text:
    MAGEE ET AL. vs. DUNBAR AND BROTHER.
    EASTERN DlST.
    February, 1837.
    APPEAL FROM THE COURT OF THE THIRD JUDICIAL DISTRICT, THE JUDGE OF THE EIGHTH PRESIDING.
    A dilatory exception, denying the identity of the plaintiffs, as a firm, may be pleaded after a judgment by default, on filing an answer to the merits.
    Although an issue is tacitly joined by a judgment by default, yet, when it is set aside by filing an answer, it is as if it had never existed.
    In denying that the names of the plaintiffs do in fact compose the firm ‘in whose name they sue, and not averring that other persons compose it, is insufficient. An exception of this kind ought at least to show, that, admitting the facts alleged, a judgment in the case would not be a bar to a second action.
    If the interrogatories annexed to the petition are not answered, and no cause shown, they will be taken for confessed on the trial.
    Notice of protest, when the endorsement is made by a firm, to one of the partners, is sufficient.

      This is an action against the defendants, to recover the sunn of nine hundred and thirty-four dollars and seventy-one cents, for merchandize sold and delivered to them.
    The plaintiffs allege, that the defendants endorsed over, and delivered to them, a promissory note for eight hundred and five dollars and seventy cents, drawn by J. B. Dawson, to their order, which was protested at maturity, and due notice given to them as endorsers. That they, are indebted, in solido, for the amount of said note, and for a balance on their said account, of one hundred and twenty-nine dollars, for which they pray judgment.
    The plaintiffs annexed an interrogatory to their petition, calling on the defendants to state, on oath, in open court, if the account sued on was not correct.
    The defendants, after judgment by default taken, filed an answer to the merits, expressly denying that James Magee and Michael Magee composed the firm of James Magee & Co., in New-Orleans. They admit their endorsement, but deny every other allegation contained in the petition.
    The parties proceeded to trial on these pleadings and issues. The defendants omitted to answer the plaintiffs’ interrogatory, touching the correctness of the account sued on, and the judge instructed the jury to take it for confessed, but on motion, struck out the part of the answer, denying that the plaintiffs composed the firm of Magee & Co., as a dilatory exception, which should have been pleaded before •judgment by default. This was objected to, and a bill of exceptions taken. It was also objected, and averred, that the notices of protest were insufficient.
    The jury, however, returned a verdict for the plaintiffs, and from judgment rendered thereon, the defendants appealed.

      Weems, for the plaintiffs.
    1. Defendants and appellants were not entitled to any other notice than that furnished by the service of the interrogatories annexed to petition : they were not entitled to' service of the order of court, appointing a day for the interrogatories to be answered. Code of Practice, articles 350, 351 . % Louisiana Reports, 72; 7 Ibid. 333.
    2. The court a quo, was clearly right in ordering that part ^ answer which denied that appellees composed the firm of James Magee & Co. to be struck from the record, because it was, in its very essence, a dilatory exception, which should have been pleaded before issue joined, whereas it was not pleaded till after a default had been taken. Code of Practice, articles 332, 333.

      3. Notice of protest was sufficient. The record shows, by the evidence of Hall and Wederstrandt, that one of the appellants, A. Dunbar, had, shortly before this protest was made, given the notary general instructions to notify him of protests through the post-office of St. Francisville. It is clearly a waiver of notice. 4 Martin, N. S., Laporte vs., Laudry, 125.
    4. Appellants do not plead fraud in their answer, and therefore cannot question the ownership of appellees to the note sued on. The evidence, and the endorsements on the note, sufficiently show, that the note sued on was the property of appellees at the time the suit was commenced. 3 Martin, N. 291; 3 Ibid. 392; 7 Ibid. 255; 2 Louisiana Reports, 193.

      Bradford, for the defendants.
    1. It will be observed by the court, that the defendants in their answer, deny the identity of plaintiffs, as composing a mercantile firm. This denial was ordered by the court a quo, to be stricken out, because it was an exception, not an answer. It was too late, after the cause had been opened, to move to strike out a part of the pleadings. The denial is not an exception, but an answer to the merits.
    2. It does not appear by the evidence, that the plaintiffs and appellants were the owners of the note sued on.
    3. The testimony does not prove any right of property in the note ever to have been in plaintiffs. The declaration of John Dunbar, “ that it was all right,” proves nothing of any right to the note in the plaintiffs.

      4. There was no legal notice of protest to the appellants, as endorsers of the note of John B. Dawson. The statute of the 13th March, 1827, lsi Moreau's Digest, 96, section 2, makes it the duty of the notary to serve the notice on en-dowsers, and whenever such endorsers do not live in town, to put the notice of protest in the nearest post-office where such protest is made, “ addressed to the endorsers at their domicil or usual place of residence.” Annanias Dunbar, one of the endorsers, lived in the parish of West Feliciana, not in St. Francisville; and, from any thing which appears in the evidence, the letter may, although put in the post-office in St. Francisville, have been addressed to him in New-Orleans.
    5. John Dunbar lived in St. Francisville. The notary was bound to know it, be residing there. But if he did not know the fact, he did not use “ all due diligence to obtain the necessary information,” as is required by the 3d section of said act, 1st Moreau, 96. Indeed, no inquiry was made for the residence of John Dunbar. It would have been known at the post-office.
    6. The court a quo, erred in talking the’ failure of the defendants to answer interrogatories, as evidence against them. See bill of exceptions, page 16, of the record. Courts of justice are not constituted as traps. Had the defendants been notified of the day when they were ordered to answer interrogatories, they would have appeared and answered, according to the truth of the case.
   Bullard, J.,

delivered the opinion of the court.

This is an action against the endorsers of a promissory note, on the usual allegations of demand from the maker, and due notice of non-payment. The plaintiffs also sue for a small balance of an account, for goods sold and delivered.

The defendants having failed to appear or answer, a judgment by default was taken. Before trial, however, they filed an answer, and the judgment by default was set aside. In their answer, they deny that the plaintiffs constitute the firm of James Magee & Co.,.'and (bat (bey are (be owners of the note sued on ; and they further deny notice as endorsers.

A dilatory exception denying* the identity of the plaintiffs as tt firm, may be pleaded after a judgment by default, .on filing an answer to‘the merits.

Although an issue is tacitly joined by a judgment by default, yet, when it is set aside, by filing an answer, it is as if it had •never existed.

In denying •that the names of the plaintiffs do in fact compose the firm in whose name they sue, and not averring .that othor persons compose it, is insufficient. An exception of this kind ought, .atleast, to show, .that admitting, the facts alleged, a judgment in the case would not be a bar to a second action.

The court, considering the first, part of the answer, which denied the identity of the plain tiffs as composing the firm, in the nature of a dilatory exception, and that it came too Tate, after a judgment by default had been taken, ordered it tobe stricken out, and the defendants took a bill of exceptions.

We think the court erred. The Code of Practice provides, that the defendant may, at any time, appear and file his answer, before a 'definitive judgment by default is rendered, and the first judgment taken shall be set aside. Article. 314. The filing of an answer is a matter of right, and does not depend upon the discretion of the court, nor does the Code appear to us (o restrict the defendant in relation to the exceptions which he may plead in such a case. It is true, there is a class of exceptions, which (he Code requires to be pleaded h liminilitis, before issue joined, which we undersland to be an answer to (he merits, and that an issue is tacitly joined by a judgment by default; but when that judgment is set aside by filing an answer, it is as if it had never existed. But, while we express an opinion, (hat the court below erred in striking out that part of the answer, we do not consider it a sufficient ground for remanding the case. The defendants deny that the plaintiffs, whose names are set forth in the petition, and who, sue as James Magee & Co., do, in fact, compose that firm; but they do not aver what other persons belong to it. An exception of this kind ought at least to show, that, admitting the facts alleged to be true, a judgment in the case would not be'a bar to a second action. In the form in which it is pleaded, it .amounts to nothing more than a denial of the right of the plaintiffs to recover according to the'allegations in the petition. That denial is sufficiently repeated in other parts of the answer, and it is clear that the plaintiffs cannot recover unless they show that they are the holders of the nole, and that the defendants are indebted to them in a further balance of accounts.

If the inter™gator íes annexed io the petition ai<£ nocausé shown they mil be taken for confessed on the' tual‘

Notice of pro-endorsement11!! m!utel>y afi™> partners, is suffi-°ient-

The account is sufficiently proved by the neglect of the defendants to answer the interrogatories annexed to the petition. They had ample opportunities to do so. The plaintiffs were not bound, in our opinion, to give them any further notice, although parties may require their interrogatories to be answered in open court. Code of Practice, 351. 1 0 , . The court did not, in our opinion, err in instructing the jury that the failure of the defendants to answer the interrogatories, amounted to a confession of the matters therein ’ asserted.

The facts thus disclosed are, that the defendants, being indebted to Magee & Co., for merchandize to the amount of nine hundred and thirty-four dollars and seventy-one cents, endorsed over to them the note in question, in part payment, leaving the balance of one hundred and twenty-nine dollars and thirty-one cents, for which judgment has been rendered in this case. The plaintiffs, therefore, appear as the immediate endorsers of the defendants, in consideration of an existing debt, and it is shown that they were the holders when this suit was brought.

The only remaining question is, whether due notice of protest was given. The notice was lodged in the post-office at St. Francisville, where one of the partners resided. The others lived a few miles from town, and nearer another office, but was'in the habit of receiving his letters at the office in town. It is shown, that he had previously directed the notary to leave any notices of protest in that post-office. From these facts we are authorized to conclude that the notice was received, although the act of placing it in the office might not, by the statute, be considered as constructive notice. Notice to one partner is sufficient.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.,

license: Public Domain

text:
    MORTON vs. POLLARD, F. W. C.
    Eastern Dict.

