author: Eustis, C. J.

text:
    Ricks v. Goodrich, Curator.
    The effect of a deed of trust executed in another State, conveying land situated in that State, and reporded in the parish in which the land lies, must b,e determined by pur laws. C. C. 10. Such an instrument, being an agreement by which mortgaged property is authorized to he sold extra-judicially.is not valid under our laws SO far as third persons are concerned, whatever may be its effect between the partips.
    Under the roman law, a power to a mortgagee to s.ell without judicial authority would have been valid, and a sale, after public qdvertizements and notice to debtors, made under the forms required, would have given a good tifie to a bond fide purchaser; but with our bypothepary system the validity of such a power would he incompatible.
    APPEAL fyom the District Court of Carroll, J.

      Browder and IT. A. Bullard, for the plaintiff.

      This is a to title^ to a large tract parish Both parties claim titl.e und.ep Gibeon Gibson. The facts are as follows: Gibson, who resided in the State of Mississippi, on the 10th of February, 1838, executed a deed of trust of the land in question, together with other properly, in Mississippi, in com, jnon law form, to secure the payment of various notes. The deed was in favor of Winter, and T. S. Ayres was nanied trustee, in whom the legal title was vested. H.e was authorized, on the failure of payment, to offer the land for sale in Vicksburg, after public notice, and to sell to the highest bidder. This deed of trust was recorded both in Mississippi, and in th.e parish of Carroll. The recording in that parish took place on thp 27th of March, 1838. It is admitted, that the trustee complied strictly with the terms of the deed. ‘That, on failure of payment, he gave the notice as required, in a newspaper i.n Vicksburg, and tfrat, at the time and pla.e.e appointed, he did sell the land, situated in tile parish of Carrol], which forms the objeptpf this suit, and that the plaintiff Ricks, beepme the purchaser for $3,300. Thereupon the trustee executed his deed to the plaintiff, dated December 21sf, 1840, which was duly recorded in the parish of Carroll, on the 2d of May, 1842.
    '1 be defendant traces his title in the following manner: Gibson, after executing the deed of trust in Mississippi, and .after it had be.en recorded in .Carroll, went before a notary public in the parish of Madison, on the 13th of November, 1837, and sold the same land to James F. Stewart, who also resided in the State of Mississippi, and whose acceptance of the sale was by an agent. This deed appears to have been recorded two days afterwards in th.e parish judge's office, but it makes no referen,ce to the mortgage or sale, previously recorded in favor of Ayres, as trustee.
    It cannot be pretended that Gibson, who had already executed a sale to Ayres, in the nature of a mortgage, re.corded in the placo wh.ere the land is situated, could defeat his own deed, by a second conveyance to a person who never went into possession, and who must be supposed to have known of the previous conveyance or encumbrance. Such a proceeding was a manifest fraud, and can convey no right. If the deed of trust conferred only the power of .an agent on Ayres, to sell and pay over to the creditors of Gibson, the act of sale to Stewart could not operate as a revocation of the power of attorney especially without notice to the agent. Until notified of such revocation he had a right to proceed, even supposing that it could be revoked at all, which is by no means admitted. The deed to Ayres then remained in full force and must have all its legal effect, as if no such sale had taken place to Stewart.

    As it relates to plaintiff’s title the only question for the court to decide is, whether he has become invested with the title of Gibson, by the proceedings of the trustee, in a manner not forbidden or reprobated by our law. Our Code, art. 10, lays down the general rule, that the form and effect of public and private written instruments, are governed by the laws and usages of the places where they are passed or executed. But the effect of acts passed in one country to have effect in another country, is regulated by the laws of the country where they are to have tltair effect. We must therefore look to the laws of Mississippi, in order to determine what is the legal effect of a deed of trust there, and then enquire whether, in relation to land situated here, there is any thing in our law which forbids such a form of transfer or alienation of real property. If Gibson for example, residing in Mississippi, had made a written contract of sale of the land in Carroll, directly to Hieles, and it had been recorded in the parish where the land is situated, there can be no doubt but that such a sale» would be good. It is of no importance where the contract is made; it will have its effect here, if made in the form required by our own law. If, instead of doing so, he had given q formal power of attorney to Ayres, or any other person, to execute such a sale, it would have been equally valid here, because real estate rqay be validly sold here by a special attorney in fact. So if he had, in Vicksburg, executed a mortgage in our form, which was recorded here, it would be valid, because not prohibited by our laws, but expressly permitted. If the form had been even according to the common law, yet if it appeared clearly that the intention of the parties was to create an encumbrance on real property, to secure the payment of money, even that would be held to be good, because there is no sacramental form of mortgage. Such mortgages are common in our practice, and they have uniformly been regarded as valid.
    When the mortgagor puts the contract in the form of a vente á rémérñ, or with a condition of defeasance on the repayment of the price, or on the payment of a certain sum, such a contract would embrace all the essentials of a Louisiana mortgage. That a citizen of Louisiana has a right to constitute an agent, with power to sell a particular immovable situated here on the non-payment of a sum of money, at a particular period, we have no doubt. He may be authorized to cause the property to be sold at public auction. There is nothing in our law which forbids it. The question, therefore, resolves itself into this : Was Ayres the regular, special agent of Gibson, to sell the land in controversy, and did he make the sale under that power, and according to the conditions agreed upon, between the parties 1 If so. although the contract was made in Vicksburg, yet being in writing, and for a price, and between pompe? tent parties, the saje is good here, as well as in Mississippi.
    According to the common law, which prevails in Mississippi, it is permitted to add to a mortgage a power to sell, and without the delay, trouble, and .expense of resorting to a court of Chancery, to foreclose the mortgage. Such sales are legal, aqd it is not necessary there should even be a trustee or agent appointed. The mortgagor is not required to join in the deed of sale. Such powers, when a trustee is appointed, are coupled with an interest, and aro •essentially irrevocable. See the whole doctrine at large in 4 Kent’s Com. p. 146, et seq. The common law form of a mortgage, as a sale with defeasance, was borrowed from the ancient roman law. Dans les antiquités du droit Romain, says Troplong, le nantissement affectait les formes de la vente. Espece de vente á réméré, il se contractait par le transport solemnel de la propriété entre les mains du créancier, c’est-4-dire par la mancipation per ces et Libram; et la mancipation etait accompagnée d’un contrat de fidueie, e’est-á-dire d’une promesse obligatoire et juridique par laquelie le créancier s’engagealt á rendre Ja propriété au debiteur quand ce dernier l’aurait désinterressé. C’est ce qne Boe.ee appellee mancipatio fiduciaria. Troplong, Nantissement, no. 5.

