author: Rost, J.

text:
    De Lizardi et al. v. Gossett, Executor.
    Whore no time is stipulated in the contract of partnership for the payment of the amount to he contributed by a partner in commendam, the latter will be responsible to the creditors of the partnership for interest on the amount unpaid only from judicial demand.
    After the dissolution of a partnership any one of the creditors may sue the succession of a doceasedpartnerm commendam, without mailing the other creditors parties, and may obtain judgment for the amount of his claim to be paid out of any balance due by the deceased oil account of the capital which he hound himself to furnish ; but where, in such a case, the petition admits file existence of other creditors, and the amounts due them, from which it appears that there will be a deficiency of assets, and an unconditional judgment in favor of plaintiff might do them irreparable injury, the court, in the absence of any provision of law for such a case, under the powers conferredliy art- 21 of the Civil Code, will resort to proceedings analogous to those by which the courts of other States have reached the equity oí such cases, and will order a general administration of the amount due by the deceased, for the benefit of the creditors of the partnership.
    APPEAL by the plaintiffs from a judgment of non-suit, rendered by the Court of Probates of N ew Orleans, Bermudez, J.-
   Tho judgment of the court was pronounced by

Rost, J.

In January, 1839, Jesse Strong formed a partnership in commen-dam with Andrew Bowles, and agreed to furnish the sum of $30,000, to be employed by the said Bowles, in his own name, in the prosecution of commercia' operations in the city of New Orleans, on condition of receiving one-fourth ol the profits, and of being liable for one-fourth of the losses and expenses up to the amount furnished. No time was specified for the payment of that sum, and only a part- of it was paid.

The partnership went into operation, and, in the month of March next following, Andrew Bowles, having purchased a large quantity of cotton, shipped it to the plaintiffs’house'in-London, and at the same time drew bills upon said house to the amount of ¿617,470, 13s. lid. sterling, which bills were duly accepted and paid. The cotton was subsequently sold at a great loss, and, after receiving the proceeds of the sale, the plaintiffs remained the creditors of Andrew Bowles, in the sum of ¿68,286 sterling, .which sum, at the then current rates of exchange, amounted to $41,430.

On the 18th of May, 1839, the. partnership in commendam was dissolved, and, shortly after, Andrew Bowles absconded, and has not since been heard of. No steps appear to have been taken by his creditors to settle his affairs.

In January, .1841, Jesse Strong placed in the hands of the plaintiffs the sum of $14,000, to be retained by them as a set off against their claim on the late firm of Andrew Bowles, and on condition, “ that if, upon a final liquidation of the affairs of said firm, if is found that Jesse Strong is not bound to contribute thereto so large an amount, or, that being so bound, it shall appear in a pro raid distribution that the plaintiffs are not entitled to so large a dividend as the sum placed in their hands, they shall refund either to Jesse Strong or the creditors, as the case may be, such portion of said sum received by them over and above their share ; it being well understood that the arrangement is not in any-shape or way to prejudice .the interests of, or prefer them to, the other creditors, or in any way to extend o.r affect the liability of Jesse Strong, as partner in commen-dam.”

Jesse Strong subsequently died, and the plaintiffs now claim from his executor the balance of the $30,000, not furnished by him to the partnership. The counsel for the defendant admits that a balance of $6,284 89 cents is due on the capital, and we are satisfied from the evidence that it does not exceed that sum. As no time was stipulated in the contract for the payment of it, legal interest is due on that balance from the judicial demand only.

The Court of Probates nonsuited the plaintiffs for want of jurisdiction to settle and determine .¿heir rights, and those of the other creditors of Andrew Bowles, in the succession of Jesse Strong, and we are not prepared to say that it erred. But as this cause may now be remanded to a court of general jurisdiction, the opinion we have formed on its merits, makes it it incumbent upon us to do so..

Art. 2813 of the Civil Code provides that, in partnerships in commendam, if any part of the capital be unpaid, the partner in commendam, is liable for that amount, and no more, to the .creditors of the partnership. No steps having been taken to settle the.affairs of Andrew Bowles, and none being imperatively required by law, the plaintiffs’ light to maintain their present action, without making the other creditors parties to the proceedings, cannot be doubted ; and yet, as they admit the existence of other creditors, whose claims amount to over $11,000, there appears to be a deficiency of assets, and an unconditional judgment in favor of the plaintiffs might work an irreparable injury to those creditors.

Our laws have not provided .for such an.emergency; but art. 21 of the Civil Code ordains that, in civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. Commanded to proceed in this cause and to decide it justly, notwithstanding the silence of the law, we consider it safe to resort to proceedings analogous to those by which the courts of the other States have reached the equity of cases of this description, and to make a decree for the general administration of the fund in the hands of the defendant. Story, Equity Pleadings, p. 91-104 and notes.

It is, therefore, ordered that the judgment of the Court of Probates be reversed, and that there be. judgment in favor of the plaintiffs for the sum of $6,284 89 cents, with interest at the rate of five per cent per annum, from 7th day of November, 1840, till paid, to be classed in the regular course of the administration of the succession of Jesse Strong, and to be paid over as provided by this decree.

It is further ordered and adjudged, that this case be remanded to the Second District Court of New Orleans, with the following directions : that, if within thirty days from the filing of the mandate of this court in the court of the first instance, the creditors of A. Bowles obtain against him a decree for a forced surrender, and proceed to cause a syndic to be appointed, the amount of this judgment and interest be paid over to said syndic, when duly qualified, to be by him administered in due course of law. That should the creditors not obtain a forced surrender, tlie court, at the expiration of thirty days, shall cause thirty days further notice to be given, by six advertisements, in two newspapers, to the creditors of Andrew Bowles and all other parties interested, to make proof before said court, contradictorily with the plaintiffs and with each other, of any •claim they may have to the fund held by the defendant; and that, after ninety days from the filing of the mandate in the court of the first instance, the said fund be distributed among the plaintiffs and all other parties entitled thereto, agreably to their just rights and privileges. That if, within the above delay of ninety days, no person appears and proves his claim to said fund, or any part thereof, the amount of this judgment and interest be paid over to the plaintiffs.

L. Jarán, for the appellant. Preston, for the defendant.

It is finally ordered, adjudged and decreed, that the defendant and appellee pay the costs in both courts, out of the assets of the succession he represents.


source: Caselaw Access Project

author: Eustií, C. J.

license: Public Domain

text:
    Graihle v. Hown.
    'The proprietor of a city lot, who, under the provisions of art. 6?1 of the Civil Code, has built a part of his lateral wall on an adjoing lot, can compel the owner of the latter, who afterwards uses the wall as a common one, to contribute one-half of its cost, only where the owner of .the adjoining lot was previously notified of his intention to build, and an opportunity was given to him to uontribute to the cost of the wall, and to see that no useless expense was incurred in its erection, and that it was well built. C. C. 672. Where no such notice or opportunity has b,pen given, the owner of the adjoining property will be ¡bound to pay only one half of the value of the wall at the time he first makes use of it. C. C. 680.
    'Whore a judgment is correct as to the principal demand, it will not he reversed and the ap-pellee amerced in costs, merely in consequence of an inadvertence of the judge in an accessory matter of small amount, which might have been corrected below, had any application been made by the appellant to the court of the first instance.
    APPEAL from the District Court of the First District, Buchanan, J.

      Graihlr, appellant, pro se. Canon, for the defendant.
   The judgment of the court was pronounced by

Eustií, C. J.

The plaintiff being owner of a lot in this eity, and erecting on it a house, in the year 1838, built nine inches of his lateral wall on the adjoining lot.

It is conceded that he was authorized to malte this encroachment on the land of his neighbor under-the 671st article of the Civil Code, the copditions of which the plaintiff, in the construction of the wall, has complied with.

The defendant being the owner of the lot adjoining that of the plaintiff, sometime in July, 1844, built a house on it, and used the wall in its construction for the support of his roof, floors and walls; and the dispute in the case is, whether the defendant is bound to pay the plaintiff the cost of the wall to him in 1838, or its value at the time the defendant first ¡made use of it.

In 1838, the defendant was not the owner of his lot, but pur,chased it after the wall was constructed.

"Why should the defendant pay more for the wall, which the law authorizes him to use, and which is built on his own land, than its value ? This is all that reason and equity could require; and, if he is bound to pay more, it must be in consequence of some absolute provision of the law.

The plaintiff relies for the recovery of the original cost of the wall on the following articles of the Civil Code :

Art. 671. He who first builds in the cities, towns or suburbs of this State, in a place which is not surrounded by walls, may rest one half of his wall on the land of his neighbor, provided he builds with stones or bricks at least as high as the first story, and not in frame or otherwise, and provided the whole thickness of his wall does not exceed eighteen inches, not including the plastering, which must not be more than three inches. But he cannot compel his neighbor to contribute to the raising of this wall.