      February, 1837.
    ATPEAL PROM THE COURT OP THE FOURTH JUDICIAL DISTRICT, THE JUDGE OP THE SECOND PRESIDING.
    Where a sum of money is payable on a given day, at a particular place, demand there is a condition precedent which the adverse party is bound to allege and prove.
    This is an action to recover the sum of six hundred and seventy-five dollars, which the defendant agreed to pay the plaintiff, for building a sugar mill. See the facts of this case reported in 9 Louisiana Reports, 174.
    The agreement sued on is in writing, in which the defendant promises to pay this money in two instalments, one after the work had commenced, and the other when it was completed; both instalments payable at the Branch Bank of the Union Bank of Louisiana, office at Plaquemine.
    The plaintiff alleges, that the defendant has, upon amicable demand, failed and refused to comply with her engagement, &c. He, therefore, prays judgment for the sum of six hundred and seventy-five dollars, with interest and costs.
    The defendant admitted the agreement, but denied the right of the plaintiff to recover, and denied that any cause of action was alleged and shown; she then set up other matters in defence.
    Upon the trial, the court sustained the plaintiff’s right of action, and the case was submitted to a jury, who returned a verdict of three hundred and forty-two dollars for the plaintiff, and from judgment rendered thereon, the defendant appealed.

      Stacy and Labauve, for the plaintiff,
    argued this case ex parte.

    1. The court erred in overruling the first exception of defendants, for this, that the obligation is made payable at a particular place, and it is not alleged that payment has been demanded at that place.
    -wRere a sum. of money is pay- ^ atapárü-°ular . Plao?> a condition pre-adverse party is boi!nd t0 alleSe an(i prove.
    The denial is repeated in the answer, under the plea-of the general issue: it was a condition precedent, which plaintiff was bound to allege and prove upon trial; he has done neither, and, therefore, cannot recover. Louisiana Code, 1899, 1905, 1907, 1908. 3 Martin, JV. 423.
   Martin, J.,

delivered the opinion of the court.

The defendant is appellant from a judgment which condemns her to pay a sum of money, according to an agreement annexed to the petition.

This agreement shows, that the defendant promised to pay the sum claimed, at the office of the Union Branch Bank, at Plaquemine. There is no allegation in the petition, that the plaintiff called there for the money.

The counsel for the defendant and appellant, has correctly urged that the court erred in overruling his exceptions to the absencé of any allegation, and proof of a demand of payment at the place at which, according to the agreement, the defendant bound herself to pay. ► u

The demand at that place, Was a condition precedent, r ’ r j which the plaintiff was bound to allege and prove.

It is, therefore, ordered, adjudged and decreed that the judgment of the District Court, be annulled, avoided and reversed, and that there be judgment for the defendant, as in case of a non-suit; the plaintiff paying costs in both courts.


author: Marlin,

text:
    CHARLES JANIN vs. HIS CREDITORS.
    Eastern Dist.
    February, 1837.
    APPEAL PROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    Where the clerk’s certificate attests that the transcript contains all the testimony adduced on the trial, and the appellant relies on a bill of exceptions in the record, no assignment of error is necessary.
    The privileged debts and expenses of an insolvent’s estate, must be paid from the proceeds of the immovables, according to the price at which they have been sold.
    It is the-immovables, and not the mortgage creditors, which owe and must contribute to the payment of the privileged debts and expenses, whether the mortgages existing on such property be special or general.
    The syndics filed a tableau of distribution in this case.
    The heirs of Lemonier made opposition to the tableau on various grounds ; and among others, to the mode of paying the privileged debts and expenses of the estate.
    The district judge decided, that as there were not movables sufficient., the privileged debts and expenses must be borne by the immovables, or their proceeds, according to the price which they produced, L e., it is the immovables which owe this contribution, and not the mortgage creditors.
    From this judgment Lemonier’s heirs appealed.

      Morphy and Grailhe, for the syndics,
    urged, that when the proceeds of the movables are insufficient to meet the privileged charges, costs and expenses, and there are no unincumbered slaves and immovables, all the immovables must contribute, whether affected by special or general mortgage. 5 Martin's Reports, 46S ; 6 Ibid. 519.
    2. And property specially mortgaged is not to be exempted from contribution, because there may be property subject only to a judicial mortgage. Louisiana Code, articles 3317, 3321, 3233, 3236.

      deS^certta-attests^that contains all the led™0the*rial, MillionaPbmof exceptionsin the liniment”0 *5 ,s neces"
    The privileged seV of an^nsoi-fro™ the pro-ceecls of the im-movables, ac-frjT have been
    itistheimmo-theleS’mortgage “'editors, which owe and must contribute to the pXüeges° and ther themoiiga" ges^ existing on speciaiT^'glen! eraI-

      Macready, for tbe appellants,
    contended that immovables, subject only to general or judicial mortgages, and not those specially mortgaged, must contribute to the payment of the privileged debts and expenses, in default of movables sufficient.
   Marlin,

delivered the opinion of the court.

On the day this cause was called for hearing, the attorney for the syndics, (the appellees,) and that of the opposing creditors and appellants, filed a paper, stating that the only question for the decision of the court was, whether, “ when the proceeds of the sale of the movables of an estate surrendered, are insufficient to meet the privileged debts and charges, and there are no unincumbered slaves or immova-bles, the property specially mortgaged is to contribute to the payment of said debts and charges, where there is property subject to individual or general mortgage; or whether, in such a case, all the immovables must not be made to contribute, by whatever kind of mortgage they may be affected.”

The wife of the insolvent prayed the dismissal of the appeal, on the ground, that this paper contained an assignment of error, apparent on the face of the record, and, as such, ought to have been filed within ten days after the record is brought up; otherwise, the appeal is to be rejected. Code of Practice, 897.

mi , . lhe certificate of the clerk attests that the transcript contains all the testimony adduced on the trial. It is, per-baps, not equal to a statement of facts; but the appellant relies on a bill of exceptions, for the examination of the case by this court. No assignment of error was, therefore, necessary ; the paper filed contains none, and presents only J , 1 1 7 % 1 J a single point deemed necessary for the consideration of the court. On the merits, it appears to us, that the inferior judge correctly decided, that the privileged debts and expenses must be borne by the immovables, according to the price which they produced. It is the immovables, and not the mortgage creditor, which owes this contribution, whether the mortgage be special or general. Delor vs. Montegut, 5 Martin's Reports, page 468; Goforth vs. His creditors, 6 Martin's Reports, page 519.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Bullard, J.,

text:
    WARTELLE vs. LE BLANC.
    Eastern Dist.

      February, 1837.
    ATTEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where a partner buys goods for another person, and pays for them on his own account, on receiving goods in return, with orders to sell them, and place the proceeds to his credit, the' partner may accredit them in the separate account ho has with such person.
    When there is but one debt due, imputation of payment can only be made to that one.
    The Supreme Court will not remand a case, and order a supplementary account to be filed, which was not asked for by the pleadings in the court below. Such an'order could only be made by an amendment.
    This is an action of account, by one partner against another, for a balance, alleged to be due, which, the plaintiff says, has been caused through error and incorrect accounts, rendered by his co-partner, who had the principal management and control of the business.
    The plaintiff claims a balance due to him, according to a ■detailed statement annexed, of four thousand two hundred and twenty-one dollars and fifty-one cents.
    The defendant pleaded a general denial ; and denied specially any errors or omissions, on his part, in settling the partnership affairs.

      Where a partner buys goods for another person, and. pays for them* on his own account, on receiving goods in return, with orders to sell them and place the proceeds to his credit, the partner may accredit them in the separate account he has with such person.
    Where there is hut one debt due, imputation of payment can only be made to that one.
    Each party propounded interrogatories to the other respecting .their accounts, and much evidence was duced, to explain and support the respective accounts set' bP- •
    After a patient and minute examination between the parties, by the district judge, he came to the conclusion, that there was six hundred -and eight dollars and fifty-nine cents due to the plaintiff, for which he rendered judgment; The plaintiff being dissatisfied therewith, took an appeal.

      J. Seghers, for the plaintiff.

      Grima and Strawbridge, contra.

   Bullard, J.,

delivered the opinion of the court.

The plaintiff and appellant urges the reversal of the judgment of the court below, on the ground that an item of his account, of one hundred and seventy-one dollars and ninety-one cents, was disallowed, and, together with two others, reserved as the subject of future adjudication between the parties. This item consists of a remittance made by one Girodel, of Omoa, to the defendant, which is alleged ought to have been credited to the joint account of plaintiff and defendant.

It appears in evidence, that Le Blanc had purchased some goods here for Girodel, and paid for them. That afterwards a shipment was made to him on the joint account of the parties. Girodel sent goods to this place, which were sold, and the proceeds credited in account with Le Blanc. Le Blanc was instructed to sell them, and place the proceeds tp the credit of Girodel.

The evidence does not satisfy us, that at the time the remittance was made, Girodel was indebted on any other 'account than the original purchase made for him by the defendant. It is not shown that the goods shipped for the joint account of the parties had yet been sold. If only one debt was due at the time, the payment can be imputed to no other.

The Supreme remand "a* ease and order a supplementary account to be filed, which was not asked for by the courtlnSSbelow Such an order could only be made by an amendment.