      We have seen in Kent that, at common law, these mortgages with a trustee are legal, and even common, and that the trustee has authority to sell extra-judicially. The statute of Mississippi is formal and positive upon this point. If, however, the trustee refuses to act, a court of equity will compel him. If he can act extra-judicially, in virtue of the authority conferred on him by the debtor himself in the deed of trust, what is he but a simple mandatory or agent of the debtor?
    It is urged by the appellant, that the deed of trust was recorded in the parish judge’s office in the parish of Carroll, as a deed, and not as a mortgage. To •this it is a sufficient answer to say, that it was recorded by the same office!’, in the same office, and was full notice of a conveyance, such as the deed purports to be. It was notice to the whole world of a sale to Ayres of the tract of land, with the condition that the nominal purchaser should be authorized to sell the land at auction, if the debt, for the security of which it was given, should not be paid ata particular time. A subsequent purchaser from Gibson complains with bad grace that, although he had notice of this sale, he had no notice of any mortgage, because the act was not recorded in the book of mortgages. He must be held to have purchased with notice, and to have acquired no better right than Gibson had after executing the deed of trust, whatever may be the legal effect of that deed.
    It appears to be fully conceded by the counsel for the appellant that, the deed of trust executed in Mississippi is perfectly legal, that the trustee is authorized to sell under said deed without resorting to judicial authority, and that, if he complies with the conditions of the deed, his sale passes the title. The contract forms the law between the parties. But it is said that sucha deed recorded here in relation to lands situated in this State creates only a mortgage, which must be foreclosed by judicial process, according to our laws. It is further contended, that such trustee is not a mandatory, because the contract of mandate is essentially revocable. We think this an error. There are mandates by the civil law which are irrevocable. The transferee, for example, of a chose in action, is regarded in law as procurator inrem suam. We learn from Pothier, Contrat de ¡Mandat, p. 3,'that two things only are of the essence of the contract; first, a negotium or business, which forms its matter; and second, that the parties have manifested their intention to bind each other; the mandatory to render an account, and the principal to indemnify him. But the truth is, the trustee is the common mandatory of the debtor and the creditor. He is answerable to both, and neither can revoke without the consent of the other. Even supposing that Gibson alone had power to revoke, it is clear that until such revocation was made known to the mandatory his acts with third persons, without notice, are valid and binding.
    The great argument on the other side is, that judicial proceeding was necessary, according to our law, to divest the title of the mortgagor. This appears to us to be a petitio principii. If in this State the mortgagor should authorize the mortgagee, or a third person agreed upon by the parties, to sell the property at public sale to satisfy the debt, it is by no means clear that it would not be legal. We are not aware of any law which prohibits it. On the other hand, if the title to land had been divested by judicial proceedings in Mississippi, it might perhaps be doubted whether such proceedings could have any legal effect here. It is not necessary to discuss that question. None such arises in this case. The whole rests upon contract, upon the express consent of the parties without the interference of a court of justice. Such a contract is admitted to be legal in Mississippi, and it must have effect here if not contrary to the policy of our laws, and injurious to the rights of our citizens.
    The argument of the counsel for the appellant, rests upon the assumption that, according to our laws, a mortgage must necessarily be enforced or foreclosed by a judicial proceeding, and that parties are not permitted to enter into any stipulation by which that can be dispensed with, and the property disposed of to pay the debt by a common agent of the parties. Is it, then, of the essence of a mortgage by the Code of Louisiana that, on the failure of payment, the mortgaged premises must be sold by authority of justice ? We are not aware of any such provision. Undoubtedly the creditor has that right, in the absence of any stipulation on the subject; but it does not follow that the mortgagor, for whose protection that mode of proceeding has been adopted, mgy not validly dispense with it, and consent that the property shall be sold without judicial authority. The mortgagee could not validly stipulate, perhaps, that the mortgaged property should belong irrevocably to himself; but, in every other particular, the parties may regulate the matter among themselves, in a way not expressly forbidden by law. We contend that precisely the same contract would be valid in, this State, between our own citizens, in relation to land situated here.
    There is no doubt that originally, by the roman law, the pledgee or mortgagee might sell the property, if there was an agreement to that effect between him and the mortgagor, although he was forbidden to- purchase it himself, either directly or by persons interposed. The authority of Gaius is positive upon this point: II. 64. “Item creditor pignus ex pactione (alienare potest) quamvis ejus ea res non sit; sed hoc forsitan ideo videatur fieri quod volúntate debitoris intelligitur pignus aliennri, qui olim pactus est ut liceret creditor! pignus venders si pecunia non solvatur.”

      Gibson himself has no right to complain that the trustee sold in compliance with the conditions in the deed ; and the defendant’s intestate, who purchased with full notice, acquired no better right than Gibson had.