Art. 672. If the neighbor be willing to contribute for his half to the building of the wall thus raised, then this wall is a wall in common between the proprietors. The neighbor who has even refused to contribute to the raising of this wall preserves still a right of making it a wall in common, by paying to the person who has made the advance, the half of what he has laid out for its construction, according to the rules hereafter established.

By this last article, it is clear that the neighbor who has refused to contribute to the expense, is bound to pay the cost of it whenever he undertakes to make it it wall in common. But it is only on his refusal to contribute that he is held to be so bound ; and, before refusing, he must certainly have an opportunity of» assenting; he must be asked to contribute — he must, at least, be notified, and have an opportunity of contributing to the common cost of the wall, and of seeing that no useless expense is incurred from negligence, extravagance, or want qf skill, and that the work is substantial and thoroughly executed. If, when called upon, he should refuse to contribute, or pay no attention to the notice, which amounts to the same thing, then and in that case the law binds him to reimburse his neighbor half the cost, whenever he makes use of the law.

But suppose no notice whatever is given of the ei-ection of the wall : it is clear that the claim of the party for indemnity for half the wall must rest on general principles, and cannot be regulated by this article, which fixes the amouutof indemnity against the party who had refused to contribute, and, by its very limitation, extends to no other cases. If the intention of the legislator had been otherwise, the provision would have been general, and extended to all cases of parties making use of middle walls to the expense of which they had not contributed. To recognize the right of the party erecting the wall to claim one half the cost, without having given notice to his neighbor, would do violence both to the letter and spirit of the law.

Article 680 of the Code, when fixing the indemnity of a proprietor for the use of a common wall, in a case not identical with this, but very similar in principle, confines it to the value, without reference to the previous cost; and even when the land itself, on which the wall rests, is to be paid for, nothing is required but its value.

The plaintiff, who is the appellant, received from the defendant what we estimate to be the value of the wall at the time the latter appropriated it to his use, to wit, in July, 1844. We consider the judgment of the District Court to be correct as to the principal demand. But the plaintiff has contended that the judgment is erroneous in not having allowed interest from July, 1844, accord-Mg to art. 1933 of the Code. Perhaps it is. The plaintiff states that it was inadvertently omitted by the judge. If it was a mere inadvertence, it could easily have been corrected, according to the plaintiff’s own showing, in the court of the first instance, and would have been corrected had the plaintiff directed the attention of the court to the inadvertence. The plaintiff ought to have given this opportunity to the judge on an application for a new trial, which was not made.

Where a judgment is right on the principal demand, we will not reverse it, and amerce a party in costs, merely in consequence of the inadvertence of the judge in an accessory matter of small amount, when it could be corrected on the application of the appellant in the court below, and the application has not been made. Judgement affirmed.

       Host, ,T., did not sit on tbe trial of this case, having excused himself on the ground of re., lationship to one of the parties.

       The judgment below was for $204 21. It was signed on the lltli of April, 1845. No interest was allowed by it.


text:
    Succession of Hoa.
    A husband,-, who leaves a legitimate child, can give to his wife by donation mortis causa, but oge-tenth of his estate in full property or the usufruct of one-fifth. C- C. 1739. Where he makes a donation of a largor share, it must be reduced to the disposable portion.
    APPEAL'from the Court of Probates of New Orleans, Bermudez, J. The deceased, by an olographic will, bequeathed one-half of his property i to his. wife, and the other half to his only child, the issue of the marriage. On an opposition by the under-tutor of the minor heir, the Court of Probates re-’‘tkrced the bequest in favor of the wife to one-tenth of the estate. From this judgment she appealed.

      A. Mazureau, for the appellant.
    The disposable portion in favor of the wife is fixed by art. 1480 of the Civil Code Art. 1739 does not apply to this case, but only to dispositions inter vivos by marriage contract, or during marriage, made when the donor had either no children, or was ignorant of the number he would leave. It was intended to protect .children born after the donation. The provision of art. 1746 of the Civil Code of this State, which is peculiar to our Code, no similar article being found in the Code Napoleon, shows that there is a wide difference between the French and Louisiana law on this subject, and that the opinions of French commentators are entitled to but little weight.
    St. Paul, on the same side.

      Grima, contrá,
    cited Bousquet, Explic. du Code Civ., vol. 3, p. 173. 5 Toul-lier, Nos. 869, 871 bis. 9 Duranton, Nos. 787 to 794. Maleville, Analyse du Droit Civil, vol. 2, pp. 470, 472. Vazeille, Des Successions, vol. 3, p. 325, §1; p. 327, §5. Grenier, Des Donations, vol. 2, §449, 451. Jurisprud. du Code Civil, vol. 11, pp. 335 to 337.
   The judgment of the court was pronounced by

Rost, J.

A few hours before his death, Albert Hoa made his olographic will, in these words : “ Ceci est mon testament olographe. Je laisse la moitió de mes biens á ma femme, Andis Plicque, et l’autre moitíé & men- fils Edmond Hoa. Le tout daté, éerit et signé ce 14 Février, 1844.”

His widow, Andis Plicque, having been appointed dative testamentary executrix, proceeded to administer the estate, and in the final account of her administration, rendered before the Court of Probates, she credited herself with one-half of the property composing the succession of her late husband, under the disposition of the will in her favor.

The under-tutor of the minor heir opposed this item of the account, on the ground that the disposition exceeds the disposable portion, and that, under the provisions of the laws which regulate donations between married persons, the wife can only receive one-fifth in usufruct, or one-tenth in full property, of the succession of her husband. The Court of Probates maintained the opposition, and Andis Hoa appealed.

The first part of art. 1739 of the Civil Code provides that,, one of the married couple may, either by marriage contract or during marriage, in case of his or her leaving no children, or legitimate descendants, give to the other, in full property, all that he or she might give to a stranger. This disposition clearly embraces all donations, whether inter vivos or mortis causa, without any reference to the time they are made, and limits the capacity of the husband to give to his wife all that he might give to a stranger, to the single case in leaves no legitimate children or descendants.

If he does, therefore, leave legitimate issue, the portion of dispose in favor of his wife, is less than he' might give to a strap second part of art. 1739 determines what he may give her in all to say, one-tenth in full property, or one-fifth in usufruct.

The third chapter of the third book of the Civil Code, beginnii 1480, on which the appellant relies, establishes the general princ? regulate the transmission of property by dispositions inter vivos and bo?I causa, and the reduction' of those donations in- cases of excess. The 9th chapter of the same book, containing art. 1739, regulates the transmission of pro-pertp between married persons by the same means. This is an exception to the general rule laid down in chapter 3d; it forms a separate branch of legislation for dispositions between husband and Wife ; and the intention of the lawgiver to establish a peculiar rule applicable to them alone, and to make that rule invariably the same in all cases, when there is issue, cannot be mistaken. Under dispositions of the Code of France-, differing from those of ours only as to the amount of the disposable portion, the courts of that country have come to the same conclusion, and all the French commentators within our reach acquiesce in the correctness of their decisions. Jurisprudence du C. C., vol. 11, p. 335 and 337. Toullier, vol. 5, Nos. 869, 871 and 871 bis. Bousquet, Exposition du C. C., vol. 3, p. 175. Duranton, vol. 9, § 7,87 to 794. Male-ville, Analyse du Droit Civil, vol. 2, p. 470, 472.

It is alleged that art. 1746 of our Code is not found in the Code of France, and that it establishes a material difference between the laws of the two countries. We do not feel the force of this argument, but believe, on the contrary, that the enactment of this article strengthens the position taken by the under-tutor. The legislature in providing that, when a wife marries a second time all donations made to her by her first husband inure to the benefit of his children, the mother retaining only the usufruct, was prompted by the same motives which induced it to adopt art. 1739. Second marriages, being of frequent occurrence in Louisiana, the object of the law-giver in both instances was to place the rights of the children of the first marriage beyond the reach of caprice, or want of affection in their surviving parent. It may be thought that he has gone too far; if so, he has erred on the safe side, and we are bound to give effect to his intentions.

The Probate Court ordered the appellant to be placed on the tableau for one-tenth, instead of one-half, of her husband’s succession. She is entitled to one-tenth in full property, or one-fifth in usufruct, and as, in case of a second marriage, the last alternative would be much the most advantageous to her, she should have been allowed to malee her selection, and, in order to enable her to do so, the cause must be remanded.