The appellant prays the court to remand the case, with an order that the defendant file a supplementary account within a lUxiited period, or, in default thereof, that judgment be rendered against him for the amount of the suspended items. We think this cannot be done. Such an order was not asked in the court below, and could only be done by an amendment. All the rights of the plaintiff are reserved by 4 ° 1 . ^ the judgment which is, in that respect, sufficiently liberal.

^ *s’ fheref°reJ ordered, adjudged and decreed, that the judgment of the District Court, be affirmed with costs. J


text:
    DECOUX ET AL. vs. LEDOUX.
    Eastern Dist.

      February, 1837.
    APPEAL PROM THE COURT OP PROBATES, POR THE PARISH OP POINT COUPEE.
    A person acting either as executor, or agent of a succession, by the advice and authority of a family meeting, in settling its affairs, and paying over to the heirs their respective portions, is entitled to his commissions thereon.
    This is an action by the heirs of their grandmother, to recover the sum of about nine hundred and ten dollars, which they allege, the defendant, as executor and agent of her succession, illegally and erroneously charged for his commissions. The plaintiffs allege, that the executor had no seizin of said succession, and was only charged with conservatory acts, and paying some small legacies. That he proceeded to sell the effects of said succession on a credit of two instalments, and rendered an account of the first, for the sum of ten thousand eight hundred and seventy dollars. They finally show, that the defendant charged and received two and a half per cent,., commission, as executor, on the amount of the inventory, to wit: the sum of twenty-five thousand one hundred and forty-five dollars, and also two hundred and one dollars, and seventy-seven cents commission, as administrator, on the sum which he accounted forf &c. They allege, that the whole was allowed and ... . . , -i , paid in error, and that being minors, they are not bound by the proceedings thus had. They pray judgment for such excess of commissions allowed, as may be found due on investigation.
    The defendant pleaded a general denial; and further averred, tha.t as -testamentary executor of widow Decoux, deceased, he was authorized, and took possession of the whole of her succession; that it became necesssary for the payment of the legacies, that the whole should be sold, and which was sold with the advice of a family meeting, and the proceedings had, approved by the same authority, the minors being also represented by their tutor, &c. He prays to be dismissed, &c.
    The probate judge ordered another account to be rendered, and on scrutinizing the accounts, decided that the defendant had charged and received three hundred and fifty-six dollars and seventy-five cents, as excess of commissions, which he- was ordered to refund to the plaintiffs. From this judgment, they being dissatisfied therewith, took an appeal.
    . F. N. Ogden, for the plaintiffs and appellants.

      L. Janin, for the defendant.
   Martin, J.,

delivered the opinion of the court.

In this case the plaintiffs were dissatisfied with a judgment of the Court of Probates, which gave them a small sum, as excess of commissions, charged by the defendant on the settlement of their grandmother’s estate, as her testamentary executor; and have appealed to this court for redress. They allege he improperly retained for commissions the sums now demanded, in settling said succession, either as executor, and afterwards as agent, by the direction of a family meeting. They further contend, that the mandate, thus executed by the defendant, was a gratuitous one.

A person acting either as executor or agent of a succession, by theadvice and authority of a family meeting, in settling its affairs, and paying over to the heirs their respective portions, is entitled to his commissions thereon.

The defendant denied that he owed the plaintiffs any sum, and justified his charge and claim to commissions. He also prayed to have the judgment amended in his favor.

The facts of the case are substantially the same as those in the case of Decoux’s heirs vs. Plantevignes, just decided. Vide ante, 503. The judgment, therefore, must be the same in this case, as was rendered'in that.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates,' be annulled, avoided and reversed; and that there be judgment for the defendant, with costs in both courts.


text:
    HENNEN vs. HENNEN.
    EASTERN DlST.
    February, 1837.
    APPEAL FROM THE COURT OF THE, FIRST JUDICIAL DISTRICT.
    "Where the testimony has been taken down in writing, and the record contains all the evidence, the judge must so certify, and no other statement of facts is required.
    So, where either party requires the clerk to take down the testimony in writing, which shall serve as a statement of facts, the judge cannot be required to make one.
    This is an application for a mandamus. ■

    The defendant filed his affidavit, stating that he had called on .the district judge, for the first judicial district, to make a statement of facts according to law, and that he refused : wherefore, he took a rule on said judge to show cause why a mandamus should not issue, compelling him to make a statement of facts.

      The judge showed for cause: “ That before the trial of said cause, upon the demand of the counsel of plaintiff or defendant, or of both, all the parole evidence offered in the case was taken down in writing by the clerk, under the ar~ tide of the Code of Practice to that effect: that all the written evidence was noted by the clerk as it was offered by either party, as being offered in evidence : that some original records of the District Court, some"of the Parish and Probate Courts, and some of the United States Court, as will appear by the minutes of evidence taken by the clerk, were offered and read in evidence, and, as I understood, by consent and agreement of parties, no objection being made. *
    “ That under these circumstances, the undersigned considers that he is not bound by law, and cannot make any statement of facts, the case being one where the evidence is taken down by the clerk, which supersedes, dispenses with, and would render illegal any statement of facts.
    “The court has stated to the appellant, that whenever, in the course of making out the record of appeal} the clerk finds it necessary to call for records other than those of this court, the court will take steps to compel the party offering such evidence, to furnish copies, or cause copies to be procured at his expense, so as to complete the record.”
   Bullard, J.,

delivered the opinion of the court.

The judge of the first district shows for cause, why he should not be ordered by this court to make a statement of facts, that before the trial of the case, upon the demand of the counsel of plaintiff or defendant, or of both, all the parole evidence offered was taken down in writing by the clerk. That all the written evidence was noted by the clerk, as it was offered by either party. That some original records of the District, Parish and Probate Courts, and some of the Court of the United States, were offered and read in evidence, and, as he understood, by consent and agreement of parties, no objection being made. Under these circumstances, he conceives he is not bound by law, and cannot make any statement of facts.

Where the tes-Himony has been »taken down in writing, and the .record contains all the evidence, the judge must so certify, and no other statement of facts is required.

Sowhere either party requires the clerk to take down the testimony in writing, which shall serve as a statement of facts, the judge cannot he required to make one.

The Code of Practice provides, that when the depositions of witnesses have not been taken in writing, the party intending to appeal, must require his adversary to draw jointly with him a statement of facts. If he refuse, or the parties cannot agree as to the manner of drawing it, the court, at the request of either, shall make such statement, according to their recollection of the facts, or from the notes taken on the trial. But if the testimony produced had been taken in writing, and the record contains all the evidence, the judge must so certify. Code of Practice, articles 586, 602, 603.

Either party may require the clerk to take down the testimony in writing, which shill serve as a statement of facts, if the parties should not agree to one. Code of Practice, article 601.

It appears to us this is not one of the cases in which the judge is required to make a statement of facts.

Let the rule be discharged.


text:
    CITY BANK OF NEW-ORLEANS vs. GIRARD BANK.
    Eastern Dist.

      February, 1837.
    APPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    Where a bill is paid supra protest, for the honor of the drawer, he can only recover of the drawee, the costs of protest for non-acceptance.
    Whqre an agreement contains a dissolving condition on notice given by one of the parties ; and before the expiration of the notice, the other desiring to continue it, proposes some new modifications which are accepted by the adverse party, two days after the notice to dissolve had expired: Held, that this was a waiver of his right of considering the agreement at an end, and that he was bound, for bills drawn in the meantime, under the agreement.
    The obligation on the drawee, to pay a check and a bill of exchange, are the same. Both contain a request from the drawer to the drawee, to pay a sum of money to a third person, in whose favor the check or bill is drawn.

      When there is no question of fact, and the sole question being the eon-struetion of an agreement, or written instrument, of which the court is the legitimate judge, although the verdict be set aside, the case will not be remanded for a new trial.
    The acts of the legislature, giving damages on protested bills and notes, only relate to those due by the drawers and endorsers, and is silent, in regard to those which are claimed from drawees and acceptors.
    But when damages are claimed by the drawer from the drawee, who was bound to honor the draft, the latter must indemnify the former for the damages resulting from the dishonor, i. e., whatever he has had to pay the holder.
    This is an action to recover from the defendants, the sum of two thousand six hundred and ninety dollars, for damages, interest and costs, on four protested bills of exchange, drawn by the plaintiffs on the defendants, in pursuance of a special agreement between them, according to a detailed statement annexed to the petition.
    The defendants pleaded a general denial.
    The tenor of the agreement, under which the bills of exchange in question were drawn, is set out in the opinion of the court, together with the several dates of the bills, and the correspondence between the parties, which was produced in evidence.
    The case was submitted to a jury in the District Court, who returned a verdict of thirty dollars and forty-three cents, for the plaintiffs, and from the judment rendered thereon, they appealed; having first made an unsuccessful attempt to obtain a new trial.

      De Armas, for the plaintiffs.

      Strawbridge, for the defendants,
    made the following points:
    1. Under no circumstances can the first item of the account be allowed. The draft was paid by the plaintiffs’ agent, and no damages were incurred. Nolte & Co. vs. Their Creditors. 7 Martin, N. S., 9.

      2. Whatever may have been the character of the first agreement entered into, on the 28th of May, 1833, the plaintiffs were notified that the agreement must end, and six months after they were notified, it had expired.
    3. A new arrangement was then made, by which it was expressly agreed, that each party must realize the funds in the hands of the other as they could. No more facilities in drawing were to be allowed.
    4. The draft in favor of Nicholson, drawn by the defendants, furnishes no proof of the understanding under the new agreement. It was drawn under the first arrangement, viz: October 25th, 1833; whereas the agreement did not expire until the 28th of November, and the new proposal was accepted on the 30th of November, 1833.
    5. The verdict of the jury is not to be disturbed.
   Martin, J.,

delivered the opinion of the court.