      Short, Parham and Drew, for the appellant.
    Both parties now before the court, it may be admitted, are strangers to the deed of trust. But Ricks, who purchased at the trust sale made in Vicksburg, must be deemed to- have notice of the effect given to the deed of trust by the laws of this State, where the land is situated. The contracts by virtue of which Ricks claims title were made in Mississippi and between citizens of Mississippi, but they Were" to have their effect on lands in this State. They must then be construed by the laws of this State. C.C.art.10. Story, Con, Laws, p. 300, etseq. We contend: lst.That, construed by the laws of this State, the deed of trust did-not divest Gibson of title. The utmost effect that can be given to it is, that of a lien in the nature of a mortgage. 2d. That the' title could' not pass by the trust sale, made in Mississippi, because that trust sale cannot be taken as a foreclosure of mortgage. The mortgage must be foreclosed according to- the laws of this State, in order to extinguish Gibson’s title. 3d. The purchaser from Gibson, J. P. Stewart, after the execution- of the deed of trust, but before the sale made by Ayres, the trustee, acquired a right i'n the land that could not be affected by the trust sale, to which he was not a party.
    What effect then- has a deed of trust, when construed by the laws ©f this State ? Contracts in relation to their substance, are either principal or accessory. The contract of sale is a' principal contract', by which one gives a thing for a price, the other gives the price to have the'thing itself. C. C. art. 2414. The accessory contract assures the performance of a principal contract, such as suretyship, mortgage, or pledge. ,C. C. arts. 1760, 1764. It does not transfer the thing itself upon which it operates — it only gives a right upon it. A mortgage is a right granted to a creditor ovei‘ the property of his debtor, for the security of his debt; and gives him the power of having, the property seized- and sold, in default of payment. C. C. art. 3246. It assures the performance of the principal contract. Testing the deed of trust by these provisions of the Code, it will be found not to be a sale, either absolute or conditional. The contract is not a principal, but an accessary one. The utmost effect that can b'e given to it is, that of a mortgage right in favor of Winter, the cestui que trust. If no title passed from Gibson at the date of the deed of trust, it is equally clear that none passed by the trust sale, made in Mississippi, on the 21st of December, 1840.
    We contend, that the act of the trustee in making the sale in Mississippi, cannot be taken for a foreclosure of the mortgage. Admitting that, if the land had' been situated in Mississippi, the trust had been well executed, according to the laws of Mississippi, still, as the land was situated here, where the contract was to have its effect, and-the contract, by our laws, being an accessary one, the mortgage must be foreclosed, and the right acted- upon by our courts. If our laws give to the instrument the effect of a mortgage, then the incidents follow: it must be recorded as a mortgage, and foreclosed as a mortgage, in- the manner known to our laws.
    Two positions are relied on by the appellee, to sustain his title under the deed of trust: 1st. That such trusts are naked- trusts, not prohibited by the Code. 2d. That the deed of trust can be assimilated to a mandate. It may be admitted that naked trusts are not directly prehibited by the Code. Neither are executory devises prohibited by the Code directly, eo nomine ; yet they are substitutions, and under that name are prohibited. C. C. art. 1507. The late Supreme Court were frequently called upon to act upon deeds of trust, executed in other States. Morgan et al. v. Their Creditors. Mathurin v. Livaudais. Hope v. The State Bank. Malone v. Barker. Jordan v. Black. 6 N. S. 392. 4 La. 215. 1 Rob. 575. 2 Rob. 369. In all these cases, the contracts creating the trusts were executed in other states, and the only point the court was really called on to decide was, whether contracts, being valid by the laws of the state where made, were not to be held equally valid here, as to property brought here subject to the trust. The court recognized the validity of such title as the trustee had under the laws of the state where the deed was executed, when claiming the property here, for the purposes of the trust.
    But can the deed of trust be assimilated to a mandate ? It is of the nature and essence of a mandate tobe revocable. C. C. art. 2945, et seq. It will be difficult to make the deed of trust in question, fall into this category of contracts. If it should be assimilated to a mandate, then we say the power was revoked : 1st. By the suit instituted by Gibson, in the parish of Carroll, on the 21st of October, 1839, to vacate the deed of trust. 2d. By the sale of the land by Gibson, the principal', on the 13th of November, 1839, to Stewart. The deed was recorded on the 15th of November. 1839. Ayres made the sale to Ricks, on the 21st of December, 1840, by virtue of a power of attorney, executed on the 10th of February, 1838.
   The judgment of the court was pronounced by

Eustis, C. J.

The question presented by the facts of this case’ relates to the legal effect of a deed of trust, executed in the State of Mississippi, and recorded in the parish of Carroll, where the land in controversy is situated. The date of the deed is the 10th of February, 1838, and of the record the 27th of March following. It appears by the certificate of the parish judge, to have been recorded in the book 'of deeds so called. The deed of trust purported to convey to the trustee this tract of land, with a large quantity of land and negroes in the State of Mississippi, in order to secure the payment of a large debt due by the grantor to a third person, Thacker W. Winter, of Mississippi; and on default made by the debtor, in conformity with the conditions of the deed of trust, the trustee sold this land at public auction in the town of Vicksburg, and the plaintiff, Ricks, became the purchaser. The de’ed to him bears date the 21st of December, 1840, and was recorded in the parish of Carroll, on the 2d May, 1842. After executing this deed of trust, Gibson, the grantor, sells the same land before a notary public in the parish of Madison, on the 13th November, 1839, to the late James F. Stewart. The act was recorded in Carroll two days afterwards. The purchaser under the deed of trust is the plaintiff, and the curator of the succession of Steivart is defendant, both claiming the title to the land; the former had judgment, and the defendant has appealed.

The validity of the sale to Stewart is said to have been impossible by reason of the deed of trust, which had been previously executed by the owner of the land, and the subsequent bond fide purchase under it by the plaintiff is said to create a complete adverse title in him, superior to that acquired by Stewart. The parties were all citizens of Mississippi, and the contract and its obligations have been considered in argument with reference to the laws of that State ; and its effect and validity under our own laws has also been carefully examined by counsel.

In the State of Mississippi a court of equity would hold the deed under consideration to bo a mere mortgage, with a power of foreclosure out of court. It must be conceded that the effect of this deed must be determined under the laws of Louisiana (Civil Code, art. 10); and the counsel for the plaintiff has. contended'that there is nothing in the instrument which conflicts with them, that the power to sell given to tlio trustee is valid as an ordinary mandate, and no judicial proceeding is necessary, under our law, to divest the title of the mortgagor.

If the deed of trust be considered as an ordinary mandate it must be taken as revoked by the sale to Stewart, and the record of that sale was notice of the fact. But we cannot assent to the proposition of the learned counsel that an agreement by which a mortgagee is authorized to sell mortgaged property extra-judicially, is valid under our laws. Whatever may be the validity of such an agreement between the parties, so far as the rights of third persons are concerned, we think it would be without effect. It is true, as stated by the counsel for the plaintiff, that under the roman law a power to the mortgagee to sell without judicial authority would have been valid, and a sale after public advertisements and notice to the debtor made Under the forms required, would have given a good title to a bona fide purchaser. Droit Romain, par Mackeldey, § 317. But with our hypothecary system the validity of such a power would be incompatible. Troplong has given his views on this subject with reference to the Code Napoleon, and has given what may be considered a history of the question as it has been settled in the jurisprudence of France. They are equally applicable to the Louisiana Code, and we consider them conclusive. Troplong, Traite des Priviléges et Hypothéques (art. 2169), no. 795.

The judgment appealed from is therefore reversed, and judgment is rendered in favor of the defendant; and it is decreed that the land in controversy belong to and make part of the succession of James F. Stewart, and be inventoried; and that the plaintiff pay the costs in both courts.


source: Caselaw Access Project

author: Kíng, J.

license: Public Domain

text:
    Bailey v. Sims.
    An appeal mast be dismissed, where the judgment from which it Was taken Was not fino!, nor such a one as could cause an irreparable injury.
    APPEAL from the District Court'of Carroll, Copley, J.

      fhomas, Snyder, and Dupuy, for the plaintiff.

      Short and Sparrow, for the appellant.
   The judgment of the court was pronounced by

Kíng, J.

