to the said succession of Hooper. And it is further decreed, that the costs of this suit in the court below be paid by the said succession of Hooper, and that the costs of the appeal be paid by the plaintiffs.


text:
    E. and H. Simons v. H. G. Burrows.
    Where the judgment of the lower court allows a little more interest than was really due, the defendant should move to correct the mistake before the judgment is signed.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      M. C. Edwards and R. M. Carter, for plaintiffs.

      Hite and Gaither, for defendant.
   The judgment of the court was pronounced by

Rost, ,T. This is a suit upon a promissory note. The defendant and appellant has not pointed out to us the grounds upon which he expects a reversal or modification of the judgment.

A little more interest was allowed by the court below than was really due, but this error should have been corrected by an application to the district court before the judgment was signed, and it is not a sufficient ground to reverse the judgment. Hown v. Grailhe, 1st Ann. 140. This error, however, dispenses us from the necessity of allowing damages, as for a frivolous appeal.

The judgment is affirmed, with costs.


author: Slidell, J.

text:
    Lewis & Co. v. W. G. Bakewell, Executor.
    Notice of protest served upon one of several executors of a deceased endorser is sufficient to bind the estate.
    APPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Elmore and King, for plaintiffs, contended:
    The only question presented by this case is, as to the sufficiency of notice of protest. There were three executors of the deceased endorser. Notice of protest was served on but one of them. It is contended by the counsel for the defendant that the notice of protest should have been served upon all three of the executors. To show that the notice was sufficient, we rely upon the following authorities, which, although not expressly in point, do, in principle, embrace the present question. Where there are several executors or administrators, the act of one binds the rest. Law Library, vol. 9, chapter on Executors, p. 128. Service of a writ on one authorizes a judgment against all. Moore's Executors v. Paul, 2 Bibb, Ky. Rep. 330. One may, by an appearance, bind all.- 4 Monroe, Ky. Rep. 38.
    If, in such cases, it be necessary to serve notice on all the executors, it will render the recourse upon the estates of endorsers extremely difficult and uncertain. If the same principle be extended to all demands and notices connected with the administration of successions, their administration would be greatly embarrassed. This should not be allowed. The judgment of the lower court should therefore be affirmed.

      Janin and Taylor, for the defendant contended:
    This action is instituted to recover the amount of a note made by Edward Wilson, to the order of and endorsed by Alexander Gordon. Before the note arrived at maturity, Alexander Gordon, the endorser, died; and Edward Wilson, the maker of the note-, Anne G. Bakewell, the widow of Alexander Gordon, and William G. Bake-well were duly appointed testamentary executors of Alexander Gordon, and letters testamentary were granted to them.
    When the note fell due, the maker, Edward Wilson, failed to pay it, and it was protested for non-payment, and notice .of protest was given to the same Edward Wilson, the maker, in his capacity of testamentary executor of Alexander Gordon. No notice was given of the protest to either of the other executors. And the only question presented in the case is, whether the notice of protest given to Edward Wilson was sufficient to charge the succession of Alexander Gordon with the payment of the note.
    Endorsers are responsible only when notes are protested at maturity and they are legally notified of the protest. The object of requiring notice of the protest to be given to the endorser is to enable him to act for his own protection. If notice be not given to an endorser, he is discharged. Nothing will excuse the failure to give notice. Story on Bills, No. 308, and note 1. Chitty on Bills, Ed. 1833, p. 482, 483.
    It is a general principle, that when there is a person representing a deceased endorser in the capacity of administrator, that notice to him is sufficient to charge the succession of the deceased person. If Wilson had been the sole administrator, notice to him would perhaps have been sufficient, from the necessity of the case. But in this instance there were two other executors who might have been notified; and of course the sufficiency of the notice cannot be maintained on the ground of necessity.
    But whilst it is admitted that where there is a single person representing the succession of the deceased person to be bound, notice to him may be sufficient, it would seem to be equally true, where there are two or more persons representing the succession of an endorser, and one of them is interested against the succession, in consequence of being the maker of the note, that the interested representative would be incompetent to receive the notice of the protest, and that the succession would not be bound unless the other representatives were notified. This principle is of universal application, it seems to us, and has been frequently recognized by the law-maker. It is sufficient to particularize one instance. The incapacity of the tutor to represent his pupil when he has ai} interest in conflict with that of the pupil is the result of this principle, and an under-tutor is provided in every tutorship, because, from their relations to each other, there are.almost always conflicts of interest between them. When a tutor has an interest against his pupil he cannot act at all, and the pupil is not bound by any notice given to the tutor.
    In the present case, the interest of Wilson against the succession was apparent and known to the plaintiffs. He was the person on whom the demand of payment was made. The other two executors had no such interest. The plaintiff failed to notify them. There was laches on their part, and they ought not to recover.
   The judgment of the court was pronounced by

Slidell, J.