By a contract entered into, the 27th July, 1832, the defendants agreed :

1st. To transfer the stock of the plaintiffs, and pay the dividends thereon, free of charge, and receive the instal-ments in like manner; to negocíate and sell the sterling bills, remitted to them by the plaintiffs; to collect in Philadelphia, Maryland and Virginia, and many banks, in the East and West, free of charge ; to redeem the plaintiffs’ post and bank notes, payable in Philadelphia ; pay their checks, and if not in funds, discount to the amount of one hundred thousand dollars, from the paper they may have for collection. The plaintiffs agree to collect in the same manner, any bills or notes, which the defendants may remit to them on New-Orleans, Natchez and Mobile. On the 28th of May, 1833, the defendants informed the plaintiffs, their agency in receiving transfers of the plaintiffs’ stock, &c., had become so onerous, that the original contract could no longer be continued in force, unless the plaintiffs would consent to pay a yearly sum of one thousand dollars to the defendants, and on their refusing to do so, the defendants would avail themselves of a clause in the original contract, which authorized either party to put an end thereto, on giving six months’ notice. The plaintiffs consented to the allowance of one thousand dollars, required by the defendants, on condition that the exchange sent to the plaintiffs for collection, should not, as before, be considered as a set-off against any exchange the plaintiffs may forward to the defendants for collection; each of the parties adopting to get their funds, such measures as they may respectively think fit. On the 30th of November, 1833, the defendants declared their acquiescence to the proposition of the plaintiffs. The plaintiffs afterwards drew four bills on the defendants, which were protested; and the present action is brought to obtain compensation for the injury sustained by the plaintiffs, in consequence of the return of those bills. The defendants pleaded the general issue. The plaintiffs had a verdict and judgment for thirty dollars and forty-three cents, and they appealed. Our learned brother, in the District Court, has not favored us with any of the reasons on which the judgment is founded, except the finding of the jury. He overruled a motion for a new trial, claimed on the ground that the verdict of the jury was contrary to law and evidence. The record shows that the bills were drawn and protested, and that one of them was paid by a friend of the plaintiffs, for their honor. The counsel for the defendants and appellees has contended, that as to the bill which was thus paid, the plaintiffs have sustained no damage.

2d. That whatever may be the character of the first agreement, the plaintiffs were informed that it must end six months after they were notified. An arrangement was then made, by which it was expressly agreed, that each party must realize the fund in the hands of the other as they could. No more facilities in drawing.

3d. A draft of the defendants on the plaintiffs, of the 25th October, 1833, furnishes no proof of the understanding, under the new agreement; it was drawn under the first arrangement; whereas the old agreement did not not expire until the 28th of November, and the new proposal was acccepted on the 30th.

is^aid6 lupm protest, for the honor oi the drawer, he can they drawee*the costs of protest for non-aceept-anee.

Where an agreement contains a dissolving condition, onno-tice given by one of the parties, and before the expiration of the notice, the other desiring to continue it, proposes some new modifications, which are accepted by the two days after soive°hacf expired: Held, that this-was a ■waiver oí his right of agreement^an end, and that he bills drawn in uífderMagree-’ ment

«nflie drawee to payacAecíjanda are the same: re°quest°fwmnthe .drawer to the drawee, to pay a sum of money to in * whose 6favor the check or bill is drawn.

I. It is clear, that as to the bill which was paid for the honor of the' plaintiffs, they are entitled to no damages, except the costs of the protest for non-acceptance, if the hill was Paid suPra protest.

11. On the 14th of November, 1833, the plaintiffs informed . * the defendants of their assent to the demand of the defendant, °f their allowance of a yearly sum- of one thousand dollars, This assent, however, was burthened with a condition, 7 7 7 which would have authorized the defendants to consider the original agreement at an end, on the 28th of the same month. They do not appear to have done so ; for the two days after, to wit: on the 30th of November, they informed the plaintiffs, that the condition under which the assent was given, formed no obstacle to its acceptance. The defendants thereby waived the right which they had, of considering the original agreement at an end.

III. It is clear, that the draft of the 25th of October, 1833, drawn before the expiration of the six months, which-followed the declaration of the defendants, of their wish to atmul the agreement, was correctly drawn under it.

It appers to us, that the protested bills having been drawn, • . .. . „ , „ after the plaintiffs had received notice of the acceptance of their assent, with the condition they had annexed thereto, were correctly drawn on the original agreement, which the acquiescence of the defendants authorized them to consider as still in force, except in that part of it referred to in the condition. By this agreement the defendants undertook to redeem the plaintiffs’ post and bank notes payable in Philadelphia, pay their checks, and if not in funds, discount to the amount of one hundred thousand dollars, from the paper they may have for collection.

We are unable to discover anv difference between the . * tw, obligation to pay a check or a hill of exchange. Both contain a request from the drawer to the drawee, to pay a sum of money to the person in whose favor the check or bill is J r drawn. A check drawn in New-Orleans, on London, would, in our opinion, be a foreign bill. It remains to be considered, whether the condition annexed to the assent of the plaintiffs, modified the agreement, so as to absolve the defendants from the obligation of paying the plaintiffs’ drafts. This condition was, that the exchange sent by either party to the other, would not, as before, be considered as a set-off against any exchange forwarded by the other. This relates only to,moneys of either party collected by the other. No question of fact arising in this case, and the sole question being in regard to the proper construction of the agreement, of which a court is the legitimate judge, we have thought .it our duty to forbear remanding the case for a new trial. On the merits, we are of opinion, that the defendants were bound to pay the drafts. The act of our legislature, which fixes the damages on protested bills of exchange, speaks only of those due by drawers and endorsers. It is silent with regard to those which are claimed from drawees. When damages are claimed from the latter by the holder, there may be some difficulty in assessing them ; but when they are claimed by the drawer from a drawee, who was bound to honor the draft, it is clear that the latter must indemnify the former, for the damages resulting from the dishonor, i. e., whatever he is legally bound for to the holder.

When there is no question of fact, and the sole question being the construction of an agreement or written instrument, of., which the court is the legitimate judge, although the verdict he set aside, the case will not be remanded for a new trial.

The acts of the legislature giving damages on protested bills and notes, only relate to those due by drawers and endorsers, and is silent in regard to those which are claimed from drawees and acceptors.

But where damages are claimed by the drawer from the drawee, who was bound draft, °th°e latter Jhe^former'"!^ the damages re-dishonor,°T* e? *t‘^ holder,

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed, and proceeding to give such a judgment, as in our opinion, ought to have been given below; it is ordered, adjudged and decreed, that the plaintiffs recover from the defendants the sum of one thousand and sixty-three dollars and seventy-one cents, with costs in both courts.


text:
    CONWAY vs. WILLIAMS’ ADMINISTRATOR.
    Eastekn Dist.

      February, 1837.

    APPEAL FROM THE COURT OF PROBATES, FOR THE PARISH OF WEST FELICIANA. ‘
    A loose acknowledgment to a third person by the maker of a note, that he was indebted to the holder of it, but not made in his presence, is insufficient to interrupt prescription, or take the case out of it when it has been completed.
    The acknowledgment, in order to interrupt prescription, must be specific. An acknowledgment of the debt.
    This is an action on two promissory notes, executed by James Williams, in his life time, tó wit: August 14th, 1824, for one thousand two hundred and three dollars and seventy-five cents, each ; one payable the 1st of January, 1827, and the other the 1st of January, 1828.
    The defendant, as administrator, refused to allow and pay the notes when presented; and to this suit opposed the prescription of five years.
    The evidence showed that the notes became due in 1827-8. Williams died in December, 1834, and no suit was ever instituted against him by the plaintiff, who is the payee, and always was, and still is, the holder of them.
    Wederstrandt, a witness' for plaintiff, deposed that he Icnew the parties to this suit, and that Williams purchased his plantation from the plaintiff. That in a conversation with witness, a short time before his death, Williams acknowledged that “ he was indebted to the plaintiff,” and said, Cf I owe Mr. Conway yet.” Witness did not understand for what object Williams was indebted to Conway, but he presumed it was for the price of the plantation he had bought from the latter. Another, witness deposed to circumstances, going to show that the notes sued on were given for a plantation and slaves Williams purchased from plaintiff.

      kn^vie°igment°’ to «third person aWte^thaThe iheVoTtoof it° but not made in his presence, is insufficient to in-fon^teketlié ci\sa P1? °f ;t, when it has been compieted.
    The judge of probates sustained the plea of prescription, and gave judgment for the defendant. The plaintiff appealed. í 1 ,

      Bradford, for the plaintiff.
    The judgment of the court below ought to be reversed, and judgment rendered in this court in favor of the appellant, on the following grounds:
    1. That from . the evidence, it is clear that the notes given by Williams to the plaintiff, was for a tract of land and slaves, and that prescription ran against them before the death of Williams.
    2. It is equally evident from the evidence, that a short time before the death of Williams, he acknowledged his indebtedness, and expressed bis anxiety to have it paid.
    3. The acknowledgment of Williams to Wederstrandt, interrupted prescription. Louisiana Code, 3486.

      Boyle, contra.

    1. The defendant being sued as administrator, was bound to plead prescription, the time for prescribing the notes sued on, having clearly elapsed.
    2. The acknowledgments relied on to interrupt prescription, are entirely too vague to have this effect. They do not show any acknowledgment of the debt.
   Bullard, J.,

delivered the opinion of the court.

This is an action by the holder of two promissory notes, against the estate of the maker. The administrator pleads the prescription of five years. Both notes had been due more than five years before suit was brought, and the plea of prescription must prevail, unless it be shown to have been interrupted by an acknowledgment of the debt by the maker.