It is therefore ordered that the judgment be reversed, and the cause remanded, with directions to the court of the first instance, to grant a delay of twelve months from the registering of this decree to the appellant, to elect whether she will receive one-tenth part of the succession of the late Albert Hoa in full property, or one-fifth in usufruct; and that whenever said election is made, judgment be entered in conformity therewith. It is further ordered and adjudged that the costs of this appeal be paid by the minor heir, Edmond Hoa.


author: Slidell, J.

text:
    Lebœuf v. Merle.
    Where the purchaser of property, sold by a sheriff under a fi. fa., claims to retain the price on the ground of a privilege entitling him to he paid in preference to the seizing creditor, the sheriff should not deliver the property, hut require the purchaser to file an opposition under art. 401 of the Code of Practice; or, in case of his refusal, institute himself a proceeding to compel the claimants to litigate their rights to the proceeds.

    Where a sheriff, on whom a rule has been taken to show cause why he should not pay over to the plaintiff the proceeds of a sale made by him under a ft. fa., makes no exception to the summary form of the proceeding, but answers to the merits, no objection to the form of the proceeding can be raised after appeal.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Blache, for the plaintiff in the rule. Denis, for the appellant.
   The judgment of the court was pronounced by

Slidell, J.

Faurie, having become subrogated to the rights of Lebmuf, the judgment creditor of Merle, obtained writs of fieri facias, and, on the 4th October, 1845, caused a slave of Merle's to be seized. The sheriff made returns that he had seized the slave under the writs, and had adjudged the slave to Emma Cliapus,the wife of the defendant Merle, for the price of $600, payable cash, which amount the purchaser retained in her hands on ascount of the mortgage and privilege in her favor, according to the certificate of the Recorder of Mortgages. The sheriff also delivered the slave to this purchaser, and executed a deed to her in the usual form, reciting the price, and its retention by the purchaser on account of the alleged mortgage and privilege.

Subsequently Faurie, by a rule, called upon the sheriff to shew cause why he should not bring into court the proceeds of the sale, that it might b© paid over to the plaintiff in the rule.

The sheriff made no exception to the form of proceeding, but answered that the proceeds of the sale were retained by the purchaser, Emma Chapus, wife of the defendant, on account of a mortgage with privilege accruing to her by judgment of separation of properly from her husband, as mentioned in the certificate of the recorder of mortgages read at the public sale of the slave sold by him.

He further answered that Emma Chapus had furnished him, an indemnity bond, to hold him harmless in the matter, with her husband and another as sureties. He prayed that the purchaser and her sureties might bo cited in warranty, to defend him in the rule.

When the rule came to trial, the parties called in warranty moved for their dismissal, and thereupon the warrantors were dismissed. The trial proceeded between Faurie and the sheriff. Faurie offered in evidence the records of the two suits of Lehœuf v. Merle, including the authentic act of subrogation and the order of the court thereon, and a certificate of the recorder of mortgages showing that the judgments which he held against Merle were recorded as far back as 1843. The sheriff offered his deed of sale, and a certificate of the recorder of mortgages of date as recited in his deed, exhibitingthe registry of the Wife’s judgment against her husband, “rendered on the 6th of October, 1845, for $1300, with interest and costs, and with the privilege and mortgage granted by law to married women for the security of their dotal and paraphernal rights.”

The court below gave judgment for Faurie, ordering the sheriff to pay over to him, as the seizing creditor, the proceeds of the sale. From this judgment the sheriff appealed.

The plaintiff, Faurie, obtained by his seizure a privilege on the slave which clearly entitled him to the proceeds of sale, unless the sheriff has sliolvn a superior right in E. Chapus, in whose hands he left this price. This superior right he has not proved; the mere registry of her judgment did not give it, for that judgment was rendered and registered subsequently to the seizure, and subsequently also, by two years, to the registry of Faurie's judgments. But it is said that the wife’s mortgage and privilege for her dotal and paraphernal rights, date from Che conversion by her husband. We have no evidence hero of what these rights were, whether dotal or paraphernal; but even conceding this to be immaterial, the sheriff has offered no evidence except the certificate of registry, and this furnishes no proof of the date of conversion or receipt by the husband of the dotal or paraphernal monies or property. The date of rendition of the judgment and its registry, the only dates furnished by the certificate, are both posterior to the seizure. The proof as to the wife’s rights is also defective in other points. The sheriff then has not made out his defence, to wit, a superior right in the party to whom he has delivered the slave, leaving the price of adjudication in her hands.

The sheriff was not authorized by the certificate on which he relies, to assume that the purchaser’s rights were superior to those of the seizing oroditor. If he had no better authority with regard to the wife’s rights than that which he has laid before us, he should not have delivered the slave and have given a deed; leaving the money in her hands, but should have required the purchaser to file a third opposition, pursuant to article 401 of the Code of Practice; or, if she would not do so, should have instituted himself a judicial proceeding to compel the claimants to litigate their rights to the proceeds, giving no title and making no delivery till the money was put into his hands. Instead of pursuing this oourso for his own safety, he has provided for it in another form, by a bond of indemnity from the purchaser ; and having shown no legal ground of defence against the plaintiffin the rule, he must pay him and look to the indemnity bond.

It is said that this is not a proper case for the summary remedy provided by the Code of Practice, art. 766, because here the money is not in the sheriff’s hands ; that Fcturie should have proceeded by an ordinary action. This objection is untenable, because the sheriff took no exception in the court below, but pleaded to the merits.

As regards the dismissal of the warrantors, we cannot inquire into its propriety, because no appeal was taken from the order, and the warrantors are no® before us- Judgment affirmed.


author: Kins, J.

text:
    Hefferman v. Brenham.
    Persons associated together for carrying; personal property'for hire in vessels are commercial partners, and may be cited in the manner prescribed for the citation of such associations ; hut it is only where they are assocaited together under a title or as a firm, that the service-1 of a citation addressed to the partnership in its social name, made on one of its members' only, is sufficient. C. C. 2796. C. P. L81, 198.-
    Where in an action on a claim for supplies furnished to a steamer, the proceedings are not in-rem, and the owners are not shown to have'kad a social'name, and citation Was served on* hut one of the two owners, the judgment,.though rendered against the part owner who was. cited and against the steamer itself cannot be executed by seizing the whole boat. The part owner "who was not cited, and made no appearance, must be regarded as a stranger to the proceedings, and he may, by an opposition under arR 395 et seq. of the Code of Practice, arrest the sheriff in any attempt to seize bis share of the boat to satisfy the judgment-lie was not bound to notice the proceedings until an attempt was made to seize his share of the boat.
    from the Commercial Court of New (Means, Watts, J.

      Mott and Prentiss, for the plaintiff G. B.- Duncan and RoseliuSf for the appellant.
   The judgment of the court was pronounced by

Kins, J.

This suit was commenced by a petition addressed to the Commercial Court, in which the plaintiff alleged that Charles J. Brenham and-James, who resided out of the Stats, were indebted to him for supplies furnished to the steamboat Ambassador, of which they were the joint owners,-and concluded by praying for a judgment in solido against those parties, with a privilege upon the boat. The return upon the citation is, that it was served “upon the defendants through Captain Brenham, one of them, in person.” There was no personal service upon James, nor was any counsel appointed to represent him. Brenham appeared and confessed judgment “according ftr the prayer of the petition,” and, on the same day, a judgment was' rendered against Charles J. Brenham„ part owner of the steamboat Ambassador,, and-against the steamboat Ambassador,” for the sum claimed. An execution issued' upon this judgment by virtue of which the entire steamboat was seized, when John JET. James, one of the defendants named in the petition, against whom no judgment had been rendered, took a rule upon the plaintiff, to show cause why the execution should not bo set aside, or so reformed as to direct the sale of the interest of Brenham only in the boat. This rule was discharged. James then intervened in the suit, by a third opposition, in which he alleged that be was the owner of three-fourths of the steamboat Ambassador, that he had not been cited in the suit,. and that no judgment had been rendered against him; that there was no allegation in the petition, nor proof exhibited, that a commercial partnership existed between himself and Brenham, and that although the judgment was in ■rem, the proceedings neither authorized nor contemplated such a decree. He further alleged that the confession of Brenham had been fraudulently and eollusively made, with a view of causing a sacrifice of the interest of the opponent in the boat, and concluded by a prayer that the execution of the fieri jadas should be restrained to the share of Brenham in the boat, to the sale of which no objection was made, and that the sheriff1 be injoined from selling the opponent’s interest.

Uefferman excepted to this petition, on the ground that James could not avail himself of a third opposition to resist the execution of his judgment, having been a party to the oidginal proceedings. The judge below.sustained the exception, and dismissed the opposition. From -this judgment James has appealed.

The question presented is, whether the opponent can legally use the remedy to which he has resorted, to protect his interest in the boat from seizure and sale under the judgment of Uefferman against Brenham.

The plaintiff .contends : 1st. That an opposition can only be made by a person not originally, a party to the suit, and that James was a party defendant in the original proceedings. 2d. That if-there be error in the proceedings or judgment in the original cause, it cannot.be corrected by a third opposition; but that relief should have been sought by an-appeal, or by an action of nullity.