This is an action brought against the succession of Alexander Gordon to recover the amount of a promissory note drawn by Edward Wilson to the order of and endorsed by Alexander Gordon. The only evidence adduced at the trial of the cause was the note; a notarial protest of it; a notarial certificate of notice to the endorser, by service upon Edward Wilson, as administrator of his estate; and the probate proceedings in the'matter of Gordon's succession, by which it appears that Wilson, Bakeweli and Mrs. Gordon were his testamentary executors. There was judgment for the plaintiffs in the court below, and the defendant has appealed.

No objection is made to the notice because of its being addressed to Wilson, as administrator; it is admitted by the defendant’s counsel to be a notice to Wilson in his capacity of executor. But the objection made is, that there were two other executors who might have been notified; and that, under the circumstances, the notice to the executor Wilson was inoperative, because, as it is said, he was interested against the succession. The object of notice, says the appellant, is to enable the endorser to act for his own protection, and here the executor who was notified had a personal interest which would militate against the exercise of official diligence.

The answer to this objection is, that the deceased had confidence in Wilson, and chose to entrust to him, as one of his executors, the administration of his estate after his decease; and it is not for his representatives to say that his confidence was unworthily reposed, and to assume that Wilson would sacrifice sworn official duty to his individual interest.

Judgment affirmed, with costs.


author: Preston, J.

text:
    Villeneuve Le Blanc et al. v. V. Dubroca and Wife.
    The laws requiring the wife to obtain authority from the judge in order to .institute suit against the husband were intended for the protection of the husband against ill-advised and vexatious suits. It is a defence which maybe waived by him, and his so doing forms no ground for annulling a judgment between him and his wife at the suit of third persons.

    The provision of law which entitles a defendant to three days notice of seizure on execution before the property is advertized for sale» is personal» and may be waived by him.
    The privilege granted by law to a defendant whose maternal tongue is French to have the execution issued in French, is purely personal» and may be waived by him without invalidating the proceeding.
    Where third persons seek to annul a judicial sale on account of informalities, it is essential for them to show they have been injured by the sale? otherwise, they have no right to interfere with it.

      from the District Court of West Baton Rouge, Burle, J.

      J. M. Elam, for plaintiffs.

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

Preston, J.

On the 10th of October, 1846, Mrs. Dubroca obtained a judgment, before the District Court of the parish of West Baton Rouge, of separation of property from her husband, Valentine Dubroca, and for $29,800, with interest, being the amount of her dotal and paraphernal'property received by him during their marriage. A legal mortgage was also decreed in her favor on all her husband’s property from the date of their marriage, which took place in the parish of West Baton Rouge on the 10th of April, 1826.

On the 26th of October, 1846, she placed in the hands of the sheriff of the parish an execution, b3r virtue of which, on the 4th of November, he seized the plantation of the defendant, with the buildings and improvements thereon, also fifty-seven slaves, with all the stock and agricultural implements, and also his household and kitchen furniture, and advertised and sold the whole in block on the 5th of December, 1846. The property was appraised in block at $46,925, and was adjudicated and sold to Mrs. Dubroca for $51,619.

The sheriff credited the defendant with the amount of the sale, $51,619; and debited it with the plaintiff’s judgment and interest, $29,911 75; also with a special mortgage in favor of A. Doussau, with Ínteres} to the 5th of December, 1846, the day of sale, $12,577 50; also with the amount, with interest, of a special mortgage and pledge in favor of the Union Bank, $8780; and the costs, $350: the amount of the sale, $51,619.

The plaintiffs are creditors of F. Dubroca, and instituted the present suit against him on the 18th of September, 1848, and- obtained judgments on the 28th of September, 1849, for the amount of their claims. They made Mrs. Dubroca a party defendant, and claimed to annul the sale of her husband’s property to her on the following grounds: 1. By consenting to a voluntary separation of property, the court having granted no authority to the wife to institute her action against her husband, as required by article 105 of the Code of Practice. 2. By permitting his property to be seized on an execution in the English language alone, being a language which he did not understand — his mother tongue being that of the French language. 3. The seizure having been made by the sheriff on the 4th day of November, 1846, the property could not be sold before the first Saturday in January, 1847. 4. By permitting the plantation and slaves and personal property to be appraised and sold in block, and not.insisting upon a legal appraisement and sale to the best advantage, the husband consented to, and the wife caused, his insolvency; his property, if legally appraised and sold, being sufficient to pay his debts.

I. The laws requiring the wife to obtain authority from the judge, in order to institute suit against her husband, were intended to protect the husband against unadvised and vexatious family suits, growing out of the weakness and inexperience of the wife. They afford an exception in his favor, but no ground for annulling the proceedings and final judgment, by which the court sanctions the suit and approves of the proceedings, as necessary to protect the rights of the wife. The husband, in his answer to the suit of his wife in this case, required proof of her claims. The article 140 of our Code directing that the separation of property should be claimed judicially, and from which it is properly inferred that it cannot take place voluntarily, requires no more than this proof. It does not require the husband to make technical, captious or unfounded objections tQ the suit.