The evidence on this point is extremely vague. The wit- , • , , . , , . .„ ness wno testifies to a loose conversation between himself and Williams, the maker, out of the presence of the plaintiff, does not pretend that any particular debt or amount was . . ^ 1 spoken of, but merely that Williams said he was indebted to the plaintiff. We are of opinion, that the acknowledgment of a debt, in order to interrupt prescription, must be specific, an acknowledgment of the debt. Louisiana Code, 3486, 3516, 3517, 3518. 3 Louisiana Reports, 362.

The acknowledgment, in order to interrupt prescription, must be specific, an acknowledg-mentoftlie debt.

The plea of prescription was properly sustained. It is, therefore, ordered, that the judgment of the Court of Probates be affirmed, with costs.


text:
    CHIASSON ET AL. vs. DUPLANTIER.
    Eastern Dist.
    February, 1837.
    APPEAL FROM THE COURT OF THE FOURTH JUDICIAL DISTRICT, THE JUDGE OF THE SECOND PRESIDING.
    It is not proper ground for a direct action of nullity, against a judgment in the court by which it was rendered, that no law is referred to, or reasons adduced in its favor; and that it was rendered against the wife, on contracts entered into conjointly with her husband during marriage. These errors can only be examined on appeal.
    But if the wife be not authorized by her husband, or the judge, to appear in court, or stand in judgment, such judgment as may be rendered against her may be annulled by a direct action of nullity.
    Where the husband and wife are co-plaintiffs, or co-defendants, the husband’s authorization of the wife to appear in court, results from their joining, or being 'joined, in the same suit, even when he has no other interest than to assist her in asserting her rights.
    But where the husband and wife are sued jointly, and she is separated in property, the husband has no right to appear and file an answer for the .wife, as attorney, without her consent.

    This is an action of nullity, to set aside and annul a judgment of the District Court, on various grounds set forth in the opinion of the court, delivered by Judge Bullard.
    The plaintiffs allege, that they are the heirs and legal representatives of one Julia Sharp, then wife of William Maddox, and that Fergus Duplantier, obtained a judgment against her of one thousand nine hundred and eighty dollars, on a contract made while she was a married woman. They as her heirs, (she being dead,) seek to set aside and annul this judgment, by action of nullity.
    The judgment sought to be annulled, was rendered in May, 1S33, and this suit was instituted in September, 1835.
    The defendant pleaded a general denial, and that the judgment attacked was res judicata.

    The district judge sustained the action, so far as the judgment attacked operated against the heirs of the deceased, Mrs. Julia Sharp, and annulled it, as regards her. From this judgment the defendant appealed.

      Edwards, for the plaintiff,
    made the following points in this case :
    1. A wife cannot appear in court, without the authority of the husband, or of the judge, or confess a judgment, or authorize another to confess for her. She cannot even alienate, grant, mortgage, or acquire, unless the husband concurs in the act, or yields his consent in writing. The testimony of the attorney proves, that at the time he was conducting the defence of the suit of Duplantier vs. Maddox and Wife, and at the time he confessed the judgment for the wife, Julia Sharp, her husband, Maddox, was absent from the state, and that he had no communication with'him. Louisiana Code, article 123, 124, and 1789. Code of Practice, article 118. 4 Louisiana Reports, 308. 8 Martin, JV*. S., 547.
    2. The said judgment is a nullity, because the judge assigns no reason, nor refers to any law, in rendering the same. Constitution of the State of Louisiana, Part. 4, section 12.
    3. The court should have permitted plaintiff’s counsel to show by parole testimony, that their ancestor, Julia Sharp, signed the contracts upon which the judgment was rendered, and now attacked, as security for her said husband, Maddox. 8 Martin, JV*. S., 693. 2 Martin, JV*. S., 39. 5 Martin, JV*. S., 431.

      4. The testimony of the attorney who defended the other suit, wag property received by the court, he having been the person that confessed judgment for the wife, could best pfove whether she was authorized or not, according to law.
    5. The action to annul a judgment, may be brought at any time, by a person not qualified to defend the suit, provided they did not suffer the judgment to be executed against them. Code of Practice, articles 606, 612.

      Ives, contra, contended,
    that the judgment below should be reversed, and one rendered in favor of the defendant, because the judgment sought to be annulled, had acquired the force of res judicata. 7 Martin, JST. S., 430-437. ■
    2. It was not necessary, in bringing suit originally against the wife, if her husband was absent, to obtain the authorization of the court. 4 Louisiana Reports, 259.
    3. But there is no legal evidence in the record to show that the husband was absent when the original judgment was rendered ; or, if absent, that he did not authorize the wife to defend the suit. The husband and wife were joined in the suit, and an attorney appeared for both.
    4. When the husband and wife join in bringing a suit, the fact of authorization, by the husband, of the wife to appear in court, is implied. So ought their joining in a defence, to imply his authority. Latoes, et al. vs. Chinn, , 4 Martin, N. S., 388.
    5. The judgment attacked in this case, was rendered on the confession of the party, and, no reasons or reference to any law were necessary. 2 Martin, N. >$., 32.
   Bullard, J.,

delivered the opinion of the court.

This is an action to annul a judgment, recovered by the appellant in 1833, against Julia Sharp, late wife of one Maddox, and the mother of the plaintiffs. The alleged grounds-of nullity, are : 1st. That the judgment was rendered against her, without her having been authorized by her husband, or by the judge, to appear in court, or to stand in judgment, as is expressly required by law. 2d. That said judgment was not rendered on confession, as it purports, the said Julia Sharp not being authorized to appear in court, and defend said suit, could not confer any legal power on the attorney at law to appear and confess judgment; and, if any such authority was given, it was without the consent of her husband. 3d. That the court which rendered the judgment refers to no law, and adduces no reasons. 4th. That it is null, inasmuch as it was rendered upon contracts entered into conjointly with her husband, during marriage, for a debt of the community.

11 is noí Pr°per ground tor a direct action of judgment in the ®ourt h? }vll,Cih that no law isre-reasons adduced [{¡au/was^en-dered^ against tracts ’entered tand_ during marrin&c. Tfhcs© errors can only apPea]>mine<1 on

But if the wife be not authorized by her hus-^'appear In 00urt or sland in judgment,such judgment as may against he"?may be annulled by a direct action oi nullity.

To this the defendant answers by a general denial, and J ° further pleads the authority of the thing adjudged in a former suit between the same parties.

The third and fourth alleged nullities do not form proper grounds for a direct action, to avoid a judgment brought before the same court by which it was rendered. They can be examined only on appeal. The fourth particularly involves the whole merits of the original suit, as relates to the liability of the defendant, under the contracts between the parties. The only question, therefore, which can be examined in this case, is, whether the wife was authorized to appear in’defence of the suit, stare in judíelo ; for if she was, it is immaterial whether the judgment was entered, by consent, on obtaining a stay of execution, or after a full trial , . , . „ . . . . ¶ , . _ upon the merits; and, it she was not, either by her husband or the court, the judgment may be annulled. Code of Practice, 606.

.. . . . In the original suit, the wife was sued jointly with her husband, to enforce a contract entered into by both, and the same attorney at law put in an answer to the merits, in the mi i i . . . • name of both. The husband and wife joined in the defence, and, on the part of the wife, the validity of the contract was expressly and formally put in issue. Subsequently, a judgment was rendered in favor of the plaintiff, with a stay of execution, until the 1st of January, 1834, and as is recited in the judgment, upon the confession of the defendants, by their attorney.

Where the •wife _ ave co-defendants.1 the rization SofUtthé wife to appear in court, results from their join-joined01' instile same su.it, even when he has no other interest, in^ssertíngher rights.

A married woman, not separated from bed and board, is, unquestionably, incapable of contracting, or of appearing, as a party in judicial proceedings, without the authorization of her husband, or, in case of his absence or interdiction, that of the judge. • In matters of contract, the concurrence of the husband in the same act or contract', is considered, by necessary implication, as sufficient evidence of authorization to the wife. Whether the same principle applies, in relation to judicial proceedings, when both husband and wife are sued, and join in their defence to the action, we are called on jn this case, to consider and decide. In the case of Lawes, et al. vs. Chinn, 4 Martin, N. S., 388, this court held, that the husband and wife, being co-plaintiffs, his authoriza-^on to her °learty resulted from his joining in the suit, in which he had no other interest than to assist her in asserting . . . T , , t n „ , . . her right. In the present case she was co-defendant with her husband, and it is difficult to perceive any difference in principle between the cases. In the first, she became a party . . , . ... . J by petition ; m the last, by citation and answer. The same attorney, who was authorized by the husband to "put in an answer for both, was necessarily empowered to represent the wife. In this case, it is true, the husband, who had bound himself by the same contract, had interests to defend, distinct from those of the wife. But it is also true, that the answer was applicable to both.

In France, under a legislation, identical, in this respect with ours, this question has been repeatedly solved by the highest judicial authority. The Court of Cassation has decided, that the husband, who appears as a party (quiplaide) jointly with his wife, is, by that alone, presumed to have authorized her ; that, in such a case, it is not necessary the judgment should» express, formally, that the wife was authorized; that, even in a case where the wife has interests distinct from the husband, she will be held to be sufficiently authorized, when she proceeds or does any judicial act jointly with him ; but that the authorization is not implied when both are sued, and the husband makes default, but is confined to the cases where the husband appears. Sirey 8, 1, 526; Ibid. 7, 2, 790; Ibid. 14, 2, 211; Ibid. 28, 1, 208; Ibid. 29, 1, 240; Ibid. 11, 1, 344.