In 1844, the present plaintiff, Bailey, confessed two judgments in favor of Sims. Large payments were made on account, which were imputed by the creditors to the entire extinction of one of the judgments and the partial extinction of the other. Under the judgment which wad only partially satisfied, Sims issued, in 1847, a fieri facias for the unpaid residue, in virtue of which, a seizure was made; Bailey, thereupon, instituted this suit to enjoin the execution of the writ, and to annul the two judgments. He alleges that he was induced to confess the judgments by the fraudulent representations of the defendant; that one of the judgments was rendered for $150 more than was claimed in the petition ; and that he has paid the defendant $1800, in a draft on account of both judgments, for which no credit has been allowed; and finally, that the seizure of the sheriff was excessive. The defendant Sims opposed to the action of nullity the plea of res judicata, and the prescription of one year. He denied that the plaintiff’ was entitled to any other credits than those which had been allowed, and prayed for a dissolution of the injunction, with damages. A third party intervened in the suit, claiming to be the owner of a part of the land seized by the sheriff, and prayed that the sheriff should be enjoined from selling the property of which he claimed to be the owner, and for damages for the wrongful-seizure.

The intervention was answered by the defendant, who immediately claimed a trial, the cause having been previously fixed. The plaintiff, however, insisted on time to answer the intervention, which was accorded to him, and the cause was thereupon continued. Previously to the filing of the answer to the intervention the judge had pronounced upon the peremptory exceptions pleaded by the defendant against the action of nullity, sustaining both, but reserving for further investigation, and future decision, the questions in relation to the alleged payment of $1800 by a draft, and the excess of $150 in one of the judgments confessed over the amount claimed in that suit. Those questions being left open, the injunction was not dissolved. The judgment upon the exceptions was signed by the judge. The defendant has treated it as a final judgment, and appealed. He prays that the injunction be dissolved with damages. The plaintiff asks for the dismissal of the appeal.

The defendant contends that, the two peremptory exceptions, which were decided in his favor, determined the whole matters at issue between the parties, that there has been a final judgment, and that the injunction should have been dissolved.

The whole proceedings show that that the judge, as well as the parties, considered the decision upon the peremptory exceptions of prescription and res judicata as a preliminary or interlocutory decree. This appears from the facts, that it was rendered before the day fixed for the trialof the cause-; that, after it was rendered, the defendant filed an answer to the intervention, and insisted upon proceeding to trial; and that the judge, considering that the cause was not fully at issue between all the parties, granted time to the plaintiff to answer the intervention, and continued the cause.. The judge evidently intended to decide, and in reality only decided upon one branch of the-case, to wit, the action of nullity, leaving two of the grounds upon which the injunction was claimed untouched, and expressly reserving them for future investigation. One of these grounds at least, that settingup a payment of $1800, was not covered by either of the exceptions sustained, as far as appears from the z^ecord now before us; and if the allegations of the plaintiff in relation to it, should, upon the final hearing, be sustained by proofs, they will entitle him to a perpetuation of the injunction to that extent.

The judgment appealed from is not final, nor is it an interlocutory decree which may cause the appellant an irreparable injury.

Appeal dismissed.


author: King, J.

text:
    Lee v. Bennett et al.
    Facts which appear in the record only from a statement in the opinion of the inferior judge that they were proved, are not in evidence. The evidence itself must be produced.
    APPEAL fi-om the District Court of Madison, Selby, J.

      Thomas, Snyder, and ¿Downs, for the plaintiff.

      Bemiss, for the appellants.
   The judgment of the court was pronounced by

King, J.

The plaintiff instituted before the district court of the parish of Madison two suits against the defendants on the same day, in each of which a different measure of relief was claimed, although both grew out of substantially the same acts of the parties. The causes appear to have been separately tried in the lower court, and different testimony to have been offered in each. They were taken under advisement by the district judge, who, by the consent of parties, was permitted to take them to the parish of Carroll, for decision. No order was made for the consolidation of the suits, the judge, however, proceeded, at chambers, in the parish of Carroll, to render one judgment for both causes, treating the two as one suit. He commences his opinion thus: These two causes being submitted together, and only one judgment to be given for both ■suits, it is, by reason of the law and the evidence being in favor of the defendants, ordered, &c.” After rendering a decree in favor of the defendants, he proceeds: “And, by consent, the judgment has been rendered and signed this Nov. 15, 1847; and the parties hereto are privileged to appeal therefrom within fifteen days from the filing of this judgment, and the clerk’s entering it on the records of the court, by giving, for a devolutive appeal, a bond, for 35100, and for a suspensive appeal, for 35758.”

Both parties appear to have been dissatisfied with this judgment. On the day after it was filed with the clerk of the court for the parish of Madison, the attorney for the plaintiff filed a motion for a new trial, on the ground that it was contrary to law and evidence, and that there was no consent that the two causes should be determined together, nor that a judgment should be rendered in either of them which should become final, or take effect, before the next ensuing term of the court for the parish of Madison. This motion was made during vacation, and has .never been acted upon. The defendants gave an appeal bond, under the authority of the judgment itself, within fifteen days, and have brought the transcripts of both suits before us in one record. Upon this state of facts, the plaintiff has moved for the dismissal of the appeal, on the ground that it has been taken from a judgment not final.

The only authority upon which the judge proceeded to consider the two causes as one, and to render and sign at chambers a final judgment determining the matters at issue in both, was the alleged agreement of the parties. That agreement was not in writing, and is hot before us ; we only learn that some such consent was entered into, by the reference made to it in the opinion of the judge. It has been repeatedly held that this court will not receive as evidence, facts, which do not otherwise appear in the record, th'an by the statement of the inferior judge in his opinion that they were proved. The evidence itself must be produced. Broussard v. Broussard, 19 La. 354. The foundation of the judges authority for rendering the judgment, was an agreement, the evidence of the making of which should have appeared upon the record. In the absence of such agreement, the judgment cannot be considered final. There is nothing before us to show that the parties have waived any of their rights-Under these circumstances, the judgment can only be considered as the written opinion of the judge, which can only become final-on being read and signed in open court. The appeal is premature, and must be dismissed.

Appeal dismissed.


author: Slidele, J.

text:
    Lacoste v. Benton.
    Prescription being governed by the lex fori, where an instrument executed in another State is negotiable by its laws, but not negotiable by the laws of this State, an action on it here will not be barred by the prescription established by tbe laws of this State for negotiable instruments. Per Curiam: Where certain classes of contracts are enumerated in a statute establishing a prescription, a contract sued upon in our courts must be declared to be within or without tbe statute according to the character which our own laws attribute to it.
    APPEAL from the District Court of Carroll, Copley, J.

      Stacy and Sparrow, for the plaintiff.