II. The provision of law which entitled the husband to the execution in the French language, that being his maternal tongue, conferred a privilege so purely pei'sonal that he might waive it without the apprehension of complaint from any quarter.

III. It is probable the property was advertised without giving the husband the three days notice of seizure, to which he was entitled by article 655 of the Code of Practice. This also is a right personal to the defendant, and which he may waive without invalidating the sale or injuring any one. It is given to enable the defendant to pay the debt before advertisement; the husband had no means; or to enjoin the sale, the husband had no grounds; or to point out other property, the husband had no other, — all was seized. He might well, therefore, consent that the sheriff should proceed to advertise; and there was sufficient time to give thirty days public notice of the sale before the legal sale day in December. The sheriff returns that ho advertised the property the thirty days required by-law; which was the only thing of importance to the plaintiffs and other creditors of Dubroca.

To succeed on the fourth ground, it was incumbent on the plaintiffs to show, by proof, that they were injured by the sale in block. It has been frequently decided by this court, that the forced alienation of property could not be annulled by creditors not parties to the execution, without establishing their injury, or, at least, an advantage to be gained by it. Slidell v. Fortier. Coiron v. Millaudon.

There is no proof that the property in controversy, incumbered as it was with mortgages, would or could have been sold in parcels better than in block; being a plantation and slaves, stocked and furnished, and in full cultivation, possibly a sale in block was most advantageous. It sold for nearly five thousand dollars more than the amount at which it was appraised. It sold for upwards of fifty thousand dollars, in block. To enable the plaintiffs to annul the sale for injury to them, they should have proved that it would have sold for upwards of sixty thousand dollars, in parcels; for besides the mortgages satisfied by the sale, there were two other judicial mortgages, one in favor of Faivrot and one in favor of Ledoux Co., amounting together to about $10,000, to be satisfied before the plaintiffs, being ordinary creditors, could receive any thing.

In a previous litigation between the plaintiffs and Dubroca and wife, there was an agreement of parties that the property should be sold in parcels and not in block. Wo cannot examine the effect of that agreement in this case, because it is not made a ground of the actions, and, indeed, was introduced in evidence only to rebut evidence of the defendants.

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


text:
    C. M. Hyams v. Mrs. H. Smith.
    íthe necessary expenses for boarding and medical attendance upon slaves, seized in a suit • and so held pending tlie litigation, constitute a privileged claimed upon the slaves. C. C. 3191, 3229.
    Slaves, although generally immovable by law, are movable by nature, and are, like other movables, subject to a privilege for the expenses necessary for their preservation. C. C, 461, 3SP9,3191.

      APPEAL from the Fourth District Court of New Orleans, Stratdbñdge, J.

      W. H. Hunt, for plaintiff.

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

Rost, J.

This suit was commenced by attachment. The plaintiff who keeps a slave-yard in New Orleans, claims the amount of a bill for boarding, clothing and medical attendance furnished certain slaves, and also a privilege upon said slaves for the amount due her.

The defendant admits that she is the owner of the slaves, but denies the plaintiff’s claim and her liability to pay it, if it exists. She avers, that if the plaintiff has had possession of the slaves, she is bound for the value of their services, and prays that their hire be compensated with any amount she may be found to owe.

The plaintiff’s demand up to the amount allowed by the district judge is satisfactorily established, and the only questions are whether the defendant and appellant is personally bound to pay it, and if she is not, whether the plaintiff has a privilege upon the slaves for the payment of it.

The evidence shows that the defendant, who resides in the State of Alabama, had a life estate in the slaves attached; that after her death they were to belong in full property to her children, and that her husband was in possession of them as trustee. The slaves were brought by him to New Orleans and placed in the slave-yard of the plaintiff to be sold. But he died soon after, and before a sale was effected. A curator was appointed to his vacant succession, who caused the slaves to be inventoried as his property, and left them as before in the plaintiff’s slave-yard. The defendant claimed the slaves from the curator, and exhibited her title, but he refused to deliver them, and she was compelled to resort to legal process to recover the possession of them. Judgmentwas rendered in her favor and a writ of possession issued. But before it could be executed, the plaintiff instituted the present proceeding under which the slaves were attached and taken possession of by the sheriff. It is doubtful whether the defendant was personally bound for the expenses incurred by the slaves during the lifetime of her husband under the contract entered into between him and the plaintiff. But as the precise time of his death is not shown, we have no means of ascertaining the amount of those expenses, and only know from the evidence that it was an inconsiderable portion of the sum claimed. After his death, and the demand of the slaves by the defendant from the curator of his estate, she cannot, upon any principle, be held personally responsible for the expenses incurred while the property was wrongfully withheld from her, and the rights of the plaintiff, if she has any, must rest upon the privilege claimed.