But where the husband and wife are sued ]sUsep’a¿tfdS^n right to appear swer^for " the wife,as attorney, sent,

The case of Dugat vs. Markam et al, 2 Louisiana Reports, 29, which appears to have been relied on, is essentially different from this. The court held, in that case, that the . , • i i husband had no right to appear and hie an answer, as attorney for his wife, without her consent, when they are sued jointly, and she is separated in property. In the present case, the wife did consent, and it is expressly shown that the attorney acted under her immediate instructions. We must presume that the attorney had the husband’s authority to appear for him in the same suit. That authority appears never to have been disputed by him, and could not be disproved in this case, as he who had alone an interest in contesting it, has acquiesced in the judgment, and is not a party.

The only question is, whether he authorized his wife to appear, and we are of opinion, that by appearing himself, and defending the suit, in which he was co-defendant with his wife, his authorization is sufficiently shown.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed, and ours is for the defendant, with costs in both courts.


text:
    DE ARMAS vs. GRAY ET AL.
    Eastern Dist.

      February, 1837.
    APPEAL PROM THE PARISH COURT FOR THE TARISH AND CITY OF NEW-ORLEANS.
    An allegation, that the defendant sold to the plaintiff a house, with warranty, and that a pari of it had fallen in ruins, on account of the badness of its construction, sets forth a a cause of action, sufficient to authorize a recovery.

      Where there is a. defect in the wall of a house, which is not declared, and is not apparent, the vendee will be entitled to a diminution of the price, proportionate to the injury sustained, if soon after the sale the wall falls in ruins.
    The vendors of a house, cannot invoke prescription against an action which demands of them a diminution in price, on account of the defectiveness of the wall, when the vice was known to them, but which they failed to disclose to their vendee.
    The correct standard by which to ascertain the diminution of price is, the costs of repair.

    Damages for a frivolous appeal, will not be allowed, when from the circumstances of the case, it cannot be supposed the sole object in appealing, was delay.
    This is ■ an action for the diminution of •price in the purchase of a house, on account of the defectiveness of its walls. The plaintiff alleges, that on the 7th of September, 1835, he purchased a brick house and lot, in the city of New-Orleans, from the defendants, Gray, Darrive & Co., with full warranty; and that since the said sale to him, part of the walls of the house has fallen in ruins, on" account of the badness of the construction, by which he has sustained a diminution in the value thereof, to the amount of three thousand six hundred dollars, the sum, it is estimated, will be required to repair it; and for which he prays judgment.
    The defendants pleaded a general denial, and further averred, that any falling of the walls of said house was occasioned through accident, or by a fortuitous event, for which they are not liable. They pray that the plaintiff’s demand be rejected. They further aver, that they purchased said house and lot of Haines & Geddes, in 1834, who are responsible to them, and whom they cite in warranty; and pray, that if judgment be rendered against them, that they have judgment over against their warrantors.
    The warrantors denied that they were responsible, the sale having been made in good faith and without warranty against casualties which might accrue, to impair the value of the property. They farther deny, that the plaintiff has exhibited any cause of action, or that they are responsible in any manner. They plead prescription to the plaintiff’s demand.
    Upon these pleadings and issues, the parties went to trial. Some parole evidence was produced, which is recapitulated in the following judgment, rendered by the parish judge.
    “ The court, after carefully weighing the evidence and the arguments of counsel, considering :
    1st. That it is in evidence, that the defect which has been the cause of the falling down of the wall of the house sold by the defendants, Gray, Durrive & Co., to plaintiff, existed at the time of the sale, and in fact, that it was a vice in the construction of said wall.
    2d. That the vice was not an apparent one, but, on the contrary, is proven to have been concealed by means of planks laid against the wall.
    3d. That the vice appears to have existed to the knowledge of the defendants, Gray, Durrive & Co., who did not declare it to the plaintiff in their bill of sale.
    4th. That the action for a diminution of price, lies in a case like the present, inasmuch as the vice complained of was one inherent in the thing sold, and not a casual or transient evil or inconvenience, and therefore comes well within the purview of the 2519th article of the Louisiana Code.
    5th. That the grounds just stated, as establishing the liability of the original defendants, Gray, Durrive & Co., to plaintiff, likewise exist according to the evidence, to render the defendants in warranty, Haines & Geddes, liable to said original defendants, Gray, Durrive & Co.
    6th. That the plea of prescription set up by Haines & Geddes cannot avail them, inasmuch as it is in evidence, that they knew of the vice of the wall, and did not declare it.. Louisiana Code, 2524.
    7th. That it is admitted by all parties, that the walls, and other works, which have been rendered necessary, in order to remedy the accident occasioned by the defect, in the construction of the house, cost three thousand six hundred dollars.”
    An allegation, that the defendant sold to the plaintiff a house, ■with warranty, and that a part of it had fallen in ruins, on account of the badness of its construction, sets forth a came of ttf'authorize^a

      Judgment for this sum was rendered in favor of the plaintiff against the defendants, and in favor of the latter against the warrantors. The defendants and warrantors appealed.

      Pichot, for the plaintiff.

      Ho a, for the defendants.

      Worthington, for the warrantors,
    opposed a recovery:
    1. Because there is no cause of action laid in the petition, to entitle the plaintiffs to recover.
    2. Because the testimony shows that there was no such redhibitory defect in the thing sold, as will entitle the plaintiff to judgment.
    3. Prescription applies, when all parties are equally informed of the condition of the object of sale.
   Bullard, J.,

delivered the opinion Of the court.

The plaintiff claims of the original defendants, as his vendors and warrantors, a diminution of price of a house purchased from them, on account of a latent defect in one of the walls, in consequence of which it is alledged the house fell. The original defendants cited in as warrantors, their vendors, Haines & Geddes, and all the parties are before this court, by an appeal from a judgment, condemning Gray, Durrive & Co. to pay the costs of repair, and Haines & Geddes to re-imburse to them that amount, With the costs Of suit.

The counsel of Haines and Geddes contends, that the court below erred: 1st, because there is no cause of action laid in the petition, to entitle the plaintiff to recover, 2d, because the testimony shows that there was no such redhibitory defect in the thing sold, as will entitle the plaintiff to judgment: 3d, prescription applies, when all parties were equally informed of the condition of the object of sale.

is a defect in the ^hich hfnoTdei apparent1*11Sthe ve"cJ]ee(j £e minution of the j?o'“t’e jury sustained^¡f sale the wails fall

vendors of a house cannot invoke prescrip-ti0n against an ^mandsoUhem a diminution in price, on account 0f the defective-"vhen^h^^vfce was known to they failed to to their

The colTC;ot standard by which to ascertion ^f/m'cef'is ^-rcosis re~

Damages for a wiu^not hePai-f°om*kecimim-stances of the supposed the sole object in appealing, was dd*y.

I. The petition alleges, that the defendants sold the house with full warranty, and that a part of it had fallen in ruins, on account of the badness of its construction. Taking these allegations as true, it appears to us a cause of action ° arc is set forth, and that the plaintiff would be entitled to recover, unless it should appear either that the defect of the wall had been declared at the time, or that it was apparent.

II. The evidence satisfies us, as it did the court of the first instance, that there was a defect in the wall, which entitles the plaintiff at least to a diminution of price. That defect was not declared at the time of sale, and in the absence of all proof of any fortuitous event or extraordinary cause, we tbink the court was warranted in conclusion that the house fell in consequence of that defect. The defect is shown not to have been apparent, but was concealed by planks, and the insufficiency of the foundation was not obvious.

T . , . . ... . III. I he plea of prescription cannot avaiL the warrantors. Haines & Geddes, it is shown, were informed of the probable insufficiency of the wall, which was an old one, to • ,1 , -i t ... i sustain the new building which was erected upon it. I he architect communicated to them his opinion to that effect, but they persisted in their plan, and when selling, they failed to disclose the defect. Louisiana Code, 2512.

The court below adopted, in our opinion, a correct standard in diminishing the price, to wit: the costs of ° 1 ’ repetir»

Gray, D arrive & Co., in their answer, claim damages agpinst the appellants for a frivolous appeal; although, we think they have no just cause of complaint, and are satisfied with the judgment, yet' the case is novel, and their counsel has presented their views of their legal rights, with so much ingenuity and plausibility, that we cannot suppose their sole object in prosecuting the appeal was delay.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


author: Marlin, J.,

text:
    RIKER vs. HIS CREDITORS.
    Eastern Dist.
    February, 1837.
    ATPEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    The Code of Practice, article 582, authorizes service of citation to be made on the attorney of the appellee, solely in cases when the latter resides out of the state.

      Absence from the state, of the appellee, does not authorize service of citation of appeal on his attorney.
    The Code of 582Ctauthoi-izes service of citation to be made on the attorney of the appellee, solely in cases mV/e/out ofUie state.
    the state,6of the noteUeaúthorizo service of dta-IiiTattorney.31 °n
    The attorney, appointed to represent the absent creditors in this case, took an appeal from a judgment of the District Court, dismissing his opposition to the proceedings of the insolvent and the creditors before the notary.
    The service of citation of appeal was made on the appellee, “by handing the same to H. Potts, Esq., his attorney, he (Riker) being absent from the state.”

      Potts, for the insolvent and appellee,
    moved to dismiss the appeal, on the ground that the citation was illegally served.