I. The suit was instituted against the defendants, who were alleged in the petition to be owners of a steamboat. On one of them there was personal service of citation; on the other no service was made. It is contended that the defendants were commercial partners, and that the citation of one of them brought both before the court. Persons associated.together for the purpose of carrying personal property for hire in vessels are commercial partners by our law, and may be cited in the form prescribed for the citation of such associations. But it is only where they are associated together under a title or firm, that the service, made on one of the members only, of a citation addressed to the partnership in its social name, is sufficient. Code of Pract. art. 198. Civil Code, art. 2796. The goneral rule is that there -must be service of citation upon every party defendant, -to which this is one of the exceptions expressly ordained by law. There is neither allegation nor proof that the defendants had a social name, and service upon each was necessary to bring them into court. Code of Pract. art. 181. The proceedings were avowedly not in rem, and none of the steps required for bringing James, or his property, before the court in that form, were taken. He was not -cited in any of the modes provided by law, made no appearance, and must be considered to have been an entire stranger to the proceeding at the date of the judgment. He was so considered by the court below, and no judgment was rendered against him, notwithstanding the confession of Brenham.

The object of the opposition was not to revise, set aside, or correct the judgment of the Commercial Court, but to arrest its execution upon property of which James claims to be the owner, and which he contends is not liable to seizure under it. This is one of the purposes for which third persons may resort to this proceeding. Code of Pract. art. 395. It was not necessary that James should notice a judgment which was not rendered against him, and to which he was no party. Pie might well disregard it, until the plaintiff attempted to execute it upon his property; the law then furnished him adequate means of resistance by way of injunction, or opposition, and to the latter of these he had recourse.

We think the court erred in refusing to hear the party upon the merits of his opposition.

It is therefore ordered and decreed that the judgment of the Commercial Court be reversed, and the cause remanded for further proceedings ; the appel-lee paying the costs of this appeal.


author: Eüstis, C. J.

text:
    Lanfear et al. v. Blossman.
    Where a bill of exchange drawn on a shipment and payable a certain number of days after sight, is sold with the bill of lading appended to it, the holder of the bill of exchange cannot, in the absence of proof of any local usage-to the contrary, or of the imminent insolvency of the,dr.awee, require the latter to accept the bill of exchange hut on the delivery of the bill of lading; and where, in consequence of the refusal of the holder to deliver the bill of lading, acceptance is refused and the hill protested, the protest will be considered as made without cause, the drawee not having been in default, and the drawer will he discharged. An instrument, with such a condition appended to it, is not strictly a bill of exchange: it wants the essential requisite of being negotiable andpayable at all events, independent of its consideration.
    APPEAL from the Commercial Court of New Orleans, Watts, J. This was an action against the defendant as drawer and endorser of a bill of exchange, to recover the amount of the bill, with damages, interest, and costs of protest. The petition was in the usual form. The bill sued on was in the following words ;
    B L 29 May B 2106.
    Bill of lading of 344 B. cotton, per Provincialist First attached hereto.
    Exch’e. for <=£3324, 4, 3 Stg. New Orleans, Feb. 23, 1844.
    Sixty days after sight of this first of exchange, (second and third unpaid,) pay to the order of myself three thousand three hundred and twenty-four pounds, four shillings and three pence sterling, value received, and charge the same .to account as advised by
    Your ob*t. serv’t.,
    R, D. Blossman,
    T.o Messrs. Eermia do Tastct & Co.
    No. 33. . London,

    (Endorsed)
    Pay .to the order of Messrs. A, Lanfear & Co,, value received, New Orleans, ut retro. R. D. Blossman.
    Pay to the order of Messrs. Prime, Ward & King, value on account, New Orleans, ut supra. Amee. Lanfear & Co,
    A subsequent endorsement .to Baring, Brothers & Co., was erased.

      The answer allloges that, the house of He Tastet & Co., of Loncfony iit October, 1843, by letter, authorized the defendant to purchase for -their account* cotton to the extent-of 2500 bales, and-to draw bills on them for the amount of the invoices of any cotton so purchased and shipped to them; that, in pursuance-of this authority, defendant, in the months of January aud February,-1844, purchased for them 2387 bales of cotton, and drew bills on them for the-payment of the price; that, among the purchases and shipments so mad®, was one -for 344 bales, for the amount of the invoice of which the bill described in> the petition was drawn; that, in order to negotiate said bill with advantage, and, in accordance with the custom of merchants, to secure to the holder the acceptance of the drawees, defendant'agreed with plaintiffs, who purchased said bill, te deliver to them the bills of lading for the cotton on which the bill of exchange was drawn, it being well understood, and such being the course of trade and custom among merchants, that the bill of lading should accompany the bill of exchange into the possession of any person to whom the bill of exchange might be negotiated, and be retained until the acceptance of such bill of exchange, and that upon such acceptance the bill of lading should be delivered to the acceptors, that they might take possession of -the cotton -and dispose of it as they might see fit-
    The answer further avers that, the bill of exchange ’ was forwarded by the plaintiffs to Baring, Brothers & Co., of London, to be presented by them for acceptance, and that the drawees thereupon offered to accept it, but, upon asking for the delivery to them of the bill of lading, Baring, Brothers & Co., who were the agents of -plaintiffs and for whose acts the plaintiffs are responsible,. declared that they would not deliver up the bill, of lading unless the drawees would discount their acceptance, and pay the amount thereof, less the discount, in cash; that the condition thus attempted to 'be imposed by the holders upon the drawees was arbitrary and unjust, and without any foundation in the custom of merchants, which could only authorize such a pretention in case of the acceptors’ credit being doubtful or suspected, which was not even pretended by the plaintiffs or their agents, the credit and solvency of the drawees being beyond all question, and their standing among the first of London merchants; that the drawees, indignant at a demand which implied a distrust of their character and standing, refused to accede to the condition, but persisted in repeating their offer to accept on the delivery of the bill of lading, which delivery being refused, the bill of exchange was protested for non-acceptance, and the name of the defendant as a merchant dishonored and his credit and business injured ; that the plaintiffs, or their agents, retained the bill of lading and took possession of the cotton, and have disposed thereof in some manner to him unknown ; that, by reason of the premises, he has been discharged from all liability under said bill of exchange, which would have been accepted and paid according to its tenor, had the acceptance and payment not been prevented by the tortious acts of the plaintiffs, or of those for whose acts they are responsible.
    A prayer in -reconvention, with which the answer concludes, was afterwards discontinued, the defendant reserving his right to claim damages in a subsequent action.
    The evidence on which the case was tried, so far as necessary to a correct understanding of the decision, will be found in the opinion delivered by Eus-tis, C. J.

      Tlie Commercial Court gave a judgment against tlie plaintiffs, from which they appealed.

      L. Peirce, for the appellants.
    A bill of exchange is a contract by which the drawer binds himself that the drawee shall accept and pay the bill, or that he will do it on his default. The bill of lading is a collateral contract, and security for the principal obligation, tlie contract' evidenced by the bill of exchange— for the whole contract, and not for a part of it, unless it be so expressly understood and agreed. Such a separation cannot .be implied from the mere taking of the security, because the presumption of law is that, when a security is* given for the fulfilment of a contract, it is for the whole contract.
    When a bill of exchange is purchased simply, it is on the faith of the drawer’s ability to make good the contract, or on the faith that the drawee has authorised the drawer, and is able to pay, or on both combined; or, in other words, on the faith of the joint or several ability and responsibility of the drawer and drawee-. If a security is exacted, the plain inference is, that the purchaser had not that faith in the joint or several ability and responsibility of the drawer and drawee to fulfil the contract — the whole contract, and not a part .of it.
    It would not be for a part (the acceptance^ because the bill being drawn by authority of, and for the amount of, purchases for the drawee, he was bound to accept. He was in law considered as having accepted, and the hand-writing of his acceptance on the bill would not have added to Ids obligation, alread incurred by his authority to the drawer. This would be the case were the bill bought simply and without the bill of lading, and the -party would have his recourse both on drawer and drawee, even though acceptance ,a-nd payment were refused. Being therefore sure of acceptance, or there being.a legal obligation on the drawee to accept, which is equivalent to an actual acceptance, there could be no object in taking a security for that purpose ; and the only other part of the contract being payment, it is clear that was the principal object of the security, and that the doubt on the purchaser’s mind was not of tlie acceptance, but of the payment.
    If the drawee authorised the drawer to purchase for him and draw for the price, it is clear that he must take all the inconveniences attending the negotiation of the bill drawn by his agent, i. e. the pledge of the bill of lading, and that, buying on credit he must be content with the estimation placed upon his ability in the market. He -was bound to accept, although he did not get the bill of lad- . ing on acceptance, because his agent was forced to negotiate it in that way, and had a right to .do so, for it was in the regular course of the trade, and within the scope of his .authority. If he exceeded his authority., then he is bound without reference to the bill of lading at all, as drawer.
    The position contended for by the drawer would have the singular effect of puttiug the purchaser of a bill with security, in the same, or in a worse category, than if he had taken it simply; for, if taken simply under authority to draw, the acceptance was -sure, or the authority was equivalent to it, and the party would run his chanee for the payment; if the security were to be given up on acceptance, he must then run his chance in the same manner, and the two cases are in the same category. He would be in a worse situation, if the security is to change the negotiability of the bill, and turn it into a conditional contract.
    It is said both by counsel for the defendant, and by the judge who argues their case so fully, that no attempt was made to discredit De Tastet & Co. The onus had been assumed by defendant to prove that they were of high credit-This is not proved; but that they were of doubtful credit, is established by the defendant’s evidence.