The contract under which the plaintiff sues was not one of hire, which rendered her liable for the services of the slaves. It was a contract under which the slaves were to perform no labor, but to be boarded, cared for and safely kept. Art. 3191, C. C., provides, that he who having in his possession the property of another, whether in deposit or on loan, or otherwise, has been obliged to incur any expense for its preservation, acquires a privilege on this property.

The plaintiff insists that she has a privilege on the slaves under that article, whoever the owner may be.

. The defendant’s counsel resists this claim on the ground that the article relied on, is found in the section of the code which purports to treat of the privileges on particular movables, and that it does not apply to slaves. Slaves, although generally immovable by destination of law, are movable by their nature and are held in law to be so, when they form the object of contracts such as the present. C. C. 461, 2899.

Arts. 3191 and 3229, C. C., include all property held in deposit or on loan, or otherwise, and we cannot distinguish where they do not. The classification of the code on the subject of privileges is taken from the Code of France, where there are no slaves, and cannot control the clear intent of its provisions.

It is therefore ordered, that the judgment be amended so as to be satisfied by the sale of the slaves attached, and that, as amended, it be affirmed; the appellee paying the costs of this appeal.


text:
    Peet, Sims & Co. v. J. A. Zanders.
    Where a note due on the 11th of a month was protested on the 12th, Held : the endorser was discharged.
    Where the maker has no place of business, a demand at an office in which he had recently transacted his business will he considered sufficient to bind the endorser.
    Notice of protest to an endorser residing in the city maybe properly deposited in the post-office when the notary, after due dilligence, has not been able to find him or his residence, or place of business.
    PPEAL from the Fifth District Court of New Orleans, Buchanan, J.

      Edwards and G. W. Christy, for plaintiffs.

      W. C. Budd, for defendant.
   The judgmant of the court was pronounced by

Slidell, J.

One of the notes upon which this suit is brought against Zanders, the endorser, was dated February 8th, 1849, and was payable four months after date. It was consequently due on the 11th of June. It was protested on the 12th June, and notice was put into the post office at New Orleans, addressed to the endorser at New Orleans, on the 13th. It thus appears that there was not a timely presentment. It should have been presented on the 11th June. The endorser was consequently discharged and there is no evidence of any subsequent promise. The judgment, as to this note, must be reversed.

There is no sufficient ground for disturbing the judgment as to the other note. The district judge must have inferred, from the evidence, that the store where the presentment was made, had been recently occupied by the maker; the person in whose occupancy the notary found it could give him no information as to his whereabouts; and there is no evidence whatever on the part of the defendant to show that he had any other place of business, or dwelt, or was present in the city or State at the time.

It is said, however, that Zanders was an old resident of New Orleans; had occupied, for more than a year, a dwelling house in the city, and that the notary did not make sufficient inquiry before depositing the notice in the post-office. The district judge was of opinion that reasonable diligence had been used, without success, to find out Zanders or his place of abode; and a consideration of the evidence has not satisfied us that his conclusions should be disturbed by this court. Zanders had formerly been a shipping master and kept an office as such. He continues still to do something in that way, but had kept no office of late years, and in 1849 his name was not in the directory. The notary’s clerk very properly went to that quarter of the city where he formerly kept an office, and inquired at a shipping office. The clerk of the office told him that Zanders bad formerly staid at that office, but had left a few days before, and the person could not say where he was to be found or where he resided. The witness then made inquiries at the boarding houses for sailors in that neighboi’hood and elsewhex’e, but without success.

It is therefore ordered, adjudged and decreed, that the judgment of the court below as to the note of $309 52 be reversed. And it is further ordered, adjudged and decreed, that said judgment as 'to the residue be affirmed; the plaintiff and appellees paying the costs of this appeal.


text:
    Leon Dennery v. Antonio Bisa.
    In a suit for damages for failure to lease a stove according to agreement, evidence of what profits other persons made in the same kind of business followed by the plaintiif, is not sufficient pel• se to warrant a judgment against the defendant Non constat, the plaintiff might have rented another store in which his business could have been as profitably conducted.
    APPEAL from the Third District Court of New Orleans, Kennedy, J.

      Bullard and Frost, for plaintiff.

      C. Roselius, for defendant.
   The judgment of the coxxrt was pi’onounced by

Rost, J.

The plaintiff claims $8,000 damages alleged to have been sustained by him in consequence of the defendant’s refusal to sub-lease to him one of the upper rooms of the tenement rented by Bisa from Mrs. Jourdan, as a coffee house, and the right to sell goods on the side-walk in front of said coffee house; this right being recognized by a municipal ordinance. There was judgment against the plaintiff as in cases of non-suit, and he appealed.