      Jackson, for the absent creditors,
    contended, that the insolvent had left the state, and no other service could be made than that stated in the sheriff’s return.
    2. The opposition should be sustained. Riker being a debtor in actual custody, could not take the benefit of the insolvent, laws, relating to voluntary surrenders. See act of 1S17, section 1. 2 Moreau’s Digest, 424. °

   Marlin, J.,

delivered the opinion of the court. *

The dismissal of the appeal is prayed for, on account of the irregularity of the service of the citation. The sheriff’s return is, “served on N. M. Riker, by handing a copy of cita-to P°tls> Esq., his attorney, he being absent from the state.” The Code of Practice, 582, authorizes the service on the attorney, solely in cases in which the appellee resides out of the state. Absence does not authorize it, when the party does not reside out of the state, for then, a copy of the citation must be left at his domicil; and it cannot be legally served on the attorney, or left at his domicil.

The appeal, therefore, must be dismissed.


text:
    BARRAGON vs. LOUISIANA STEAM TOW-BOAT COMPANY.
    BASTEnil Bist-

      February, 1837.
    APPEAL FROM THE COURT OP THE FIRST JUDICIAL DISTRICT.
    A tow-boat will not be liable for injury sustained by the collision of two ships she was about taking in tow, when the fault was in the manner the crew of one of the ships, which was dropping down stream, executed the mameuvre, and when the tow-boat was incapable of preventing the accident.
    The plaintiff alleges, that in July, 1835, the brig Fénix being ready for sea, engaged the defendant’s tow-boat, the Whale, to take her to the Balize; that said boat ordered a large ship, (Girard,) lying two tiers above the brig, to drop down, and take place on the larboard side of the tow-boat, and that, while performing this manoeuvre, the ship and steam-boat not having taken, in time, sufficient measures to check and make fast the Girard, the latter vessel fell astern of her, and finally drove broadside against the Fénix, and done her great injury, to the amount of four hundred and ninety-eight dollars and seventy-seven cents, for which he alleges the defendants are liable, and for which he prays judgment.
    The defendants admitted their corporate capacity, as alleged, and that they were the owners of the tow-boat Whale, at the time of the alleged accident; but deny all the other allegations, and especially any liability, &c.
    Upon these pleadings and issues, the parties went to trial before the court- A survey of the vessel, by the port wardens, was had, and their report produced in evidence. , Testimony was produced, showing the manner of the collision between the two vessels, from all of which the district judge concluded, that the accident, and injury sustained, was not by the fault of the defendants. Judgment being rendered in their favor, the plaintiff appealed.
    A tow-boat ■will not be liable for injurv sustained by the collision of two ships she was about taking In tow, when the fault was in the manner the crew of one of the . ships, which was dropping down stream, executed the manreuvre, and when the tow-boat was incapable of preventing the Accident.

      Canon, for the plaintiff.

      G. B. Duncan, contra.

   Bullard, J.,

delivered the opinion of the court.

This case has been submitted to us without argument on either side. It is an action for damages, alleged to have been occasioned by the fault of the defendants’ agent, while in the performance of a contract to tow a brig, belonging to the plaintiff, from the port of' New-Orleans to the Bafize. The immediate cause of the damage appears to have been this : The ship Girard, which was to have been towed at the samé time, while dropping down stream to get abreast of the brig, which had been placed a tier or two below, took a sudden sheer, and ran foul of the Fénix. The tow-boat had at first started to bring down the Girard, by force of steam; but, from an impression that she was aground, it was concluded to adopt a different course, and the Girard was ordered to drop down stream, along side of the Fénix. This change of manoeuvre cannot, in our opinion, be imputed to the defendants, as a fault for which they are liable in damages, inasmuch .as it appears to b,e quite common, and considered safe, to drop vessels down under such .circumstances. The fault seems to have been in .the manner in which the manoeuvre was executed by the crew of the Girard, at a time when the steam-boat was incapable of preventing the atcident. We, therefore, concur with the court below, in the conclusion that the defendants are not liable,

It is, therefore, ordered, adjudged and decreed, that the judgment of tbe District Court be affirmed, with costs.


author: Martin, J-,

text:
    MARLATT vs. LEVEE STEAM COTTON PRESS COMPANY.
    Eastern Dist.

      February, 1837.
    AI'PEAL FROM THE COURT OF THE FIRST JUDICIAL DISTRICT.
    A company or corporation, can only act through its president or other agents appointed, and its acts or duties which it undertakes to perform, are those of the company itself.
    Where a contract was made with the president or agent of an incorporated company to unload a boat, and she was taken possession of by the slaves of the company and sunk soon after, the latter will be liable for the injury or loss, unless they prove it was the result of some event or accident, not within their control.
    The proof of agency of an incorporated company, may be made by parole, when the witness swears he contracted with the president of the company by name; ahd he is not asked the ground of his knowledge, that this person was the president or agent; and there was no exception to this proof by parole, on the ground, that the authority of this agent ought to have been proven by writing, as a company could not appoint an agent by parole.
    This is an action to recover from the defendants the sum of seven hundred and fifty-four dollars * and thirty-seven cents, the value of a boat load of coal, which is alleged to have been sunk and lost through their negligence.
    The plaintiff alleges, that his agent contracted with the president of the Levee Cotton Press Company, to have a boat load of coal unloaded, for the price of forty dollars, and which was then lying at the levee, opposite the cotton press ; that said boat was delivered into the care and custody of the agents of said company, but owing to their neglect and carelessness, the boat sunk at night in the Mississippi, and both it and the cargo were totally lost, and for which the defendants are liable. He prays judgment for the sum of seven hundred and fifty-four dollars and thirty-seven cents, as the value of said boat, cargo and two cables.
    The defendants pleaded a general denial.

      Upon these pleading and issues, the cause was tried by a jury.
    C. Marlatt, plaintiff’s witness and brother, deposed, that he acted as agent of his brother, in the spring of 1835, and delivered the boat load of coal in question to the defendants, by agreement with their agent, Mr. Lepretre, the president of the company, to have it unloaded for forty dollars. The hands or slaves of the cotton press took charge of the boat, and while they had her in charge, she sunk. The plaintiff had made an agreement to deliver the coal to the defendants at fifty-six and a quarter cents per barrel, and that there were one thousand three hundred and fifty barrels in the boat when she sunk. The boat was worth ten dollars, and two cables fifteen dollars each. After deducting forty dollars, the price of unloading, the nett amount of the plaintiff’s claim was seven hundred and fifty-fpur dollars, for which he had a verdict and judgment. The defendants appealed.

      Carter, for the plaintiff.
    1. The testimony shows that the coal lost was intended for the use of the cotton press, to be used for their steam engines. The proof is positive, that the defendants, through their agent, the president of the company, agreed with the plaintiff’s agent to unload the boat load of coal for forty dollars.
    2. There is proof of delivery of the property to the defendants, and proof of its loss.
    . 3. The part of the article 2299 of the Louisiana Code, upon which the defendant relies, which exempts principals from the consequences of the acts of their agents, which they could not prevent, is not applicable to this case, because the defendants have not shown that the loss, for which the plaintiff seeks " to • recover against them, was suffered under such circumstances,' that they could not have prevented it. They have furnished no evidence to enable them to claim the benefit of the exception to the general principle jof law, invoked from the article of the Louisiana Code,'referred to. •
    A company or corporation, cay only act through its president or pointedf^ndTts °F du,ties takes to perform, company0itsein*
    4. The verdict of the jury, and the judgment of the court below, is in conformity to law, and the evidence given in J ° the case.

      Hoa, contra,

    contented that the judgment should be reversed, first, because the loss suffered by the plaintiff in this case, was not proved to be the result of any fault or negligence, on the part of these appellants.
    2. That the Levee Steam Cotton Press Company, cannot be made responsible for the acts of its agent, because it was not proved that such acts might have been prevented by the company, and that said company have not prevented them. Louisiana Code, article 2299. 8 Martin, JV*. S., 503. 5 Louisiana Reports, 463.
   Martin, J-,

delivered the opinion of the court.

The petition charges, that the defendants contracted with the plaintiffs’ agent to unload a boat load of coal, for a fixed price; that the boat was, for that purpose, delivered into their care and custody; and that through their carelessness and neglect, the boat and coal were sunk and destroyed, wherefore he prayed for damages.

The defendants pleaded the general issue. There was a verdict and judgment against them, and they appealed.

Our attention is first drawn to a bill of exceptions to the charge of the court, instructing the jury, that, if they believed that the defendants engaged, or contracted, as agents of the plaintiff, to take charge of, and unload the boat, and that it was delivered into the charge of the defendants, it is not necessary for plaintiff positively to prove negligence, but., after showing a delivery of the boat, it is incumbent on the defendants to show that the boat was not lost through any negligence on their part. That the Louisiana Code, article 2299, was the law of the land; but that the part of the ar-tide which exempts principals from the consequences of the acts of their agents, which they could not prevent, was contrary to general principles, and had, probably, been inserted inadvertently; but that the court did not think this article applied to the present case, because, no company can act, except through its president or other agents ; and in acts of ‘ ° , , ° , . this kind, the president, or other appointed administrator of the company, is the company itself, to all intents and purposes.

Where a contract was made ■with the president or agent of an incorporated compaay to unload a boat, and, she was taken possession of by the slaves of the company and sunk soon after, the latter will be liable for the injury or loss, unless they prove it was the result of some event or accident not within their control.

The proof of agency of an incorporated company, may be made by parole, when the witness swears he contracted with the president of the company by name ; and he is not asked the ground of his knowledge, that this person was the president or agent 5 and there was no exception to this proof by parole, on the ground that the authority of this agent ought to have been proven by writing, as a company could not appoint an agent by parole.