      Benjamin and Micou, for the defendant.
    The bill of exchange having been discounted, and a bill of lading delivered with it, both papers must be consulted to ascertain the agreement between the parties. They constitute together one •agreement. Chitty on Contracts, p. 75. Hunt v. Livermore, 5 Pickg. 395.

      Lanfedr & Co., the plaintiffs,
    having received the bill from defendant, it is immaterial to inquire as to equities of other holders. If they negotiated the bill, its return to their hands places them in the same position as if they had never parted with it. The question is not one purely dependent on the law of bills of exchange. These, and the obligations growing out of them, may be, and in practice constantly are, modified by collateral engagements. That the -holder of the bill of exchange, contracted some obligation by receiving the bill of lading, is granted on both sides. That his obligation was to deliver the bill of lading to the acceptors, is equally agreed and conceded. The point in dispute is, the time of delivery. The plaintiffs contend that the bill of lading is only to be delivered on payment. The defendant, that it should have been delivered on acceptance. The law of bills of exchange gives no assistance in solving this question of time. That law is applicable to bills not affected by collateral agreements. When such agreements exist, their construction depends upon their language, if express, or on the circumstances, if implied. The collateral agreement, in this case, results from the facts, and is implied. To ascertain what was the agreement, we must consider the nature of the transaction, and the circumstances and position of the parties. In accepting the bill of lading with the bill of exchange, the plaintiffs are presumed to have submitted to the consequences necessarily resulting from such acceptance. Civil Code, art. 1810. Hurrive v. Freret, 11 La. 378. BanJc of Port Qibson v. Burlce, 4 Bob. 442. What are the consequences, or necessary implications resulting from the transaction? It is conceded by the plaintiffs that the delivery of the bill of lading, with the bill of exchange, implies that the bill of exchange is drawn against, or based upon the shipment. So much being understood, the transaction can only assume three aspects, viz :
    1st. The drawer consigns, on his own account, merchandise to be sold by the drawee.
    2d. The drawer has sold the merchandise to the drawee, and the bills represent the price to be paid.
    , 3d. The drawer is acting as the factor of drawee, and having purchased for account of the latter, draws and negotiates the bills for the price of the goods advanced by him.
    In the first case, the drawee, according to the law merchant, is under no obligation to accept, unless he is placed in funds at the time of acceptance. The holder does not take the bill upon a general, or presumed, or secret authority to draw. The bill of lading placed in his hands, disclosod to him the nature of the authority, and knowing that it was the basis of his bill of exchange — the property against which it was drawn — that without receiving the property the drawee is not botmd to accept, it would seem inevitable that, he was bound to tender the bill of lading when he demanded acceptance.
    In the second case, the drawee having purchased the property, the term allowed by the bill of exchange, indicates that the sale was made on credit. The holder of the bill of lading has assumed a mandate, to wit, that of comple-tiffg the delivery ef the goods sold. If so, lie must deliver them', when he asks the obligation or acceptance of the purchaser. The sale on credit implies the right of the' purchaser to the possession during the term of credit — else he runs all the risk- of' loss, without having the chances of profit. The vendor cannot sue until the price is due. Chitty on Bills, 95. m.- And having taken bills for the price, he cannot sue on the original contract, disregarding the bills, and before maturity. Ibid. If he has sold on credit, and draws, before the credit has expired, for the griee, he is considered as drawing without funds, and not entitled to notice of dishonor. Story on Bills, p. 350, and note, quoting Chitty on Bills.
    In the third case, the law is substantially the same. The drawer acting as factor,- has completed his mandate by purchasing and shipping the goods, and negotiating his bills. His only remaining connection with the transaction, is his eventual responsibility on the dishonor of his bills. In this case again, the drawee is the purchaser, entitled to the benefit of the term of credit implied frem-the face of the bill of exchange, and to receive delivery on acceptance'.
    In all- tine three cases, we give to the holder of the hills- the highest right over the property that san evist, consistently with an obligation- to deliver it on a contingency to another. We consider him subrogated to alt the rights of tha parties previously interested!. He has the control of the property ; he stands in the position, of the vendor or owner. He treats it as his own, with no limitation except such as results from the bill of exchange. The vendor or owner would in either of the cases supposed, be unquestionably bound to-deliver on acceptance. Can the holder of a bill of lading — the mandatory for thecom-pletion of a sale — acquire, by subrogation, higher rights than- his authors possessed ?
    The plaintiffs’ claim rests upon the existence of an absolute right to retain the consignment until payment. The defence does not assume an absolute and unqualified obligation to deliver the goods on acceptance. On the eontrary, we admit a right to retain in a particular case, to wit, the insolvency of the drawees The holder is- not bound to give over the goods for the name of- an- insolvent house. By the French law and our ownf the vendor who has agreed to sell on credit is bound for the delivery, unless the purchaser has become insolvent, so that imminent danger exists of losing the price, since the sale was agreed upon. If he sell to a person-already insolvent, say the French writers, he must still deliver. It is the fault of his own improvidence, or neglect to inquire into the circumstances of the vendee. Civil- Code; art. 2464. Code Nap. art. 1-613, and Rogron’s note. Cook v. West, 3 Rob.- 331. 2, Pothier sur Vente, Noi 67. 16 Toullier, p. 315, No. 268.
    By the law of England the vendor’s right to detain, is called stoppage'm transitu, and exists only in cases of insolvency. Cross on Lien, title Stoppage &c. Abbott on Shipping, same title. Walley v. Montgomery, 3 East 585v
    ■ The law is very clearly stated by Sir William Scott, in the case of The Con-siantia, 6 Robinson’s Admiralty Rep.-,- 321, quoted at large in Abbott on Shipping, tit. Stoppage in transitu, p. 517, London edition of 1844. The holder of a bill of lading is considered as standing in the place of the vendor of the goods. Abbott on Shipping, same title. 1 Smith’s Leading Cases, 396-7, 401-2, 405-6, 414-5. Cross on Lien, 364, vol. 34 Law Lib.
    We thus concede to the holder of the bills, rights of a very high order, but still regulated and Controlled by positive provisions of law. The rights claimed for him by the plaintiffs are undefined, and may be exercised wantonly, capriciously and oppressively. We claim only that the holder is bound to exercise a legal discretion, as to delivery of the bill; the plaintiffs contend that, he has a right to hold them in all cases. It is in vain to say that the discretion imposed is of a delicate and unpleasant nature. Those who engage in commerce must not attempt, on such pleas, to escape the responsibilities arising from their business. That the desire to escape such responsibility has given rise to the attempt by the Barings, and other houses in England, to change this law of commerce, is obvious from the testimony in this case.
    The plaintiffs assumed the onus of proving the custom, to retain at the will of the holder. An examination of the evidence will show that the attempt was a signal failure. If we have correctly stated the law, deduced from the implied contracts and acts of the parties, it would be extremely difficult, if not impossible, to change the law by proof of custom. Custom against law will not be admitted, or will a custom to violate a contract. As to the requisites of a custom, so established as to become a part of the law, see Chitty on Contracts, p. 82. 2 Smith’s Leading Cases, p. 224. 1 Duel- on Insurance, p. 258, § 54, and note citing 2 Burr. 2 Phillips, &c.
    If the foregoing position bo correct, the acceptance of the bill of exchange having been tendered on delivery of the bill of lading, and the holder having refused to deliver it, he has prevented the acceptance by his own wrongful act, and the drawer is therefore released. The drawer promised an acceptance on a condition. The party refusing to perform the condition discharges the other party. Civil Code, arts. 1810, 2035. Oxnard v. Locke, 13 La. 447. Vance v. Tourné, Ibid, 229.
    No serious attempt was made to prove that the drawees were insolvent, or even embarrassed. On the contrary, all the bills accepted on receipt of the consignments, were promptly paid. The house is still in good credit and extensive business ; and, the proof is positive and direct that the bills would have been paid, if they had been accepted.
   The judgment of the court was pronounced by

Eüstis, C. J.