Although the alleged promise is sworn to by two witnesses, the district judge came to the conclusion that it was not satisfactorily proved. It is difficult for us to say that he did not form a proper estimate of the credibility of the witnesses; but if he did not, he was surely right in determining that sufficient data by which to estimate the damages were not furnished him. The plaintiff has shown that he had goods in a store and that his credit was good. He has then attempted to establish the pi'oiits he would have made, if the lease had been executed, by showing what profits other retailers of goods had previously made at the same place.

We have repeatedly held, that evidence of that description was insufficient per se to make proof of any fact. Seaton v. Municipality Number Two, 3d Ann. 44. McCord v. Feliciana Rail Road, Ib. 285.

There is nothing in the record to show that the plaintiff has been prevented from selling his goods and carrying on his business elsewhere, or that his profits have been curtailed by the alleged breach of the contract.

The judgment is therefore affirmed, with costs.


author: Preston, L

text:
    James R. McDowell v. John W. Couch.
    Where the punishment of deathhasbeen commuted by. the Governor and Senate to imprisonment for life, the owner of a slave thus sentenced cannot claim the slave upon the ground that the State cannot thus expropriate his property without an adequate compensation.

      Where the time fixed for the execution of a capital sentence has passed, in consequence of an appeal to tho Supreme Court, the time thus fixed upon not being; a material part of the judgment, another time may be appointed; and it is the duty of the sheriff, without any new warrant or authority, to execute the sentence as soon as the affirmance of the judgment is officially announced to him.
    The Governor and Senate have, by the Constitution, the power to pardon; and under this power may commute tho punishment of deatli to imprisonment for life.
    It is not essential that the owner of a slave whose sentence has been commuted from death to imprisonment for life, should give his consent to the change of punishment.
    APPEAL from the District Court of Madison, Richardson, J.

      Isaac Johnson, Attorney General for tho State, contended:
    The important facts of this case are correctly stated in the Brief of the plaintiff and appellant’s counsel.
    The points raised may be considered under the following heads: 1st. The period fixed for the execution of the slave Jerry having passed, pending an appeal to the Supreme. Court, and no new day having been designated for. the execution at the time of the commutation of the punishment, has the sentence become inoperative, and the commutation ineffectual?
    The lawfulness of the original imprisonment of Jerry is not denied. He therefore can only be restored to the serviee of plaintiff by some act, omission or event which has since occurred. Sec. 2, art. 822 C. P. The fact that no new day had been fixed for the execution of the sentence, it is confidently affirmed, is not such an omission or event as would discharge the accused from the prosecution and the custody of the law. It is true, this court has said that it could not fix another day, when the day fixed for the execution of a sentence pronounced against a slave convicted before a tribunal organized under the act of 1846, had passed by, pending an appeal. State v. Jerry, 3d Ann. 577. The King’s Bench, in England, ns the centro of all subordinate jurisdictions, in capital matters, may fix another day for the execution of a criminal; and courts of general jurisdiction, such as the district courts in this State, may cause a felon to be brought to the bar again if he has not been executed pursuant to sentence, and fix a new day for his execution. Chitty’s Cr. Law, 5G8. So, a special tribunal, having exclusive jurisdiction to try slaves capitally accused, may, as an incident to its powers, re-organize to fix another day for the execution of a sentence already pronounced, when the convict has -not been executed pursuant to sentence. But in the case under consideration it is urged that one of the justices who composed the special tribunal died {lending the appeal, and that the court consequently can never be re-organized. In reply to this objection it is deemed sufficient to say, that although the special tribunals in question must be composed of two justices and ten slave owners, in order to a complete organization; yet, that one justice and nine jurors of a court thus formed may constitute a quorum for the trial and sentence of a slave capitally accused and convicted. Sec. 15, act 1846, p. 115. Hence, it clearly results, when there has been a complete organization of this kind of court, as required by the first and fifth sections of this act, the trial may proceed and sentence he pronounced by one justice and nine jurors, and, ns necessarily incidental to this power of the court, it may re-organize to fix another day for the execution of the sentence, when the convict has not been executed on tho day first fixed; provided one justice and nine jurors of those who constituted tho court as originally assembled, can be had.
    A new day, therefore, for tho execution of Jerry may be fixed under the sentence pronounced, unless the act of commutation sought by him aud the inhabitants of the parish of Madison can bo invoked to protect him. And this involves the question: Is the act of the Legislature authorizing the Governor and Senate to commute the punishment of crimes and offences unconstitutional, as averred by appellant’s counsel? 546 Rob. Penal Law. Act 20th March, 1818. If it is declared to be unconstitutional, this court will direct a re-organization of the tribunal that tried Jerry, to fix another day for his execution. But the power to commute is not in derogation of the 47th article of the State Constitution. That article, in general terms, gives to the Govornor and Senate, except in impeachments, the power of granting pardons; and our statute, in a wise and humane spirit, enables the same authority to abate something of the extreme rigor of a criminal sentence when no sufficient grounds for a pardon can be shown. The power to commute does not conflict with nor exclude'the prerogative of pardon. Commutation is simply the change of punishment to which a person has been condemned, for a less rigorous one; and this change can only be granted by the executive authority, in which the pardoning power resides. Bouvier L. D. vol. 1, p. 288. It is sufficient, therefore, that the Legislature has delegated the power to commute crimes and offences to the Governor and Senate,.to whom the Constitution has intrusted the pardoning power.
    . 3d. It is further urged that Jerry, being a slave,‘could not assent to a change of the death penally to perpetual imprisonment without the authorization of plaintiff', which was not accorded. This assumption has certainly no foundation in law ox-good morals to support it. It is quite enough that Jerry and the inhabitants of the parish of Madison petitioned for the commutation on grounds that induced the executive authority to grant it; and if the -plaintiff, as former mastex-, did not intercede, either from indifference, prndouiial motives, or from a desire to have the slave executed, it is perfectly immaterial; his voice could have had no legal potency in precipitating, averting or mitigating the sentence of the law. When a slave has forfeited his life to the law, it is his right to pray for a commutation of the punishment, and, if granted, to accept it without consulting the master, whose interest in the slave is resolved into a demand on the State treasury for his appraised value, if it should not exceed $300. When slaves commit crimes and are pi-osecuted in the name of the State, they ax-e regarded as accountable beings, and not as things; and may' be punished as the law directs, irrespective of the wishes of the master, who in such cases is only entitled to notice. C. C. 178.
    Like a pardon, a commutation of punishment is the private, though official act of the executive authority, delivered to the individual for whose benefit it is intended. I shall not contend, that as a voluntary act of the governor, a paidon or commutation of punishment can be forced on a convict. The act of executive grace, however, will be considered as accepted until it is rejected by the person for whose benefit it was intended. 7 Peter’s S. C. R. p. 160. But when a commutation from death to imprisonment is petitioned and prayed for by the sentenced convict and those who-sympathize in his misfortunes, and when the consequence of granting such application is known and settled by law, the commutation, if granted, cannot be declined by either bond or free. To sanction a different rule would, it appears to me, encourage trifling with the executive authority as well as with the administration of justice.