      Short, for the appellant,
    cited Howard and Hutchinson’s Miss. Dig. pp. 373-4. Story, Confl. Laws, 2d ed., ss. 316, 366, 474.
   The judgment of the court was pronounced by

Slidele, J.

The plaintiff sues as receiver, of the assets of the Bank of Mississippi, a corporation originally chartered under the name of the Lake "Washington and Deer Creek Railroad and Banking Company. The action is upon an instrument in writing, in these words: ■

“ February 28th, 1838.

“ Twelve months after date we, or either of us, promise to pay to the Lake Washington and Deer Creek Railroad and Banking Company, at the Banking House in Princeton, eighteen hundred dollars, for money loaned to' A. C., and J Roberts, at the rate of seven per cent per annum from date until paid.

A. C. & J. Roberts,

"W". M. Benton,

Dane. Bradford.”

The defendant pleaded the prescription of five years. There was judgment for the plaintiff, and the only question presented by the defendant and appellant for our consideration is, whether the prescription of five years, or that of ten years, is applicable to this instrument. If the former be applicable, the judgment must be reversed; if the latter, it must be sustained. By the statute of Mississippi, “ all bonds, obligations, bills single, promissory notes, and all other writings for the payment of money, or any other thing, shall and may be assigned by endorsement, whether the same be made payable to the order or assigns of the obligee of payee, or not; and the assignee or endorsee shall and may sue in his own name, and maintain any action which the obligee or payee might or could have sued or maintained thereon, previous to assignment,” &c.

The obligation having been made in Mississippi, it is contended by the appellant that, according to the law of that State, it was assignable by endorsement ; that we must look to the law of that State for the purpose of determining the character of the obligation, and apply the rule of prescription accordingly. On the other hand the appellee contends that, for the purpose of prescription, the character of the obligation must be determined by our laws.

Before deciding the point in dispute it is proper to notice the character of this .obligation under our own laws, and the article of the Civil Code by which the prescription of five years is established. The instrument is not a promissory note, nor such an instrument as, if made in Louisiana, would be negotiable, or transferrable by mere endorsement or delivery. It is not a promissory note, because not payable to bearer, nor to the payee, or order; consequently it does not fall under the commercial law. Even in the case of a full and formal assignment of the instrument, the assignee would not become, as regards the maker of the instrument or third persons, the lawful owner of it until notice given to the debtor. The transferree is only possessed, as it regards third persons, after notice has been given to the debtor of the transfer having taken place. And if, previous to notice having been given of the transfer to the debtor, either by the transferror or by the transferree, the debtor should have made payment to the transferror, the debtor is discharged. Civil Code, articles 2613, 2614. It is therefore obvious that such an instrument, if made in this State, would not fall within the intendment of article 3505 of the Code, which provides “ that actions on bills of exchange, notes payable to order or bearer, except banknotes, those on all. effects negotiable or transferable by endorsement or delivery (tout effet négociable ou transportable par endossement ou par simple remise), are prescribed by five years, reckoning from the day when these engagements were payable.” The law has established the prescription of ten years for personal actions, as the general rule. Those provisions of the Code which establish lesser terms of prescription should be restrained to the particular cases which they regulate, and to what is expressly included in their dispositions. We are of opinion therefore that, if the instrument in question had been made in this State¡ it would be subject to the prescription of ten.years. See Civil Code, art. 3506. Whiting v. Prentice, 12 Rob. 144. Owen v. Holmes, Ib. 150.

As therefore the character of this instrument differs according as we apply to its interpretation what is said to be the law of Mississippi, or the law of Louisiana, which law are we to adopt in deciding the plea of prescription. There is a general principle which has been so frequently recognized by the courts of this State as to be now beyond dispute. It is that prescription is a question affecting the remedy, and is controlled by the lex fori. The rule is not peculiar howeyer to our own courts; but Iras become an universal one in international jurisprudence. It rests upon the indisputable right which every nation has, to settle for itself the time within .which suits shall be litigated in its own courts. From this general principle it naturally follows that the meaning of the words used in our statute of prescriptions must be interpreted by our own laws; and that when certain classes of contracts are enumerated in the statute establishing a certain prescription, a contract sued upon in our courts must be tested by our own laws as to its character, and be declared to be either within or without the statute according to • the character which our own laws attribute to it. If this course be not pursued, prescription is no longer a question appertaining to the remedy but to the merits.

We think the case of the Bank of the United States v. Donnally, 8 Peters, 373, an authority quite applicable to the present controversy, and that the distinction which the counsel for the defendant endeavors to draw between that case and this is not tenable. In that case it is true' that the instrument was not per. haps, under the statute of Kentucky, a specialty or sealed instrument. The statute did not declare that such an instrument should be deemed a specialty, but only that it should be put on the same footing as sealed instruments, and have the same consideration, force, effect and remedy as sealed instruments. But the court did not put the case upon that ground, but said that, even if it were admitted that the promissory note then in controversy was a specialty by the laws of Kentucky, still it would not help the case, unless it were also a specialty and recognized as such by the laws of Virginia. For the laws of Virginia must govern as to the limitation of suits in its own courts, and as to the interpretation of the meaning of the words used in its own statutes. So here, under the authority of that case, the plaintiff may well say, the instrument we sue upon maybe by the laws of Mississippi transferrable by endorsement or delivery, but the laws of Louisiana do not recognize it as having that character, and therefore it does not fall within the class of instruments which the Code enumerates in article 3505.

We do not consider the case of Donnally as resting upon a mere question of the form of the action. The point was expressly made, that the note was a specialty according to the laws of Kentucky, and that this constituted a part of its nature aad obligation. The court substantially answered, if it be a specialty by the laws of Kentucky, yet as the statute of Virginia provides that all actions of debt grounded upon any lending or contract without specialty shall be commenced and sued upon within five years next after the cause of such action or suit, and not after, your claim by the laws of Virginia is barred.

Authority and principle are both therefore in affirmance of the judgment rendered by the courtbelow; and we may remark further, that the rule derives an additional recommendation from the facility it affords in the administration of justice. Our courts in deciding pleas of prescription can readily determine the character of an instrument by applying the simple and familiar tests of our own jurisprudence, but would be exposed to frequent perplexity and probable error, if required to expound and apply the rules of a foreign jurisprudence or legislation. Judgment affirmed.


text:
    Yeatman v. Estill.
    Where the defendant in an action commenced by attachment appears on appeal, and asks that tlie judgment against him be reversed, an intervenor cannot object to the mode in which the writ of attachment was executed.
    APPEAL from the District Court of Carroll, Copley, J.

      Stockton and Steele, for the plaintiff.