This is an action brought by the holders against the endorser, who was also the drawer, of a bill of exchange for $3324 4s. 3d., drawn in-New Orleans on Fermín da Tastet, & Co., of London, at sixty days after sight, and dated 23d February, 1844.

The bill of exchange was purchased by the. plaintiffs from Blossman, the drawer and endorser, in New Orleans; and with it the bill of lading, upon which the bill of exchange was drawn, was delivered by the broker who made the bargain between them.

The bill of lading was for 344 bales of cotton, shipped by the Provincialisl, and was endorsed in blank. The bill of exchange was also endorsed in blank.

The bill of exchange, accompanied by the bill of lading, was remitted to Prime, Ward Sp King, of New York, and by them negotiated to Baring, Brothers & Co., of London. Be Tastet & Co. offered to accept the bill on presentation, but insisted on having the bill of lading delivered to them. This was declined, and the bill was protested for non-acceptance, and subsequently for nonpayment.

The cotton was taken possession of by Baring, Brothers & Co., under the bill of lading, and disposed of. It not producing a sufficient sum to satisfy the bill, this suit was instituted for the recovery of the amount thereof, with damages, interest and costs.

We shall not decide the question as raised on the sufficiency of the notice, as it was not urged at bar. It was admitted on the trial, that the defendant was entitled to a credit on the bill for ¿62120 2s. 3d., to date on the 16tlt September, 1844.

There was judgment in the court below for the defendant, and the plaintiffs have appealed.

The question which has been argued before us, and on which the case is held to turn, is, whether De Taslet & Co. had a right to insist on the delivery of the " bill of lading on accepting the bill of exchange ; or, in other words, whether .Baring, Brothers & Co., had a right to retain the bill of lading until the payment of the bill of exchange.

The facts are so few and simple that there is no necessity to refer to them particularly; tho subject can be examined in the abstract under the different views which have been presented to us by counsel.

It is proved that had tho bill been accepted at the time of its presentation, it would have been paid; and tho only obstruction to its acceptance and payment arose from the course adopted by Baring, Brothers & Co., in relation to the acceptance. We do not consider the evidence as seriously affecting the credit of De Taslel & Co., so far as the rights of the parties to this suit are concerned.

But we must first disembarass the case of some questions that are not immediately connected with the subject, under the point of view in which we shall determine it. Both parties rely upon an usage, which each insists is established by conclusive evidence in his favor. On this subject of an usage, or custom of trade, which is to control and regulate the rights of the parties, we concur with the learned judge of the Commercial Court, in adopting’the language of Judge Story, in the case of tho schooner Reeside, 2 Sumner’s Rep. p. 569.

“ I am, myself, no friend to the almost indiscriminate liabit of late years, of settingup particular usages or customs, in almost all kinds of business and trade, to control, vary or annul the general liabilities of patties, under the common law, as well as under the commercial law. It has long appeared to me, that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to particular parties, and always liable to great misunderstanding and misinterpretations and abuses, to outweigh the well known and well settled principles of law. And I rejoice to find that of late years the courts of law, both in England and America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of them. The true and appropriate office of a usage or custom is, to interpret the otherwise indeterminate intentions of parties, and to ascertain tho nature and extent of their contracts, arising, not from express stipulations, but from mere implications and presumptions, or acts of a doubtful or equivocal character,” &c. And. again, in Donnell et al. vs. Columbia Insurance Company, 2 Sumner’s Rep. p. 377 : “Usages among merchants should be very sparingly adopted as rules of law by courts of justice, as they are often founded on mere mistakes, and still more often in the want of enlarged and comprehensive views of the full bearing of principles.”

We have examined the testimony of the witnesses with attention, and have cometo the conclusion that, so far from establishing the existence of an usage or custom on this subject, the evidence proves that it is involved in great doubt and uncertainty, even in the minds of experienced and judicious merchants. The fact of private agreements being exacted authorizing the retention of the bills of lading accompanying bills of exchango, and of instructions being required by the bankers in London in relation thereto, tend to show an unseltlod state of opinion touching the rights and liabilities of the parties to the bills.

In relation to bills of exchange drawn in the East Indies and accompanied by bills of lading, the usage to retain the bills of lading until payment of the bill is proved to exist. But this case appeal's to us to present an exception, and not the rule itself, as to all bills accompanied by bills of lading. Nothing could moro strongly indicate this state of things than the errors of opinion into which intelligent persons have fallen, in respect to the unlimited power with which the holder of the bill of exchange is supposed to be invested, under all circumstances, and which several respectable witnesses maintain with unquestionable sincerity.

Those witnesses who testified most strongly for the plaintiffs on the point of custom or usage, went no further than to say, that the matter lay wholly in the discretion of the bill holder in England ; but they all admitted that it would bo considered unusual to refuse to give up the bill of lading, if the house accepting had a first rate standing.

The position assumed by the plaintiffs is that, on acceptance of the bill of exchange, it is in the absolute and entire discretion of the bill holder, or his agent in London, to give up the bill of lading, or retain it until final payment.

This position is suicidal •, for if the bill holder, or his agent, has the absolute right to retain the bill of lading, to give it up in any instance would be to discharge every previous name upon the bill. What merchant, whatever might be his standing, whether a friend or indifferent to the agent in London, could expect him to do an act which would involve such consequences ? It is also to be observed that, in customs and usages of trade there is no such thing ns discretion ; they are absolute, imperative and universal, in favor of, and against all the parties to the contract, when no special agreement to the contrary is made. It is clear that if there existed any such custom, or usage of trade, to retain the bill of lading until the payment of the bill of exchange, if the bill of lading was given up in any case before payment, the drawor and eveiy endorser would be discharged, because their rights would be impaired. The giving up of the bill of lading on the acceptance cannot be optional with the holder of the bill of ; exchange. He is bound either to give it up, or to retain it.

The supposed difficulties in this case arise from a courso of business which has of late years grown up in this city, imoperating the change of ownership of the produce shipped to this mart for sale. This great mutation of property is produced by means of bills of exchange; and when the credit of the drawer of the bill is not sufficient to give it currency, a bill of lading for the produce on which the bill is drawn is appended to it, and sold with it; so that the holder has not only the names on the bill for his security, but the bill of lading and the shipment it represents.

The movement of the markot being thus accomplished by means of bills of exchange, it is obvious that when a bill of exchange, with a bill of lading appended to it, is sold, the fair inference is that the drawer could not have sold his bill without tire additional security of the bill of lading, or that the purchaser would not take it without such security, and that the bill represents either the price of the property sold, or the reimbursement of the price to some party. The holder of the J<syo bills then has in his possession the property and the obligation for the price, and with these in his hands presents himself to the drawee of the bill of exchange, and demands its acceptance.

Now the merchant on whom the bill is drawn, has either authorized the purchase of the shipment, or he has not. If the shipment is on his account, he is only bound to pay for it at the expiration of sixty days after the presentation of the bill; and is entitled to this credit on the face of the contract to which his direct obligation is demanded. If it is not on his account, the drawer stipulated for him the same term of credit on his acceptance of the bill, and no other conditions can be exacted from him by the holder. In either case, how can the drawee of the bill be required to give out his name unconditionally for the price before the property is delivered to him, or how can the holder of the bill exact from the acceptor his obligation for the price, and retain the thing for which lire obligation is given ? To say nothing of the unresonableness of such a supposition, the incompatibility of such a state of things with commercial transactions among persons of credit, is so palpable as to render its existence problematical. Nor is there any thing forced in assimilating the holder of the bill of lading to the vendor. The holder of a bill of lading like this, is considered as standing in the place of the vendor by the English law. Abbot on Shipping, tit. Stoppage in transitu. Gross on Liens, tit. Stoppage in transitu, and cases there cited. But if we consider the position of the drawee of the bill, the same conclusion forces itself upon us. If the shipment is his, or has been ordered by him, the transfer of the property to him is the consideration of the acceptance which he is to give out, and, if it be on account of others, the consignment is the consideration — the benefit which he derives from the commission and profits, for doing the business of other persons. The property is his guarantee against loss, and he has sixty days to dispose of it, and apply the proceeds to the payment of the bill of exchange drawn on him. Mason v. Hunt, 1 Douglas, 299.

We believe there is no instrument, the relations of the parties to which are so frequently changed by parol evidence, as bills of exchange. The whole doctrine of accommodation bills, and the enquiry into the consideration of bills, prove this fact beyond contestation. The rule is properly confined to the original parties to the bills, and to those who have receivod the bills under notice.

“What circumstances will amount to actual or constructive notice of any defect or infermity in the title to the bill, so as to let it in as a bar or defence against a holder for value, has been a matter of much discussion and of no small diversity of judicial opinion. It is agreed on all sides that express notice is not indispensable, but it will be sufficient if the circumstances are of such a strong and pointed character as necessarily to cast a shade on the transaction, and to put the holder on enquiry.” Story on Bills of Exchange, § 194.