      Thomas and Snyder, for appellant, contended:
    This is a petitory action to recover the slave Jerry, in the possession of the defendant. He admitted the title of the plaintiff, but averred that he held the slave, as sheriff, under a warrant of arrest and order from the governor; annexed the order to his petition, and prayed the protection of the court.
    Tliat authority is a missive from the govex-nor, dated the 15th of March, 1850, addressed to the defendant as sheriff of the parish of Madison, informing him that the slave Jerry, belonging to the plaintiff, had been convicted of the crime of murder, by a special tribunal composed of two justices of tho peace and ten slave holders, and sentenced to be hung; and that for good and sufficient reasons the Senate had concurred with the Executive in commuting his punishment to imprisonment for life in the penitentiary; and “ commanding him to take notice and govern himself accordingly.”
    The State intervened by her prosecuting attorney, claiming to be the true and lawful owner of the slave, and as such “entitled to his services for and during the then term of his natural life; setting out as the ground of the right, his conviction, sentence, and commutation of punishment to imprisonment in the penitentiaxy for life; and to this intervention the plaintiff pleaded a general denial.
    The'case was tried upon the pleadings and a statement of facts, in substance: 1. That the slave Jerry, the property of the plaintiff, was convicted in January, 1849, of the crime of’murder, by a legally constituted tribunal for the trial of slaves, and sentenced to be hung in the month of February of that year. 2. That upon appeal to the Supreme Court his sentence was affirmed, and that at the time of the affirmation the day fixed by the special court for his execution had passed. 3. That subsequently to the day fixed for his execution, and the affirmation of his sentence by the Supreme Court, to wit, in the month of October, 1849, the citizens of the parish of Madison, and Jerry, petitioned for the commutation of his punishment. 4. That his punishment was commuted, the Senate concurring with the Executive, to imprisonment for life in the penitentiary; and the defendant notified thereof by a missive from the governor, dated She' 13th of March, 1850, “ commanding him to govern himself accordingly.” 5. That the defendant, as sheriff, holds him by virtue of the • arrest for the crime of murder, of which he was convicted, and by virtue of said notification or order from the governor; and not under any claim of title as owner. 6. That no mandate was ever issued by the special court for his execution, and no day fixed by the Supreme Court. 7. That the special court was composed of two justices of the peace and ten slave holders, one of which justices died pending the appeal in the Supreme Court. 8. The defendant was cognizant of the decision of the two courts, special and supreme.
    I. The title of the plaintiff, so far from being questioned, is expressly admitted both by the defendant and the State. II. The State could alone acquire property in him, under the Constitution, without the assent of the plaintiff, by the previous payment of an adequate consideration. Art 109. III. Has the State, under the circumstances, a right to detain him upon the criminal charge?
    1. The period fixed for his execution having passed, the sentence became inoperative. 2. If it be competent for a court of general criminal jurisdiction to fix another day of execution after the first had transpired without the sentence of the law being executed, it could not have been done in this case; the trying tribunal being an ephemeral one, which ceased to exist with its adjournment, and which could never be re-organized, one of its members having died pending the appeal. 3. The warrant of arrest authorized the defendant to arrest and detain him for the purpose of his trial; but that passed, he could only detain him under an order of commitment or warrant of execution. Neither was made or granted; and from that time his detention was in violation of the plaintiff’s right of property and the free and uncontrolled use of it. 4. The State claims to be his owner, and as such entitled to his services for life as a convict pi-isoner in the penitentiary; and bases that claim upon the fact of his conviction and the commutation of his sentence.
    1. At the time of the commutation there existed no sentence against him, which, by legal possibility, could be executed. Instead, therefore, of softening, by modifying an existing sentence of greater severity, the commutation of punishment, under which the State claims to detain him as property and as an offender, is in fact the only, if there really is any, sentence of condemnation and warrant for his detention.
    2. Has the Executive and Senate the power by the Constitution and laws of the State, under the semblance of commuting the punishment of a convict, to revive an inoperative or defective sentence, and make their act the warrant for inflicting the substituted punishment? 3. We have found nothing in the Constitution or laws to warrant the commutation of the sentence of a convict without his free and full assent; and a slave is incapable of giving such assent without the authority of his master, which was not accorded in this instance.
    4. When a sentence of death is commuted to imprisonment for life, the imprisonment if authorized, is so not by the sentence, but by the express or implied compact resulting from the supposed grace of the State, and the acceptance of it by the culprit; and if accepted in error, the culprit, supposing he is liable to be punished capitally when he is not legally punishable at all, can it be doubted but that upon the fact being shown he would be entitled to his discharge.
    There is no legal difference between a commutation of punishment and a pardon. They both have the effect of setting aside the judgment of the court pronouncing the judgment. And a pardon or commutation is not complete until it is accepted by the convict. And a pardon cannot be forced upon a culprit; and for a much stronger reason, a commutation cannot. United States V. Wilson, 7 Peters, 150.
    There is no power delegated by the Constitution to the Governor and Senate to commute the punishment of a convict. The act of the Legislature authorizing commutations is unconstitutional; the 49th section of the Constitution gives to the governor the power to reprieve, and to him and the Senate the power of pardoning. A pardon and commutation cannot be construed to mean one and the same thing.
    In the case of The State v. Jerry, upon his and his master’s application for a writ of habeas corpus, and the refusal of the judge to discharge him, the facts are the same as in this case. His right to be discharged under the facts is based on art. 822, sec. 2, of the Code of Practice.
   The judgment of the court was pronounced by