      J. Dunlap, for the defendant.

      Browder, Thomas and Snyder, for the intervenor, who appealed.
   The judgment of the court was pronounced by

Eustis, C. J.

This is a suit brought by attachment against the defendant Estill, airabsentee, in which the plaintiff had judgment. An intervention was filed by Archibald Woods, in which the debt attached was claimed under an assignment alleged to have been made ou the 14th of April, 1841. Judgment was also rendered against the intervening party, and he alone has appealed.

We think the'assignment is not proved according to the terms of artille 2G13 of the Code. Under the evidence we do not feel ourselves called upon to review the decision of the Supreme Court made in reference to this article, and article 3522, § 23, in the case of Flint el al. v. Franklin el al. 9 Rob. 209. The intervention was properly dismissed.

It is no longer competent for the intervening party to object to the mode in which the writ of attachment has been executed. The defendant has appeared on the appeal, and asked that the judgment against him be reversed.

We think that the acknowledgment of the defendant has relieved the notes from the prescription of five years, and the only difficulty in our minds relates to the service oí the writ of attachment. The evidence adduced satisfies us that the bond attached belonged to Estill, and therefore we consider the District Court had jurisdiction to proceed to judgment against him. There was no application in the court below to have the. attachment dissolved, and the judgment of the District Court was not asked on the plea to the jurisdiction made by the curator ad hoc. There has been no assignment of error in this court. As the case stands before us, the judgment must be affirmed. C. P. 888, 890, et seq. <■ . Judgment affirmed.


author: Rost, J.

text:
    Lee v. Lacoste.
    When a suit is brought on a note it need not be annexed to the petition. Act of 7 April, 1826, sec. 2. But if not annexed the defendant may pray oyer, 'and have it produced in a reasonable time.
    The statement in a petition that a note on which the action is brought is made a part of the petition, when in truth the note was not filed at the time, is mere surplusage.
    APPEAL from the District Court of Concordia, F. H. Farrar, J.

      T. P. Farrar, for the plaintiff.

      Thomas and Snyder, for the appellant.
   The judgment of the court was pronounced by

Rost, J.

The defendant being sued on two promissory notes, subscribed by a commercial firm of which he was a member at the time, filed the following dilatory exceptions: 1st. That he speaks the french language as a mother tongue, and the petition is drawn alone in english; and that an imperfect copy of the petition in english alone was served upon him. 2d. That the petition expressly states that the notes sued on are made a part of it, and that they were not included in the copy served upon him. The court below having overruled these exceptions the defendant failed to answer, and a judgment by default was entered against him, which, on proof of the'obligations, was made final. The defendant appealed.

The petition fulfills the requisites of art. 173' of the Code of Practice. It describes minutely the notes sued on, and leaves no doubt as to the object demanded. Art. 175 of that Code" expressly provides that, when a suit is brought upon a note of the defendant, the note need not be annexed to the petition ; and the only right it gives to the defendant, when it is not annexed, is to pray oyer of it, and to have it produced within a seasonable time. The statement that the notes were made a part of the petition, when in truth they were not filed at the time, was mere surplusage.

On the other ground, we are not prepared to say that a non-resident, accidentally found here and served with process, could avail himself of an exception intended for the benefit of that part of the population of the State speaking the french language as a mother tongue. But, admitting that he could, it is proved that the defendant is of french parentage ; that he was born in New York, and educated in France; and that he speaks english at least as well as french. One of the witnesses says that french is so much his mother tongue that it can be detected in speaking english. Another witness swears that there is nothing in him to indicate a frenchman. This evidence does not satisfactorily establish the specific fact alleged, that french is the mother tongue of the defendant. On the contrary, the fact that, after being educated in France and having gone there from New York at the age of 10 or 12 years, he speaks engtish as well as french, raises a very strong presumption that english is the first language he spoke. Persons learning it at an advanced age seldom acquire it so perfectly. We cannot say that the judge erred in overruling the exceptions, and we are satisfied there is no error in the judgment appealed from.

Judgment affirmed.


text:
    Crowley et al. v. Parish of Concordia.
    Where, under an ordinance of the police jury, an inspector of roads and.levées of the parish • adjudicates to a party the construction of a levée for a certain sum, and the adjudication contains no stipulation that the contractor shall look to the land, or to its owner, for payment, and it is not shown that such was the understanding of the parties, the parish will be bound for the price of its construction. C. C. 1952.
    APPEAL from the District Court of Concordia, Farrar, J.

      Frost, for the plaintiffs.

      Stacy and Sparrow, for the appellants.
   The judgment of the court was pronounced by

Rost, J.

The plaintiffs claim frotó the parish of Concordia the sum of $433, for this: that under an ordinance of the police jury, one of the inspectors of the roads and levee's of that palish adjudicated to them the construction of a levée for this sum, and that the work was executed according to contract, and received by the inspector. The defendants resist the claim, and allege that, if they are bound at all, the plaintiffs have no recourse against them, until the remedies which the law and the ordinances of the police jury give them against the land on which the levée was constructed, and against the owner thereof, are exhausted. There was judgment for the plaintiffs, and the defendants appealed.

The terms of the adjudication are, that the plaintiffs, being the lowest bidders, became the contractors to make the levée at the rate of $2 62¡ per rod, and that the sum due them should be ascertained and computed by measurment, when the levée was finished and completed. This adjudication was made by the proper parish officer. It contains no stipulation that the plaintiffs should look to the land, or to its owner, for the payment; and nothing in the record shows this to have been the understanding of the parties. The adjudication, as it stands, can be viewed in no other light than as a contract between the plaintiffs and the police jury, to make the levée for the stipulated price. If the mode of payment was to be peculiar, the plaintiffs ought to have been informed of it, and it should have been inserted in the contract. Things left doubtful in agreements are always interpreted against him who has contracted the obligation. C. C. art. 1952.

It is in evidence, that the land has since been sold for taxes, and that the owner resides out of the parish. Nothing short of an express agreement, would justify us in subjecting the plaintiffs to the harassing litigation which the other remedies would entail upon them. ’

Judgment affirmed.


text:
    The State v Cooper et al.
    Where a judgment has been rendered against one who had executed a bond-to appear and answer a criminal charge, and hgaiust his surety, but it does not appear from the judgment, nor any port of the record, that the accused wits called upon his bond to answer the charge, nor that the judgment was rendered for tlie amount of a bond or in consequence of its forfeiture, and no bond wtfs produced on the trial, the judgment must be reversed. A valid judgment could only have been rendered upon the production of a bond in a form which made full proof of itself, or tipon proof of its execution.
    APPEAL from the District Court of Tensas, Selby, J.
    No counsel appeared for the State.