It does not appear to us that the charge is an erroneous one, although we do not concur in the opinion expressed therein, that the article of the Code referred to, was inserted inadvertently.

On the merits, the defendants, and appellant’s counsel has urged, that the loss was not proved to be the result of any fault in the defendants.

That the defendants were not liable, because it was not proven, that the loss might have been prevented by them, and that they did not prevent it.

It is in evidence that the boat was taken possession of by the slaves of the defendants, after the contract made with their agent, and by his order. The jury, therefore, correctly concluded, under the charge of the court, that the defendants were liable, unless they prove that the loss was the result of some event, not within their control.

With equal corred ness, and under the direction of the judge, the jury disregarded the second point of defence. In the argument before us, it was urged, that the plaintiff must fail, because he has not proven the authority of the person who acted in behalf of the defendants in making the contract on which the suit is brought.

The witness, who was the agent of the plaintiff in making the contract, has swdm that he made it with the agent of the'defendants, to wit: Mr. Lepretre, the president of the company. No attempt was made, by a cross-examination, to cause the witness to state the grounds of his knowledge of the agency of the person he contracted wilh. Neither was any exception made to the proof of this agency by parole, on the ground that the authority of this agent, ought to have been proven by writing, as a company could not appoint an agent by parole. It is also proven, that after this contract, the boat was taken possession of by the slaves of the defendants, and it must be presumed, with the consent of the person to whom the defendants have committed the charge of those slaves.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.


text:
    M'NEILL'S HEIRS vs. ELKINS' EXECUTOR ET AL.
    Eastern Dist,

      February, 1837.
    APPEAL FROM THE COUItT OF PROBATES FOR THE PARISH AND CITY OF NEW-ORLEANS.
    The Court of Probates is the proper tribunal, before which to institute all suits for demands against a succession, in the course of administration.
    So, where the creditors of an insolvent, set up claims against the estate of a deceased syndic, alleging that property of the ceding debtor came into his hands, and remains unaccounted for, the Court of Probates is bound to taire cognizance of the claim, and prevent the funds of the succession from being paid over, or taken from its jurisdiction, until the demand is litigated.
    The plaintiffs allege, that they are the legal heirs of Joseph M'Neill, deceased, who was a creditor of one Edward Brooks, of the city of New-Orleans, who made a surrender of his property, for the benefit of all his creditors, in the year 1813, and that John Poultney, Samuel Elkins, and Maunsel White, were appointed syndics. That Poultney died soon after, and Elkins died in 1835, leaving his estate principally to legatees, residing out of the state, who have sent an agent, duly authorized, to receive the same from his executor. The plaintiffs further allege, that said Elkins, in his lifetime, at sundry times, did receive and collect, in his capacity of syndic, large sums of money, belonging to the estate of said Brooks, amounting to more than ten thousand'dollars, and has never rendered any account of his syndicship, or filed any tableau of distribution of the funds of said estate. They allege, that the property and effects of Elkins’ succession has been sold, and they are apprehensive, that the proceeds will be carried out of the state. They, therefore,' pray, that the executor of Elkins’ succession, and the agent of his legatees, be ordered to render an account of the syndicship, &e., and pay over- any sum that may belong to Brooks’ estate, to them and the other creditors; and finally, that the executor and agent be ordered not to deliver, or pay any funds or other effects of said succession, until they give security, in an amount sufficient to cover any sum which may be found due to the creditors of Brooks’ insolvent estate.
    The executor pleaded, that he was ignorant of the matters seth forth in the petition, and required strict and legal proof thereof; and further averred, that_he had filed his account as executor, and this proceeding should have been commenced by way of opposition thereto.
    The counsel for the agent, pleaded an exception, that by-the plaintiff’s own showing, he could not maintain his suit, because there were other syndics, who should have been made co-defendants, before any responsibity would attach to Elkins.
    They further excepted to the jurisdiction of the Probate Court. Upon these pleadings and issues, the case was tried before the court. The judge of Probates, considering that no tableau had ever been filed by the syndics of Brooks’ creditors, and the concurso still pending before the District Court, he had no authority to interfere. Judgment was rendered, dismissing the petition, and the plaintiffs appealed.

      'Conrad, for the plaintiffs,
    insisted, that the judgment of ike Court of Probates was erroneous, and must be reversed.

      Worthington, for the agent of Elkins’ legatees,
    maintained that the Probate Court had no jurisdiction of the case, first, because tbe plaintiffs do not show that they are creditors of the estate of Samuel Elkins, in the sense'required by the Code of Practice, to confer jurisdiction.
    probates °isrtthe which To institute ail suits against asucces-p0°unr’se nistration. ,

      %. This court has no authority to order an account by one, or all of the syndics of the insolvent estate, of which the plaintiffs claim to be creditors.
    3. That this court could not homologate the account of the syndics, if it were presented, having no power over the concurso, which is still pending in the District Court.

      Strawbridge, for the executor.
   Martin, J.,

delivered the opinion of the court.

The plaintiffs state that their ancestor was creditor of Brooks, who made a cession of goods, on which Elkins was appointed syndic, and in that capacity received a large sum of money, which, at his death, remained unaccounted for in his hands. They pray that the executor may file an account of the syndicship, and pay over to the creditors of Brooks the balance due them by the testator ; and that in the meanwhile, the executor be enjoined from paying over the proceeds of the succession to the heirs, until they shall have given security, &c.

The defendants filed an exception to the jurisdiction of the court, which was sustained, and the plaintiffs appealed.

The judge of probates, was of opinion that as Brooks’ syndic had never filed any tableau, and the dividend coming to the plaintiffs is uncertain, the plaintiffs had no claim. This may be correct, and may authorize after a hearing, a judgment against the plaintiffs, but it cannot authorize the Court of Probates, in declining to take cognizance- of the case. The counsel for the appellees, has likened this case to one in the federal courts, in which the plaintiff must show his capacity of suing in that court, and the defendants’ liability to be sued therein; and when this is not shown, the plea to the jurisdiction will be sustained. He has urged, that the Court of Probates, being like the federal court, a court of limited jurisdiction, the plaintiff must show his capacity of suing there, to wit: that he is a creditor of the estate; and that in the present case, the plaintiffs have only shown that their ancestor was a creditor of Brooks, not of Elkins. The plaintiffs show, indeed, that their ancestor was a creditor of Brooks, and that the estate of the latter passed into the hands of Elkins, and remained in his hands unaccounted for. They, therefore, have an interest, in common with the other creditors of Brooks, in having the property surrendered, in the hands of Elkins, at his death, separated from his private property, and to prevent the surrender of it to the heirs of Elkins, who reside abroad, until they, or their agent, give security for its forthcoming. The plaintiffs, therefore, properly applied to the Court of Probates, before whom alone the executor was suable, in order that cautionary measures might be taken for the protection of their rights. It is useless for us now to inquire into the nature and extent of the relief, to which they are entitled, nor whether they may be required to make other persons parties; it suffices that the Court of Probates is the proper, indeed the only court, in which the relief they seek may be obtained, to authorize the conclusion that that court cannot decline to take cognizance of the case.

So, •where'' the creditors of an insolvent set up claims against the estate of a deceased syndic, alleging that property of the ceding debior came into his hands, and remained unaccounted for, the Court of Probates is bound to take cognizance of the claim, and prevent the funds of the succession from being paid over or taken from its jurisdiction, until the demand is litigated.

It is, therefore, ordered, adjudged and decreed, that the judgment of the Court of Probates, be annulled, avoided and reversed, the exception to its jurisdiction be overruled, and the case remanded for further procéedings according to law ; the defendants and appellees paying costs in this court.


text:
    MANY vs. PARMLY.
    Eastern Dist.

      February, 1837.

      APPEAL PROM THE PARISH COURT, POR THE PARISH AND CITY OP NEW-ORLEANS.
    Where the testimony is contradictory, on mere questions of fact, the verdict of the jury, when it is not apparently erroneous, will not be disturbed.
    This is an action against the defendant, for the sum of four hundred and thirty-one dollars, which is claimed as a balance on a written contract for carpenter’s work, and for extra work done on a house. The plaintiff alleges, that this sum is actually due to him, and that the defendant refuses to pay him, for which he prays judgment, with the builder’s privilege on the house, &c.
    The defendant admitted his written contract with the plaintiff, but averred, that the work which the latter contracted to do, was performed so unskilfully that he has suffered loss, having already paid the plaintiff a large sum, much more than the work done was worth. He denies that there was any extra work done. He claims five hundred dollars damages, in reconvention, and prays that the plaintiff’s demand be rejected.
    Upon this issue the cause was submitted to a jury, with the testimony introduced on both sides. A verdict was re-returned, allowing the plaintiff four hundred and twenty-one dollars, and from judgment rendered thereon the defendant appealed.

      Roselius, for the plaintiff.

      Chinn, for the defendant.
   Martin, J.,

delivered the opinion of the court.

The defendant resisted the plaintiff’s claim for work and labor done on his house, on an allegation of its having been so unskilfully executed that it is of no value. Tbe plaintiff jia(j a verdict and judgment, and the defendant appealed.

Wherethetes-timony is eon-mere quéstíous dícfof’thejury" when it is not apparently erroneous, will not be disturbed.

The case appears to us to turn on a single question of fact, to wit: whether the matter pleaded in defence has been established. No question of law is presented for our consideration.

The testimony is somewhat contradictory. The jury, however, have come to the conclusion, that the defendant t>as failed to establish his defence. On a close examination 0f the testimony, it does not appear to us that the jury erred. 1 L °

It is, therefore, ordered, adjudged and decreed that the judgment of the Parish Court be affirmed, with costs.