Preston, L

The plaintiff brings this suit against the sheriff of the parish of Madison, to recover a slave named Jerry. The State, by the district attorney, intervened. He alleges the following facts, which have been admitted or proved. That the slave Jerry was prosecuted and convicted of the crime of murder, before a tribunal composed of two justices of the peace and ten slaveholders of the parish of Madison, convened and organized in pursuance of the act of 1846, relative to the trial of slaves. Pie was sentenced to be executed on the — day of February, 1849. An appeal was taken on his behalf to the Supreme Court, which, in March, 1849, affirmed the judgment of the special tribunal. At the session of the Legislature in 1850, a petition on behalf of the slave, in which he, and many of the inhabitants of the parish of Madison united, was presented to the Governor and Senate of the State, for the commutation of his punishment.

It was commuted by the Executive and Senate to imprisonment for life in the penitentiary; of which commutation the sheriff was notified, and he was directed by the governor’s warrant, dated the 13th of March, 1850, to govern himself accordingly.

The court by its judgment rejected the claim of the plaintiff, and directed the sheriff to deliver the slave to the keeper of the penitentiary at Baton Rouge; from which judgment the plaintiff, the owner of the slave, has appealed.

Various grounds are urged for the reversal of the judgment. 1st. It is contended, that the slave being admitted to have been the property of the plaintiff, the State cannot, under the 107th article of the Constitution, acquire a property in him without the previous payment to the plaintiff of an adequate compensation. The property in a slave is such that from its nature the owner may lose it by the crimes and offences of the slave ; for slaves, as well as free persons, forfeit their lives or subject themselves to imprisonment for life by their crimes. Even for damages caused by a slave to individuals, the owner must pay or abandon the slave in satisfaction of them. And for such necessary results of the criminal acts of slaves the owners are not of right entitled to indemnification ; and yet the State generously accords to the master of a slave sentenced to death or imprisonment for life, an indemnification of $300, being the full value of any slave convicted of a capjtal crime.