      T. N. Peirce and Walker, for the appellants.
   The judgment of the court was pronounced by

King, J.

Cooper gave a bond to appear and answer to a criminal charge preferred against him, with Walker as his surety. Ata subsequent term of the court) Cooper was called at the court-house door, and, having failed to appear, a judgment in solido was rendered against him and his surety for $500, from Which the latter has appealed.

It does not appear from the judgment, nor any other part of the record, that the defendant was called upon his bond, or to answer to the charge preferred against him, nor that the judgment was rendered for the amount of a bond, or in consequence of the forfeiture of its conditions. A bend has been transcribed into the record, but from the statement of facts prepared by the counsel on behalf of the State and of the appellant it appears that the bond Was not produced on the trial, nor offered in evidence. As copied into the record, it does not purport to have been entered into before the court, nor to have been received by the Clerk, nor to have been executed in the presence of witnesses.

A valid judgment could only have been rendered upon the production before the judge of a bond in a form which made full'proof of ilself, or upon making proof of its execution. The judgment appears to have been rendered without testimony, and must be reversed.

It is therefore ordered that the judgment of the District Court be reversed. It is further ordered, that there be judgment against the plaintiff’ as in case of non-suit.


author: Eustis, C. J;

text:
    The New Orleans Canal and Banking Company v. Carriel et al.
    An affidavit by a party that “ the facts and allegations stated and set forth in the foregoing petition, which according to his belief render an injunction necessary, are true to the best of his knowledge and belief,’’ is insufficient to sustain an injunction.
    APPEAL from the’ District Court of Madison, Selby, J.

      Garland and Bradford, [for the appellants.

      Stacy and Sparroxo, for the defendants.
   The judgment of the court was pronounced by

Eustis, C. J;

This case has been presented for our consideration on two points, ono of which wo can only notice on this appóal. The district judge overruled a piba of res judicata made bytlie defendants. This decision we can only review on an appeal from the final judgment1. He also dissolved the injunction on the ground of the insufficiency of the affidavit, and amerced the plaintiffs, and tlieir surety, in damages; and'the plaintiffs have appealed.

The affidavit is clearly deféctive in an essential point, and we think the judge did not err in dissolving the injunction ; but we think the allowance of damages is premature, and we reserve the right to afford the appellees a property indemnity should their cause on its merits entitle them to it.

The judgment dissolving the injunction is therefore affirmed, but without damages, reserving the question for the final decision1 of the cause, as to the damages. Tile judgment being reversed, the appellees must pay the costs of this appeal.


text:
    New Orleans and Carrollton Railroad Company v. Hood.
    Where the reoord of appeal is- not filed within three judicial-days after the return day, and no extension of time has been obtained, the appeal must be dismissed, if required by tils appellee. C. P. 535, 590,
    APPEAL from’ the District Court of Carroll,- Copley, J.-

      Browder asá. Blackburn, for the appellants.

      Willson and D up ay, for the defendant.
   The judgment of the court was pronounced by

King, J.

The-appellee has-moved to-dismiss this appeal,-on the ground thag the transcript was not filed within three judicial days after the return-day.

The appeal was made returnable on the second monday of February, 1848; which was the 14th day of the month. The court was in session on;the 14thj 15th, 16th and 17th days of the month. The record was not filed until the-31st. No extension of time for bringing up the record was grunted, nor applied-for. The appellant has three judicial days after the return day, within-which to file the transcript. If he permit that delay to expire without filing it, or attaining further time for bringing.it up, the appellee may himself bring: up the record and insist of right on the dismissal of the appeal, or he may claim the dismissal if the transcript he filed by the appellant without permission after the expiration of the delay. C. P. 588, 590. 8 Lai- 206. 7? La. 350. 6 Rob. 79. The motion of the appellee has been made in- time, and must be sustained. Appeal dismissed.


text:
    Lacey, Attorney, &c. v. Newport, Executor, et al.
    There must be proof of the existence of absent heirs, to authorize the appointment of an attorney to represent them. In the absence of such proof the appointment will be re* voked, as illegal.
    APPEAL from the Court of Probates of East Baton Rouge, Tessier, J.

      Lacey, appellant, pro se.

      A. M. Dunn, for the defendants, cited 12 La. 73.
   The judgment of the court was pronounced by

Rost, J.

In May, 1842, Timothy II. Corcoran made angiographic will, by which he gave the sum of $30,000 to his two sons by name, and to any other children which might lawfully be called his by his wife. He distributed the remainder of his property between his wife and.children, who were then and still are residents of this State. He.also appointed executors. In August following he wrote, dated, and signed what he termed a codicil to this will, by which he gave $1,000 to three of his brothers .residing in Ireland, and made other small bequests. He died shortly after, and one of his executors applied for the probate of the two.acts of last will. Iiis widowopposed the.-admission of the codicil to probate. The court sustained the opposition, and adjudged the second will to be null and void, on the ground that the Code does not .authorize dispositions mortis causa, by codicil.

After the rendition of this decree an attorney of absent heirs was appointed, who instituted these proceedings .against the-executor and the widow, for the purpose of annulling it, and of causing the rejected will to be probated. The defendants excepted to the action on the ground that, there were no .absent heirs, and that the appointment of an attorney to represent them was illegal, and should be revoked. The court below, having sustained the exception, not only revoked the appointment, but went on to decide the case .on its merits, and maintained the judgment annulling the will. The plaintiff has appealed.

There is no error in the judgment appealed, from so far as the exception is involved. Legatees under a particular title are not Heirs, and nothing .authorizes the belief that the legislature intended to mulct successions with the expense of an attorney of absent heirs in cases like this. In the case of Mix's absent heirs v. Mix's executor and legatees, 15 La. 66, cited at bar, we .do not understand the court to say that, such ,an appointment would be authorized under the state of facts presented .by this case. Their views in relation to attorneys of absent heirs, as expressed in the leading case of Robouam’s heirs v. Robouam's executor, appear to us incompatible with that hypothesis. 12 La. 73. We do not prejudge of course .the right of the foreign legatees to cause the second will to be probated. They are strangers to whatever has been done, and cannot be .affected by it. That part of the judgment which reaffirms the judgment annulling the will must therefore be reversed.

It is ordered that the judgment in this case, so far .as it sustains the exception of the defendants and revokes the appointment of attorney of absent heirs, be affirmed; and it is further ordered that the remainder of the judgment be reversed and annulled, as having been rendered without proper parties. It is further ordered that the plaintiff pay the costs of the court below; those of this appeal to be paid by the defendants and appellees.


text:
    Williams v. Morancy et al.
    Where mortgaged property is in possession of the mortgagor, one expressly subrogated to the rights of the mortgagee, may proceed against it vid executivd. But where an act of mortgage contains no clause de non alienando, and the property is sold by the mortgagor to a third person, neither the mortgagee, nor any one subrogated to his rights, can proceed against it by order of seizure and sale. The creditor, must resort to an hypothecary action.