The value of a bill of exchange, as such, depends solely upon the certainty of its being paid at all events, and its being entirely independent of the original consideration upon which it was drawn. This is the element of its circulation, and of its being used as a part of the currency, in all mercantile operations. The difficulty in this case arises from the attempt to make the bill, which is drawn on a particular shipment, with its consideration in a manner ¡, ppended to it, and held and retained by the holder of the bill as a security without which he wotxld not have taken the bill, a current bill of exchange, forming a part of the commercial currency, passing from hand to hand like a bank note, without any reference to, or connection with, its original consideration.

It is not pretended that the bill of lading connects, in any manner, the holders of the bill with any of the other transactions relating to the properly which it represents ; but it is said that, in this case, the bill of exchange having been discounted with the bill of lading, both instruments must bo consulted in order to ascertain the agreement between the parties, they constituting, in fact, but one contract. The judge of the Commercial Court has thus given his views on this subject:

“ I shall examine the question presented in this case under both points of view. First, vyhat are the legal consequences and inferences to be deduced from the act of the drawer of a bill of exchange and shipper of cotton, presenting such bill of exchange, accompanied by a bill of lading, to a capitalist or banker fer discount. In such an act there is a direct implication that, the bill of exchange is drawn against the property covered by the bill of lading; in such cases the property covered by the bill of lading, or, to avoid periphrasis, we will say, the cotton, is either bought by virtue of orders given by the foreign house on whom the bill is drawn, in which case the bill of exchange is to be considered as drawn to pay for the cotton, or else it is a shipment by the drawer of a bill of exchange, of cotton bought for his own account and risk, and the bill of exchange is to be considered as a demand upon the English house, to make an advance upon the cotton thus shipped to their consignment. If the cotton has been bought by virtue of orders given, it is easy to perceive that the English house may refuse to accept, on the ground that their orders have been violated or departed from in some particulars, which violation or departure authorizes them to refuse acceptance. In the present case a very intelligent witness gave it as his opinion that, the orders had been violated, so as to authorize De Tastet & Co. to refuse acceptance ; perhaps I do not concur in this opinion, and I do not cite it as bearing upon the case, because acceptance was not refused on that ground, but only to illustrate the general principle of the risk which buyers of these bills run, when they purchase or discount them. On the other hand, if the bill of exchange is a demand for an advance on the shipment made on the shipper’s account, the house on whom the bill of exchange is drawn may refuse to accept, because it considers the advance exceeds the value of the property, which may also come to a falling market, and the house may be unwilling to become the creditors of the drawer of the bill of exchange. The bill of exchange in its inception is an incomplete contract, and is only rendered complete by the acceptance of the person on whom it is drawn.

“ It is manifest that such are the facts and circumstances out of which the double contract springs, and that they ought to regulate and govern the rights of the parties.”

In relation to this undoubted and well known origin of bills of this sort, the testimony of the witnesses of the plaintiff is not unimportant. JS. J. ForslalL says: “ He has done a great deal of business in exchange. Is of opinion that bills of lading are ihe security for the payment of bills of exchange. Houses to whom bills of exchange are sent, always prefer instructions being sent as to giving up bills of lading when acceptances are made; otherwise they are placed in a position of responsibility by giving them up on their own account.” Being asked by the court whether, when a bill of lading accompanies a bill of exchange, it is or is not a direct implication that the bill of exchange is drawn against the property covered by the bill of lading, the witness answered in the affirmative.

Samuel Nicholson lias been a large dealer in exchange in New Orleans, since 1837. “ The practice of attaching hills of lading of cotton to hills of exchange is very common.'”

Edward Skiff: When he receives a hill of exchange accompanied by a bill of lading, considers the former drawn upon the property represented by the latter.”

Frederic Frey: “ The bill of exchange is predicated on the cotton represented by the bill of lading.”

James Conrey “ considers a bill of lading accompanying a bill of exchange, according to common usage, security for the acceptance and payment of such bill.”

Ruison Maury “ has sold bills of exchange with bills of lading, without any specific agroement.”

James R. Behn “ is of opinion that bills of lading, when attached to bills of exchange, stand as security for both acceptance and payment.”

Fames, a witness of the defendant, negotiated the bill to the plaintiffs. He says : “ On a little hesitation being exhibited by the latter (Lanfear), I proposed to get the bill of lading from Blossman, when the money was paid.”

The bill sued on was forwarded by the plaintiffs to Prime, Ward & King of New York, and by their clerk this memorandum was written on it: “ Bill of lading for 344 B. Cotton, p. Provincialist, attached hereto.”

The bill was negotiated by Prime, Ward & King to Baring, Brothers & Co., of London. Being the judges of the facts as well as of the law, we are not permitted to impute to that eminent house any want of knowledge concerning the course of trade in bills of exchange, accompanied by bills of lading of. cotton shipped from this port to its market abroad. In this case the memorandum on the bill of exchange fixed its character beyond any reasonable doubt.

In determining the question as to the right of the holders of the bill of exchange to withhold the bill of lading after the acceptance of the former was tendered, we are at a loss for anj positive authority of decisions in the English courts.

We have not been favored with the opinions of any counsel in England on this subject, which could easily have been had, and which would have been of great assistance to us. We must decide according to the lights we have before us.

There does not appear to be any controversy about the right of the holder of the bill of exchange to retain the bill of lading, in case of the imminent insolvency of the drawee. The counsel who argued this case did not differ as to the course the holder might, for his security, adopt, in such a state of things.

It is imposible for us, under the evidence and our own positive knowledge of what is passing every day under our eyes, to consider this transaction otherwise than as one and indivisible, and that Baring, Brothers & Company, so far as any obligations on their part resulting from the possession of the bill of lading are concerned, were in the situation of the original purchasers of the bill of exchange, of which thé bill of lading and the memorandum on the bill of exchange gave them full notice ; and that they were bound to know and well knew, what the respectable witnesses of the plaintiffs concur in opinion about, as to the origin and character of these hybrid instruments.

The hypothesis which isolates the bill of exchange from all the facts with which it originated, and separates it from the shipment upon which it was drawn, we cannot consider as tenable. Are the drawees bound to accept before the bill of lading was presented to them 1 Suppose accident, or bad faith, were to have separated the two instruments — suppose each of them to be negotiated to different persons, for value — could the holder of the bill of exchange alone insist on the acceptance, when the bill of lading should be outstanding ?

The holder of the bill insists that he is not bound to part with his main security, and the acceptor that he is not bound to accept without having the consignment, which is tlie consideration of his becoming a party to the bill, by putting his name out. In the one case, the holder runs the risk of the credit of the parties to the bill; in the other, the acceptor that of the good faith of the holder, who by putting the bill of lading in circulation, may deprive the acceptor of the property, which the acceptor has aright to have applied to the payment of the bill.

It is urged that, by considering the bill of exchange as dependent on the bill of lading, the doctrine of the negotiability of bills of exchange, as established by the law merchant, is violated. But this is the very question in dispute, which is, whether this bill is a MU of exchange in the mercantile sense. It wants the essential requisite of a bill of exchange, which is that it is negotiable and payable at all events, independent of its consideration. A bill, with a condition like this appended to it, with a concomitant agreement from which it cannot he separated, may be called a bill of exchange, but it wants the requisites which alone give it value and circulation as such.

The case cited of Mason v. Hunt, determined by tire Court of King’s Bench in 1779, and which we are not aware ever to have been overruled, was tried before Lord Mansfield at Guildhall, and the opinion of the court was delivei-ed by him after a full argument at bar. It was by that able and learned bench decided, “ that an agreement to accept a bill on certain conditions, is discharged if the conditions are not complied with; and if there is a virtual acceptance, on consideration that goods shall be consigned to the acceptor to answer the bill, together with a policy of insurance on thorn, the holder of the bill by taking to the goods and selling them discharges the acceptance.” 1 Douglas, 290.

In this case the dependence of bills of exchange on agreements imposing conditions connected with their consideration, is expressly recognized. “An agreement to accept is still but an agreement; and if it is conditional, and a third person takes the bill knowing of the conditions, he takes it subject to such conditions,” says Lord Mansfield.

“ After a refusal to accept the bills drawn, and a negotiation of two or three days, the holder and drawees of the bills signed a memorandum by which the former took the bill of lading and policy of insurance, and undertook to apply the proceeds of the property, as far as they would go, in part payment of the hills. There was a deficiency; and this action was brought against the defendants, as acceptors of the bills drawn on the consignment, for the difference; find the court came to the conclusion that, if there was an acceptance, the conduct of the holder of the bills of exchange, under the memorandum and agreement, discharged them.” In the conclusion of the opinion, the Chief Justice remarked : “ The temptation to accept was the commissions on the consignment, or they (the defendants) were to have the security of the goods and the insurance. But the plaintiff undoes all this and says: ‘ Then I will take all from you, security, commissions,’ Sec. This was saying : * I will stand in your place, but not so as to be answerable tor more than the produce of the tobacco.’ It is impossible the defendants could mean to accept, without any benefit or security. We are all clear that this made an end of the agreement.”