It is next urged, that the State has no right to detain the slave on a criminal charge, because the period fixed for his execution having passed without the sentence being carried into effect, it became inoperative. The suffering of death was essentially the punishment to which the slave was sentenced; and fixing the day of execution was an incident, but not an essential part of the judgment. It is said by Blackstone, in his Commentaries, “ that the time and place of execution are by law no part of the judgment.” Vol. 4, p. 404. In the case of The King v. Rogers et al., the defendants had been convicted of highway robbery, and sentenced to death. Being detained in prison awaiting their execution, they murdered the jailer, broke the jail and escaped, but were some time afterwards again arrested and imprisoned. They were brought before the Court of King’s Bench by a writ of habeas corpus; but instead of being discharged, the return showing their former conviction and sentence, the court directed an issue, to ascertain the identity of some of them, which was denied ; and that being found, ordered them to be executed in pursuance of the former sentence. 3 Bur. Rep. 1810. And in the case of Earl Ferrers, found guilty of murder by the House of Peers, the House subsequently propounded the following question to the judges: “Supposing a peer, so indicted and convicted, ought by law to receive such judgment as aforesaid, and the day appointed by the judgment for execution should lapse before such execution done, whether a new time may by appointed for the execution, and by whom?” To which the judges answered in writing: “ Supposing the day appointed by the judgment for execution should lapse before such execution done, (which however the law will not presume,) we are all of opinion, that a new time may be appointed for the execution, either by the High Court of Parliament, before which such peer shall have been attainted, or by the Court of King’s Bench, the Parliament not sitting; the record of the attainder being properly removed into that court.”

There is no doubt, therefore, that the convicted slave was subject to execution, notwithstanding the day of execution appointed by the tribunal had passed.

It is urged that another day could not be fixed for the execution of the slave in this case, because the special tribunal which tried him, being an ephemeral one, ceased to exist with its adjournment and could never be re-organized, one of its members having died during the pendency of the appeal.

The act of 1846, creating the tribunal, did not direct it in sentencing the slave to death to fix a particular day for the execution. Although this was prudent and conformable to usage, we have seen that it was not an essential part of the sentence; and, as the appeal rendered the execution legally impossible on that day, it was the duty of the sheriff, without any new authority or warrant, to have executed the sentence as soon as the judgment was affirmed by the Supreme Court, and the affirmance thereof was officially communicated to him by the justice of the peace in whose office the original proceedings and judgment had been filed, or by his successor in office, if dead. And if the sheriff had failed to do so, the executive of the State, bound by the Constitution to see the laws faithfully executed, would no doubt have caused the legal execution of the convict.

It is next contended, that the Governor and Senate had no power to commute the capital punishment of the slave to imprisonment for life. The Constitution gives the governor power, with the advice and consent of the Senate, to grant pardons. The term being derived from the Common Law of England, must have the same import in our Constitution and laws which belongs to it in England. It has been held from time immemorial in England, that “the king may extend his mercy upon what terms he pleases, and may annex to his bounty a condition either precedent or subsequent, on the performance whereof the validity of the pardon will depend: and this by the Common Law, which prerogative is daily exerted in the pardon of felons, on condition of being confined to hard labor for a stated time, or of transportation to some foreign country for life or for a term of years.” 4 Black. Com. 401.

The power has always been construed in the same manner in this State. Besides, an act of the Legislature, approved the 5th of March, 1823, expressly gives power to the Governor and Senate to commute the punishment of death into a lesser punishment in favor of slaves “whenever the circumstances of the case are such as to entitle the offender to such commutation.” B. & C. 67.

This clause of the statute, being connected by the copulative conjunction with the preceding clause requiring the recommendation of the commutation by the jury which tried the convict, creates some doubt; but we think the Legislature, by the comprehensive terms used, intended to confer the power even for causes and circumstances which might occur after the jury were discharged and the tribunal dissolved.

The last point made by the counsel of the plaintiffs, which we deem it essential to notice, is thus expressed by them: “We have found nothing in the Constitution or laws to warrant the commutation of the sentence of a convict without his free and full assent; and a slave is incapable of giving such assent without the authority of his master, which was not accorded in this instance.”

The answer of the attorney general on this point is so appropriate and well expressed that we will only quote and adopt it as our opinion on this part of the case: “This assumption has certainly no foundation in law or good morals to support it. It is quite enough that Jerry and 'the inhabitants of the parish of Madison petitioned for the commutation on grounds that induced the executive authority to grant it; and if the plaintiff, as, former master, did not inercede, either from indifference, prudential motives, or. from a desire to have the slave executed, it is perfectly immaterial; his voice could have had no legal potency in precipitating, averting or mitigating the sentence of the law. When a slave has forfeited his life to the law, it is his right to pray for a commutation of the punishment; and, if granted, to accept it without consulting the master, whose interest in the slave is resolved into/a demand on the State treasury for his appraised value, if it should not exceed $300. When slaves commit crimes .and are prosecuted in the name of the State, they are regarded as accountable beings, and not as things; and may be punished as the law directs, irrespective of the wishes of the master, who in such cases is only entitled to notice. C. C. 178.

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