      Where an act transferring the rights of a mortgagee and subrogating the purchaser thereto has been lost, proof of jts contents oaji .only, bo received apon showing a previous advertisement of t}ie loss, and that prop.er measures bad been taken to re,cover it. 0. C. 2258, 2259.
    APPEAL from the District Court of Madison, Curry, J.

      Dunlap, Stacy and Sparrow, for the appellant.
    No council appeared for the defendants.
   The judgment of the court was pronounced by

King, J.

Williams and McMurtry executed a mortgage in favor of Moran? cy, to secure the payment of a promissory note of which they were the joint and several makers. Upon this mortgage Morancy obtained an order of seizure and sale, but desisted from executing it at the instance of Williams, who paid the greater part of the debt. Mrs. Chaille purchased the mortgaged property, and assumed the payment of the debt to Morancy. After her death, Stanford, her administrator, paid the balance romaining due, by a draft upon Britton 4‘ Cb., of which firm Koonis was a member; and, at the request of Stanford, Morancy transferred the note of Koonts, and subrogated the latter, as is alleged, to his rights under the judgment in the executory proceeding. The attorney of Koonts issued an execution on the order of the seizure and sale obtained by Morancy, and in the name of Morancy, for the whole amount of the original debt, which Williams has instituted this action to enjoin. The injunction was perpetuated for the amount paid by Williams, but dissolved for the amount paid by Stanford by the draft upon Britton 4* Co. From this judgment the plaintiff has appealed.

Interrogatories were propounded to Morancy, who in answer to them states that, the entire debt to him has been paid, with the exception of the costs incurred in the executory proceeding, and that he neither ordered nor authorized the issuing of the execution.

The question presented is, whether Koonis, in virtue of his alleged subrogation, could legally proceed to execute, in the name .of Morancy, the order of seizure .and salo obtained by the latter, to enforce the payment of the balance remaining due. This right could have been exercised while the property remained in the mortgagor’s possession, upon showing an express subrogation. -3 Rob. Rep. 3. But, in the present instance, after the order of seizure and sale was obtained by Morancy, but previous to the alleged transfer and subrogation, the laud subject to the mortgage was sold to Mrs. Chaille, and belonged to her succession at the date of the transfer. The act of mortgage contained no clause of non-alienation. Moranty himself could not have proceeded to execute his suit, after the sale to Mrs. Chaille, but would have been driven to his hypothecary .action. Koonis acquired no greater right than Morancy possessed, and consequently could not have proceeded by the executory process, even if he had made proof of an express subrogation to the mortgagee’s rights. But the proof of the subrogation is defective. Amoneit, the attorney of Koonts, deposes that Mor.qmcy transferred the judgment to Koonis, with a subrogation to all his rights in relation to it, for the unpaid residue; that the witness has searched for the transfer, -but has heen unable to find it. The foundation of the right ,p.f Koonis to proceed, even if tho property wepe still in the possession of the mortgagor, was the act o,f transfer and subrogation, which being lost, pr.o.of of its contents could .only have been made upon showing a previous advertisement of the loss, and proper measures taken to recover it. C. C. 2258, 2259.

But-it further appears that, the claim of Koonis has bsen prosecuted in the P.ro.bato Cou.rt agaiiist the succession of Mrs. Chaille, to which the land b.Bv longed, and that the land has been actually sold under those proceedings. It has not been explained upon what principle the party claims to subject the property a second time to the same mortgage.

The judgment of the District Court is, therefore, reversed. It is further ordered that the injunction issued in this casejxe maintained, without prejudice to any rights that O. W. ICoonts may have acquired under his subrogation to the rights of Morancy ; the appellee paying the posts of both courts.


author: Si,xdei,Ii, J.

text:
    Battaile v. O’Neil.
    When in an action for the price of work, alleged in the petition to have been done tinder a verbal contract, defendant answers that there was a written agreement, which he annexes to his answer, and plaintiff .on the same day files a supplemental petition declaring that though the work was commenced under a verbal agreement a written agreement was subsequently made and then in possession of defendant, and the latter goes to trial .without objecting that no default had been taken or issue joined on the supplemental petition, the substance of the demand not being changed by the supplemental petition, and there being ho surprize, .the informality will be considered to have been waived.
    APPEAL from the District Court of St. Tammany, Jones, J.

      J. II. Jones and Childress, for the plaintiff.

      A. Hennen, for the appellant.
    The case should be remanded as there was no issue joined on the supplemental petition, nor any answer to it. 1 Mart. 205. 2 Mart. N. S. 264. 2 Ann. Rep. 352.
   The judgment of the court was pronounced by ■

Si,xdei,Ii, J.

This action is for work done to the defendant’s vessel. The original petition stated the agreement of the parties to have been verbal. The defendant answered, pleading, among (Other matters, that there was a written agreement, which he annexed to his answer. On the same day upon which the answer was filed the plaintiff filed a .supplemental petition, alleging that .although the work was commenced under a verbal contract, a written agreement was subsequently made, and that it was in the possession of defendant. Its production was prayed for. An agreement was made in writing-on the 14th May, 1846, appointing the first monday in June, 1846, for the trial of the cause. The defendant’s answer and the supplemental petition were filed on the 3d June, 1846 ; and on the 5th June, 1846, witnesses were examined on the part of the plaintiff and defendant, and judgment was rendered for the plaintiff

It is now assigned as error by the defendant that, there was a supplemental petition filed, on which the case was tried, and judgment given, without an answer filed or jssu.e joined .upon it. We ar.e of opinion that the objection is not well .taken. It will be obsei’ved that the .subs.tance of the plaintiff'’s demand was not essentially changed ; the supplemental petition being, in effect, a notice to the defendant that the plaintiff would rely in support of his claim upon written evidence in possession of the defendant, and .a call for its production. If the defendant after producing the written agreement had refused ,to go to trial until a default taken, or issue joined, upon the supplemental petition, we are not prepared to say that the court could have compelled him to go to trial. But no .SB.ch objection appears to have .been made;, it is .evident that there was no suiv prise, and the defendant having had a fair .opportunity ;lo make his defence, cannot now escape from the implied waiver of a mere informality which has done him no injury.

Upon the merits the judgment is sustained by the evidence.

Judgment affirmed.