In this case the bill of lading was delivered up by the party sought to be made liable as acceptor, and thoro was a previous agreement of which the holder had notice.

The facts in the case of Mason v. Hunt are not in many respects similar to those under consideration. What was made out by positive testimony in that case, we arrive at in this by necessary implication. But some of the main reasons given in the opinion of Lord Mansfield are the same to which we have arrived, in investigating, with great attention, the obligations of the parties in the present litigation, in which we have had the assistance of the judge of the Commercial Court of New Orleans, iii the able and lucid opinion he had prepared on the first hearing of the cause.

We can come to no other conclusion than that, the acceptance was to be the consideration for the consignment, which the holders of the bill had no right, to withhold when they exacted the acceptance ; that there is nothing in the evidence which authorized such a proceeding; tiiat the drawees were not bound to accept tho bill, except on delivery of the bill of lading; end that in refusing to accept as they did, there has been no default on their part; and the mil was, therefore, protested without cause, and the drawer is discharged.

It is vain to attempt to reconcile irreconeileable things, or to determine tho obligations of parties to an instrument like this under consideration, by a standard to which it cannot in reason be applied. These bills are entitled to no credit, and ought to receive none, as constituting a part of the commercial currency. They have a consideration coupled with them which strikes at the very root of their availability, and those who take them cannot complain of the hazards to which they think proper to expose their business.

Judgment affirmed.

       Peirce, for a rehearing. If this contract is to be construed, not by any particular usage, but by the general law appertaining and applicable to such class of contracts, the drawer of the bill guáranteos its payment, and should there be any doubt of this construction, it must bo against the drawer. Pitman, Principal and Agent, p. 38.
      Whether De Tasiet Sy Co. were required by their agreement with Blossman to accept, is not tho question here, as Lanfear Sy Co, were in no manner privy to tho correspondence of tho parties, but took the bill as a mercantile instrument called a bill of exchange, which is an unconditional order for the payment of a certain sum of money, and passes as a bank note, making part of the currency of merchants. 1 Chitty on Bills, edition of 1834, pp. 28, 30, 33. 3 Taunton, 9S. Smith on Bills of Exchange, 126, 128, 159. 3 Campbell, 57. 4 Camp., 214* Byles 67. No verbal understanding, if there had been any, could have altered this character, if made contemporaneously. Such an understanding must appear on th e face of tho bill at its inception, or it is void. Vide authorities supra. Byles, 4, 5. 5 T. It. 4S2.

        Basing, Brothers ty Co. took the hill as au ordinary bill of exchange. If they acted wrongly with the collateral security, an action will lie against them in favor of the parties injured for damages; and though TJe Tasiet d¡’ Co. might have refused acceptance, the fact cannot alter Blossman’s liability to Lanfear Sy Co., which was entire and unconditional.
      Had Barring, Brothers ¿y Co. 'given Blossman the bill of exchange, and it was true that the bill of lading was given as security for acceptance alone, and had been improperly refused to be giveir up, this would be no defence, because there would be but a partial failure of consideration, as the property was ready to be delivered on the payment of the bill. Smith, 156. 1 Camp. 40. 2 Ibid, 54(5. 2 B. and Ad. 155. Byles 38.
      There is no doubt that the bill, as between Blossman and De Tastet Sy Co,, was drawn on the cotton, which had been purchased by Blossman as Be Tastet <§• Co.’s agent, as alleged by him in bis answer; but lie did not buy the cotton of Lanfear fy Co., nor pay even with tlieir money, for the bills of lading were delivered to Lanfear fy Co. before they bought Blossman3s bill. They were not, therefore, privy to any transaction of Blossman with the owner of the cotton, and when shipped by Blossman, as the agent of Be Tastet §■ Co., it was so much in Tastet Co.’s possession that Blossman himself bad no right of stoppage in transitu, and could not transfer any, as, by bis own statement, he was not selling to Be Tastet S? Co., but bad bought and paid as their agent. His possession was Be Tastet fy Co.’s possession, and no such defence could be allowed on the bill, as is stated in 2 B. and Ad., 380.
      The case of Mason v. Hunt, Douglas 299, is certainly good law: “ If one man, to give credit to another, makes an absolute promise to accept bis bill, the drawer, or any other person, may show sucli promise on tlic exchange to got credit, and a third person wlio should advance his money upon it would have nothing to do with the equitable circumstances which might subsist between fclie drawer and acceptor; but an agreement to accept is still but an agreement, and if it is conditional, and a third person take the bill knowing of the conditions annexed to the agreement, ho takes it subject to such conditions.” But here there was no agreement shown with conditions. In fact, no agreement was specified at all, and Lan-fear # Co. were left with the absolute promise of Blossman — the consequence of drawing tlic bill, that Be Tastet Co. would accept and pay it, or, in case of their default, that ho would pay. Lanfear Co. took the collateral security as security for this engagement of Blossman, and it seems to bo begging the very question to say, that the condition was known to Lanfear fy Co. that Blossman has to be released, if any party thereafter owning the bill should fail to give up this security on tlio more acceptance. This cannot be presumed to have been the intention of the partios, as it would make Lanfear fy Co.’s condition worse than if they had taken no security. By such a construction their absolute bill of exchange would lose its mercantile character, and be changed into a special agreement.

        Rehearing refused.


author: Slidell, .1.

text:
    Rogers v. The Western Marine and Fire Insurance Company.
    A discharge under tho bankrupt act of 19th August, 1841, will release the debtor from all liability to a creditor by note, though the debt for which the note was executed was not placed upon the schedule of the bankrupt, and the holder did not make himself a parly to the proceedings in bankruptcy by taking a dividend or otherwise, where there is no allegation or proof of any fraud or other matter which could impeach, as to the creditor, the validity of the discharge. Such a debt was pvovcable under the bankruptcy, and is not of a character to bo excluded from tho operation of the statute by the creditor’s sfanding aloof.
    The omission by a defendant to plead the pendency of proceedings under tho bankrupt act of 19th August, 1841, will not deprive him of the benefit of a discharge in bankruptcy, obtained after .judgment in the original action. The discharge operates with the same force upon the debt after it has assumed tlic form of a judgment, as before.
    APPEAL from the Parish Court of New Orleans, Maurian, J.

      Lockett, for the plaintiff. Livingston, for tho appellants.
   Tho judgment of tho court was pronounced by

Slidell, .1.

Rogers, tho present plaintiff, was defendant in an action brought in tho Parish Court by the Western Marine and Fire Insurance Company against the commercial firm of Rogers Sf Hatlain, in April, 1843, in which judgment was rendered by default against him, and confirmed in May, 1843. The suit was on notes given prior to the year 1843, to the Insurance Company, by Rogers Hcdlcm, for premiums of insurance.

In January, 1843, Rogers filed his petition in the United States District Court at New Orleans to be decreed a bankrupt, and to be discharged from all his ^e'3ts> individually, and as a member of the firm of Rogers & Hallain. There was a decree of bankruptcy, and, on the 16th Juno, 1843, a further decree, dis-cjjargjng from a¡i debts owing by him at the date of the presentation of his petition to be declared a bankrupt. The certificate is in the usual form, and contains the usual references to the antecedent proceedings. It appears further that the company were notified in the usual manner to appear in the bankrupt pi’oceedings. They were put down in the schedule as creditors for a small sum, but not as creditors for the claim sued upon in the Parish Court.

In 1844 the company took out execution on the judgment, and Rogers then brought the present suit to enjoin. An injunction was granted, which, after trial, was, by the judgment of the court below, decreed perpetual. •

The discharge in bankruptcy was, in our opinion, a full and complete bar to the debt, and consequently to the further action of the Insurance Company by fi. fa. The debt due to them existed at the date of the institution of the bankrupt, proceedings. It was ¡iroveable in the bankruptcy. It was not such a debt as is excluded from the operation of the statute, if the creditor chooses to stand aloof. It is immaterial, as regards the effect of the discharge, that all the debts due to the creditor were not stated in the schedule, and that the company did not mako itself actively a party to the bankrupt proceedings, by talcing a dividend or otherwise. There is no allegation, nor proof, of any fraud, or other matter which would impeach, as to this creditor, the validity of this dischargo.

The proposition that Rogers should have pleaded the pendency of the bankrupt proceedings in the original suit, and cannot disturb the execution of a judgment which is final, is untenable. The discharge in bankruptcy was posterior to the rendition of this judgment, and operated with the same force upon the debt after it assumed the form of a judgment, as it would have done had the debt remained in its original form of a promissory noto. Judgment affirmed,.